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test | 001-141636 | ENG | RUS | COMMITTEE | 2,014 | CASE OF MALYUGIN v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Erik Møse;Julia Laffranque;Khanlar Hajiyev | 6. The applicant was born in 1984 and lives in St Petersburg. 7. On 19 May 2006 the applicant was arrested on suspicion of organising a criminal gang and placed in the IVS, which, according to the applicant, was in a poor sanitary condition. 8. On the following day the applicant’s detention was authorised by domestic courts. It was regularly prolonged until his release (see paragraph 11 below). 9. On 1 June 2006 the applicant was transferred from the IVS to remand prison IZ-47/1 of St Petersburg, where he stayed until 19 May 2011. The facility was overcrowded. Thus, cell 81 measuring 8 sq. m was equipped with six sleeping places and accommodated up to six inmates; cell 104 measuring 8 sq. m was designed for six detainees and housed up to six individuals; finally, cell 907 measuring 8 sq. m presented six sleeping places and up to six persons who occupied them. 10. On an unspecified date the St Petersburg City Court commenced the examination of the case. From that date, in order to take part in the hearings, the applicant was regularly transported by prison van between the remand prison and the court premises. While in the courthouse, he was placed in a confinement cell. The applicant alleged that both the van and the cell had been overcrowded. 11. On 19 May 2011 the St Petersburg City Court ordered to release the applicant and on 14 June 2011 it acquitted him of all charges. | 1 |
test | 001-159607 | ENG | FRA | CHAMBER | 2,015 | CASE OF BONO v. FRANCE | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary | 5. The applicant was born in 1974 and lives in Paris. 6. The applicant is a lawyer at the Paris Bar. He acted for S.A. in criminal proceedings on a charge of criminal conspiracy for the preparation of an act of terrorism constituting one of the offences provided for in Article 421-1 of the Criminal Code. 7. In 2000 the domestic security and intelligence agency (Direction de la surveillance du territoire – the “DST”) sent an intelligence report to the Paris public prosecutor’s office stating that in Frankfurt the German police had dismantled a network of Islamist terrorists who were likely to be preparing attacks on French territory. In this context, one S.A., who was a suspect in criminal proceedings in France, was arrested in Damascus on 12 July 2003. The French authorities were apprised of this arrest on 18 July 2003. 8. On 1 April 2004 the investigating judges in charge of the case, in the “anti-terrorism” judicial investigation division of the Paris tribunal de grande instance, issued an international letter of request to the Syrian military authorities for the purpose of questioning S.A. 9. From 2 to 7 May 2004, one of the investigating judges, M.B., accompanied by members of the DST, went to Damascus for the execution of the letter of request. 10. During the questioning S.A. was allegedly tortured. 11. On 11 May 2004, after the file had been received in reply to the letter of request, the investigating judges issued an international arrest warrant. S.A. was extradited and remanded in custody on 17 June 2004. 12. By a decision of 15 December 2005 the investigating judge committed S.A. and two other persons to stand trial before the Paris Criminal Court on charges of participating in a criminal conspiracy for the preparation of an act of terrorism. Prior to that decision there had been no applications to the investigation division for the annulment of any investigative acts, neither by the lawyer previously assigned to S.A., nor by the prosecutor or the investigating judges ... Therefore, under Article 174 of the Code of Criminal Procedure, the parties were no longer entitled to raise grounds of nullity in respect of procedural acts or evidence, “except where they could not have been aware of [those grounds]”. 13. Before the Criminal Court the applicant requested in his written pleadings that documents that had been obtained, according to him, through torture by the Syrian secret services, be excluded from the file: the written “confession” of S.A., the report by the Syrian secret services dated 3 May 2004 and the interview records of 30 April and 2, 3, 4 and 5 May 2004. He alleged that there had been “complicity on the part of the French investigating judges in the use of torture against S.A. in Syria by military personnel of the secret service” (see, for details of these pleadings, their reproduction by the Paris Court of Appeal, paragraph 15 below). 14. In a judgment of 14 June 2006 the court excluded the documents obtained through the international letter of request and sentenced S.A. to nine years’ imprisonment. It took the view, in the light of statements by the Director of the World Organisation against Torture, a member of the French section of Amnesty International and the Secretary of the International Federation of Human Rights, called by S.A. as witnesses, and who were unanimous as to the almost systematic use of torture by the Syrian security bodies (since a military decree of 1963), that it was “likely that the statements made by S.A. in Syria, to the Palestine Section, had been given under torture, and that his confession had thus been obtained by this method”. The court continued as follows: “Moreover, in his report on his mission to Damascus for the execution of his international letter of request of 1 April 2004 ..., M.B., investigating judge (First Vice-President) in charge of the investigation, specified that at the first working meeting with Syrian intelligence officials, he was told that S.A. ‘had already been questioned on 30 April and 2 May 2004’ and that ‘his interviews were continuing on the basis of the list of questions contained in the international letter of request and additional questions which he [M.B.] wanted to be put, particularly in the light of the answers already recorded’. However, the judge stressed that he had ‘not been allowed to participate in the questioning of S.A. but only to follow it in real time’. On 4 and 5 May the questioning thus continued under the same conditions as the day before. For his part, S.A. emphasised that his entire interrogation had taken place without the French investigating judge being present. When presented to that judge on 17 June 2004 he indicated that he was ‘tired’, that he ‘wished to see a doctor immediately’, and that he was ‘worried about his wife and daughter’. He subsequently described his conditions of detention in Syria and the torture to which he had been subjected during the interrogation. As a result, the French investigating judge was not able to exercise any real control over the conditions in which S.A. was interrogated in Syria, even though he was being held in the ‘Palestine Section’, which was known to be a very harsh section, according to witnesses, in which many cases of torture had been reported. It is therefore almost certain that the admissions or ‘confession’ of S.A. were obtained under torture and must be excluded as evidence against him and his co-defendants. Accordingly, S.A.’s handwritten statement, his interview records from Syria and the report prepared by the Syrian secret services must be removed from the case file.” 15. S.A. appealed against the judgment. The applicant lodged with the Paris Court of Appeal his pleadings in defence of S.A., extending to more than eighty pages, at paragraph 5 of which he again sought the exclusion of the documents obtained under torture. To that end, he relied on Articles 3 and 6 of the Convention, as well as Articles 3 and 15 of the Convention against Torture of 10 December 1984, and referred to the reports of non-governmental organisations concerning the practice of torture in Syria and to the evidence taken at first instance. In particular, he wrote as follows: “Page 25: ‘it was thus blindly that the investigating judges did not want to try and avoid the torture to which Mr. [S.A.] was subjected in the hands of the Syrian secret services in Damascus.’ Page 47: ‘the French investigating judges allowed the Syrian secret services to torture [S.A.] without intervening, and it can even be shown that they promoted torture – this amounts to a judicial outsourcing of torture.’ Page 68, paragraph entitled: ‘Complicity of the French investigating judges in the use of the torture against Mr. [S.A.] in Syria by military personnel of the secret services’. Page 69: ‘The investigating judges, who had felt from the beginning of the proceedings that they should be brought against Mr. [S.A.], allowed torture to be used against him by military personnel of the Syrian secret services ... They chose to accept the outsourcing of torture.’ Page 70: ‘the international letter of request issued by the French investigating judges provides the Syrian secret service officers with the answers to be obtained from the questions to be asked: it encourages torture.’” 16. In a judgment of 22 May 2007 the Court of Appeal upheld S.A.’s conviction and sentenced him to ten years’ imprisonment, after excluding the documents in question: “the defendant’s statements, as they had been obtained in Syria, were included in documents whose lawfulness in terms of French procedural rules and the Convention could not be guaranteed”. It rejected the applicant’s submissions “relating to complicity in acts of torture committed by the investigating judges and the criticisms about the conduct of the judicial investigation” as being “prejudicial to the dignity of the investigating judges and without any basis or moderation”. The judgment of the Court of Appeal indicated that its president had asked the applicant “to moderate his remarks concerning the allegations of complicity on the part of the investigating judges in the use of the torture against S.A. (see p. 68 et seq. of the pleadings)”. 17. In a letter of 17 January 2008 the Chairman of the Paris Bar Association informed the public prosecutor at the Paris Court of Appeal, who had sent him a copy of the pleadings, that he did not intend to act upon this matter. 18. In a formal referral to the disciplinary body dated 4 February 2008, pursuant to Article 188 § 1 of the decree of 27 November 1991 concerning the organisation of the legal profession ... the public prosecutor asked that body to bring disciplinary proceedings against the applicant for disregarding the essential principles of honour, tactfulness and moderation governing the legal profession. He indicated the passages in the applicant’s pleadings which, in his view, had seriously impugned the honour of the investigating judges, namely the statements on pages 25, 47 and 68 to 70 (see paragraph 15 above). He pointed out that the criminal immunity for words spoken in court as provided for in section 41 of the Law of 29 July 1881 on the freedom of the press (“the 1881 Act”, ...) was not applicable in disciplinary matters. 19. In a decision of 30 September 2008 the Disciplinary Board of the Paris Bar Association dismissed all the charges against the applicant. It considered that his objective had been to ensure the removal from the case file of the documents which emanated from the Syrian authorities. It observed in this regard that although the practice of torture by the Syrian secret services was notorious, the investigating judges had failed to issue an international arrest warrant immediately but had, on the contrary, waited until 1 April 2004 to issue a letter of request to the Syrian military authorities, and “that letter was, according to S.A.’s lawyers, executed with astonishing speed”. It thus found that “it was on this basis and in support of the request for the exclusion from the case file of the documents from the Syrian authorities that [the applicant] called into question, in the terms for which he is reproached, the conduct of the investigating judges”. The Disciplinary Board further found that the applicant should benefit from judicial immunity in so far as the impugned remarks were not unrelated to the case. Relying on the case-law of the Court of Cassation on this point..., and on the protection under Article 10 of the Convention of the lawyer’s freedom of speech in court (referring to the judgment in Nikula v. Finland, no. 31611/96, ECHR 2002-II), it pointed out that the applicant’s impugned remarks did not constitute personal attacks on the judges, but sought to call into question the manner in which they had conducted the proceedings, and that the remarks were “obviously not unrelated to the facts of the case”. The disciplinary body finally pointed out that the applicant was justified in believing that the argument as to the procedural conduct of the investigating judges had not been without influence on the first-instance decision to exclude the Syrian statements from the case file and that he had been justified in using these arguments before the Court of Appeal, irrespective of their vitriol, whereas the raising of this issue in the court below had not even led to any reaction on the part of the prosecution. 20. On 3 October 2008 the Principal Public Prosecutor appealed against that decision. 21. In a judgment of 25 June 2009 the Paris Court of Appeal quashed the decision of the Bar Association and issued the applicant with a reprimand accompanied by disqualification from professional bodies for a period of five years. The Court of Appeal observed that the immunity of the courtroom could not be invoked in disciplinary matters. Stressing that lawyers’ freedom of expression was not absolute, it took the view that the remarks at issue were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of S.A.’s statements during his interrogation, they also called into question the moral integrity of the investigating judges at a personal level. It found that the applicant “had visibly sought to ‘do as he pleased’ even to the extent of harming his client (whose sentence was extended by a year by the Court of Appeal)”. The court took the view that the accusation of complicity had been pointless in relation to the interests of his client, and gratuitous, since the judges had mentioned in a mission report the difficulties they had encountered with the Syrian authorities, who had prevented them from attending the interviews (see paragraph 14 above). The Court of Appeal pointed out that the documents in question had been excluded by the court below and that “there was no need for [the applicant], in the interest of S.A., to claim without any proof that the French investigating judges had been complicit in the torture of S.A.”. It concluded that the attacks were not proportionate to the aim pursued and that the impugned remarks constituted a breach of the essential principles of the legal profession, namely dignity, honour, tactfulness and moderation. 22. The applicant lodged an appeal on points of law. The Chairman of the Paris Bar Association did likewise. In his grounds of appeal, the applicant relied in particular on Articles 6 and 10 of the Convention to argue that the immunity provided for by the 1881 Act was applicable in disciplinary proceedings. He also pointed out that the fact of denouncing the shortcomings of the justice system on the basis of a letter of request issued to the Syrian secret services had been necessary for his client’s defence, and such denunciation could not be considered as a disciplinary offence given the absolute nature of the prohibition of torture. 23. In a judgment of 14 October 2010 the Court of Cassation declared inadmissible the appeal by the Chairman of the Bar Association on the ground that he was not a party to the proceedings. As to the applicant’s appeal on points of law, it was rejected in the following terms: “However, firstly, the judgment states precisely that the provisions of sections 41 and 65 of the Law of 29 July 1881 are not applicable in disciplinary matters. Having rightly observed that, while the lawyer has the right to criticise the functioning of the justice system or the conduct of a particular judge, his freedom of expression is not absolute because it is subject to restrictions which derive, in particular, from the need to protect the reputation or rights of others and to maintain the authority and impartiality of the judiciary, the Court of Appeal found that the offending remarks were not merely intended to criticise the conduct of the judicial investigation and challenge the validity of statements made by the suspect during interviews conducted for the execution of the international letter of request issued by the French investigating judges, but personally impugned the moral integrity of those judges, accusing them of deliberately promoting the use of torture and of being actively complicit in the ill-treatment inflicted by the Syrian investigators. Having noted that these serious accusations were both pointless in relation to the client’s interests and gratuitous, since the judges, in the report of their mission to Damascus, had described the difficulties they had encountered with the Syrian authorities, who had refused to allow them to attend the interviews, the court rightly inferred that the offending remarks did not fall under the protection of freedom of expression, but breached the principles of honour and tactfulness. On those grounds, without there being any lack of impartiality or any breach of the principle of the presumption of innocence, it legally justified its decision to impose on the lawyer a mere reprimand together with a temporary disqualification from membership of professional bodies and councils; ...” ... | 1 |
test | 001-151005 | ENG | GBR | COMMITTEE | 2,015 | CASE OF McHUGH AND OTHERS v. THE UNITED KINGDOM | 4 | Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote) | Nona Tsotsoria;Päivi Hirvelä | 5. The applicants were all incarcerated at the relevant time following criminal convictions for a variety of offences. They were automatically prevented from voting, pursuant to primary legislation, in one or more of the following elections: elections to the European Parliament on 4 June 2009; the parliamentary election on 6 May 2010; and elections to the Scottish Parliament, the Welsh Assembly or the Northern Irish Assembly on 5 May 2011 (for further details see the appended table). | 1 |
test | 001-163464 | ENG | SRB | ADMISSIBILITY | 2,016 | LAZAROV v. SERBIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 1. The applicants, Mr Antal Lazarov and Ms Irena Lazarov, were Serbian nationals, who were born in 1928 and 1929 respectively and lived in Pančevo. They were represented before the Court by Ms M. Bosilj, a lawyer practising in Pančevo. Mr and Ms Lazarov died on 3 April 2011 and 9 December 2011 respectively. 2. On 3 August 2012 the applicants’ daughter, Ms Elizabeta Đurić, informed the Registry that she wished to pursue the case before the Court. She also informed the Court that she wished to be represented by Ms M. Bosilj and submitted a power of attorney to that effect. 3. The Government did not contest that request. 4. Given the fact that Ms Elizabeta Đurić has a “definite pecuniary interest” in the proceedings in issue (see, mutatis mutandis, Mijanović v. Montenegro, no. 19580/06, § 55, 17 September 2013, and Marčić and Others v. Serbia, no. 17556/05, §§ 35-39, 30 October 2007), the Court finds that she has standing to proceed in her parents’ stead. Although Ms Đurić is therefore now the applicant, the Court will continue to refer to the late Mr and Ms Lazarov as the applicants. 5. The Serbian Government (“the Government”) were represented by their Agent at the time, Mr S. Carić. summarised as follows. 7. The applicants owned a house in Pančevo measuring 78.41 square metres and a plot of land next to it. 8. On 14 October 1976 the applicants entered into an agreement (sporazum) with the Municipality of Pančevo (“the Municipality”). Under the agreement, they agreed to the expropriation of their house and the adjacent plot of land, while the Municipality undertook to provide them with a comfortable flat with two separate rooms (dvosoban komforan stan) in the Tesla neighbourhood of Pančevo and 635,000 Serbian dinars (RSD). RSD 555,000 was paid immediately, while another RSD 80,000 was to be paid after the Municipality took possession of the house. 9. On 14 December 1976 the Municipal Secretariat for Housing and Communal Affairs and Urbanism issued a decision expropriating the house and transferring it into social ownership. The applicants continued to live in the house while the adjacent plot of land was used for the construction of an apartment building. 10. As the Municipality had failed to provide them with an appropriate flat, on 24 March 1979 the applicants filed a civil action against it, requesting to have an appropriate flat allocated to them or to be paid compensation for their house. 11. By 1982 an apartment building had been built next to the applicants’ house. On an unspecified date in 1982 the Municipality offered them a flat in the complex, which measured 52.25 square metres. The applicants refused to move into the apartment, as they considered it unsuitable. 12. On 13 October 1982 an expert appointed by the Municipality found that both the house in which the applicants were living and the flat which the Municipality was offering were comfortable, but that the house, being bigger, was a more suitable home. 13. The Municipality does not appear to have ever suggested any other form of compensation. 14. The applicants continued to live in the house. The change of ownership was not registered with the land registry. 15. The facts of the case, as submitted by the Government, may be summarised as follows. 16. On 9 May 1979 the applicants withdrew their civil action against the Municipality, and the proceedings formally ended on 14 May 1979. 17. On 9 February 1995 the applicants filed another civil action against the Municipality, requesting the RSD 80,000 and that a sixty-square-metre flat with two separate rooms be allocated to them. 18. On 21 February 1996 the applicants withdrew their civil action again. 19. On 9 March 1998 the applicants entered into a new agreement with the Municipality. Under this agreement, the applicants were registered as the occupiers of the house in which they lived, and the Municipality was registered as the sole occupier of the plot of land on which the apartment building had been constructed. 20. The Government submitted that this agreement had settled the dispute between the applicants and the Municipality, and that the 1976 expropriation order was no longer effective. | 0 |
test | 001-142430 | ENG | RUS | CHAMBER | 2,014 | CASE OF GAYRATBEK SALIYEV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Conditional) (Kyrgyzstan);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 6. The applicant was born in 1988 and lives in the village of Suzak, situated in the Jalal-Abad Region of Kyrgyzstan. He is currently staying in Krasnoarmeysk, the Moscow Region, Russia, where he is subject to a measure of restraint applied in the course of extradition proceedings. 7. The applicant is an ethnic Uzbek. 8. In June 2010 inter-ethnic violence between Kyrgyz and Uzbek groups broke out in the southern areas of Kyrgyzstan, including the city of Osh and the Jalal-Abad Region. The applicant claimed not to have taken part in any violent actions. He left Kyrgyzstan for Russia, allegedly fleeing ethnically motivated violence. It appears that his next-of-kin remain in the country. 9. In July 2010 the applicant arrived in Russia. In 2010 and 2011 he did not lodge any applications for refugee status or temporary asylum. By a final judgment of 16 September 2011 the Moscow Meshchanskiy District Court (“the Meshchanskiy court”) convicted the applicant of robbery. The applicant served a prison term and was released on 19 January 2012. 10. In the meantime, on 24 August 2010 the Osh Region Prosecutor’s Office (Kyrgyzstan) charged the applicant in absentia with a number of serious violent offences committed in June 2010 in the course of interethnic rioting in the village of Suzak. 11. On 25 August 2010 the Suzak District Court, the Jalal-Abad Region of Kyrgyzstan, ordered the applicant’s remand in custody. On an unspecified date the applicant’s name was placed on an international wanted list. 12. On 25 March 2012 the applicant was arrested by the Russian police while he was travelling by train in the Moscow region, on the basis that he was wanted in Kyrgyzstan. 13. On 26 March 2012 the transport prosecutor’s office for the MoscowYaroslavl railway (“the transport prosecutor’s office”) ordered the applicant’s remand in custody pending receipt of an extradition request pursuant to Article 61 of the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 1993 and on the basis of the Kyrgyz court’s decision of 25 August 2010. 14. On 18 April 2012 the Prosecutor General’s Office of Kyrgyzstan sent an official extradition request to their Russian counterparts. 15. On 25 April 2012 the transport prosecutor’s office again ordered the applicant’s remand in custody. 16. On 28 April 2012 the applicant sought refugee status in Russia. He claimed, among other things, that the criminal case against him had been opened exclusively because of his ethnic origin and that he would face a real risk of ill-treatment in Kyrgyzstan if returned there. He referred to reports by Human Rights Watch and Amnesty International. 17. On 10 May 2012 the applicant’s lawyer wrote to the Prosecutor General’s Office of Russia, indicating that extradition should be refused on account of the substantiated risk of ill-treatment in respect of the applicant in Kyrgyzstan. On 14 June 2012 the Prosecutor General’s Office of Russia replied that the above submissions would be taken into account in the decision-making process on the extradition request. 18. On 22 May 2012 the Meshchanskiy court extended the term of the applicant’s detention up to six months, that is to say, until 25 September 2012. On 4 June 2012 the Moscow City Court dismissed an appeal brought by the applicant and upheld the detention order. 19. By a decision of 21 August 2012 the Moscow Department of the Federal Migration Service of Russia (“Moscow migration authority”) refused to grant refugee status to the applicant. It held, in so far as relevant, as follows: “Mr Saliyev has based his refugee application in Russia on the allegations that in his country of nationality he would be persecuted by State agencies on [the basis of] fabricated criminal charges [brought] because of his ethnic origin. ... It is evident from the available materials that Mr Saliyev left his country of nationality for reasons which fall outside the scope of section 1(1)(1) of the Refugee Act, and that he does not wish to return to his country, fearing lawful prosecution for a criminal offence ... During his interview Mr Saliyev failed to refer to any facts capable of proving his persecution on the grounds of his ethnic origin. The Kyrgyz law-enforcement agencies ... do not have the specific purpose of persecuting Mr Saliyev because of his belonging to a particular social group, ethnic origin, religion or political views.” 20. On 21 September 2012 the Kyrgyz authorities issued an amended list of charges against the applicant, which included illegal use of firearms and other weapons, murder, robbery, destruction of property and involvement in rioting aggravated by ethnic hatred. 21. On 24 September 2012 the Meshchanskiy court extended the applicant’s detention until 25 December 2012 for the reason that an extradition check was underway. On 24 October 2012 the Moscow City Court dismissed the applicant’s appeal against the detention order of 24 September 2012. 22. On 4 October 2012 the Prosecutor General’s Office of Kyrgyzstan submitted a letter to their Russian counterparts, containing assurances that the applicant would benefit from legal assistance; would not be tortured or subjected to inhuman or degrading treatment; and the extradition request was related to ordinary criminal offences and was not aimed at persecuting the applicant on religious, political grounds or grounds relating to his ethnic origin. 23. On 22 October 2012 the Federal Migration Service of Russia (“FMS”) upheld the refusal to grant refugee status of 21 August 2012, without providing any detailed reasons. 24. On 25 December 2012 the Meshchanskiy court extended the applicant’s detention with a view to extradition until 25 March 2013. The applicant appealed on 27 December 2012. On the same date the case was transferred to the Moscow City Court, which received it on 25 January 2013. On 13 February 2013 the Moscow City Court upheld the detention order. 25. On 18 February 2013 the Moscow Basmannyy District Court (“the Basmannyy court”) upheld the FMS’s decision of 22 October 2012. The applicant appealed. 26. On 20 February 2013 the Deputy Prosecutor General of Kyrgyzstan amended the extradition request, stating that following the applicant’s extradition Russian diplomatic staff would be given an opportunity to visit him in the detention facility and that the applicant would not be subjected to torture, cruel, inhuman or degrading treatment or punishment, as prohibited by the 1984 UN Convention against Torture. 27. On 27 February 2013 the Deputy Prosecutor General of Russia granted the extradition request and ordered the applicant’s extradition, without making any findings on the issue of the risk of ill-treatment in the event of the applicant’s extradition. 28. The applicant appealed against the extradition order, claiming, in particular, that he would face risks of torture and ill-treatment since, according to various international reports, ethnic Uzbeks were a particularly vulnerable group following the June 2010 violence in the southern regions of Kyrgyzstan. 29. On 21 March 2013 the Moscow City Court examined the matter of the applicant’s continued detention and extended it until 25 September 2013. The applicant appealed on 25 March 2013. On the same date the case was transferred to the appeal section of the Moscow City Court, which received it on 29 April 2013. On 16 May 2013 the appeal section upheld the extension order. 30. In the meantime, on 28 March 2013 the Moscow City Court upheld the Basmannyy court’s judgment of 18 February 2013. 31. On 16 April 2013 the Moscow City Court examined the applicant’s appeal against the extradition order. The court heard Ms Ryabinina, the applicant’s representative before the Court, as a witness, and refused to examine a number of pieces of evidence adduced by the applicant in relation to his arguments regarding the risk of ill-treatment in Kyrgyzstan, in particular a number of reports from international organisations. By a judgment of the same date, the Moscow City Court upheld the extradition order in the following terms: “... The applicant’s arguments relating to persecution by the Kyrgyz authorities on the grounds of his nationality were examined and dismissed by the decision of 22 October 2012 concerning his application for refugee status. The above decision was upheld by the now final judgment of 18 February 2013 ... This court dismisses the argument concerning the issuing of the extradition order before the examination of the refusal to grant refugee status. As is clear from the materials concerning the extradition check procedure, [the applicant] lodged an application for refugee status after his arrest in Russia. Judicial review proceedings in respect of a refusal to grant such status do not impede the issuing of an extradition order ... The Prosecutor General’s Office of Kyrgyzstan guarantees that [the applicant] would be given all opportunities to defend himself, including legal assistance; that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment... In addition, the requesting country guarantees that following [the applicant’s] extradition Russian diplomatic officers would be afforded an opportunity to visit him in the detention facility in order to be satisfied that his rights are being respected, [and] that the principles of the equality of arms and the adversarial nature of court proceedings are being respected... The court dismisses as unfounded the arguments relating to inability for [the applicant to undergo] a medical examination or [have] confidential meetings with diplomatic officers ... It follows from Ms Ryabinina’s witness statement that she has not visited Kyrgyzstan since 2006 and was not present during the events of June 2010. Her knowledge of the current situation in Central Asia is based on reports by foreign human-rights organisations describing an imprecise group of people. ... The court dismisses as unproven the references to the findings made by the Russian Supreme Court and the European Court in individual cases or the references to the reports of international organisations assessing the general human-rights situation in Kyrgyzstan. The above references are refuted by the real guarantees from the Kyrgyz authorities, such guarantees relating directly to [the applicant] and being sufficient to exclude the risk of cruel treatment in respect of him ...” 32. On 22 April 2013 the applicant appealed to the Supreme Court of Russia against the decision of 16 April 2013. 33. On 19 June 2013 the Supreme Court of Russia, sitting as an appeal court, examined the applicant’s appeal against the judgment of 16 April 2013 upholding the extradition order. The appeal court admitted to the file a number of documents, including international reports regarding Kyrgyzstan. By a judgment of the same date, the Supreme Court of Russia dismissed the appeal, endorsing the reasoning of the first-instance court. It held as follows: “... Judicial review proceedings in respect of a local migration authority’s refusal to grant refugee status do not impede the decision-making process in respect of an extradition request ... The available materials do not disclose that [the applicant] is being persecuted on political grounds by law enforcement agencies in Kyrgyzstan ... The prosecution against [the applicant] concerns ordinary criminal offences and does not contain indications of any political motivation or discrimination on the grounds of ... social origin, nationality or race ... The Kyrgyz Prosecutor General’s Office submitted guarantees that [the applicant] would be provided with all [necessary] facilities for [preparing] his defence, including legal assistance; that he would not be subjected to torture, cruel, inhuman or degrading treatment or punishment ... Thus, the court accepts as correct the conclusion that the Republic of Kyrgyzstan has fully complied with the requirements of Article 462 § 3 of the Code of Criminal Procedure and Article 14 of the European Convention on Extradition, as regards the provision of the required guarantees ...” 34. The text of the appeal decision did not contain any reference to any avenues of further appeal. It appears that the extradition order became enforceable on 19 June 2013. 35. On 28 June 2013 the Moscow migration authority dismissed the applicant’s application for temporary asylum. The applicant appealed to the FMS, which informed him on 8 October 2013 that the decision of 28 June 2013 had been quashed and that his application would be re-examined. It remains unknown whether the re-examination in question has taken place. 36. On 4 September 2013 the transport prosecutor’s office ordered the applicant’s release from custody for the reason that the Court had applied interim measures pursuant to Rule 39 of the Rules of Court in respect of the applicant, and applied a different measure of restraint on the basis that the applicant’s lawyer, Ms Biryukova, had provided a personal guarantee that the applicant would be available for questioning and other actions related to the extradition check once released. 37. The applicant was then released from remand. | 1 |
test | 001-177355 | ENG | BGR | COMMITTEE | 2,017 | CASE OF MITEV v. BULGARIA | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture;Effective investigation) | Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1967 and lives in Staro Oryahovo. 6. The applicant was driving his car along a road in the region of Varna on the evening of 10 March 2014. As established subsequently by the prosecution and the domestic courts in criminal proceedings opened into the incident that took place that evening, his car was weaving in an unsteady manner and he was spotted by patrolling police officers parked on the side of the road. They signalled for him to pull over, but instead of complying he sped away. According to the applicant’s own statements given in the context of those proceedings, he was afraid that the police would charge him or take his licence away as he had consumed alcohol earlier that evening. The prosecution and the courts established that the officers chased after him in their car, using flashing police lights and their siren. He only stopped when his car reached a field and could not go further. The police car stopped too. 7. The parties have presented differing accounts of the circumstances in which the applicant was arrested. 8. According to the applicant, one of the officers kicked him in the left leg and then pushed him violently to the ground as he was trying to get out of his vehicle. The applicant fell on his back and then three officers continued to kick him. The assault lasted a few minutes, after which they handcuffed him. One of the officers hit him on the head with a rubber truncheon before they drove him to the police station. 9. According to the police officers, the applicant had jumped out of his car after it had come to a halt and had started running through the field in an attempt to escape. The officers had run after him, the applicant had slipped and fallen and the police had caught up with him. As he had resisted arrest, wriggling and struggling, they had used force which had consisted in twisting his arms in order to handcuff him. Once they had managed to handcuff him, the officers had driven him to the police station. 10. According to written statements made during the criminal proceedings by several police officers present at the police station when the applicant was taken there, he told everyone present at the time that his clothes were muddy because he had tripped and fallen, which was also why he had a limp. As stated by the officers and by the applicant himself in the course of those proceedings, he made no complaints at that point in time. According to police records of the evening when the applicant was arrested, he refused to take an alcohol test or to sign the arrest report and was given a fine for refusing the alcohol test. As it emerges from the officers’ statements, they discovered that he had no identity documents on him and called his brother, who brought them to the police station accompanied by a friend. The records indicate that the officers released the applicant immediately after checking his papers. 11. According to a written statement made on 11 March 2014 by the applicant’s brother to the police in the context of an official follow-up conducted into the events, on leaving the station, he asked him what had happened but the applicant stated that he did not wish to speak about it and preferred to be left alone in his home. Instead, his brother drove him to the local medical centre as he had noticed that the applicant was having difficulties breathing. On examination, a doctor noted a suspected broken left ankle and told the applicant to go to hospital. No ambulance was provided and the applicant’s brother drove him there. It follows from medical documents that the doctors operated on him immediately as they had established that he had a broken rib which had pierced one of his lungs. 12. The applicant’s hospital record, signed by the doctor who had treated him and the head of the unit, stated that the applicant had been in hospital between 11 and 14 March 2014 and that he had a broken rib and a broken ankle. Upon his discharge on 14 March 2014, a different doctor examined the applicant and issued him with a medical certificate which recorded that he had a broken rib, a bruise of about 8 mm on his right eyebrow, and a fracture of the fibula close to the ankle that was in a cast. It also contained the phrase that it was not excluded that the injuries had been sustained in the manner suggested by the applicant, namely as a result of being hit or kicked. The certificate stated that no other traumatic injuries were present. 13. On 11 March 2014 the police officer in charge of radio communications between patrolling officers and who was on duty on the night of the incident produced a written report to provide information for his superior and to receive whatever orders were deemed necessary. As well as repeating the account of the two arresting officers, he stated that he personally had seen the applicant at the station and that the applicant had told him that he had fallen while running and that his back was hurting. The officer had offered to call in medical staff from the local medical centre to check the applicant on the spot, but he had refused, saying that he did not need a doctor and wished to be released instead. 14. A different police officer was sent to the local medical centre. In a written report he drew up on 11 March 2014 on his visit, he confirmed the existence of a record there that the applicant had visited it the previous evening and had been checked by a doctor who had directed him to the hospital for treatment of a suspected fractured ankle. Another officer visited the hospital the same day. In a written report he listed his findings, namely that the applicant had been admitted and treated for a broken rib and broken leg the previous night. The report indicated that in a conversation with the applicant conducted during that visit, the latter had told the officer that he could not remember the events in detail, but that he was certain that after the car chase two police officers had beaten and then handcuffed him before taking him to the police station. The applicant also gave a handwritten statement to an officer that day. In it he referred to the car chase, stated that he had wanted to escape as he had felt drunk, that when he had got out of his car the policemen had grabbed him, that one of them had pulled him to the ground and that the other one had handcuffed him. He concluded by saying that the injuries had most likely been caused during his arrest, given that immediately beforehand he had only been driving his car and did not remember breaking his leg and rib when he had brought the car to a stop. 15. On the same day the applicant’s brother also gave a written statement to the police (see paragraph 11 above). 16. The two police officers involved in the car chase and the arrest also gave written statements on 11 March 2014. In addition to the description above (see paragraph 9), the officers stated that once the applicant had been handcuffed and put inside the police car, he had leaned on one of them and moaned. When asked if he had a problem and wished to be taken to a medical centre, he had refused and said, “It’s nothing”. At the police station the applicant had refused to be tested for alcohol or to sign the arrest report. 17. On 13 March 2014 the Varna District Prosecutor, acting on his own initiative, opened criminal proceedings in relation to the conduct of the two officers who had arrested the applicant. The order for the opening of those proceedings indicated that it was “against the guilty official from the Ministry of the Interior who, acting in the context of his professional functions, had caused bodily harm to the applicant on 10 March 2014 in Varna”. A number of investigative steps were carried out. The investigating authorities questioned several police officers as witnesses, including the two involved in the applicant’s arrest and those who had been at the police station on the night of the incident. The latter all stated that they had seen the applicant at the police station on the night in question. He had been calm, had smelt of alcohol and been visibly intoxicated, his clothes had been muddy and he had limped. The applicant, his brother and the friend of the brother who had accompanied him to collect the applicant from the police station, were also interviewed. The brother and his friend stated that the applicant had not told them anything about the circumstances of his arrest and that the brother had learned that the applicant had been beaten by the police from the doctors at the hospital. 18. A forensic medical expert was appointed on 30 May 2014 to establish the nature of the injuries sustained by the applicant and the type of instrument used. The expert was given a list of specific questions that needed to be answered. The forensic medical report, containing a comprehensive and independent assessment, concluded that the three injuries recorded in the medical certificates drawn up in the immediate aftermath of the events (see paragraph 12 above) were incompatible with the applicant’s allegations that the officers had hit him all over his body for a few minutes. In particular, being kicked by someone wearing boots or being hit for several minutes would have left the applicant with many more traces on different parts of his body, not just the three strictly localised injuries mentioned above. The report further indicated that the injuries could have been received as a result of falling over while moving in accelerated fashion, for example by running and falling. 19. In a decree of 31 October 2014 for terminating the criminal proceedings, the prosecution established that the version of events given by the applicant at different stages of his questioning were not consistent. In particular, he had stated initially that he had sprained his ankle after tripping and falling, but had later changed his story and said that the injury had been the result of an intentional and prolonged beating by police officers. Furthermore, when questioned on 27 March 2014, the applicant had stated that the police officers had started hitting and kicking him after he had left his car voluntarily. When interviewed again on 28 May 2014, he had asserted that the officers had brutally pulled him out of the car and had thereafter only kicked him rather than hit him. He had tried to use his arms to protect his head from the kicks. He had stated that he could not remember or recognise the police officers who had beaten him, whether in a personal confrontation or from pictures. He had also complained that three officers had beaten him, while it had been unequivocally established that there had only been two patrolling officers. In addition, when on 6 October 2014 the investigator had handed the investigation file over to the applicant, he had signed the related acknowledgement, indicating that he did not wish to acquaint himself with the evidence, read the documents in the file, which was voluminous, and that he had no requests, comments or objections to the investigation. 20. The prosecutor concluded in the decree for termination of the proceedings that the applicant’s complaints were not supported by the evidence. The force used by the officers had been necessary for neutralising and detaining him in the circumstances, given that he had effectively been running away from the police and actively disobeying their orders to stop. The force had involved one officer holding the applicant on the ground, using one knee to press on his body, while the second officer had helped by handcuffing him. There was no evidence pointing to the officers having used violence or undue force when apprehending the applicant. The applicant challenged the prosecutor’s decision in court. 21. The prosecutor’s decision to terminate the proceedings was confirmed at two levels of jurisdiction. In particular, the first-instance court, the Varna District Court, observed in its decision of 24 November 2014 that two officers had arrested the applicant after a long car chase, when he had tried to escape despite clear orders to the contrary. The officers had worn police uniforms that had been clearly visible and identifiable and had been driving a police car with flashing police lights and a siren while chasing the applicant. He had not only refused to stop but had actively avoided being caught. As to the differing versions of the events thereafter, the court found that the applicant’s submissions were inconsistent and not supported by the evidence. As a consequence, the court gave no weight to his testimony, finding that it was incompatible with the rest of the evidence. 22. The second-instance court, the Varna Regional Court, upheld those findings in a final decision on 9 January 2015. | 0 |
test | 001-163919 | ENG | GBR | COMMITTEE | 2,016 | CASE OF MILLBANK AND OTHERS v. THE UNITED KINGDOM | 4 | Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election;Vote) | Paul Mahoney;Pauliine Koskelo;Robert Spano | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants, who are convicted prisoners, complained about their ineligibility to vote in elections. | 1 |
test | 001-144112 | ENG | FIN | CHAMBER | 2,014 | CASE OF NYKÄNEN v. FINLAND | 3 | Violation of Article 4 of Protocol No. 7 - Right not to be tried or punished twice-{general} (Article 4 of Protocol No. 7 - Conviction;Criminal offence);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1972 and lives in Espoo. 6. The tax inspector conducted a tax inspection in a company in 2005. 7. On 28 November 2005 the tax authorities considered that the applicant had received 33,000 euros (EUR) as disguised dividends from that company during the tax year 2003. An additional tax and a tax surcharge (veronkorotus, skatteförhöjning) of EUR 1,700 were imposed. 8. The applicant sought rectification from the local Tax Rectification Committee (verotuksen oikaisulautakunta, prövningsnämnden i beskattningsärenden). 9. On 25 January 2006 the Tax Rectification Committee rejected the applicant’s application. It found that the applicant had given incomplete information to taxation authorities and tax had therefore been incompletely or partially levied. Therefore the additional tax and the tax surcharges imposed on him were not considered to be too high. 10. The applicant appealed to the Kuopio Administrative Court (hallinto-oikeus, förvaltningsdomstolen). 11. On 29 May 2008 the Kuopio Administrative Court rejected the applicant’s appeal on the same grounds as the Tax Rectification Committee. 12. The applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen). 13. On 1 April 2009 the Supreme Administrative Court refused the applicant leave to appeal. 14. On 19 August 2008 the public prosecutor brought charges against the applicant of, inter alia, tax fraud (veropetos, skattebedrägeri) concerning the tax year 2003. According to the charges, the applicant was accused of tax fraud as he had under-declared his income. The undeclared income amounted to EUR 33,000 for the tax year 2003 and, consequently, the tax imposed in 2003 had been EUR 12,420 too low. 15. On 13 February 2009 the Tuusula District Court (käräjäoikeus, tingsrätten) convicted the applicant of tax fraud and imposed a suspended prison sentence of 8 months. He was also ordered to pay to the tax authority EUR 9,500 plus interest. The court found that the amount of disguised dividends was EUR 26,882.90 and that the tax due amounted to EUR 9,500. 16. By letter dated 26 April 2010 the applicant appealed to the Helsinki Appeal Court (hovioikeus, hovrätten), requesting that the charges be dismissed. 17. On 25 March 2010 the Helsinki Appeal Court convicted the applicant as charged and sentenced him to 10 months in prison. It ordered the applicant to pay the tax authorities EUR 12,420 plus interest. The court found that, contrary to the opinion of the District Court, the value-added tax was to be included in the amount of disguised dividends. The correct amount of disguised dividends was thus EUR 33,000 and the tax evaded amounted to EUR 12,420. 18. By letter dated 24 May 2010 the applicant appealed to the Supreme Court (korkein oikeus, högsta domstolen), requesting that the charges and the compensation claim be dismissed without examining the merits or alternatively that they be rejected. He claimed, by referring to Article 4 of Protocol No. 7 to the Convention and to the Court’s case-law, that the ne bis in idem principle had been violated as tax surcharges had already been imposed for the same acts by a decision which had become final. 19. On 1 September 2010 the Supreme Court refused the applicant leave to appeal. | 1 |
test | 001-147671 | ENG | BGR | CHAMBER | 2,014 | CASE OF MANOLOV v. BULGARIA | 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 - Degrading punishment;Inhuman punishment) (Substantive aspect) | Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva | 4. The applicant was born in 1970. 5. On an unspecified date in the second half of 1994 the applicant was arrested and detained in investigation detention facilities in Kyustendil and Sofia in the framework of a criminal investigation against him. On 25 November 1994 he was transferred to Pazardzhik Prison. 6. On 11 July 1996 the Kyustendil Regional Court found the applicant guilty of a number of violent offences committed between May 1993 and August 1994 and sentenced him to death. On 4 February 1999 the Sofia Court of Appeal upheld the applicant’s conviction but, following the abolition of the death penalty with effect from 27 December 1998 and the concomitant introduction of the sentence of life imprisonment without commutation (see paragraph 30 below), replaced his sentence with life imprisonment without commutation. 7. On 27 January 2000 the applicant was transferred from Pazardzhik Prison to Bobov Dol Prison, where he has been serving his sentence ever since. By order of the prison governor, he was placed alone in a constantly locked cell, as required under the legal provisions governing the regime of life prisoners (see paragraph 30 below). 8. In a decision of 30 November 2001, which became final on 25 April 2002, the Sofia Court of Appeal decided that the applicant was to serve his sentence under the “special regime” applicable to life prisoners at that time (see paragraph 30 below). 9. On 19 April 2007 a special commission in charge of deciding on changes in a prisoner’s regime decided to place the applicant under the “enhanced regime” (see paragraph 30 below). 10. On 1 June 2009, when the Execution of Punishments and Pre-Trial Detention Act 2009 superseded the Execution of Punishments Act 1969, the applicant was placed under the “severe” regime (see paragraph 30 below). His continued to be kept isolated from the rest of the prison population, as normally required under the relevant provisions of the 2009 Act and the regulations for its application (ibid.). The above-mentioned commission has apparently not decided to place the applicant together with the main prison population, as permitted under those provisions under certain conditions (ibid.). 11. In Bobov Dol Prison, the applicant was kept in an individual cell measuring thirteen and a half square metres. The Government submitted that not later than 2007 significant improvements had been made to that cell. In particular, central heating was installed and the old wooden window frames were replaced by modern ones measuring 138 cm by 50 cm and providing enough temperature isolation and access to sunlight. According to evidence put before the Kyustendil Administrative Court and its judgment of 9 June 2011 (see paragraph 28 below), those works were completed in October or November 2006. 12. At all relevant times the applicant’s cell contained an in-cell toilet and a water tap. 13. The applicant’s assertions in respect of the material conditions of his detention are voluminous and lack clarity in that grievances apparently relating to different periods of time are not clearly distinguished. The applicant alleged that during unspecified periods of his incarceration in Bobov Dol Prison he had encountered the following problems: food had been substandard and insufficient in quantity, with some meals containing pieces of plastic, hairs and fur, and the meat meals often containing meat substitutes or no meat at all; the plates in which the food was being served had been dirty and greasy; tap water had been muddy; there had been iron pieces bulging from the bed-spring which had made his bed very uncomfortable, and the bedding provided had been unclean; the taking of a shower (twenty minutes per week) and applicant’s visits to the doctor had been counted as part of his daily outdoor activities; the yard in which he took his daily outdoor exercise had not had toilet facilities, which had prevented him from relieving his needs before the end of the exercise period, and inmates had not been provided with waterproof clothing when spending time outdoors; guard dogs had been placed several metres from the window of the applicant’s cell and with their constant barking at night had prevented him from sleeping; other inmates and the applicant himself had found and killed rats in the cells; the temperature in the applicant’s cell had not risen above twelve degrees Celsius in winter and the heating coal provided in winter had been insufficient; there had been no heating in the bathroom and inmates had been freezing when taking showers in winter; the applicant’s cell lacked sufficient sunlight; for a long time the cell’s floor had been left riddled with holes and not covered with linoleum; and the cleaning products provided for the in-cell toilet had been insufficient, consisting of a mere two spoonfuls of chlorine a month, which had made the smell unbearable as the main part of the cell was only separated from the toilet area by a screen. 14. The evidence submitted by the applicant in support of those allegations consisted of his own statements, a statement written in the same handwriting as in all other letters sent by the applicant but co-signed by two other inmates on an unspecified date, and copies of more than fifty complaints that the applicant had sent to the prison administration and various other authorities between 2000 and 2009 and of some of the replies received. The vast majority of those complaints concerned the food served in prison: concrete instances in which the applicant had allegedly not received a full portion, yoghurt had been missing, the food had had a bad taste or smell, or meat had not been provided or had been of low quality. Some of those complaints had been acknowledged as well-founded by the prison administration and the applicant had been assured that measures would be taken. 15. In some of those complaints the applicant raised concerns in relation to the poor quality of coal given to inmates before the installation of a central heating system in October 2006, the fact that bed linen or clothes had not been properly washed, the choice of products available for purchase at the prison canteen, and the fact that a refrigerator in the canteen used to store personal food items had not functioned for a certain period of time. 16. For their part, the Government denied the applicant’s allegations concerning the material conditions of his detention. They said that the quality and quantity of food served to inmates had been fully adequate, and that hygienic conditions in the prison canteen, including in relation to cutlery, had been maintained in line with the applicable standards. Water in the prison had not been muddy; it came from the same pipeline as the water supplied to the town of Bobov Dol. Inmates could also buy bottled mineral water from the prison canteen. The allegation that iron pieces had protruded from the applicant’s bed was not true, and his bed sheets had been changed and washed every week. Bathing time had not been counted as part of the outdoor walk time; unlike other inmates, who had only had one hour of daily outdoor walk time, life prisoners had been allowed one and a half hours. The only reasons for interrupting that walk had been rowdy conduct or bad weather; in the latter case, more outdoor time had been made available later on. The yard designated for the daily outdoor walk did not have a toilet for security and hygiene reasons. Such a toilet was in any event not needed because that yard was adjacent to the applicant’s cell, which was equipped with a toilet. If the applicant had felt an urgent need to go to the toilet during his daily walk, he could have always used that one, and would have never been prevented from doing so. The prison administration was not under a duty to provide inmates with waterproof clothing; when such clothing had been provided as a matter of courtesy, the inmates had very quickly damaged it. It was not true that guard dogs had been kept near the applicant’s cell; such dogs had not been used at all in the zone at issue. Nor had there been rats inside the applicant’s cell; its door, windows and piping had been built in a way not permitting rats to come in, and the prison administration was under a duty regularly to carry out pest control. The applicant’s cell had had central heating since 2007, and the temperature inside the cell and the bathroom had been around eighteen degrees Celsius. The cell’s window, which, like all windows in Bobov Dol Prison, had had its old wooden frame replaced with a new PVC one, did not have any covers preventing sunlight from coming in and could be freely opened, and the cell’s floor was covered with linoleum which was in a good condition. Cleaning products were distributed weekly. Cable television was available in the cell. Lastly, works were under way for enlargement of the area for outdoor walks. 17. Apparently in view of the fact that the applicant is serving a sentence of life imprisonment without commutation, he is always handcuffed when taken out of his cell, including inside the prison. The handcuffs are removed once the destination has been reached, if security conditions permit. In particular, the applicant is handcuffed when taken out of his cell for his daily outdoor walk, but the handcuffs are removed during the walk. 18. It does not appear that the applicant has ever been involved in violent incidents in prison or disciplined for violent or aggressive conduct. There is no indication that he has ever tried to abscond from prison either. 19. The facts summarised in this subsection were set out by the applicant in two separate applications to this Court lodged by him in August 2010 (application no. 53109/10) and September 2011 (application no. 67629/11). In those applications he complained about various issues, such as an alleged lack of access to a court, the outcome of proceedings for damages, the impossibility to vote in the October 2011 presidential elections in Bulgaria, and an alleged interference with his right to correspondence. 20. From the materials submitted by the applicant in those two cases it transpires that in 2010-11 he brought a number of claims for damages under section 1 the State and Municipalities Liability for Damage Act 1988 (see paragraph 30 below) before the territorially competent Kyustendil Administrative Court. Those claims concerned dozens of allegations concerning various aspects of the conditions of his detention and specific incidents allegedly breaching his rights. 21. The claims that directly relate to the subject matter of the present case concerned, inter alia: the allegedly poor quality of tap water in Bobov Dol Prison; the allegedly insufficient heating; the allegedly insufficient surface of the area for outdoor walks; the alleged failure of the prison authorities to transfer the applicant to a collective cell with a view to enabling him to have contacts with other inmates; the alleged failure of the prison authorities to provide any educational courses for the applicant or to enable him to take part in artistic, cultural, sport, religious or other activities; the fact that the applicant had been routinely handcuffed when taken out of his cell; and allegedly frequent body searches by prison guards. 22. Other claims concerned matters such as an alleged refusal of the prison authorities in 2010 to provide the applicant with copies of receipts showing that he had paid for mail sent by him; alleged delays and obstacles in respect of mail that the applicant had wished to send; an alleged refusal to allow the applicant to use a combined MP3/radio device as opposed to separate radio and MP3 devices, which were allowed; an alleged refusal of the prison administration to wash the applicant’s underwear, etc. 23. In relation to several claims, the Kyustendil Administrative Court instructed the applicant to clarify the link between the facts described in his statement of claim and the alleged damage, and to submit a declaration of means. As the applicant did not comply with those instructions, the court discontinued the proceedings in respect of some of the claims. 24. At least four cases proceeded to judgment on the merits. 25. In a case decided on the merits on 25 February 2011, the Kyustendil Administrative Court dismissed the applicant’s claim for damages concerning the fact that tap water in Bobov Dol Prison had on occasions been muddy and unfit for drinking. The court noted that although there was evidence that sometimes, especially after heavy rains, the quality of that water had been bad, the laboratory analysis had confirmed that it had been safe for drinking. The prison was connected to the general water supply system and got the same water as that supplied to households nearby. The applicant’s allegations, for instance that he had endured acute stomach pain and had required medical assistance, had not been made out. Moreover, the applicant had had the possibility to buy bottled mineral water from the prison canteen or, if he did not have the necessary means for that, boil tap water using a device which he confirmed that he had in his cell, or filter it. The applicant’s appeal on points of law against that judgment was not examined by the Supreme Administrative Court as he failed to pay the requisite fee of BGN 5 for the processing of the appeal (see опр. № 9496 от 28 юни 2011 г. по адм. д. № 8190/2011 г., ВАС, ІІІ о.). 26. A case decided on the merits by the Kyustendil Administrative Court on 1 March 2011 concerned a specific incident on 2 September 2009 in which prison staff had entered the applicant’s cell for a search accompanied by a dog trained to find narcotic drugs. The court dismissed the applicant’s claim that he had endured stress because of his fear of dogs. There was no evidence that the dog, which had been kept on a leash, had been handled in an inappropriate manner. That case ended in a judgment of the Supreme Administrative Court of 14 November 2011 (реш. № 14766 от 14 ноември 2011 г. по адм. д. № 8803/2011 г., ВАС, ІІІ о.) whereby the applicant’s appeal on points of law against the Kyustendil Administrative Court’s judgment was dismissed. 27. Another case decided on the merits by the Kyustendil Administrative Court on 17 March 2011 concerned thirty-three separate allegations relating to various aspects of the conditions of the applicant’s detention. It appears that in his statement of claim the applicant had made confused assertions about the periods of time to which those claims related and that he eventually only claimed non-pecuniary damages in respect of a limited period of time in the first half of 2010. The court dismissed all of the applicant’s claims. With regard, in particular, to the surface of the area for daily outdoor walks, it found that it was one hundred square metres. It went on to note that the bodily searches to which the applicant had been subjected had not involved any undressing or inappropriate touching of his private parts but patting, through his clothes, with a view to determining whether or not he had had on him any unauthorised items. The systematic handcuffing of the applicant was not in breach of the Execution of Punishments and PreTrial Detention Act 2009 or the regulations for its application, was not inconsistent with the applicant’s prison regime, could be considered necessary in view of the seriousness of the offences in relation to which he had been sentenced to life imprisonment, and had not been intended to humiliate the applicant. With regard to the claim that the applicant had not been transferred to a multi-occupancy cell despite the possibility to do so for life prisoners serving their life sentence under the “severe” regime, the court found that those matters fell within the discretion of the special commission for the execution of sentences; there had therefore not been a failure on the part of the prison authorities to observe a binding legal obligation. The same went for educational courses. The applicant’s appeal on points of law against that judgment was not examined by the Supreme Administrative Court as he failed to pay the requisite fee of 5 Bulgarian levs (BGN) (the equivalent of 2.56 euros (EUR)) for the processing of the appeal (see опр. № 9090 от 23 юни 2011 г. по адм. д. № 8057/2011 г., ВАС, ІІІ о.). 28. The applicant’s claim concerning the allegedly low temperatures in his cell related to two winters: the periods between October 2005 and April 2006, and the period between October 2006 and April 2007. The court ordered an expert report, which showed that the amount of coal provided to inmates in Bobov Dol Prison in 2005-06 had been adequate and that central heating had been installed in the prison in October 2006. In a judgment of 9 June 2011 the Kyustendil Administrative Court found that the prison administration had provided the applicant with enough coal to secure a temperature of approximately twenty degrees Celsius in his cell during the first period, and that central heating had been installed before the second period. The applicant’s claim was therefore dismissed. That judgment was apparently not validly appealed against. 29. From other materials submitted by the applicant it appears that in 2012 he tried to bring a number of further claims under section 1 of the State and Municipalities Liability for Damage Act 1988 (see paragraph 30 below) in relation to various instances in which his rights had allegedly been breached by the prison authorities. None of those claims was accepted for examination by the Kyustendil Administrative Court as a result of apparent failures on the part of the applicant to formulate his claims properly and pay the requisite court fees. In a series of decisions given in 2012-13 the Supreme Administrative Court upheld the lower court’s decisions not to examine the claims on the merits. | 1 |
test | 001-148367 | ENG | NLD | GRANDCHAMBER | 2,014 | CASE OF JALOUD v. THE NETHERLANDS | 1 | Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award | Aleš Pejchal;Alvina Gyulumyan;András Sajó;Corneliu Bîrsan;Dean Spielmann;Elisabeth Steiner;Gilbert Guillaume;Guido Raimondi;Ineta Ziemele;Isabelle Berro-Lefèvre;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mark Villiger;Päivi Hirvelä;Zdravka Kalaydjieva | 9. The applicant, Mr Sabah Jaloud, is an Iraqi national who was born in 1943 and lives in An-Nasiryah, Iraq. He is the father of the late Mr Azhar Sabah Jaloud, who died on 21 April 2004 at the age of twenty-nine. 10. On 21 April 2004, at around 2.12 a.m., an unknown car approached a vehicle checkpoint (VCP) named “B-13” on the main supply route “Jackson” north of the town of Ar Rumaytah, in the province of AlMuthanna, south-eastern Iraq. The car slowed down and turned. From inside the car shots were fired at the personnel guarding the VCP, all of them members of the Iraqi Civil Defence Corps (ICDC). The guards returned fire. No one was hit; the car drove off and disappeared into the night. 11. Called by the checkpoint commander, ICDC Sergeant Hussam Saad, a patrol of six Netherlands soldiers led by Lieutenant A. arrived on the scene at around 2.30 a.m. 12. Some fifteen minutes later a Mercedes car approached the VCP at speed. It hit one of several barrels which had been set out in the middle of the road to form the checkpoint, but continued to advance. Shots were fired at the car: Lieutenant A. fired 28 rounds from a Diemaco assault rifle; shots may also have been fired by one or more ICDC personnel armed with Kalashnikov AK-47 rifles (see paragraphs 21 and 49-52 below). At this point the driver stopped the car. 13. The applicant’s son, Mr Azhar Sabah Jaloud, was in the front passenger seat of the car. He had been hit in several places, including the chest. Netherlands soldiers removed him from the car and attempted to administer first aid. Despite this, Mr Azhar Sabah Jaloud died. He was declared dead one hour after the incident. 14. The body was subjected to X-ray examination. The radiographs show objects identified as metallic inside the chest and elsewhere. 15. An autopsy was performed by an Iraqi physician, who drew up a brief report in Arabic. Metal objects identifiable as bullet fragments were found in the body. 16. It was not determined by whom the bullet or bullets had been fired, nor from what weapon. 17. An official record by Sergeant First Class (wachtmeester 1e klasse) Schellingerhout of the Royal Military Constabulary (Koninklijke marechaussee), As-Samawah detachment, shows that a telephone call was received at 3.25 a.m. from the batallion operations room, reporting the shooting incident. A car had crashed into the VCP. Shots had been fired by Netherlands and Iraqi armed forces and the car’s passenger had been wounded. He had been taken to hospital. The Royal Military Constabulary was asked to investigate. 18. A seven-person Royal Military Constabulary duty group (piketgroep), accompanied by an interpreter, had left at 3.50 a.m. and arrived on the scene at around 4.50.a.m. Royal Military Constabulary Sergeants First Class Broekman and Van Laar had begun securing evidence at 5 a.m. Also at 5 a.m., the Royal Military Constabulary staff in The Hague and the public prosecutor of the Regional Court (rechtbank) of Arnhem were informed of the incident. 19. The body was seized by Royal Military Constabulary Warrant Officer (adjudant-onderofficier) Kortman at 7.30 a.m. and transported to the mobile hospital at Camp Smitty. At 11.45 a.m., after permission had been given in writing by a local court, the body was transported to the General Hospital in As-Samawah. The post-mortem examination was carried out in the absence of any police witness by an Iraqi physician. 20. The Mercedes car was seized at around 5.10 a.m. by Warrant Officer Kortman and later towed to Camp Smitty. 21. At around 7.50 a.m. Sergeant First Class Schellingerhout seized Sergeant Hussam Saad’s Kalashnikov AK-47 rifle; at around 11.55 a.m. he also seized Lieutenant A.’s Diemaco C7A1 rifle. Both weapons were later labelled and placed at the disposal of the Arnhem public prosecutor. 22. The following statements were submitted to the investigating and judicial authorities in the domestic proceedings. 23. On 21 April 2004, at around 5.05 a.m., Royal Military Constabulary Warrant Officer Mercx took a statement from the driver of the Mercedes car, Mr Dawoud Joad Kathim, with the aid of an interpreter. Mr Dawoud Joad Kathim admitted to having drunk two cans of beer, but no more, on the previous night, and did not consider himself to have been intoxicated. He stated that he had not noticed any checkpoint until it was too late to avoid hitting two barrels. It had been dark at the time, and there had been no lighting. To his complete surprise, his car had been fired at as he was driving through the checkpoint. His friend Mr Azhar Sabah Jaloud had been hit; Mr Dawoud Joad Kathim had heard him say that he was dying. He wished to submit a complaint because the checkpoint had not been clearly marked. 24. On 21 April 2004, at around 5.15 a.m., Royal Military Constabulary Sergeant First Class Weerdenburg took a statement from ICDC Sergeant Hussam Saad The latter stated that he had reported shooting from a car at around 2.10 a.m.; Lieutenant A. had arrived at approximately 2.30 a.m. Sergeant Hussam Saad had gone to look for spent cartridges with Lieutenant A., another Netherlands soldier and the interpreter. He had suddenly heard a bang and seen a car approaching from the direction of Ar Ruyaythah. The car had continued to move forward, despite being ordered to stop. He had then heard shooting from the left side of the road. He had not, however, fired any rounds himself. 25. Sergeant First Class Weerdenburg next questioned the other Iraqi soldiers, but they provided no pertinent information. 26. On 21 April 2004, at around 7 a.m., Royal Military Constabulary Sergeant Klinkenberg took a statement from Mr Walied Abd Al Hussain Madjied, an interpreter working with the ICDC. The interpreter had been accompanying Lieutenant A.’s patrol between two checkpoints. After arriving at VCP B1.3 and being told about the first shooting incident by ICDC Sergeant Hussam Saad, he had joined Lieutenant A. and others in the search for spent cartridges. He had suddenly heard the sound of barrels falling over, turned around and seen a car approaching. He had shouted “stop, stop, stop” but the car had driven on. Across the road from where he was standing, a Netherlands soldier had fired at the car. After the car stopped, he had assisted its occupants by providing interpretation. The passenger’s left arm had been covered in blood and the driver had smelled of alcohol. 27. On 21 April 2004, at around 9.30 a.m., Royal Military Constabulary Sergeant First Class Van Laar and Sergeant Klinkenberg took a statement from Infantry Sergeant (sergeant) Teunissen. Arriving at VCP B1.3 at 2 a.m., he had been given information by the ICDC sergeant. Together with his lieutenant, the ICDC sergeant and the interpreter, he had gone up the road to look for spent cartridges. At a distance of approximately 100 metres from the VCP hut, he had turned around, startled by a sound. He had seen a car drive into the VCP at speed; when the car had passed the VCP, he had heard shooting from the VCP. The four of them had dived for cover. When the car had reached their level, shots had been fired from across the road, where the lieutenant was positioned. He had shouted “Stop firing”, but that had not been heard. When the firing stopped, the car had also stopped. The passenger had been bleeding from the lower body and the left shoulder. Sergeant Teunissen and Private Finkelnberg had removed him from the car, laid him on the ground and bandaged his wounds. He and Lieutenant A. had attempted to resuscitate the passenger until told by the doctor that there was no longer any point. 28. On 21 April 2004, at around 11.15 a.m., Royal Military Constabulary Sergeants First Class Broekman and Van Laar heard Lieutenant A. under caution. Lieutenant A. stated that he was responsible for monitoring two vehicle checkpoints, one of which was VCP B1.3 on the Jackson road north of Ar-Rumaythah. After the first shooting incident had been reported, he had arrived at VCP B1.3 at around 2.30 a.m.; he had been intending to reconnoitre the area on foot, together with Sergeant Teunissen and the ICDC sergeant. At around 2.45 a.m. he had been startled by a noise. Looking behind him, he had seen two blazing car headlights approaching. Shots had then been fired from the direction of the car; on hearing them, he had dived for cover on the verge of the road. He had been convinced that shots were being fired from inside the car. When the car had reached his level, he had cocked his weapon; when it had just passed, he had started to shoot at its rear. He had fired 28 cartridges in aimed fire. He had been responding to the danger arising from his having been fired at first. He had fired the entire contents of a magazine, 28 rounds; this had taken approximately seven seconds. The passenger being wounded, he and Sergeant Teunissen had attempted to resuscitate him until help arrived. By that time there had been no pulse. Shortly afterwards, the company commander had arrived; Lieutenant A. had briefed him. 29. On 23 April 2004, at around 1.50 p.m., Royal Military Constabulary Warrant Officer Kortman and Sergeant First Class Broekman took a statement from Private Finkelnberg. At 2 a.m. on 21 April 2004 he had arrived with Lieutenant A. and Sergeant Teunissen, among others, at VCP B1.4, where the ICDC sergeant reported to Lieutenant A. that there had been a shooting incident at VCP B1.3. The patrol had therefore gone to that checkpoint, arriving at 2.30 a.m. Lieutenant A., Sergeant Teunissen, the ICDC sergeant and the interpreter had gone up the road towards Hamza to look for spent cartridges. A dark-coloured motorcar had approached at high speed and driven past him through the checkpoint, hitting some barrels in the road. Through his image intensifier he had seen Lieutenant A., to the left of the road, going for cover; he had then seen muzzle flashes from several weapons on the left side of the road and heard shots from that direction. The firing was in single shots. At a certain moment he had seen the car stop. While the shots were being fired, he had heard Sergeant Teunissen shout “Stop firing”. He had gone up to the vehicle and cut the passenger’s clothes loose. While Sergeant Teunissen administered first aid, he had searched the car for weapons. He had found an icebox containing an almost empty bottle of alcoholic drink. He had then joined Sergeant Teunissen and Lieutenant A. in their attempts to resuscitate the passenger until the latter was declared dead. He was critical of Lieutenant A. for firing while his own troops were on the opposite side of the road and for firing so many rounds, and also of the ICDC for firing in the general direction of their own personnel. 30. On 23 April 2004, at around 1.50 p.m., Royal Military Constabulary Sergeant Major (opperwachtmeester) Wolfs and Sergeant First Class Van Laar took a statement from Cavalry Sergeant (wachtmeester) Quist. On 21 April 2004 at around 2 a.m. he had been at VCP B1.4 with Lieutenant A. and the other members of his patrol unit, which had been led by Sergeant Teunissen. There had been shooting at VCP B1.3 and they had gone there. Upon arrival, he had noticed no ICDC personnel manning the checkpoint, but had seen a group of people to the left of the road opposite the hut. After Cavalry Sergeant Quist had parked his vehicle, Lieutenant A., Sergeant Teunissen, the interpreter Walied and the ICDC sergeant had walked off north to look for spent cartridges. At a certain point, he had seen a car approaching at high speed from Ar-Rumaythah; when the car reached the checkpoint, it had hit some of the barrels or rocks placed there. He had heard automatic gunfire from where the ICDC members were, which had then stopped. There had been further firing approximately 100 metres distant from him, but he could not tell who was firing up ahead. He did think that there had been firing from a plurality of weapons. He had seen the vehicle stop 50 metres away. He had made a situation report. He had seen Lieutenant A. and Sergeant Teunissen trying to resuscitate the victim. 31. On 23 April 2004, at around 3.35 p.m., Royal Military Constabulary Sergeant First Class Broekman and Warrant Officer Kortman took a second statement from Lieutenant A. The latter stated that the very last time he had seen the ICDC sergeant the latter had been at the checkpoint, fiddling (klungelen) with his AK-47 rifle. Lieutenant A. had told the sergeant not to point the rifle at him. On the subject of the firing incident, he stated that as far as he remembered he had probably lain on a flat part of the road; he had not fired from a standing position. He had performed mouth-to-mouth resuscitation on the wounded passenger of the car and remembered him tasting of alcohol. The ICDC deputy company commander had given him a list of names of the ICDC personnel who had fired their weapons and the corresponding numbers of cartridges, and had asked for replacement ammunition. 32. On 22 April 2004 Royal Military Constabulary Warrant Officer Voorthuijzen and Sergeant Heijden examined the car seized by Warrant Officer Kortman the day before. It was a black Mercedes Benz 320 E AMG. It had black number plates with markings in Arabic script; these visibly covered white number plates bearing black letters in Latin script and numerals. The car had damage consistent with hitting foreign objects at speed. The rear window was shattered. Holes were found in the rear of the car, in the body on the right and left sides, and in the seats. Metal tips were found in various places; one, identified as a bullet fragment, had clearly passed through the passenger seat. The conclusion was that the car had been fired on from both the left and the right; from the left, with a weapon firing ammunition smaller than 6 mm calibre and, from the right, with a weapon firing ammunition larger than 6 mm calibre. The precise firing angles relative to the car could not, however, be determined. 33. On 9 May 2004 Royal Military Constabulary Warrant Officer Voorthuijzen and Sergeant Klinkenberg took receipt of a CD-ROM containing X-rays of Azhar Sabah Jaloud’s body. These showed fragments of metal in the left chest cavity, the left hip and the left lower arm. The Xrays had been made by Warrant Officer Dalinga, X-ray technician at Camp Smitty, As-Samawah, Al-Muthanna province. 34. The file contains photocopies of the above-mentioned X-rays and of photographs. They are accompanied by descriptions, contained in an official report by Warrant Officer Kortman. The photographs include pictures of a road and a checkpoint area, some taken by daylight, some apparently taken at night. Several of the photographs show cartridges lying on the ground, including some described as 7x39mm (as fired by the Kalashnikov AK-47 rifle), both spent and live, and a quantity of spent cartridges stated to be 5.56x45mm (as fired by the Diemaco C7A1 rifle) in a pile close together. Others show a male body with wounds to an arm, the upper left quarter of the back and the right buttock. Further pictures show a dark-coloured Mercedes motorcar; details are included of holes in the bodywork and upholstery that could be bullet holes. 35. On 22 April 2004 ICDC Lieutenant Colonel Awadu Kareem Hadi, the commanding officer of 603 ICDC Battalion, sent a report from his batallion headquarters to the headquarters of the Iraqi police. It reads as follows (rough handwritten translation, from Arabic into English, submitted by the applicant): “The details of the accident which is happened at date (20/04/2004) and information coming from the first batallion (Ar-Rumaytha) and the details are: At the hour (21.05 [sic] after the midnight) from the date (20/04/2004) [sic] a car type (Mercedes) coming by high speed directed from (Al Hamza) to (Al Nassiriya) and when the car is reached to the location of the checkpoint does not stop and making a crash with the obstacles present in checkpoint and he was carelessness and the soldiers shouting on him and calling to stop and he is continued and does not stop and after that Dutch soldiers see that there is no way and shoot on him and then injured person ([Azhar Sabah Jaloud]) then he is died and he was sitting near the driver. With our greetings [signed] Lieutenant Colonel Awadu Kareem Hadi A copy to / PJCC” 36. An official report by Royal Military Constabulary Warrant Officer Voorthuizen, dated 21 June 2004, states that on 2 June 2004 a document was received in Arabic, which, translated orally by an interpreter, was identified as a report by the Baghdad police. The report stated that three metal fragments had been examined in Baghdad at the request of the AlMuthanna police with a view to identifying the ammunition from which they had come and the weapon from which they had been fired; however, the provenance of the metal fragments could not be determined, as they were too few in number. A copy of a document in Arabic was attached to Warrant Officer Voorthuijzen’s report. It is not stated in whose custody the metal fragments had been left or where they were being stored. 37. On 21 April 2004 Mr Dawoud Joad Kathim, the driver of the Mercedes car, lodged a complaint with the Iraqi police against the troops who had fired at his car. It appears from the statement, as taken down in writing, that Mr Dawoud Joad Kathim was under the misapprehension that the foreign troops involved had been Polish rather than Netherlands. Mr Dawoud Joad Kathim also put on record that he had been told by the interpreter to say that all of the shots had been fired by the ICDC, whereas in fact he had not seen any shots fired by ICDC personnel. 38. After the Chamber’s relinquishment of jurisdiction to the Grand Chamber, the Government provided an official record of the following statements taken from the ICDC members. The following is a sworn translation subsequently submitted by the applicant: “Name: A Saad Mossah Weapon number: GL 5574 Ammunition: 4 X 30 cartridges ‘During the second incident I was lying in a position with all-round security. I saw that a car was travelling at high speed towards the checkpoint from the direction of Ar Rumaytha. I saw that it rammed into two drums by the checkpoint and simply continued going. My commander [ICDC Sergeant Hussam Saad] walked forwards together with the interpreter and two Dutch soldiers and then I heard a large number of shots fired. I myself did not fire any shots. I cannot tell you any more than this.’ Name Haider Shareef Weapon number UE 0481 1984 Ammunition 4 Cartridge clips and 120 cartridges in total ‘1 cannot tell you anything about the first incident because I was asleep at the time in the watch hut. During the second incident I was standing by the vehicle checkpoint and I saw a Mercedes Benz driving towards the checkpoint. I saw that the Mercedes Benz rammed into two oil drums and drove on in the direction of Hamsa. I heard the Dutch soldiers shouting stop, stop, and then I heard shots being fired. I saw nothing else because I was standing behind a hut on the opposite side to the watch hut.’ | 1 |
test | 001-141159 | ENG | SVN | COMMITTEE | 2,014 | CASE OF ČETIĆ v. SLOVENIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Ann Power-Forde;Helena Jäderblom | 5. The applicant was born in 1957 and lives in Ljubljana. 6. The applicant served his prison sentence in the closed section of Ljubljana prison in the period between 28 May 2009 and 27 February 2010. From 28 May 2009 to 23 September 2009 he was held in cell 2 (third floor), which measured 18 square metres (including a separate 1.72 square metre sanitary facility) and contained 5 sleeping places. From 23 September 2009 to 22 January 2010 and from 28 January 2010 to 27 February 2010 he was held in cell 129 (second floor), which measured 8.8 square metres (including a separate 1.3 square metre sanitary facility) and contained two sleeping places. From 22 January 2010 to 28 January 2010 he was held in cell 121 (second floor), which measured 18 square metres (including a separate 1.72 square metre sanitary facility) and contained six sleeping places. According to the applicant, five prisoners were being held in each of the cells during his detention. The Government submitted that in cell 2 the numbers varied between four and five, in cell 129 the applicant was held alone and in cell 121 three prisoners were held. 7. During his imprisonment the applicant had three consultations with a general practitioner and one dental appointment. He did not ask for psychological or psychiatric treatment. 8. As regards the general characteristics of the cells, material conditions inside the cells, sanitary conditions and health care, see the judgment in Štrucl and Others v. Slovenia, nos. 5903/10, 6003/10 and 6544/10, §§ 21 to 32, 20 October 2011. 9. As to the out-of-cell time in the closed section, the Court found in the aforementioned judgment that sentenced prisoners in the closed section of the prison were locked up in their cells and were only able to leave them if they applied for certain activities, most of which were to take place in the recreation room. There was, however, only one 50square-metre recreation room per floor, which was to be used by ten inmates at most (Štrucl and Others § 86). 10. From 26 October 2009 to 13 January 2010 the applicant was placed under a stricter regime as he had physically attacked another prisoner. During that time he could spend two hours per day outside his room during recreation time, he had two hours for visits per week and telephone contacts twice a week. He was not allowed to use a multipurpose hall and he received his meals in his cell. 11. As regards the cell temperature, the data provided by the Government showed that the average temperature in the cells in the late afternoon (5- 5.30 p.m.) in the second half of July and August 2009 had been approximately 28oC, exceeding 30oC on seven days. | 1 |
test | 001-174952 | ENG | RUS | COMMITTEE | 2,017 | CASE OF SHMATKO AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. The applicant in application no. 20857/05 also raised other complaints under the provisions of the Convention. | 1 |
test | 001-172329 | ENG | PRT | CHAMBER | 2,017 | CASE OF FERNANDES DE OLIVEIRA v. PORTUGAL | 3 | Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction) | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque | 5. The applicant was born in 1937 and lives in Ceira. 6. The applicant’s son, A.J., was born in 1964. He had a history of mental disorders and of alcohol and drug addiction, and since 1984 had spent several periods in the Sobral Cid Psychiatric Hospital (“the HSC”) in Coimbra: from 5 to 8 August 1984; from 15 March to 3 April 1985; from 15 to 28 November 1985; from 10 to 18 January 1993; from 1 to 3 September 1999; from 12 December 1999 to 14 January 2000; and from 2 to 27 April 2000. 7. According to A.J.’s clinical records, in September 1999 doctors told the applicant that she should seek an order for her son’s compulsory confinement. During his hospitalisation in December 1999 the doctor treating A.J. instructed that he must not be permitted to leave the unit in which he was hospitalised. 8. During at least two of the periods he spent in hospital, A.J. was authorised to spend weekends at home with his family – three weekends during the period from 12 December 1999 to 14 January 2000, and two weekends during the period from 2 to 27 April 2000. During those two periods, A.J. also escaped from the HSC premises several times and sometimes went to the applicant’s house. 9. On 1 April 2000 A.J. was voluntarily admitted to the HSC, upon medical advice, because he had attempted to commit suicide. 10. On 25 April 2000 A.J. went home for the weekend to spend Easter with the applicant and other members of his family, despite the reluctance of the doctor. 11. At around 10.30 p.m. the applicant took A.J. to the emergency ward of the Coimbra University Hospital because he had drunk a large amount of alcohol. According to the observation record completed by the emergency services, A.J. had behaved recklessly during the weekend because he had got drunk. They added that although A.J. had a history of mental weakness, depressive episodes and recurrent suicide attempts, those characteristics had not been observed that weekend. A.J. was subsequently sent back to the same HSC ward in which he was hospitalised. 12. On 26 April 2000 A.J. was kept under medical observation for the whole day. He was given medication and his state of health improved. He got up to dine and to welcome visiting family members. 13. On 27 April 2000 the hospital staff noted that between 8 a.m. and 4 p.m. A.J.’s behaviour had been calm and he had been walking around the unit in which he had been hospitalised. He had had lunch and an afternoon snack. 14. At around 4 p.m. the applicant called the hospital. She was told to call back later, during the afternoon snack, as her son was not inside the building at that time. She was assured that some minutes earlier he had been standing at the door and he looked fine. 15. At around 7 p.m. it was noticed that A.J. had not appeared for dinner, and a nurse informed the head nurse of his absence. The hospital staff then initiated searches in the areas of the HSC premises where patients were allowed to walk around freely, such as the cafeteria and the park. 16. At around 8 p.m. the coordinating nurse (enfermeiro coordenador) telephoned the applicant and told her that A.J. had not shown up for dinner. 17. At some time between 7 p.m. and 8 p.m. the hospital reported A.J.’s disappearance to the National Republican Guard (Guarda Nacional Republicana) and the applicant. 18. It is not known at what time A.J. left the hospital premises and followed a footpath towards the applicant’s house. At around 5.37 p.m. he committed suicide by jumping in front of a train near the HSC premises. 19. On 17 March 2003 the applicant lodged a civil action with the Coimbra Administrative Court (Tribunal Administrativo do Círculo de Coimbra) against the HSC under the State Liability Act (ação de responsabilidade civil extracontratual por ato de gestão pública), seeking pecuniary and non-pecuniary damages of 100,403 euros (EUR). 20. The applicant claimed that her son had been treated at the HSC for mental disorders on several occasions; the first actual hospitalisation had been in 1993. He had been admitted to the hospital on 1 April 2000 because he had attempted to commit suicide. The fact that her son had been able to leave the hospital premises on 27 April 2000 during his hospitalisation had led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because of his suicide attempts and mental condition, her son should have been under medical supervision and the hospital staff should have prevented him from leaving the hospital premises. She further claimed that the HSC should have erected fencing around the boundaries of its premises in order to prevent patients from leaving. The fact that those duties had not been complied with reflected the poor organisation of the HSC services. Lastly, she argued that the HSC lacked a mechanism for checking the presence of patients and an emergency procedure capable of detecting a patient’s absence, which would allow the hospital to take the measures required to ensure that patients returned safely. 21. On 29 October 2003 the court gave a preliminary decision (despacho saneador), specifying which facts were considered to be established and which remained to be established. 22. On 5 July 2005 the court ordered that an expert report be drawn up on A.J.’s clinical condition and the supervision measures required by that condition. 23. On 27 September 2006 a psychiatrist appointed by the Medical Association (Ordem dos Médicos) submitted his report, the relevant parts of which read: “... Although alcohol dependence was the predominant diagnosis, several other diagnoses were considered. In particular, dependent personality (personalidade dependente); delirious outbreaks (surto delirante); schizophrenia; manic-depressive psychosis (psicose maníaco-depressiva)... A.J.’s clinical history enables us to consider him an ill person with recurring relapses in excessive alcohol consumption ... but also another kind of symptomatology... ... There is no detailed reference in his clinical records to his psychopathological condition on 26 April 2000... ... The [plaintiff’s] son suffered from disorders which caused depressive behaviour with a significant inclination to suicide. Taking into account the clinical documents, his clinical condition may have led to another attempt to commit suicide, which turned out to be fatal. In addition, the polymorphism of the patient’s psychiatric condition should be emphasised. A psychopathological condition such as the patient’s has a bad prognosis and suicide is frequently preceded by an attempt (or attempts) to commit suicide. ... Indeed, it must be clarified that ... it should also be considered that the hypothesis of [his] diagnosis could be of a borderline personality disorder [perturbação de personalidade borderline]... ... There is reference to a multiplicity of diagnoses, all of them capable of enhancing the risk of the patient’s suicide (and also of suicidal behaviour). ... The clinical history and psychopathological framework [quadro psicopatológico], for the reasons already mentioned, would predict future suicidal behaviour; thus the occurrence of suicide is not surprising. With regard to prevention, containment and surveillance measures must without a doubt be adopted. But with a patient like this one, these measures are difficult to adopt (see for example his requests to be discharged despite the doctor’s opinion, which is substantiated) and never enough because of the high potential for suicide. ... The fact that the patient had been on antidepressant treatment for more than two weeks, had wandered around the hospital without ever endangering his life ... does not mean that the probability of that event (suicide) was negligible. However, it was hardly avoidable.” 24. The first hearing took place on 8 October 2008. The applicant and the psychiatrist who had issued the medical opinion gave evidence at the hearing. 25. At five hearings the court heard evidence from different witnesses, inter alia, the applicant’s daughter – A.J.’s sister; nurses, doctors and medical auxiliaries who had worked for or were still working for the HSC, some of whom had started their shift at 4 p.m. on 27 April 2000; a social worker employed by the HSC since 1995, who had had contact with A.J.; and the train driver. The court also analysed several documents attached to A.J.’s clinical file from the HSC. 26. On 9 March 2009 the court conducted an on-site inspection. 27. On 7 January 2010 the court held a hearing at which it adopted a decision concerning the facts. 28. On 25 April 2011 the Coimbra Administrative Court delivered a judgment in which it ruled against the applicant. If found that although her son had been suffering from a mental disorder, there was no causal link between his wholly unexpected suicide and an alleged violation of the hospital staff’s duty of care. It noted, in particular, that the applicant’s son had been suffering from a psychiatric disorder which had never been properly diagnosed, either because the symptoms were complex or because he had been addicted to alcohol and drugs. In this regard, it pointed out that over the years the applicant’s son had been diagnosed with schizophrenia and depression. However, only after his death and as a consequence of an expert opinion requested from the Medical Association during the proceedings (see paragraph 23 above) was there an agreement that he had been suffering from a severe personality disorder. The court established that he had last been admitted to hospital after a suicide attempt. However, it considered that despite the possibility that people diagnosed with mental diseases such as that of the applicant’s son might commit suicide, during the last days before his death he had not shown any behaviour or mood which could have led the hospital staff to suspect that 27 April 2000 would be different from the preceding days. The court thus concluded that the hospital staff could not have foreseen the suicide of the applicant’s son and that his behaviour had been absolutely unexpected and unpredictable. With regard to the applicant’s argument that the hospital should have supervised her son more effectively and erected fences or other barriers around the hospital premises, the court pointed out that the current paradigm in the treatment of mentally ill patients was to encourage social interaction. The existence of fencing would lead to the stigmatisation and isolation of mentally disabled patients. In the same way, any supervision of patients had to be carried out discreetly. The HSC had a surveillance procedure in place which consisted of verifying the patients’ presence at meal and medication times; this was in compliance with the most recent psychiatric science and respected the patients’ right to privacy. With regard to the applicant’s argument that the emergency procedure was non-existent, the court noted that it consisted in alerting the police and the patient’s family. Therefore, the court found that there had been no omission in the duty of care on the part of the hospital. 29. On 12 May 2011 the applicant appealed to the Administrative Supreme Court, claiming that the first-instance court had wrongly assessed the evidence, that its findings of fact had been incorrect, and that it had wrongly interpreted the law. 30. On 26 September 2012 the Attorney General’s Office attached to the Administrative Supreme Court, called upon to issue an opinion on the appeal, held that the first-instance judgment should be reversed. In their opinion, given that A.J.’s medical record stated that he had attempted to commit suicide on different occasions and considering that he had last been admitted to hospital because of a suicide attempt, a new attempt to commit suicide was likely and should have been foreseen. They noted that the hospital had failed to implement a supervision regime capable of preventing the applicant’s son from leaving the hospital premises. They also argued that the increased monitoring of the patient was part of the hospital’s duty of care and did not detract from the “open door” regime. They concluded that the monitoring measures put in place by the HSC were not adequate for an establishment categorised as a psychiatric hospital or for a patient with A.J.’s characteristics. 31. On 29 May 2014 the Administrative Supreme Court dismissed the applicant’s appeal by two votes to one, upholding the legal and factual findings of the Coimbra Administrative Court. The Administrative Supreme Court held that the HSC had not breached any duty of care, as there had been no indication which could have led the hospital staff to suspect that the applicant’s son would try to commit suicide, namely by leaving the hospital premises. The Supreme Court took into account that during previous periods of hospitalisation the applicant’s son had also left the hospital premises, and that no link had been established between those “escapes” and a particular risk of suicide in so far as they had only been able to establish the existence of a single suicide attempt, on 1 April 2000. The Supreme Court considered that the counting of patients at meal and medication times was sufficient and had allowed the hospital staff to verify A.J.’s attendance during lunch and the afternoon snack on 27 April 2000. It concluded that there had been no anomaly in the functioning of the HSC, nor could any anomaly be attributed to either the lack of security fences or walls, or the method of counting patients. 32. In a dissenting opinion, one of the judges argued that the hospital should have secured the premises in some way in order to fulfil its duties of care and supervision. By not doing so, it had allowed patients to leave easily without being discharged, thus breaching those duties. As such, that omission had been the cause of the “escape” and suicide of the applicant’s son. 33. The HSC is located outside Coimbra on seventeen hectares of land, distant from any urban or industrial areas. It is part of the Coimbra Hospital and University Centre. 34. According to an on-site inspection made by the Coimbra Administrative Court on 9 March 2009 in the course of the proceedings against the hospital, the HSC has eighteen buildings dedicated to each hospital department. The grounds of the HSC do not have security fences or walls of any other kind. The buildings are surrounded by green areas with trees and other vegetation, and the different buildings are accessed by means of roadways (arruamentos) and paths (passeios), which are also surrounded by trees and other vegetation. The main entrance to the HSC has a barrier (cancela) and a security guard. One of the possible exits from the hospital premises leads to a shortcut towards a railway station platform (apeadeiro ferroviário). This shortcut is accessed by taking the road behind building no. 9. The station platform is around a fifteen to twenty minutes’ walk from that part of the HSC’s premises. 35. Pursuant to the guidelines prepared by the HSC, meals are taken in the hospital cafeteria and patients must remain there until the end of the meal. Patients are not allowed to leave the department without informing the relevant nurse in advance. An afternoon snack is usually provided at around 4.45 p.m. 36. According to articles which have been published in the media in recent years, several patients have managed to escape from the HSC’s premises since at least 2007. Some of them were found and taken back to the hospital and others were found dead. For example, different local and national media have reported as follows: (i) on 9 March 2008 the body of a patient who had escaped two weeks earlier was found close to the hospital premises (in Diário de Coimbra); (ii) on 29 October 2008 a man escaped from the HSC and was hit by a car after jumping in front of it (in Diário das Beiras); (iii) on 31 July 2008 the body of a patient who had escaped from the hospital the previous month was found in a river (in Diário de Coimbra); (iv) on 14 August 2008 a patient who had been involuntarily hospitalised in the HSC escaped (in Diário de Coimbra); (v) in early March 2010 three different patients escaped from the hospital; one of them was located by the police after stealing a car and another was found dead in a nearby river (in bombeirospontopt); (vi) on 16 October 2011 a patient escaped from the HSC’s premises and attacked two police officers with a hoe (in Correio da Manhã); (vii) on 1 March 2015 two patients escaped from the HSC and stole a car by ousting the driver (in Tvi24). | 1 |
test | 001-174387 | ENG | RUS | COMMITTEE | 2,017 | CASE OF FOMIN AND SIVAYEVA v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) | Dmitry Dedov;Luis López Guerra | 4. All the applicants were parties to civil proceedings in which the firstinstance and appeal courts found in their favour. These judgments became final but were subsequently quashed by the supervisory review courts on the grounds of incorrect application of substantive law (for more details see the Appendix). | 1 |
test | 001-141631 | ENG | EST | COMMITTEE | 2,014 | CASE OF KIISA v. ESTONIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Erik Møse;Julia Laffranque;Khanlar Hajiyev | 4. The applicant was born in 1966 and lives in Tallinn. 5. On 10 October 2003 the applicant lodged an action with the Harju County Court (previously named the Tallinn City Court) for divorce and division of joint property including a number of real estates and shares of companies. 6. The defendant submitted his arguments to the court on 15 January 2004. 7. A preliminary hearing took place on 20 April 2004. An adjournment was requested because of the illness of the defendant’s lawyer. The applicant submitted a request concerning new evidence and interim measures. 8. On 9 November 2004 a preliminary hearing took place. The applicant submitted that she intended to supplement her action. 9. On 20 December 2004 the applicant submitted new arguments and a request concerning new evidence. On 5 January 2005 the defendant replied. 10. On 7 April 2005 a preliminary hearing took place. 11. On 22 August 2005 the applicant submitted a number of procedural objections and requests concerning new evidence, including a request to appoint an expert. On 2 September 2005 she requested to stay the proceedings. 12. On 13 September 2005 a preliminary hearing took place. As the defendant had failed to appear at the hearing, the examination of the case was adjourned. 13. On 25 October 2005 the defendant submitted additional evidence. On 11 November 2005 the applicant replied, submitted new arguments and a request concerning new evidence. On 11 January 2006 the defendant made further submissions. 14. On 17 January 2006 a preliminary hearing took place. 15. On 31 March and 24 August 2006 the applicant submitted new evidence, arguments and requests concerning new evidence, including a request to appoint an expert, and supplemented her action. 16. On 5 September 2006 a hearing took place. The applicant requested ordering an expert assessment. She had not yet submitted the list of the joint property, information about its value and relevant proof. The applicant objected to the defendant’s request that a partial judgment in respect of divorce be made. 17. On 15 September 2006 the Harju County Court delivered a partial judgment divorcing the marriage. The applicant appealed. 18. On 25 September 2006 she submitted a request for the removal of the judge and requests concerning new evidence. 19. On 7 May 2007 the Tallinn Court of Appeal dismissed the applicant’s appeal. On 25 July 2007 the Supreme Court refused the applicant leave to appeal. 20. On 20 December 2007 the applicant submitted a complete version of her claims that had been requested by the County Court since she had previously made numerous amendments to her initial claims. She also made a request concerning new evidence and an expert assessment. In the months to follow, written submissions were exchanged between the parties. 21. On 11 July 2008 the applicant submitted new arguments and requests concerning new evidence. 22. On 18 September 2008 the County Court ruled on an advance payment concerning an expert assessment. 23. On 10 October 2008 the applicant requested an interim judgment for the establishment of joint property. The defendant agreed. On 17 November 2008 the County Court requested the parties to submit the lists of property. 24. In April 2009 the parties exchanged submissions concerning the court expenses and the court ordered the parties to submit any unsubmitted evidence. 25. On 26 June 2009 the Harju County Court delivered an interim judgment on the composition of the joint property. Both the applicant and the defendant appealed. In September 2009 and January 2010 the parties exchanged submissions. 26. On 27 January 2010 a hearing took place before the Tallinn Court of Appeal which, on 16 February 2010, delivered a judgment partially granting the defendant’s appeal. Both parties lodged an appeal with the Supreme Court in respect of the partial judgment. 27. On 31 May 2010 the Supreme Court refused the parties leave to appeal and the partial judgment became final. 28. On 18 August 2010 the applicant supplemented her action and applied for interim measures. 29. On 19 August 2010 the County Court applied interim measures. 30. On 17 November 2010 the County Court ordered the applicant to make an advance payment related to expert assessments. On 21 December 2010 it ordered the assessments. 31. On 14 January 2011 the applicant submitted objections to the activities of the court, supplemented her action and submitted new evidence. 32. On 1 February 2011 the court warned the parties that they would be fined in case of failure to submit the required information to the experts. On 3 February 2011 the applicant submitted objections to the activities of the court and requested the removal of the expert. On 11 March 2011 the County Court dismissed the removal request. 33. On 3 May 2011 the County Court ordered the defendant to present the required documents to the expert. 34. On 9 May 2011 the applicant submitted an additional opinion and again requested the removal of the expert. The request was dismissed on 17 May 2011. 35. In May, August and September 2011 the County Court received expert assessments concerning the value of a number of real estates and of the shares of a company. 36. In September and November 2011 the parties exchanged proposals and submissions on the division of the property. 37. On 24 November 2011 the applicant requested the removal of the judge responsible for the case. This request was dismissed. 38. In December 2011 the applicant made further submissions and a request concerning new evidence. She also filed an objection to the court’s activities. 39. On 6 February 2012 the court dismissed the request concerning new evidence. The applicant filed an objection. 40. At a hearing of 8 March 2012 experts were heard. The applicant stated that she did not accuse the court or the defendant for the length of the proceedings and requested an adjournment of the hearing as she wished to obtain an estimation of the value of the forest on one of the real estates. The hearing was adjourned. 41. On 19 March 2012 the applicant submitted new requests concerning the real estate. On 21 May 2012 the court dismissed these requests and ordered the defendant to submit an estimation. The defendant requested an extension. 42. On 21 June 2012 the applicant submitted a supplementary opinion. 43. On 16 October 2012 the applicant submitted new requests. 44. A hearing was held on 15 November 2012. 45. On 21 January 2013 the Harju County Court made a judgment on the merits concerning the division of the joint property. Both parties appealed. 46. In March 2013 the parties exchanged submissions. 47. On 30 April 2013 the Tallinn Court of Appeal delivered a judgment. It partly granted the applicant’s appeal, dismissed the defendant’s appeal and partly amended the County Court’s judgment. Both parties lodged an appeal with the Supreme Court. 48. On 1 August 2013 the Supreme Court refused the parties leave to appeal. | 1 |
test | 001-174388 | ENG | MNE | COMMITTEE | 2,017 | CASE OF TOMAŠEVIĆ v. MONTENEGRO | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström | 6. On 9 August 2004 the applicant lodged a civil claim concerning a property issue against eleven other persons with the Court of First Instance (Osnovni sud) in Herceg Novi. 7. On 15 March 2011 the Court of First Instance in Herceg Novi ruled partly in favour of the applicant. 8. On 18 March 2011 the applicant lodged an appeal with the High Court (Viši sud) in Podgorica. 9. On 8 November 2013 the High Court in Podgorica quashed the judgement and remitted the case back to the Court of First Instance. 10. On 6 July 2015 the Court of First Instance in Herceg Novi ruled against the applicant. On 3 August 2015 the applicant lodged an appeal against this judgment. The proceedings are still pending at the second instance. | 1 |
test | 001-165230 | ENG | SVK | CHAMBER | 2,016 | CASE OF ADAM v. SLOVAKIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1994 and lives in Bidovce. He is of Romani origin. 6. At about 7 p.m. on 18 December 2010 a twelve-year old boy was mugged and his mobile phone taken from him while he was walking along a road between two villages in southeastern Slovakia. The perpetrators of the mugging were not known to him. The boy and his parents subsequently reported the incident to the local county police. 7. In response, a police unit consisting of three officers searched the area surrounding the crime scene with the boy and his father. At around 8 p.m. they spotted the applicant, who was then aged sixteen, another minor and a third person, all of whom the boy identified as his assailants. 8. The applicant and his two associates, both of whom were also of Romani origin, were arrested. The parties dispute the circumstances of the arrest. The Government relied on entries in the county police logbook for the relevant night and on a note on the record drawn up by the county police dated 18 December 2010 indicating that the suspects had resisted arrest and attempted to flee. They had consequently had to be subdued, no injuries had been sustained, and the use of force by the arresting officers had been found lawful. That material referred to the measures of restraint used against the applicant and the other two suspects as “self-defence mechanisms for holding and grabbing”. The applicant, for his part, denied that he had shown any resistance or that the police had used any measures of restraint. 9. The applicant and his companions were then taken to the county police station. According to the results of a breathalyser test carried out there, all three detainees had consumed alcohol and the applicant was in a state of slight inebriation. 10. The three suspects were kept at the police station and preliminarily questioned (vyťažení) by officers from the county police. As to the rooms in which they were kept, these were used as offices, were fitted out with the usual office equipment and were not furnished as detention cells. 11. The applicant’s and the Government’s accounts in relation to further details vary as follows. According to the applicant, during the probing, the officers subjected him to psychological pressure and physical violence with a view to obtaining his confession. In particular, he was slapped and punched in the head, was not allowed to sit or lie down or to rest during the entire length of his detention, and was not provided any food or drink. In the Government’s submission, there had been no ill-treatment, the three suspects were kept in separate rooms and were checked on at fifteenminute intervals. The applicant was allowed to use the toilet, which was equipped with a washbasin with drinkable tap water. 12. The Public Prosecution Service (“the PPS”) was informed of the arrest and, at 11.10 p.m. the case file, along with the responsibility for the detention of the young men, was passed on to an investigator from the local district police. 13. Meanwhile or in parallel, the victim was examined by a doctor, his mother orally submitted a criminal complaint, and the crime scene was inspected. 14. In the early hours of 19 December 2010 the applicant and his two co-detainees were charged with robbery and the investigator decided to place them in a facility for provisional detention. However, the decision was not implemented as no room was available in such a facility within a reasonable distance. Subsequently, a legal-aid lawyer was appointed for the applicant and a copy of the document containing the charges was sent to, inter alia, the child protection services. 15. Between 12 noon and 1 p.m. on 19 December 2010 the applicant was brought before the investigator, who interviewed him in the presence of his mother and the lawyer. No mention was made of any illtreatment. 16. At 1.50 p.m. the applicant was placed in a provisional detention cell as documented by a protocol, which cites him as submitting in response to a pre-printed question that had not been subjected to any violence. The relevant documentation further contains a hand-written note with the applicant’s signature indicating that “[he] ha[d] received dinner”. According to the Government, the cell was equipped with, inter alia, a washbasin and drinkable water from the tap. 17. At 6.05 p.m. the applicant and his co-detainees were released, and the police took them home. 18. When the applicant’s mother appeared before the investigator on 20 December 2010 she decided to avail herself of her right not to give evidence, making no mention of any ill-treatment. 19. On 21 December 2010, acting through the intermediary of his lawyer, the applicant lodged an interlocutory appeal against the charge, arguing that he himself had not been involved in the mugging, which had been perpetrated by his minor associate alone and to which the latter had confessed. There was no mention of any ill-treatment. 20. On 12 January 2010 the charge against the applicant was withdrawn. 21. In the applicant’s submission, meanwhile, in the days that followed his release, his mother presented herself at the county police station and contacted the Ministry of the Interior by telephone to complain about the treatment to which her son had been subjected while detained. According to the applicant, her complaint was not registered and she was orally advised to submit it in written form. According to the Government, however, the heads of the county police and the district police, who were the only persons entitled to receive complaints in matters such as those obtaining in the present case, did not receive any complaint from the applicant’s mother. Similarly, there was no mention of a visit or any communication from her in the records of visits and telephone calls received by the county police or in the operational logbook of the district police. 22. On 5 January 2011 the applicant and his associates lodged a written criminal complaint with the Ministry of the Interior. They directed it against the officers of the county police who had been on duty between 7 p.m. on 18 December 2010 and 10 a.m. on 19 December 2010, suggesting that the offence of abuse of authority of a public official could have been committed. In particular, they submitted that, while in police custody, each of them separately had been pressured to confess on the pretext that the others had already confessed. The applicant also submitted that he had been subjected to slapping in the face and on the head until he had confessed. The persons inflicting that treatment had worn uniforms. Although the applicant did not know their identity, he would certainly recognise them. Another person had been present, not wearing a uniform, presumably a relative of the boy who had been robbed. Throughout the entire time in police custody, the applicant had had to stand, without being allowed to sit or lie down, and he had not been given any food or water. Moreover, in the applicant’s submission, his legal guardians had not been notified of his custody, let alone been present. 23. The applicant submitted a medical report dated 19 December 2010. The doctor who issued the report observed that the applicant had “allege[d] that he had been beaten by police officers the day before” and “had received a slap on the right half of a cheek”. In reply to a printed question about whether the injury could have been sustained as alleged, the reply “yes” was given. The doctor further observed that there was no haematoma and that the cheek was sensitive and slightly swollen. He diagnosed “a bruised cheek on the left” and classified the injury as slight, with recovery time below seven days. 24. The criminal complaint was sent to the local Control and Inspection Section (“the CIS”) of the Ministry of the Interior for examination. Subsequently, the part of the complaint concerning the failure to notify the applicant’s legal guardians of his arrest and detention, to provide him with food and water during his detention, and to hear him immediately after his arrest was sent to the district police (see paragraph 29 below). 25. In examining the complaint concerning the alleged physical mistreatment, the CIS interviewed the applicant and his associates, as well as the investigator and two officers under suspicion. In addition, it examined the case file concerning the investigation into the alleged robbery and other documentary material. 26. On 9 March 2011 the CIS dismissed the complaint. In doing so it observed that the applicant had not raised any complaint of ill-treatment during his interview with the investigator on 19 December 2010, and held that this could not be explained by his proclaimed fear of the officers involved since, in that interview, the applicant had been assisted by his mother and lawyer (see paragraph 15 above). The CIS observed that in his oral depositions, the applicant had claimed that he had been beaten at the county police station for about three hours and that he had sustained bruises and a swollen cheek. However, those allegations of sustained beating and its consequences did not correspond to the findings in the doctor’s report of 19 December 2010, which only attest to an allegation of having received a slap on the right cheek and to having a swollen cheek, but no haematoma. The CIS also noted that in the investigation file concerning the alleged robbery there was no indication of any ill-treatment. It observed that the applicant’s injury could have been inflicted in the course of his arrest, which he had resisted and which accordingly had had to be carried out forcefully. In addition, the CIS observed that the police officers in question had not been involved in the investigation of the alleged robbery, but had merely been guarding the applicant. Consequently, they had had no reason to pressure him into confessing. 27. The applicant challenged the decision of 9 March 2011 by lodging an interlocutory appeal with the PPS. He requested twice that a decision by the PPS to dismiss the appeal be reviewed. The applicant argued in particular that he had not resisted his arrest and that, accordingly, no physical force had been used in the course of it. His injury could therefore not be explained as the CIS had done. He had not complained of the ill-treatment before the investigator because nobody had asked him about it and because he had been concerned about possible repercussions. The applicant further argued that the fact that there was no mention of the ill-treatment in the investigation file was irrelevant. In fact, it was logical, because the officers involved would naturally not mention their misconduct and would deny it. That incongruity and contradiction of the arguments had not been examined. According to the applicant, a “racial motive was not excluded” and the treatment to which he had been subjected had been contrary to Article 3 of the Convention. 28. The interlocutory appeal and the requests for review were eventually dismissed by the Office of the Prosecutor General (“the OPG”), which communicated its decision to the applicant in a letter of 29 September 2011. The PPS fully endorsed the findings of CIS, considering as crucial the fact that before the doctor on 19 December 2010 the applicant had only alleged slapping, that the doctor’s observations on the applicant’s injury did not correspond to the applicant’s subsequent allegation of sustained beating, and that the applicant had not raised any ill-treatment allegation with the investigator on 19 December 2010. Without any explanation, the PPS also concluded that there was no indication of any racial motive behind the treatment complained of by the applicant. 29. As to the part of the applicant’s criminal complaint concerning the alleged failure to notify his legal guardians of his arrest and detention, to provide him with food and water during his detention, and to hear him immediately after his arrest (see paragraph 24 above), the district police informed the applicant in a letter of 8 June 2011, without any explanation at all, that “in the investigation of the given matter, no error had been committed by the investigative organs”. 30. On 2 December 2011 the applicant lodged a complaint, under Article 127 of the Constitution, with the Constitutional Court against the OPG and the Regional Office of the PPS involved in his case. He emphasised that at the time of his arrest he had been a minor, that he had been kept at the police station the whole night without being able to sit or lie down, and without being given any food or water, and that he had been subjected to psychological pressure and physical violence with a view to forcing him to confess. He considered that such treatment had been in breach of his rights under Article 3 of the Convention, as was the ensuing investigation into his complaints on account of its lack of efficiency and independence, as well as the authorities’ failure to act on their own initiative. The applicant also alleged that the lack of a proper investigation had been aggravated by the lack of an effective remedy and discrimination, contrary to his rights under Articles 13 and 14 of the Convention. On the last point, the applicant argued that there had been many known incidents of police violence against the Roma in the course of arrest and detention in Slovakia, and that his treatment by the police had been influenced by his Romani origin. 31. On 10 April 2012 the Constitutional Court rejected the complaint as manifestly ill-founded. It observed that the applicant had no legal right to have a third person criminally prosecuted, that his right to lodge a criminal complaint merely implied that he had the right “to have the complaint dealt with by a body authorised to do so”, and that it had thus been dealt with. It further observed that the applicant had not complained of his alleged ill-treatment before the investigator on 19 December 2010 or in his interlocutory appeal against the charge (see paragraphs 15 and 19 above). The fact that he had had those means of asserting his rights at his disposal excluded the jurisdiction of the Constitutional Court. It concluded without further explanation that, in the circumstances, neither the proceedings before the PPS nor their decisions could have violated the applicant’s rights as identified in his constitutional complaint. The decision was served on the applicant on 25 April 2012. | 1 |
test | 001-154154 | ENG | ROU | CHAMBER | 2,015 | CASE OF COJAN v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 4. The applicant was born in 1954 and is currently detained in Giurgiu Prison. 5. On 19 May 2010 the applicant was placed in pre-trial detention on suspicion of having committed drug-related crimes. He was convicted on 6 May 2011 by the Bucharest County Court and sentenced to eighteen years’ imprisonment. The decision became final on 5 June 2012. 6. The applicant was held in the pre-trial detention facilities of the Bucharest Direction of Criminal Investigations until 16 November 2010. On that date he was transferred to Rahova Prison, where he remained until 13 August 2012. 7. He described the overall conditions of detention as follows: overcrowded cells, lack of natural light and lack of fresh air. In particular he described cells that measured about 19 sq. m and were 2.2 m high; each cell containing eight beds constantly occupied at full capacity; there was no natural light, only artificial light provided by one 40 W bulb which was insufficient; he had no access to fresh air. There was no refrigerator to store food in proper conditions. He shared cells with individuals arrested for violent crimes and there had been no means of summoning the guards, even though several violent incidents had taken place between the detainees. 8. According to the official prison records adduced by the Government, in the police detention facilities the applicant had been placed in cells situated in the basement (demisol), the first measuring 9 sq. m and containing four beds and the second measuring 13.5 sq. m and having six beds. The cells were occupied at full capacity. The cells had a table and chairs as well as a squat toilet, sink and shower separated from the living space by a curtain. The detainees had access to running water, and the cells were heated during winter. There was access to natural light, as each cell was provided with a window, but also to artificial light provided by a lamp placed in each cell, above the door, and protected by an iron grille. Personal hygiene was effected by means of products provided by the prison or acquired by the detainees themselves. 9. According to the same official information, in Rahova Prison the applicant had been held in different cells, all measuring 21 sq. m and containing eight beds (except for one cell where there were only six beds), a table, chairs and a support for a TV set. Adjacent to the cell there was a bathroom equipped with a toilet, sinks and a shower. Cold water was available continuously and hot water was available twice a week. The cell was heated to 18oC during the winter. The applicant was allowed to exercise for two hours daily in the interior courtyard and had access to outdoor and indoor sport facilities. | 1 |
test | 001-145575 | ENG | BIH;HRV;MKD;SRB;SVN | GRANDCHAMBER | 2,014 | CASE OF ALIŠIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA, CROATIA, SERBIA, SLOVENIA AND "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 1 | Preliminary objections dismissed (Article 35-3 - Ratione materiae);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Serbia);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Slovenia);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) (Bosnia and Herzegovina) (Croatia) (the former Yugoslav Republic of Macedonia);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Serbia);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Slovenia);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) (Bosnia and Herzegovina) (Croatia) (the former Yugoslav Republic of Macedonia);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures) (Serbia);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;General measures) (Slovenia);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | André Potocki;Angelika Nußberger;Dean Spielmann;Ganna Yudkivska;Guido Raimondi;Ineta Ziemele;Josep Casadevall;Lech Garlicki;Linos-Alexandre Sicilianos;Mark Villiger;Mirjana Lazarova Trajkovska;Nicolas Bratza;Päivi Hirvelä;Ksenija Turković | 9. The applicants were born in 1976, 1949 and 1952 respectively and live in Germany. 10. Prior to the dissolution of the Socialist Federal Republic of Yugoslavia (SFRY), two of the present applicants, Ms Ališić and Mr Sadžak, had deposited foreign currency in Ljubljanska Banka Sarajevo. In 1990, within the context of the economic reforms carried out in 1989-90 (see paragraph 21 below), Ljubljanska Banka Sarajevo became a branch of Ljubljanska Banka Ljubljana, a Slovenian bank. Also prior to the dissolution of the SFRY, the third applicant, Mr Šahdanović, had deposited foreign currency in the Tuzla branch, located in Bosnia and Herzegovina, of Investbanka, a Serbian bank. According to the material in the Court’s possession, on 31 December 1991 the balance in Ms Ališić’s and Mr Sadžak’s accounts at the Sarajevo branch of Ljubljanska Banka Ljubljana was 4,715 Deutschmarks (DEM) and DEM 129,874 respectively; on 3 January 2002 the balance in Mr Šahdanović’s accounts at the Tuzla branch of Investbanka was DEM 63,880, 4 Austrian schillings and 73 United States dollars (USD). 11. The applicants’ complaints under the Convention concern their inability to withdraw their foreign-currency savings from the bank accounts described above. In their submission, this constituted a breach of Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention by all of the respondent States. They also alleged a violation of Article 13 of the Convention. 12. Before the economic reforms that were carried out in the SFRY in 1989-90, its commercial banking system consisted of basic and associated banks. Basic banks had separate legal personality, but were integrated into the organisational structure of one of the nine associated banks. As a rule, basic banks were founded and controlled by socially owned companies based in the same territorial unit (that is, in one of the Republics – Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia and Slovenia – or Autonomous Provinces – Kosovo and Vojvodina – of the SFRY). Socially owned companies were the flagship of the Yugoslav model of self-management: neither private nor State-owned, they were a collective property controlled by their employees, based on a communist vision of industrial relations (the phenomenon and the current status of such companies in Serbia, where they continue to exist, has been described in R. Kačapor and Others v. Serbia, nos. 2269/06, 3041/06, 3042/06, 3043/06, 3045/06 and 3046/06, §§ 71-76 and 97, 15 January 2008). Two or more basic banks could form an associated bank. Ljubljanska Banka Ljubljana, one of the associated banks of the SFRY, was composed of Ljubljanska Banka Sarajevo, at which two of the present applicants had opened accounts, Ljubljanska Banka Zagreb, Ljubljanska Banka Skopje and a number of other basic banks. Similarly, Investbanka, at which one of the present applicants had opened accounts, had, together with some other basic banks, formed an associated bank called Beogradska udružena Banka. 13. In the SFRY there were also nine national banks, the National Bank of Yugoslavia (“the NBY”) and a national bank in each of the six Republics and two Autonomous Provinces. 14. Being hard-pressed for hard currency, the SFRY made it attractive for its expatriates and other citizens to deposit foreign currency with its banks. Such deposits earned high interest, the annual rate often exceeding 10%, and were guaranteed by the State (section 14(3) of the Foreign-Currency Transactions Act 1985 and section 76(1) of the Banks and Other Financial Institutions Act 1989). 15. The State guarantee was to be activated in case of a bank’s bankruptcy or “manifest insolvency” at the request of the bank (section 18 of the Banks and Other Financial Institutions Insolvency Act 1989 and the relevant secondary legislation). None of the banks under consideration in the present case made such a request. 16. Savers could not request the activation of the guarantee of their own volition, but were entitled, in accordance with the Civil Obligations Act 1978, to collect their deposits at any time, together with accrued interest. Section 1035 of that Act provided as follows: “(1) A contract for a monetary deposit shall be formed when the bank agrees to accept and the depositor agrees to deposit a certain sum of money in the bank. (2) Under such a contract, the bank shall have the right to use the deposited money and the obligation to return it in accordance with the terms set out in the agreement.” Section 1043(1) of the Act read as follows: “If a savings account is opened, the bank or financial institution shall issue the saver with a savings book.” Section 1044 of the Act provided: “(1) All deposits and withdrawals shall be recorded in a savings book. (2) Signed and stamped entries in savings books shall constitute proof of deposits and withdrawals. (3) Any agreement to the contrary shall be null and void.” Furthermore, section 1045 of the Act read as follows: “Interest shall be paid on savings deposits.” 17. Beginning in the mid-1970s, the banks incurred foreignexchange losses because of depreciation of the dinar exchange rate. In response, the SFRY introduced a system for “redepositing” foreign currency, allowing banks to transfer citizens’ foreign-currency deposits to the NBY, which assumed the currency risk (section 51 of the Foreign-Currency Transactions Act 1977). Although the system was legally optional, in practice the banks did not have another option as they were not allowed to maintain foreign-currency accounts with foreign banks, which were necessary to make payments abroad, nor were they allowed to grant foreign-currency loans. Virtually all foreign currency was therefore redeposited with the NBY according to one of the following two methods: either the “accounting” or “pro forma” method, or the method of actual transfer of foreign currency to foreign accounts of the NBY. The accounting method was used far more often, as it enabled commercial banks to shift currency risks to the NBY without having to pay fees to foreign banks (see Kovačić and Others v. Slovenia [GC], nos. 44574/98, 45133/98 and 48316/99, § 36, 3 October 2008; see also decision AP 164/04 of the Constitutional Court of Bosnia and Herzegovina of 1 April 2006, § 53). According to an internal report of the NBY of September 1988, by 30 June 1988 an equivalent of approximately USD 9 billion had been redeposited with the NBY, of which only around USD 1.4 billion (that is, slightly above 15%) had been physically transferred to the NBY’s many foreign accounts. It would appear that the funds in the NBY’s foreign accounts have recently been divided among the successor States (see paragraph 65 below). 18. With regard to Ljubljanska Banka Sarajevo, where the first two applicants held their accounts, the redepositing scheme operated as follows. Pursuant to a series of agreements (between Ljubljanska Banka Sarajevo and Ljubljanska Banka Ljubljana, the National Bank of Bosnia and Herzegovina and the National Bank of Slovenia), Ljubljanska Banka Sarajevo was to transfer every month to the National Bank of Slovenia, for the account of Ljubljanska Banka Ljubljana, any difference between the foreign currency deposited and the foreign currency withdrawn. Some of those funds were transferred back to Ljubljanska Banka Sarajevo at the request of that bank in order to meet its liquidity needs (during periods when more foreign currency was withdrawn than deposited). Indeed, in the period from 1984 to 1991, DEM 244,665,082 was transferred to Ljubljana and DEM 41,469,528 (that is, less than 17%) back to Sarajevo. The funds which had not been transferred back to Sarajevo were redeposited with the NBY according to one of the two methods described in paragraph 17 above: the “accounting” or “pro forma” method (in which case there is no proof that the funds actually left Ljubljana), or the method of actual transfer of foreign currency to foreign accounts of the NBY. Regardless of the redepositing method used, all those funds were recorded as a claim of Ljubljanska Banka Sarajevo against the NBY. 19. Under the agreements mentioned in paragraph 18 above, Ljubljanska Banka Sarajevo was granted dinar loans (initially interest-free) by the NBY, via the National Bank of Bosnia and Herzegovina, in return for the value of the redeposited foreign currency. The dinars received by Ljubljanska Banka Sarajevo were used by that basic bank to offer loans, at interest rates below the rate of inflation, to companies based, as a rule, in the same territorial unit. 20. In late 1988 the redepositing system was stopped (by an amendment to section 103 of the Foreign-Currency Transactions Act 1985). Banks were given permission to open accounts with foreign banks. Ljubljanska Banka Sarajevo, like other banks, seized that opportunity and deposited around USD 13.5 million with foreign banks in the period from October 1988 to December 1989. There is no information in the file as to what has happened to those funds. 21. Within the framework of the reforms carried out in 1989-90, the SFRY abolished the system of basic and associated banks described above. This shift in the banking regulations allowed some basic banks to opt for an independent status, while other basic banks became branches (without legal personality) of the former associated banks to which they had formerly belonged. On 1 January 1990 Ljubljanska Banka Sarajevo, mentioned above, thus became a branch (without legal personality) of Ljubljanska Banka Ljubljana; the latter assumed the former’s rights, assets and liabilities. Investbanka, mentioned above, became an independent bank with its seat in Serbia and a number of branches in Bosnia and Herzegovina. 22. Moreover, the convertibility of the dinar was declared, which led to a massive withdrawal of foreign currency. The SFRY therefore resorted to emergency measures restricting to a large extent withdrawals of foreign-currency deposits. For example, as of December 1990, when the amendment to section 71 of the Foreign-Currency Transactions Act 1985 came into force, savers could withdraw their savings only to pay for imported goods or services for their own or their close relatives’ needs, to purchase foreign-currency bonds, to make testamentary gifts for scientific or humanitarian purposes, or to pay for life insurance with a local insurance company. In addition, section 3 of the SFRY government’s decision of April 1991, which was in force until February 1992, and section 17(c) of the NBY’s decision of January 1991, which the Constitutional Court of the SFRY declared unconstitutional in April 1992, limited the amount that savers could withdraw or use for the above purposes to DEM 500 per transaction, but not more than DEM 1,000 per month (see paragraph 53 below). 23. The dissolution of the SFRY occurred in 1991-92. In the successor States of the SFRY, foreign-currency savings deposited prior to the dissolution were placed under a special regime and are commonly referred to as “old” or “frozen” foreign-currency savings. An overview of the relevant domestic law and practice concerning such savings in each of the five successor States is provided below. The successor States, which are also the respondent parties to the present case, are presented below in alphabetical order. 24. In 1992 Bosnia and Herzegovina took over the statutory guarantee for “old” foreign-currency savings from the SFRY (see section 6 of the SFRY Legislation Application Act 1992). Although the relevant statutory provisions were not clear in that regard, the National Bank of Bosnia and Herzegovina held the view that the guarantee covered such savings in domestic banks only (see report 63/94 of the National Bank of Bosnia and Herzegovina of 8 August 1994). 25. Although all “old” foreign-currency savings remained frozen during the war, withdrawals were exceptionally allowed on humanitarian grounds and in some other special cases (see the relevant secondary legislation). 26. After the 1992-95 war, each of the Entities (the Federation of Bosnia and Herzegovina (“the FBH”) and the Republika Srpska) enacted its own legislation on “old” foreign-currency savings. Only the FBH legislation is relevant in the present case, given that the branches in issue are situated in that Entity. In 1997 the FBH assumed liability for “old” foreign-currency savings in banks and branches situated in its territory (see section 3(1) of the Claims Settlement Act 1997 and the Non-Residents’ Claims Settlement Decree 1999). Although such savings remained frozen, that Act provided that they could be used to purchase State-owned flats and companies (see section 18 of the Claims Settlement Act 1997, as amended in 2004). 27. In 2004 the FBH enacted new legislation. It undertook to repay “old” foreign-currency savings in domestic banks in that Entity, regardless of the citizenship of the depositor concerned. Its liability for such savings in the branches of Ljubljanska Banka Ljubljana, Investbanka or other foreign banks, in which the applicants had their accounts, was expressly excluded pursuant to section 9(2) of the Settlement of Domestic Debt Act 2004. 28. In 2006, liability for “old” foreign-currency savings in domestic banks passed from the Entities to the State. Liability for such savings at the local branches of Ljubljanska Banka Ljubljana and Investbanka was again expressly excluded, but the State was to help the clients of those branches to obtain payment of their savings from Slovenia and Serbia respectively (see section 2 of the Old Foreign-Currency Savings Act 2006). In addition, all proceedings concerning “old” foreign-currency savings ceased by virtue of the same Act (see section 28 of that Act; that provision was declared constitutional by decision U 13/06 of the Constitutional Court of Bosnia and Herzegovina of 28 March 2008, § 35). 29. As stated in paragraph 21 above, in January 1990 Ljubljanska Banka Sarajevo became a branch, without legal personality, of Ljubljanska Banka Ljubljana; the latter assumed the former’s rights, assets and liabilities. Pursuant to the companies register, the branch acted on behalf of and for the account of the parent bank. At the end of 1991, the foreign-currency savings at that branch amounted to around DEM 250 million, but less than DEM 350,000 had been placed in its vault (the flow of foreign currency between Sarajevo and Ljubljana is described in paragraph 18 above). 30. A new bank, with the same name as the predecessor of the Sarajevo branch of Ljubljanska Banka Ljubljana – Ljubljanska Banka Sarajevo – was incorporated under the law of Bosnia and Herzegovina in 1993. It assumed unilateral liability for “old” foreign-currency savings at the Sarajevo branch of Ljubljanska Banka Ljubljana, a Slovenian bank. 31. In 1994 the National Bank of Bosnia and Herzegovina carried out an inspection of the new Ljubljanska Banka Sarajevo and noted many shortcomings. First of all, the management of the new Ljubljanska Banka Sarajevo had not been properly appointed and it was not clear who its shareholders were. The National Bank, for that reason, appointed a director of that bank. Secondly, as a domestic bank, Ljubljanska Banka Sarajevo could not have assumed a foreign bank’s liability for “old” foreign-currency savings, as this would impose new financial obligations on the State of Bosnia and Herzegovina (as the State was the statutory guarantor for “old” foreign-currency savings in all domestic banks). The National Bank ordered that a closing balance sheet for the Sarajevo branch of Ljubljanska Banka Ljubljana as at 31 March 1992 be drawn up urgently and that its relations with the parent bank be defined. 32. However, according to the companies register, the newly founded Ljubljanska Banka Sarajevo remained liable for “old” foreign-currency savings at Ljubljanska Banka Ljubljana’s Sarajevo branch until late 2004 (see paragraph 35 below). Consequently, it continued to administer “old” foreign-currency savings at Ljubljanska Banka Ljubljana’s Sarajevo branch; around 3% of those savings were used in the privatisation process in the FBH (see paragraph 26 above). In one case, a civil court ordered Ljubljanska Banka Sarajevo to repay a client of Ljubljanska Banka Ljubljana’s Sarajevo branch (see Višnjevac v. Bosnia and Herzegovina (dec.), no. 2333/04, 24 October 2006). 33. The Constitutional Court of Bosnia and Herzegovina described the pre-2004 situation as “chaotic” (decision AP 164/04 of 1 April 2006, § 55). The Human Rights Chamber for Bosnia and Herzegovina, a domestic human rights body, held that the legal uncertainty surrounding the issue of “old” foreign-currency savings in, inter alia, domestic branches of Ljubljanska Banka Ljubljana and Investbanka during that period amounted to a violation of Article 1 of Protocol No. 1 (see decision CH/98/377 and others of 7 November 2003, § 270). 34. In 2003 the FBH Banking Agency placed the domestic Ljubljanska Banka Sarajevo under its provisional administration on the ground that it had undefined relations with Ljubljanska Banka Ljubljana, a foreign bank located in Slovenia. 35. By virtue of an amendment to the Companies Register Act 2000, in 2003 the FBH Parliament extended the statutory time-limit for the deletion of wartime entries in the companies register until 2004. Shortly thereafter, in November 2004, the Sarajevo Municipal Court decided that the domestic Ljubljanska Banka Sarajevo was not the successor of the Sarajevo branch of the Slovenian Ljubljanska Banka Ljubljana; that it was not liable for “old” foreign-currency savings in that branch; and that, as a result, the 1993 entry in the companies register stating otherwise ought to be deleted. 36. In 2006 the domestic Ljubljanska Banka Sarajevo sold its assets to a Croatian company which, in return, undertook to pay the debts of that bank. At the same time, the premises of the Sarajevo branch of the Slovenian Ljubljanska Banka Ljubljana, under the administration of the FBH government pending the final determination of the status of that branch, were let out to the same Croatian company on behalf and for the account of Ljubljanska Banka Ljubljana. 37. In 2010 the competent court opened bankruptcy proceedings against Ljubljanska Banka Sarajevo in Bosnia and Herzegovina. The proceedings are still pending. 38. The Tuzla branch of Investbanka has always had the status of a branch without legal personality. The balance of the “old” foreign-currency savings at that branch was approximately USD 67 million (approximately DEM 100 million) as at 31 December 1991. The branch closed in June 1992 and has never resumed its activities. It is not clear what happened to its funds. 39. In 2002 the competent court in Serbia made a bankruptcy order against Investbanka. The Serbian authorities then sold the premises of the FBH branches of Investbanka (those in the Republika Srpska had been sold in 1999). For example, for the sale of the premises in Džafer Mahala Street in Tuzla the Serbian authorities obtained 2,140,650 euros. The bankruptcy proceedings against Investbanka are apparently still pending. 40. In 2010 the FBH government decided to place the premises and archives of the FBH branches of Investbanka under its administration. However, it would appear that Investbanka no longer had any premises or archives in the FBH. 41. In 2011, at the request of the FBH authorities, the Serbian authorities opened a criminal investigation into the manner in which the archives of the Tuzla branch had been transferred to the Serbian territory in 2008. 42. The Croatian Government stated that they had repaid “old” foreign-currency savings in domestic banks and their foreign branches, regardless of the citizenship of the depositor concerned. Indeed, it is clear that they repaid such savings of Bosnian-Herzegovinian citizens deposited in Bosnian-Herzegovinian branches of Croatian banks. However, the Slovenian Government provided the Court with decisions of the Supreme Court of Croatia (Rev 3015/1993-2 of 1994, Rev 3172/1995-2 of 1996 and Rev 1747/1995-2 of 1996) holding that the term used in the relevant legislation (građanin) meant a Croatian citizen (compare Kovačić and Others, cited above, § 77). 43. Croatia allowed its citizens to transfer their “old” foreign-currency savings from the Zagreb branch of Ljubljanska Banka Ljubljana to Croatian banks (see section 14 of the Old Foreign-Currency Savings Act 1993 and the relevant secondary legislation). Apparently, about two-thirds of all clients of that branch availed themselves of that possibility. In March 2013 Croatia and Slovenia signed a memorandum of understanding, urging further succession negotiations regarding those transferred savings. As to the clients who did not transfer their savings from the Zagreb branch of Ljubljanska Banka Ljubljana to Croatian banks, which savings amounted to approximately DEM 300 million, some of them pursued civil proceedings in the Croatian courts: sixty-three of them obtained their “old” foreign-currency savings from a forced sale of assets of that branch located in Croatia (decisions of the Osijek Municipal Court of 8 April 2005 and 15 June 2010; see also Kovačić and Others, cited above, §§ 122-33); while others have pursued or are currently pursuing civil proceedings in the Slovenian courts (see paragraph 51 below). According to official papers provided by the Croatian Government, Ljubljanska Banka Ljubljana and its Zagreb branch no longer have any assets in Croatia. 44. After the dissolution of the SFRY, “old” foreigncurrency savings in Serbian banks remained frozen. However, withdrawals were exceptionally allowed on humanitarian grounds regardless of the citizenship of the saver concerned and the location of the branch in issue (see the relevant secondary legislation). Furthermore, the Serbian courts ruled on at least one occasion that the banks based in Serbia were liable for “old” foreign-currency savings at their branches located in Bosnia and Herzegovina (see Šekerović v. Serbia (dec.), no. 32472/03, 4 January 2007). 45. In 1998, and then again in 2002, Serbia agreed to repay, partly in cash and partly in government bonds, “old” foreign-currency savings in domestic branches of domestic banks of its citizens and of citizens of all States other than the successor States of the SFRY together with “old” foreign-currency savings in foreign branches of domestic banks (such as the Tuzla branch of Investbanka) of citizens of all States other than the successor States of the SFRY. Those government bonds were to be amortised by 2016 in twelve annual instalments and earned interest at an annual rate of 2% (section 4 of the Old Foreign-Currency Savings Act 2002). As regards the amount to be repaid, Serbia undertook to reimburse original deposits with interest accrued by 31 December 1997 at the original rate and interest accrued after that date at an annual rate of 2% (section 2 of the same Act). 46. However, other “old” foreign-currency savings (that is, the savings of citizens of the SFRY successor States other than Serbia deposited in all branches of Serbian banks, both domestic and foreign, as well as the savings of Serbian citizens in Serbian banks’ branches located outside Serbia) were to remain frozen pending succession negotiations, as was the case for example of the third applicant’s deposits. Furthermore, all proceedings concerning “old” foreign-currency savings ceased by virtue of sections 21 and 22 of the Old Foreign-Currency Savings Act 1998 and sections 21 and 36 of the Old Foreign-Currency Savings Act 2002. 47. According to the companies register, Investbanka is State-owned. It is controlled by the Deposit Insurance Agency of Serbia. As a State-owned entity, it had to write off its large claims against State- and socially-owned companies in order to enable their privatisation pursuant to the Privatisation Act 2001. In January 2002 the competent court made a bankruptcy order against Investbanka. The bankruptcy proceedings are pending. Hundreds of savers at Bosnian-Herzegovinian branches of Investbanka unsuccessfully applied to be paid back within the context of the bankruptcy proceedings. Twenty of them then pursued civil proceedings against Investbanka, but to no avail. 48. In 1991 Slovenia assumed the statutory guarantee from the SFRY for “old” foreign-currency savings in domestic branches of all banks (including Investbanka and other foreign banks), regardless of the citizenship of the depositor concerned (see section 19(3) of the 1991 Constitutional Act on the Implementation of the Fundamental Constitutional Charter on the Sovereignty and Independence of the Republic of Slovenia – “the 1991 Constitutional Act”), and converted the banks’ liabilities towards depositors into public debt (see the Old Foreign-Currency Savings Act 1993). Slovenia thus undertook to repay original deposits and interest accrued by 31 December 1990 at the original rate, as well as interest accrued from 1 January 1991 until 31 December 1992 at an annual rate of 6% (section 2 of the Old Foreign-Currency Savings Act 1993). As regards the period thereafter, the interest rate depended on whether a depositor had opted for government bonds or cash. The depositors were entitled to obtain either government bonds, which were to be amortised by 2003 in twenty biannual instalments and earned interest at an annual rate of 5%, or cash from the banks in which they had money, together with interest at the market rate plus 0.25% in ten biannual instalments. In the latter case, the banks were to be issued with government bonds. Some depositors opted for government bonds as they could use them to purchase State-owned flats and companies and to pay taxes and pension contributions. 49. Shortly after its declaration of independence, Slovenia nationalised and then, in 1994, restructured Ljubljanska Banka Ljubljana by virtue of an amendment to the 1991 Constitutional Act. Most of its assets and a part of its liabilities were transferred to a new bank – Nova Ljubljanska Banka (see section 22(b) of that Act, cited in paragraph 54 below). The old bank retained liability for “old” foreign-currency savings in its branches in the other successor States and the related claims against the NBY (ibid.). On the basis of that Act, domestic courts rendered a number of decisions ordering the old Ljubljanska Banka Ljubljana to pay “old” foreign-currency savings to clients at its Sarajevo branch; at the same time, domestic courts considered that the Slovenian State itself had no liabilities in this regard (see the Supreme Court judgments II Ips 415/95 of 27 February 1997; II Ips 613/96 of 1 April 1998; and II Ips 490/97 of 21 January 1999). The old Ljubljanska Banka Ljubljana was initially administered by the Bank Rehabilitation Agency. It is now controlled by a Slovenian government agency – the Succession Fund. 50. In 1997 all proceedings concerning “old” foreign-currency savings in the old Ljubljanska Banka Ljubljana’s branches in the other successor States (with the exception of third-instance proceedings before the Supreme Court) were stayed pending the succession negotiations (see the Succession Fund of the Republic of Slovenia Act 1993, as amended in 1997, and the Succession Fund and the Senior Representative for Succession of the Republic of Slovenia Act 2006). In December 2009 the Constitutional Court of Slovenia, upon a petition of two Croatian savers, declared that measure unconstitutional. 51. The Ljubljana District Court has since given many judgments ordering the old Ljubljanska Banka Ljubljana to pay “old” foreign-currency savings in its Sarajevo branch together with interest (see, for example, judgment P 119/1995-I of 16 November 2010, which became final and binding on 4 January 2012 when it was upheld by the Ljubljana Higher Court; judgment P 9/2007-II of 7 December 2010; and judgment P 1013/2012-II of 10 January 2013). The court explained that, according to the SFRY law, branches had acted on behalf and for the account of parent banks. Moreover, according to the Slovenian law, the old Ljubljanska Banka Ljubljana retained liability for “old” foreign-currency savings in its Sarajevo branch. The court considered it irrelevant that a homonymous bank, Ljubljanska Banka Sarajevo, had assumed liability of the old Ljubljanska Banka Ljubljana for savings at the Sarajevo branch in 1993 (see paragraph 30 above) as that had been done without the approval of the parent bank or the depositors. In any event, the competent court in Bosnia and Herzegovina had deleted the 1993 entry in the companies register to that effect in 2004 (see paragraph 35 above). The Ljubljana District Court also considered it irrelevant that some foreign currency had been transferred to the NBY’s foreign accounts in accordance with the redepositing scheme set out above. 52. The former Yugoslav Republic of Macedonia paid back “old” foreign-currency savings in domestic banks and local branches of foreign banks, such as the Skopje branch of Ljubljanska Banka Ljubljana, regardless of the citizenship of the depositor concerned. | 1 |
test | 001-158157 | ENG | CYP | CHAMBER | 2,015 | CASE OF KONI v. CYPRUS | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev | 5. On 16 May 2006 the applicant’s husband filed a petition for divorce with the Larnaca Family Court. This was on the ground that his marriage to the applicant had broken down irretrievably because, among other reasons, he and the applicant had been separated for five years (that is, one year longer than the minimum period required by law: see relevant domestic law and practice at paragraph 25 below). 6. The case was set for a directions hearing on 14 June 2006. On that date the applicant appeared in person and asked for additional time to file her defence to the petition: the Family Court acceded to her request and adjourned the hearing to 4 October 2006. 7. On 14 June 2006 the applicant applied to the Family Court for legal aid. The hearing of that legal aid application was fixed for 15 September 2006. On 15 September the applicant appeared before the court and asked for a one-month extension as she was not sure if she would maintain her application. The court adjourned the legal aid hearing to 19 October 2006. 8. On 4 October 2006, the applicant attended court and requested a further extension for filing her defence to the petition on the ground that her legal aid application was pending. The court adjourned the case to 1 November 2006 and directed that the applicant file her defence by that date. 9. The applicant did in fact decide to maintain her legal aid application. When this legal aid application came before the Family Court on 19 October 2006, the court considered that the application came within the scope of the Law on Legal Aid (see relevant domestic law and practice at paragraph 23 below) so it instructed the Welfare Office to prepare a social welfare report on the applicant and adjourned the hearing of the legal aid application to 17 November 2006. 10. The applicant failed to file her defence to the petition for divorce by 1 November 2006 as directed. She also failed to appear in court on that date. In her absence, counsel for the applicant’s husband requested that the case be set for trial. The court acceded to this request and a trial date of 22 November 2006. 11. The legal aid application came before the court on 17 November 2006 as scheduled. The applicant attended court. However, because no one from the Welfare Office was present, the court adjourned its examination of the application to 21 December 2006. 12. On 22 November 2006 the applicant did not appear at court for the trial in the main proceedings. The applicant’s husband attended with counsel. In the applicant’s absence, the court proceeded to hear the evidence of her husband who stated that the couple had been suffering problems and had been separated since December 2000. No other witnesses were heard. The court gave an ex tempore judgment granting the petition for divorce. 13. Although the petition for divorce had been granted, the hearing in the legal aid application went ahead as scheduled on 21 December 2006. The applicant was not present at court. A representative of the Welfare Office informed the court that, from a letter in the court file dated 20 December 2006, which had been sent by a welfare officer to the court registrar, it appeared that the applicant was no longer interested in receiving legal aid. The court accordingly dismissed the legal aid application for want of prosecution. 14. On 29 December 2006 the applicant appealed against the Family Court’s judgment to the Family Court of Appeal. She was legally represented on appeal. 15. The applicant submitted two grounds of appeal: that the Family Court had wrongly proceeded with the hearing of the petition for divorce in her absence, and that it had wrongly decided on the dissolution of the marriage. In respect of both grounds, she submitted that the Family Court had acted in breach of Article 30 of the Constitution (the right of access to court and to a fair trial: see paragraph 22 below), the Law on Legal Aid, and the rule of natural justice, including the right to be heard (audi alteram partem). 16. In the reasons accompanying her grounds of appeal, she again made reference to Article 30 of the Constitution and the right of litigants to present their case before the court and to be defended by counsel. The applicant again submitted that the rules of natural justice safeguarded the right to be heard. She further stated that she had informed the Family Court that she had applied for legal aid. She had been under the impression that her legal aid application would be examined by the same bench that would hear the petition for divorce. As the legal aid application had been fixed to be examined at a date subsequent to the date the divorce petition was fixed (21 December for the legal aid hearing as against 22 November for the divorce petition hearing), she presumed that the divorce petition would be examined following the granting of legal aid so she could file a defence through a lawyer. It was for this reason that she had not appeared in court on 1 and 22 November 2006. 17. On 21 September 2007, the applicant’s husband died. In his will he bequeathed part of his property to another woman. As a consequence of the divorce, the applicant was not entitled to inherit from his estate or to receive a widow’s pension. The applicant maintained her appeal against the Family Court’s judgment. 18. On 19 December 2008, the Court of Appeal directed the parties to file skeleton arguments (written outlines of their submissions), in effect accepting the applicant’s notice of appeal. The Court of Appeal further directed that once the skeleton arguments were submitted, the appeal was to be set down for a hearing. 19. In her skeleton argument dated 9 January 2009, the applicant developed her ground of appeal relating to Article 30, stating that the Family Court had acted contrary to Articles 30(1) (the right of access to court), Article 30(3)(b) (the right to present one’s case and to have sufficient time for its preparation), and Article 30(3)(d) (the right to counsel and to free legal assistance). She relied on both the relevant case-law of the Cypriot courts on these provisions and on the relevant case-law of this Court on the corresponding provisions of Article 6 of the Convention, including Airey v. Ireland, 9 October 1979, Series A no. 32. In respect of her submission as regards the rules of natural justice, she referred to Halsbury’s Laws of England (4th ed., Vol 1, § 76) and the court’s duty to provide every party with a fair chance to set his case before the court. 20. A hearing on the merits of the appeal took place before the Court of Appeal on 6 March 2009. At the hearing, the applicant adopted her written submissions. Counsel for the applicant’s ex-husband submitted that Airey could be distinguished on the basis that the Convention did not grant a general right to legal aid and, in any event, the present case was not so complex as to require it. The hearing was adjourned to 8 May 2009. On that date, counsel for the applicant provided the court with copies of the relevant case-law cited in the applicant’s written submissions. No further submissions were made and the court reserved judgment. 21. On 30 June 2009 the Court of Appeal dismissed the appeal. It found: “It is the appellant’s position that she had informed the court that she had submitted an application for legal aid and, because she believed that her application would be examined by the court which would examine the substance of the petition for the dissolution of the marriage, she failed to appear on 1 November 2006, with the consequence that the case was heard in her absence and the petition for divorce was granted against her. Regarding the allegations of violation of the provisions of Law 165(I)/2002 and the principles of natural justice, no specific reasons have been put forward which could substantiate the above allegations, which are accordingly dismissed. Regarding the alleged violation of Article 30 of the Constitution, the appellant has not specified which particular paragraph has been violated and this allegation is dismissed for vagueness. Independently of this conclusion, we have already made detailed reference to what took place both in the proceedings concerning the application for legal aid and the divorce proceedings. From the above, it appears that judgment under appeal was the result of the complete indifference of the appellant to respond to the directions of the Court to file her defence and her failure to appear before the court. The appellant cannot claim that her failure to appear was due to the fact that she believed that the divorce petition would be examined by another court. The appeal is dismissed with costs.” | 1 |
test | 001-168863 | ENG | RUS | COMMITTEE | 2,016 | CASE OF TERENINA v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 1. The case originated in an application (no. 46144/12) 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 a Russian national, Ms Yana Aleksandrovna Terenina (“the applicant”), on 2 July 2012. 2. The relevant details of the application are set out in the appended table. 3. The applicant complained of the inadequate conditions of her detention. She also raised other complaints under the provisions of the Convention. 4. The application was communicated to the Russian Government (“the Government”). | 1 |
test | 001-152726 | ENG | RUS | CHAMBER | 2,015 | CASE OF LYALYAKIN v. RUSSIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1988 and lives in the town of Nizhniy Novgorod. 6. On 14 December 2006 the Military Conscription Committee of the Moscow District of the town of Nizhniy Novgorod examined the applicant’s medical condition. Having declared him fit, they conscripted him into the army. The applicant was given the rank of junior sergeant and sent to preparatory Military Unit no. 73864, located in the town of Kovrov in the Vladimir Region. 7. Six months later, on 28 May 2007, he was transferred to Military Unit no. 34605 of the town of Volgograd of the Volgograd Region. 8. The applicant submitted that personal relations among the servicemen of the unit were tense and violent. The applicant had panicked and decided to escape. 9. On 4 June 2007 the applicant and junior sergeant V. ran away from the unit. 10. The command of the unit launched a search operation to find the fugitives. 11. On the morning of 5 June 2007 deputy commander major A. and captain K. located and apprehended the applicant and junior sergeant V. close to the nearby village of Stepnoy. 12. According to the applicant, on their way back to the unit A. and K. had threatened to execute or drown them. The threats had frightened the applicant to such an extent that he decided to escape again. 13. During a stopover the applicant made another attempt to escape. Shortly thereafter he was caught in a nearby swamp. The escorting officers stripped him of his clothes and put him in the cargo compartment of a military truck which brought both fugitives back to the unit. 14. On 6 June 2007 the applicant and V. were brought before battalion commander Ch., who lined up the battalion. The applicant and V. ‒ allegedly stripped naked ‒ were made to stand in front of the other servicemen. It does not appear that there were any female service personnel present on this occasion. The Government submitted that the applicant and V. had been wearing military briefs. The battalion commander publicly condemned and reprimanded them. 15. Thereafter the applicant was brought to the commander’s office and was asked to prepare an explanatory note concerning the events of 4-6 June 2007. 16. The applicant stated that after he had drafted the explanatory note, the commander had ordered company commander lieutenant S. to load a machine gun with bullets, go outside and execute the applicant. The applicant was taken outside and placed up against a wall. Captain Kar. aimed a machine gun at him. The applicant pleaded for mercy and promised “to become the best sergeant in the unit”, whereupon Kar. brought him back into the commander’s office. At this moment the applicant heard a machine gun being discharged and thought that V. had just been executed. 17. Some time later the battalion commander ordered officer G. to dress the applicant in a military protection suit. The suit consisted of a mask, protective cloak, rubberized stockings and gloves and was unsuitable for continuous use in hot weather. The applicant’s fellow servicemen then shaved his head and warrant officer G. painted a five-pointed star on his head using brilliant green antiseptic. A fellow serviceman then delivered a few blows to the applicant’s body and head with an army belt buckle. Then another soldier put a leash around his neck and walked him around the training ground. The applicant was also threatened with sexual violence if he ever decided to escape again. 18. According to the applicant, the following night after lights-out junior sergeant S. and private soldier O. had removed the leash from his neck, attached him to a pole in the centre of the tent which served as their sleeping quarters, and made him read aloud the sergeant’s military manual, using a lighter and a pocket lamp for light. At around 2 a.m. the applicant was further intimidated by S., who told him that his friends in the town of Nizhniy Novgorod would find and rape him when his military service was over. 19. The applicant stated that the next morning he was again ordered to put on the military protection suit, the collar and the leash and escorted by junior sergeant Zh. for breakfast dressed in this way. He was then taken to the battalion commander. The applicant had asked him for permission to take off the suit, the collar and the leash. The commander said he could do so as soon as he had washed the star off his head. For the next two hours the applicant washed his head in a river flowing nearby, using only his hands and the sand. 20. On 7 June 2007 ‒ surveillance of the applicant having been relaxed ‒ he escaped and, this time, reached his family in the town of Nizhniy Novgorod. 21. According to the applicant, after his escape, the battalion commander Ch. had ordered his fellow servicemen to keep silent about the ill-treatment. 22. On 26 June 2007 the applicant complained of his ill-treatment to the Soldiers’ Mothers Committee of the Nizhniy Novgorod Region («Нижегородский областной комитет солдатских матерей»). 23. On 27 June 2007 the applicant complained to the Military Prosecutor’s Office of the Nizhniy Novgorod Garrison (“Nizhniy Novgorod Prosecutor’s Office”) about his ill-treatment in the Military Unit. In his claim he provided an account of the alleged events, stating that his fellow servicemen Vl., Kats., Zai., Ryb., Mal. and Fed. could confirm the facts of his ill-treatment and “hazing”. 24. The Nizhniy Novgorod Prosecutor’s Office opened a preliminary inquiry into his allegations and held that the applicant should be transferred to another military unit pending the outcome of the proceedings. 25. On 28 June 2007 the Nizhniy Novgorod Prosecutor’s Office ordered an expert psychiatric examination of the applicant. 26. The expert examination of the applicant was conducted between 4 and 26 July 2007 in Psycho-Neurological Hospital No. 1 of the Nizhniy Novgorod District. 27. On 21 August 2008 the Military Medical Commission of the Nizhniy Novgorod Garrison diagnosed the applicant with “a personality disorder of the emotional unstable type, with variable amelioration, contracted during his military service” and held that he was “fit with restrictions” for military service. 28. Owing to the above diagnosis, the applicant was prematurely discharged from the army. 29. The Nizhniy Novgorod Prosecutor’s Office joined the inquiry proceedings into the applicant’s complaints of 26 June 2007 with the inquiry into similar complaints by junior sergeant V. dated 1 July 2007. The case was then sent for investigation to the Military Prosecutor’s Office of the Volgograd Garrison (“Volgograd Prosecutor’s Office”). 30. On 16 July 2007 an investigator of the Volgograd Prosecutor’s Office issued a refusal to open a criminal case. In this decision it referred to statements given by the alleged perpetrators, including the battalion commander Ch., deputy commanding officer major A., captain K., lieutenant S., captain Kar., warrant officer G. and junior sergeant Zh., and to the statements of other servicemen who had been questioned concerning the applicant’s allegations. The refusal reads: “In the course of the inquiry carried out into [the applicant’s] request, the investigating authorities have established the following: Junior sergeant [V.] claimed that the complaints of 26 June and 1 July 2007 concerning ill-treatment were false. No acts of ill-treatment against him or [the applicant] had taken place either in the period under examination (6 and 7 June 2007) or during their military service in the [Military Unit]. He did not see any injuries such as scratches, bruises or haematomas on [the applicant’s] body. According to junior sergeant [V.], [the applicant] gave the false statements so as to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007. In private conversations [the applicant] had often remarked that he did not want to serve in the army. The simulation of psychiatric problems and the false statements about illtreatment are in the junior sergeant’s opinion no more than a means of avoiding military service. During questioning the latter also stated that [the applicant] had no psychiatric problems and that during his military service he had not shown signs of any unusual behaviour. Junior sergeant [V.] also stated that on 1 July 2007 during his stay in hospital he had been contacted by [two] representatives of a Russian NGO, “Mothers’ Right” (“Материнское право”). They showed him [the applicant’s] statements of 26 June 2007 and promised to assist with his transfer to a military unit in his place of residence in exchange for giving similar statements capable of confirming [the applicant’s] allegations. As he very much wanted to perform his military service close to his home in the Kaliningrad Region, he accepted their offer. Later he realised that it was a mistake, because he had no intention of slandering anybody. He explained that all the facts mentioned in his [complaints] of 1 July 2007 were false. Neither he nor [the applicant] had been ill-treated by their fellow servicemen. To confirm his statements he presented the business card which the [NGO representative] had given to him ... The battalion commander [Ch.] stated that the allegations of ill-treatment mentioned in the statements of 26 June and 1 July 2007 were false. He further stated that he had not seen any scratches, bruises or haematomas on [the applicant] or junior sergeant [V.]. Moreover, they had not lodged any complaints about the illtreatment allegedly committed by the servicemen of the [Military Unit]. According to the battalion commander [Ch.], [the applicant] had made up the allegations either to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007, or to avoid military service by way of falsification of his mental problems. He noted that [the applicant] was of sound mind and that he had never shown signs of any unusual behaviour. The battalion commander [Ch.] speculated that [the applicant] simply did not want to continue his military service because it was so hard. According to [Ch.], only negative references could be provided on account of [the applicant’s] personality. For instance, [the applicant] had left his place of service several times without the authorisation of his superiors. Although he followed the orders of his commander, he required constant supervision. He was a sly and dodgy person, who did not understand the meaning of his military duty. During private conversations [the applicant] expressed his intention of leaving the [Military Unit]. Deputy commanding officer major [A.], captain [K.], lieutenant [S.], captain [Kar.] and warrant officer [G.] gave statements which were essentially similar to the statements of the battalion commander [Ch.]. During the inquiry the investigative authorities also questioned [Kats., a witness on the applicant’s behalf]. He stated that [the applicant’s and V.’s] statements of 26 June and 1 July 2007 had been false and that [the applicant] had given them to avoid criminal liability for the unauthorised leave from the [Military Unit] on 4 June 2007. He also stated that between 20 November 2005 and 27 May 2007 he had served with [the applicant] in the military unit of the Town of Kovrov of the Vladimir Region. During this period [the applicant] ‒ without permission ‒ left the military unit for two weeks. Later, he returned of his own volition and explained that he did not like serving in the army. According to [the applicant’s] confession, he returned only because of his father, with whom he had had an argument [on account of his refusal to serve in the army]. [The applicant] was a smart, sly and a dodgy person who was able to avoid military service by making up a good and credible excuse. [Kats.] stated that [the applicant] was a mentally sound person who did not show signs of unusual behaviour. [The applicant] showed a negative attitude towards his military duty and was an irresponsible person who did not like to work. He did not carry out his commander’s orders promptly and always needed to be under supervision. In private conversations he mentioned that he wanted to leave military service and go to the town of Sochi to earn some money. The [applicant’s and junior sergeant’s V.’s] fellow servicemen [Mal., Ryb., Zai., Fed., Ost., and junior sergeant Zh.], who were separately interviewed by the investigator, gave similar statements. From the above it is apparent that [the allegations of the applicant and junior sergeant V.] ... remained unconfirmed ... Accordingly, the request to institute criminal proceedings should be dismissed owing to the absence of the alleged criminal offences...” 31. With assistance from the NGO “Mothers’ Right”, the applicant challenged the decision of 16 July 2007 before a higher authority. The appeal claim was supported by statements made by his fellow serviceman Gal., who in written submissions dated 26 July 2007 confirmed the applicant’s allegations and stated that all the soldiers of the Military Unit had been intimidated by the battalion commander Ch., who forbade them to give true statements, and by warrant officer G., who threatened the witnesses concerned. 32. On 20 September 2007 the Military Prosecutor’s Office of the North-Caucasus Military Circuit quashed the decision of 16 July 2007. Without citing specific shortcomings, it stated that the investigator’s conclusions had been baseless. In its relevant part this decision reads: “On 14 September 2007 [the lawyer of the NGO Mothers’ Right] appealed against the decision of 16 July 2007. Examination of the appeal statements has shown that the [investigator from the Volgograd Prosecutor’s Office] did not perform a thorough inquiry. Accordingly, his decision must be quashed as ill-founded. ... From the case file it is apparent that the circumstances ... surrounding [the apprehension of the applicant] and junior sergeant [V.] by deputy commanding officer major [A.] and captain [K.] after their escape from [the Military Unit] and the subsequent ill-treatment [of the fugitives] were not sufficiently established. Consequently, the reasoning underlying the decision of 16 July 2007 is deficient. From the above it is apparent that [the investigator’s] conclusion that the [applicant’s] complaints of ill-treatment in respect of him and [V.] lacked a sound basis and was premature. Accordingly, the decision of 16 July 2007 is groundless.” 33. In the context of the second round of the inquiry, the investigator conducted additional interviews with junior sergeant V., the battalion commander Ch., commanding officer major A. and captain K. regarding the applicant’s apprehension, undressing, and delivery to the Military Unit. Their additional statements were summarised as follows: “During the additional interview with junior sergeant [V.], the latter explained that on the day following his unauthorised leave on 4 June 2007, commanding officer major [A.] and captain [K.] had apprehended them near Stepnoy, put them in a Ural truck, and brought them back to the [Military Unit]. On their way to [the Military Unit] [the applicant] asked [V.] to escape with him, but the latter refused. [The applicant] attempted to escape on his own, but was arrested by the escorting officers. After the unsuccessful attempt to run away, commanding officer major [A.] ordered them to take all their clothes off. They remained only in military briefs. This order was given to prevent their attempts to abscond. These events took place during the summer, and so he felt comfortable wearing only military briefs, and his human dignity was not humiliated. His statements of 1 July 2007 had been drafted following a sample prepared by [the applicant] and contained the false allegation that they had been standing completely naked... During his additional interview, battalion commander [Ch.] stated that on 6 June 2007 between 2 and 4 p.m. he had lined up his battalion. At this time the escorting officer brought [the applicant] and junior sergeant [V.] to him. On 4 June 2007 they had left the [Military Unit] without permission and were later arrested near the village of Stepnoy. The escorting officers stated that after the arrest [the applicant] and [junior sergeant V.] had been undressed and left with only their military briefs on. This was done to prevent them from fleeing. After this, the battalion commander [Ch.] had ordered the [applicant] and junior sergeant [V.] to put their clothes back on. He talked to the fugitives and reprimanded them. During the additional interview with commanding officer major [A.], the latter confirmed that [the applicant] and [V.] had been brought onto the site of [the Military Unit] wearing only military briefs. After their arrival they had been made to stand in front of their battalion formation. The commanding officer had ordered them to put their clothes back on and had talked to them. [The applicant] and [V.] were reprimanded. When questioned further, captain [K.] noted that on 6 June 2007, after the arrest of [the applicant] and [V.] near the village of Stepnoy, [the applicant] had attempted to abscond. After this [the applicant] had been caught by the escorting officers, who ordered him to adopt “position no.1”, i.e. to take all of his clothes off and remain only in military briefs...” 34. On 8 October 2007, having regard to the above statements and evidence previously obtained, the investigator refused to open a criminal case to examine the applicant’s allegations. He confirmed his previous findings about the lack of criminally punishable offences. As regards the episodes of the applicant’s undressing, the investigator reasoned as follows: “There is no indication of any criminal offence under Article 286 § 1 of the Criminal Code of Russia [“Abuse of power”] in the actions of [K.], [A.] and [Ch.] ..., because the order given to [the applicant] and junior sergeant [V.] to remove their clothes was issued solely with a view to preventing their escape. The commander of the battalion had not humiliated [the applicant] when making him stand wearing only military briefs in front of the battalion formation because later the commander had ordered him to put all his clothes back on. [The applicant] was standing half-naked in front of the battalion formation for a short period of time. The actions of captain [K.] and commanding officer [A.] constituted a minor offence, which entailed no social danger. Accordingly, [the applicant’s] request to institute criminal proceedings against them should be dismissed. The circumstances of the present case do not indicate any appearance of a criminal offence [within the meaning of the Criminal Code of Russia].” 35. On 11 February 2008 the applicant’s lawyer challenged the decision of 8 October 2007 in court. 36. On 6 October 2008 the impugned decision was quashed by the Investigating Committee of the Prosecutor’s Office of the Volgograd Garrison, which held the following: “The examination of the impugned decision shows that [the investigator] performed the inquiry in a perfunctory manner. His decision was premature and ill-founded. In particular, he did not interview all of the potential witnesses. It is accordingly impossible to render a well-founded decision concerning the impugned ... events. Taking into account the above I conclude that the refusal to institute criminal proceedings issued by [the investigator] on 8 October 2007 must be quashed as illfounded.” 37. On 7 October 2008 the District Court referred to the decision of 6 October 2008, having terminated court proceedings in connection with the applicant’s complaint. 38. The case was returned for additional investigation. 39. Between 6 and 16 October 2008 the investigator questioned thirty servicemen from the Military Unit. They did not confirm any of the applicant’s allegations. 40. On 16 October 2008 on the basis of their statements and the previously collected pieces of evidence, the investigator refused to institute criminal proceedings. The investigator did not provide the content of the newly added statements in his decision of 16 October 2008 and it therefore contained no additional information on the matter but essentially read the same as the previous one. 41. According to the applicant, he received a copy of this decision on 25 February 2009 and then challenged it in court. 42. On 10 March 2009 the impugned decision was quashed by a higher investigative authority, which stated that “Although the inquiry was performed in a comprehensive manner, the investigator did not take into account the public reaction [in response to this case]. He should have ordered the military counter-intelligence services to perform an inquiry into the allegations [of the applicant and V.]. [Accordingly], the impugned decision is premature and ill-founded. Taking into account the above, I conclude that the refusal to institute criminal proceedings issued on 16 October 2007 must be quashed as ill-founded.” 43. The court proceedings were terminated and the case was sent back to the investigating authorities for further investigation of the matter. 44. During this round of the investigation the investigator performed an “additional inquiry” which “confirmed the statements made by [the applicant’s] fellow servicemen”. 45. On 20 March 2009 the investigating authorities again refused to open a criminal case in respect of the events. In addition to the reasoning which they had used before, they relied on the results of the “additional inquiry” which had established “no indication of criminal events”. 46. On 20 April 2009, after his military service was over, junior sergeant V. contacted the Soldiers’ Mothers Committee and stated that the initial statements he had made concerning his ill-treatment and the illtreatment of the applicant had been truthful. He explained that his later statements had been made under pressure from the command of the Military Unit. In his statements he mentioned that after the escape of June 2007 he had been beaten by the officers and had been kept in hospital for treatment in this connection. These statements were sent to the investigating authorities. 47. On 26 January 2011 the higher investigating authorities quashed the decision of 20 March 2009, providing a detailed list of the established defects of the inquiry. In its relevant part the decision read: “Despite the recommendations of [the higher authority] ordering the military counter-intelligence services to conduct an inquiry into the allegations of the [applicant] and [V.], the decision of 20 March 2009 was issued in the absence of such an inquiry. According to the claim which was brought [by the applicant] under Article 125 of the CCrP, [Gal.] and [V.] had directly witnessed the alleged ill-treatment. However, the competent authorities did not conduct a fresh interview with [V.] and never interrogated [Gal.]. The inquiry at issue was not comprehensive since the investigating authorities did not investigate [V.’s] alleged ill-treatment ... of 2007 ... In the circumstances of the present case it is impossible to issue a lawful decision with proper reasoning without taking additional investigative steps, including the conduct of an inquiry carried out by the military intelligence services and the questioning of [Gal.], [V.] and doctors attached to the military units. The investigating authorities must also assess the allegations which were made by [V.], and [the applicant] in their statements of 20 April 2009 and 11 February 2008 respectively. The former servicemen of the [Military Unit] should be re-interviewed too, if necessary.” 48. The case was remitted to the investigator for an additional investigation. 49. In the context of this round, the competent authorities studied the evidential material from an inquiry which had been opened into Gal.’s allegations that officers who were pointed out by the applicant had illtreated and “hazed” him and other serviceman of the Military Unit on several occasions. This inquiry resulted in a decision dated 8 October 2008 not to open a criminal case. 50. It does not seem that the investigative authorities questioned Gal. or complied with any of the recommendations set out in the decision of 26 January 2011. 51. In their decision of 11 February 2011 not to open a criminal case, they repeated their previous arguments, adding that the allegations made by Gal. were refuted by the results of the investigation of 2008. 52. The parties did not provide any documents concerning subsequent developments. From the Government’s submissions of 2 May 2011 it is apparent that on 23 March 2011 the higher investigating authorities again quashed the decision of 11 February 2011 and remitted the case for additional investigation, noting that the investigator had again failed to question Gal., to conduct an additional interview with junior sergeant V., to perform an inquiry into V.’s medical treatment of 2007 and to carry out other investigative actions. 53. The case file contains no information concerning the further development of the investigation. | 1 |
test | 001-157279 | ENG | MKD | CHAMBER | 2,015 | CASE OF ANDONOSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions) | András Sajó;Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicant was born in 1968 and lives in Prilep. 6. The applicant was a taxi driver. On 25 July 2007 his car was parked on a taxi post at the Prilep bus station. As established in the course of the subsequent criminal proceedings (see paragraph 9 below), P.K., accompanied by S.O. and G.F., all Albanian nationals (“the migrants”), asked the applicant to drive them to the village of Vitolište, Mariovo. Only P.K., who was fluent in Macedonian, told the applicant that they were going to Vitolište to work. S.O. and G.F. did not speak during the journey. At around 4 p.m. they were stopped by the police at a place called Sliva. The migrants had no travel documents. The applicant and the migrants were arrested. The applicant’s car was also seized. A receipt for temporarily seized objects was issued to him. 7. On 26 July 2007 an investigating judge of the Prilep Court of First Instance (“the trial court”) opened an investigation against the applicant and P.K. on grounds of a reasonable suspicion of migrant smuggling, punishable under Article 418-b of the Criminal Code (see paragraph 15 below). 8. On 8 August 2007 the public prosecutor withdrew the charges against the applicant for lack of evidence. In a written statement of that date the public prosecutor indicated that there was no evidence that the applicant had known or had reasonable grounds to believe that he had transported illegal migrants. He had met them for the first time at the Prilep bus station. He had never had any contact with them before. Since P.K. was fluent in Macedonian, the applicant could not have suspected that he (P.K.) was a migrant. The other two migrants had not spoken during the journey. Furthermore, P.K. had confirmed that he had misled the applicant, since otherwise nobody would have driven them. For that reason, he had advised S.O. and G.F. not to speak. When the police had stopped them, he had apologised to the applicant. That had been confirmed by S.O. and G.F. and two police officers who had stopped them on the day in question. On the same day, the investigating judge discontinued the investigation concerning the applicant. The latter decision indicated that the applicant had no previous criminal record. 9. On 3 September 2007 the trial court convicted P.K. of migrant smuggling and sentenced him to one year’s imprisonment. The court established that P.K. had told S.O. and G.F., illegal migrants from Albania, that he could transfer them illegally into Greece. They had paid him 270 euros (EUR). They had crossed the Macedonian-Albanian border illegally; they had used a taxi to travel to several cities in the respondent State and to arrive ultimately at the Prilep bus station. There, P.K. had agreed with the applicant, who participated in the proceedings as a witness, to transport them to the village of Vitolište, from where all the migrants had intended to cross the border on foot. 10. The trial court also ordered, under Articles 100-a and 418-b of the Criminal Code 2004 (see paragraphs 14 and 15 below) confiscation of the applicant’s car, as the means by which the criminal offence had been committed (“the confiscation order”). The relevant part of the judgment reads as follows: “According to Article 100-a(2) and (3) taken in conjunction with Article 418-b(5) of the [Criminal Code], the court confiscated ... from [the applicant] the vehicle which had been used for transportation of [S.O. and G.F.], because [the applicant] could have known that [they] were migrants, since both of them – the witnesses [,] had not talked, had not had any equipment with which they would work as construction workers or lumberjacks, and also the time in the afternoon when he had transported them to Mariovo indicated that they were not going to work, but [had intended] to cross the Macedonian-Greek border illegally at night, which should have been known to the [applicant] as an experienced taxi-driver. [The applicant] also stated that he had been suspicious about one of the witnesses, because he had been thin, which meant that he could have known that they had been migrants and not (ordinary) persons who were going to Vitolište to work, as he himself had known that the border was illegally crossed near the villages Vitolište, Canište and Bešište.” 11. The applicant appealed, arguing that the confiscation order had not been based on any fact. He had not been convicted of any crime and the trial court was not entitled to order confiscation of his car. P.K., who was convicted, had been travelling in the car as a passenger. The fact that the public prosecutor had withdrawn the charges against him confirmed that he had not known that he was transporting illegal migrants. No evidence had been adduced to prove otherwise. Lastly, he had never been involved in migrant smuggling. 12. On 7 November 2007 the Bitola Court of Appeal dismissed the applicant’s appeal and upheld the confiscation order. The relevant part of the decision reads as follows: “It is true that the first-instance court, in the operative part and in the reasoning of the impugned judgment concerning the confiscation of the [car], provided reasons, [i.e.] referred to Articles 100-a (2) and (3) in conjunction with Article 418-b (5) of [the Criminal Code], which constitute an incorrect application of the substantive law, and an incorrect application of [the Code]. Article 100-a of [the Code] concerns the confiscation of objects, and paragraph (3) refers to objects used for the commission of a criminal offence. When those objects are owned by a third person, they may be confiscated only if third persons knew or could and ought to have known that the objects are being used or are intended to be used to commit an offence. In the present case there is no need for the application of this rule, because the rule contained in Article 418-b (5) necessarily requires the confiscation of the objects and the means of transport used to commit the offence, irrespective of whom they belong to, whom they are for, or whom they come from. In such circumstances, coupled with the fact which was established beyond any doubt, (namely) that this offence was committed by the accused with the [applicant’s] vehicle, the court was correct to confiscate the vehicle by its decision contained in the operative provision of the judgment.” 13. On 23 January 2008 the public prosecutor notified the applicant that there were no grounds to institute legality review proceedings (барање за заштита на законитоста). | 1 |
test | 001-155087 | ENG | RUS | CHAMBER | 2,015 | CASE OF TYCHKO v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 4. The applicant was born in 1965 and lives in Volgograd. 5. On 15 August 2001 criminal proceedings were instituted against the applicant on suspicion of large-scale fraud. 6. On 28 September 2001 the applicant was arrested and remanded in custody. 7. On 2 October 2001 and 22 July 2002 charges were brought against the applicant. 8. On 7 August 2002 the criminal case was submitted to the Tsentralniy District Court of Volgograd (“the District Court”) for trial. 9. On 8 October 2002 the first hearing was held. It was presided over by judge A. 10. On 26 November 2002 the applicant was released from custody. 11. On 30 December 2002 the case was transferred to judge G. and, pursuant to Article 242 of the Code of Criminal Procedure (Immutability of court composition), the trial was restarted. 12. Between March and June 2003 and between June 2004 and January 2005 the hearings were adjourned on seven occasions: on five occasions due to the non-attendance of the accused, their representatives and the witnesses, and on two occasions, from 19 May to 11 July 2003 and from 10 December 2004 to 17 January 2005, following requests from the applicant for more time to study the case file. 13. In the meantime, on 19 January 2003, an unrelated criminal case was opened against the applicant on suspicion of storing firearms and narcotic drugs. He was again remanded in custody on 20 January 2003. On 19 June 2003 the District Court convicted the applicant of storing firearms and narcotic drugs and sentenced him to eight years’ imprisonment. 14. On 28 March 2005 judge G. went on maternity leave, and on 26 April 2005 the initial case was transferred to judge S. The trial was restarted. 15. Between May and November 2005 the hearings were adjourned on two occasions due to the non-attendance of the participants in the trial. 16. On 16 December 2005 judge S. resigned, and on 14 February 2006 the case was transferred to judge M. The trial was again restarted. 17. Between March and June 2006 the hearings were adjourned on three occasions due to the non-attendance of the participants in the trial. 18. On 19 July 2006 judge M. resigned and the case was transferred to judge Mar. The trial was restarted for the fourth time. 19. Between November 2006 and June 2008 the hearings were adjourned on five occasions due to the non-attendance of the participants in the trial. 20. On 6 August 2008 the District Court of Volgograd found the applicant guilty of complicity in large-scale fraud and sentenced him to three years and six months’ imprisonment. The final sentence under both verdicts was set at nine years’ imprisonment. 21. On 1 December 2009 Volgograd Regional Court upheld the judgment on appeal. 22. The applicant was detained in Volgograd remand prison IZ-34/1 from 10 October 2001 to 26 November 2002, from 20 January 2003 to 19 August 2003, from 23 September 2003 to 17 May 2005, from 12 July 2005 to 29 April 2008 and from 16 May 2008 to 6 September 2008. He submitted that the cells had been severely overcrowded and in a poor sanitary condition. 23. The cell where the applicant was held most recently, measuring approximately thirty square metres and equipped with eighteen bunk beds, accommodated between twenty and thirty inmates at any given time. The inmates were obliged to take turns to sleep. 24. The toilet in the corner of the cell (a hole in the floor measuring about 15-20 cm in diameter), elevated above the floor by 0.4 metres and separated by a 0.6 metre partition, offered no privacy. It had no flushing system. 25. The cell was not equipped with a washstand. Instead, the inmates had to use the water running from a tap over the toilet. 26. The dining table was situated a metre away from the toilet. It could seat about ten inmates. The rest of the inmates had to eat sitting on the concrete floor. 27. The food was of low quality. The drinking-water tanks were placed on the floor. 28. The cell was lit around the clock by two 100-watt filament lamps. It was poorly ventilated. The air was thick with the stench of tobacco, laundry and the toilet. 29. The cell was infested with insects and rodents. 30. The applicant was allowed to take a five-minute shower once a week. 31. The exercise yards were unequipped and too small to accommodate all the detainees properly. 32. The applicant twice contracted tuberculosis while being detained in Volgograd IZ-34/1. His eyesight deteriorated. 33. The applicant’s attempts to challenge the conditions of his detention before various domestic authorities yielded no result. 34. The applicant was transported from the remand prison to the courthouse and back more than a hundred times between 2001 and 2008. Prisoners were transported between the remand prison and the courthouse in a prison van – a metal freight vehicle comprising three compartments: two designed for twenty inmates and the third one for single occupancy. The van had no windows and offered no access to natural light or air. It had no artificial lighting or ventilation either. There were no seat belts or other safety equipment to prevent inmates from falling and hitting themselves against the walls. It was stiflingly hot in the van in the summer and freezing cold in the winter. 35. There were four cells in the holding area of the District Court where the applicant was taken. Each cell measured about three square metres and accommodated five to six inmates. The cells were equipped with one bench each, which could seat only three inmates. Those suffering from hepatitis, tuberculosis, HIV and other diseases were placed together with the rest of the inmates. On each occasion the applicant spent as long as seven or eight hours in such conditions. | 1 |
test | 001-156022 | ENG | NLD | ADMISSIBILITY | 2,015 | VAN WEERELT v. THE NETHERLANDS | 4 | Inadmissible | Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Maurice Marcellin Marie van Weerelt, is a Netherlands national, who was born in 1928 and lives in Steensel. He is represented before the Court by Mr P. van Hagen, a lawyer practising in Breda. 2 3. The German tax authorities received information concerning assets held in a Liechtenstein bank by non-Liechtenstein residents, a number of Netherlands residents among them. In May 2008 the German tax authorities transferred to the Netherlands Tax and Customs Administration (Belastingdienst) a file containing particulars concerning the Netherlands residents under the procedure for spontaneous exchange of tax information (Article 4 of Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation, see below). The Netherlands tax authorities requested the German tax authorities’ permission to use these particulars in criminal proceedings to be held in public; this was granted. 4. As relevant to the present case, it emerged that a Liechtenstein foundation (Stiftung) by the name of C. had been created in 1986 to administer a bank account held in Switzerland. The foundation was controlled through a trustee (Treuhand) in Liechtenstein. The “by-laws” of C. foundation, which were in English, listed as “first beneficiary of all assets and revenues, as well as of any possible liquidation proceeds ... during his lifetime and without any restriction” the applicant; upon his death, the applicant’s wife as second beneficiary; upon her death, the applicant’s brother; upon his death, the latter’s descendants. These “by-laws” were revocable at any time by the applicant during his lifetime. C. foundation was liquidated on 3 November 2000. 5. On 9 June 2009 the Tax Inspector wrote to the applicant stating that he had information from which it appeared that the applicant was, or had been, involved with a financial interest (als gerechtigde betrokken) in a foundation under the law of the Principality of Liechtenstein and asked him to submit certain information with a view to a tax adjustment. 6. The applicant, through his counsel, replied on 26 June 2009. Although he did not deny his involvement with a Liechtenstein foundation, he stated that he had only the sketchiest recollection of it and possessed no pertinent documents. He invited the Tax Inspector to share the information in his possession in order to clarify matters. 7. The Tax Inspector responded on 7 July 2009. He did not consider it credible that the applicant no longer had the information requested, in view of the possible financial interest involved; nor did he believe that the applicant did not remember anything about his involvement with a Liechtenstein foundation. 8. The applicant, through his counsel, wrote to the Tax Inspector on 14 July 2009 restating his earlier position. 9. The Tax Inspector replied on 20 July 2009, pointing to increases in the applicant’s asset position that could not be explained absent corresponding increases of his income or debt. 10. On 14 August 2009 the applicant submitted a written explanation to the effect that the increases noted had resulted from rising stock markets. 11. On 19 August 2009 the Tax Inspector wrote again, dismissing the applicant’s explanation of the increases in his asset position as insufficient and demanding more detailed information. He also asked for more information on the applicant’s involvement in the Liechtenstein foundation. 12. On 14 September 2009 the applicant submitted more detailed information in response to the request for an explanation of the increase in his asset position. In relation to the Liechtenstein foundation, he stated that he could remember nothing more than that he had once had dealings with such a body. He asked the Tax Inspector for copies of the documents concerning the Liechtenstein foundation which were apparently in his possession. 13. On 22 September 2009 the Tax Inspector wrote dismissing as insufficient the information which the applicant had given. With regard to the Liechtenstein foundation, he suggested that the applicant obtain the information needed from its trustee. On the information available, he reached the conclusion that the applicant was, or had been, involved with the Liechtenstein foundation and had failed to report its assets and income. He announced the intention to issue a tax adjustment based on an asset value of five million euros (EUR) and an annual interest yield of EUR 200,000, these figures to be reviewed if the applicant disproved them. 14. On 19 October 2009 the applicant wrote submitting further documents regarding his asset position. As to the Liechtenstein foundation, he protested that a tax adjustment based on assets worth EUR 5 million and interest in an amount of EUR 200,000 was incomprehensible, given that the Tax Inspector had not revealed anything other than that he had “information from which it appeared that the applicant was, or had been, involved with a financial interest” in such a body. He asked the Tax Inspector to specify the information on which his assessment was based. 15. On 27 October 2009 the Tax Inspector wrote announcing his intention to issue tax adjustments if the information asked for was not forthcoming within four weeks. 16. The applicant submitted further documents on various dates until May 2010. None of these concerned the Liechtenstein foundation. 17. On 1 June 2010 the Tax Inspector sent the applicant’s representative a summary of the information available concerning the Liechtenstein foundation “to jog [the applicant’s] memory”. The information in issue had been received by the Netherlands Tax and Customs Administration from the German tax authorities. It had emerged that the applicant had been involved in a Liechtenstein foundation called C., based in Vaduz, Liechtenstein. The applicant had been the first beneficiary without restriction of all its assets and revenue and any possible liquidation proceeds. He had had the power to revoke its by-laws and dismiss its trustee. The Netherlands tax authorities had knowledge of dozens of similar cases, the pattern in all cases being the same: although ostensibly ownership of assets was vested in the Liechtenstein foundation, the existence and content of the relevant bye-laws, letter of authority and appointment of the economic beneficiary demonstrated that in real terms ownership of the assets lay with whoever had set up the foundation. The Tax Inspector was of the view that a similar arrangement must exist for the foundation C. as well and sent a final demand for the surrender of C.’s corresponding documents and accounts. A time-limit was set for this purpose, which in subsequent correspondence was extended until 6 September 2010. 18. On 3 September 2010 the applicant informed the Tax Inspector that the trustee of the C. foundation had referred him to an administrator in Switzerland. 19. On 10 September 2010 the applicant forwarded to the Tax Inspector a letter from the administrator in Switzerland refusing to supply any information “due to confidentiality matters”. 20. The Tax Inspector thereupon ordered the applicant to provide information orally. A meeting for this purpose took place on 4 November 2010. 21. On 18 November 2010 the Tax Inspector wrote to the applicant noting that he had admitted to the possession of documents concerning the C. foundation and agreed to submit them to the Tax Inspector. The letter stated the demand that the applicant submit these documents. 22. On 23 November 2010 the applicant replied denying having made the admission suggested and stating that he had no such documents in his possession. 23. Faced with the imminent expiry, on 1 January 2011, of the statutory twelve-year time-limit for issuing tax adjustments, the Tax Inspector sent the applicant a letter on 6 December 2010 announcing that a tax adjustment would be sent shortly. The latter gave warning of the Tax Inspector’s intention to impose a tax fine (section 67g of the General State Taxes Act – Algemene wet inzake rijksbelastingen – see below). The fine was to be based on the consideration that although the applicant knew, or ought to have known, that he was the sole beneficiary of the assets held in the C. foundation, he had deliberately failed to mention the property and income derived from it on his tax returns. The Tax Inspector counted as aggravating circumstances that the applicant had resorted to subterfuge (listigheid) and conspiracy (samenspanning) with foreign entities to conceal C. foundation’s assets, and thus part of his property, from the Netherlands tax authorities and had made insufficient effort to supply to the Tax Inspector the information necessary to arrive at a correct assessment. 24. On 10 December 2010 the Tax Inspector sent the applicant a tax adjustment for income tax (inkomstenbelasting) and property tax (vermogensbelasting) due for 1998/1999. Absent detailed information, the estimate was that the assets in issue had a value of EUR 5 million and had yielded 4% per annum. The applicant was ordered to pay the taxes due, plus punitive fines (vergrijpboetes) in an amount equal to the taxes and tax interest (heffingsrente). The total sums came to EUR 285,656 in respect of income tax and EUR 85,890 in respect of property tax for this fiscal year alone. 25. The applicant lodged an objection with the Tax Inspector on 18 January 2011. As relevant to the case before the Court, he argued, firstly, that the Tax Inspector had failed to specify the demands for information which the applicant had not met and submitted in addition that he had answered each of the Tax Inspector’s questions; secondly, that the Tax Inspector had not had the right to ask questions during the meeting of 4 November 2010 and demand answers, since these questions also served for the imposition of punitive fines; and finally, that the Tax Inspector had not shown that the applicant had failed to submit a tax return required by law. 26. The Tax Inspector adjourned the proceedings. It would appear that no decision has yet been taken. 27. On 25 February 2011 the Tax and Customs Administration summoned the applicant to appear before the provisional measures judge (voorzieningenrechter) of the Regional Court (rechtbank) of ‘sHertogenbosch in summary injunction proceedings (kort geding). The purpose was to obtain an order for the applicant to disclose all information concerning any assets held abroad, including those held in C. foundation and the allocation of the latter after the foundation had been dissolved. 28. The applicant submitted a counterclaim for an injunction restraining the Tax and Customs Administration from making any further such demands for information. 29. Having held a hearing on 22 March 2011, the provisional measures judge gave judgment on 5 April 2011. The applicant was ordered to disclose the information specified within twenty-eight days from the day on which the judgment was served on him, on pain of a penalty payment (dwangsom) of EUR 2,500 for each day or part of a day thereafter that he failed to comply up to a maximum of EUR 500,000. The judgment was provisionally executable (uitvoerbaar bij voorraad). 30. The judgment was served on the applicant on 6 April 2011. 31. On 9 May 2011 the applicant submitted a statement in writing that “to the best of his knowledge” he had held no foreign bank accounts after 1998 save for one Belgian account which he had duly declared to the tax authorities and had closed down in 2000, and a second letter from the Swiss administrator again refusing to supply information “due to reasons of confidentiality”. 32. On 29 April 2011 the applicant lodged an appeal with the Court of Appeal (gerechtshof) of ‘sHertogenbosch against the judgment of the provisional measures judge. 33. On 4 November 2011, while the appeal was pending, the lawyers representing the Tax and Customs Administration wrote to the applicant informing him that they considered him to have been liable for penalty payments in an amount of EUR 2,500 daily since 6 May 2011. The Tax and Custom Administration reserved the right to demand their payment. 34. The Court of Appeal gave judgment on 31 January 2012 confirming the judgment of the provisional measures judge of the Regional Court. 35. The applicant lodged an appeal on points of law with the Supreme Court (Hoge Raad). He complained of being forced to incriminate himself in that he was being compelled to provide evidence that would be used against him in proceedings to determine a “criminal charge”. 36. The Advocate General (advocaat-generaal) to the Supreme Court submitted an extensively reasoned advisory opinion in which he discussed, inter alia, the case-law of the Court and of the Supreme Court itself. He recommended that the Supreme Court should not quash the judgment of the Court of Appeal and remit the case, but dismiss the applicant’s appeal on points of law and direct that information extracted from the applicant under coercion should not be used for punitive purposes. 37. The Supreme Court gave judgment on 12 July 2013 (ECLI:NL:HR:2013:BZ3640). Its reasoning included the following: “3.7. In so far as it concerns evidentiary material the existence of which is dependent on the will of the taxpayer (hereafter ‘will-dependent material’), the following applies. The principle is that the surrender of such material may be coerced for purposes of levying tax. If it cannot be excluded that the material will also be used in connection with a ‘criminal charge’ (compare [J.B. v. Switzerland, no. 31827/96, ECHR 2001III]), the domestic authorities will have to ensure that the taxpayer will be able to exercise effectively his right not to cooperate in self-incrimination. Since regulation directed to this end is lacking in the Netherlands, it is for the courts to provide the necessary guarantees. 3.8. For this reason the (provisional measures) judge will have to add a qualification to that end to the order to be given. The State has brought its claim relying on section 47 of the General State Taxes Act with a view to levying tax, while not excluding possible use of the information demanded for purposes of imposing administrative fines or prosecution. In order to comply with the requirements flowing from Article 6 of the Convention, as referred to in paragraph 3.7 above, the measure to be ordered, in so far as it concerns will-dependent material, will have to be limited in the sense that such an order may only be given subject to the restriction that the material supplied be only used for the purpose of levying tax. Should the material that has come into the hands of the Tax Inspector, and thus the State, nonetheless be used also for purposes of imposing tax fines or prosecution, then the decision on what consequence should be attached to the violation of the restriction posed by the provisional measures judge will be for the court that decides on the tax fine or the prosecution to take. 3.9 The above reasoning means that in cases in which the surrender of material is demanded from a taxpayer under section 47 of the General State Taxes Act with a view to the correct levying of tax, and the taxpayer relies on the nemo tenetur principle, the following distinction has to be made. (a) In civil summary injunction proceedings a taxpayer may be ordered, on pain of having to make penalty payments, to supply all material that may be relevant to the correct levying of taxes, regardless of whether it concerns will-independent or will-dependent material, subject however to the restriction that material of the latter type may only be used for the purpose of levying tax. (b) Should the taxpayer not obey this order, he will forfeit the corresponding penalty payments. If the parties differ as to whether the taxpayer has obeyed the order, then in any ensuing execution proceedings the State will have the obligation so to state (stelplicht) and the corresponding burden of proof (bewijslast). This means that if the claim is contested, the State will have to prove – that is, make out a plausible case – that the taxpayer was in fact in a position to supply the material demanded from him but not surrendered. (c) Will-dependent material supplied by the taxpayer in response to the order of the provisional measures judge may not be used for the purpose of imposing tax fines on, or prosecuting, the taxpayer. In the event of that happening, it will be for the tax court or criminal court to decide what consequence to attach to such use.” The operative provisions were as follows: “The Supreme Court: Annuls the judgment given on 31 January 2012 by the Court of Appeal of ‘sHertogenbosch, as well as the judgment given by the provisional measures judge on 5 April 2011, but only in so far as the orders given in the latter judgment ... are given without restriction and in so far as [the applicant] is ordered to pay the costs of the proceedings in the first-instance proceedings and the appeal proceedings concerning the principal claim [principaal appel]; and, judging anew to that extent, Determines that, in so far as those orders relate to material the existence of which is dependent on the will of [the applicant], this material shall be supplied subject to the restriction that it shall only be used for the levying of taxes; Determines that the time-limit of ‘28 days from the date of notification of the judgment [of the provisional measures judge] shall be replaced by ‘28 days from the date of notification of the judgment pronounced by the Supreme Court on 12 July 2013’; Orders the State to repay to [the applicant] all that he has paid to the State in compliance with the judgment of the provisional measures judge, plus statutory interest until the day of complete repayment; Orders each of the parties to bear its own costs incurred in the proceedings at first instance, the appeal proceedings concerning the principal claim and the appeal on points of law.” 38. The judgment of the Supreme Court was served on the applicant on 29 July 2013, together with a letter from the lawyer acting for the State requiring him to submit to the Tax and Customs Administration the information specified in the judgment of the provisional measures judge. 39. On 26 August 2013 the applicant replied, through his representative, that he did not have further information than he had already given. At most, he could try approaching his Swiss administrator a third time, but in view of the replies he had already received (see paragraphs 19 and 31 above) there would be little point in doing so. 40. On 14 October 2013 the lawyer acting for the State wrote to the applicant taking note of his failure to submit the information demanded and informing him of the intention to enforce the penalty payments in an amount of EUR 2,500 per day from 28 August 2013. 41. On 23 October 2013 an enforcement notice was served on the applicant for EUR 140,000 in respect of penalty payments imposed per that date. 42. The applicant has maintained his position that he can neither submit nor retrieve any further information in order to comply with the orders given him. 43. The applicant states that on 23 August 2011 the Tax Inspector issued an information decision (informatiebeschikking) pursuant to section 52a of the General State Taxes Act, as in force by then (see below). The applicant lodged an objection; this was dismissed on 18 November 2011. 44. The applicant states that he lodged an appeal with the Regional Court, which was dismissed on 2 January 2013. An appeal on points of law is still pending before the Supreme Court. 45. The applicant states that information orders have been issued for other fiscal years, and that the objection proceedings which he has brought against these have been adjourned. 46. The provisions of the Constitution for the Kingdom of the Netherlands (Grondwet voor het Koninkrijk der Nederlanden) relevant to the case are the following: “Provisions of treaties and of resolutions of international institutions which may be binding on all persons by virtue of their contents shall become binding after they have been published.” “Statutory regulations in force within the Kingdom shall not be applicable if such application is in conflict with the provisions of treaties that are binding on all persons or of resolutions by international institutions.” 47. Until 1 July 2009, section 67j of the General State Taxes Act provided as follows: “If the Tax Inspector has committed an act in relation to the taxpayer ... to which the latter can reasonably attach the corollary that a fine will be imposed on him for particular conduct, then... the taxpayer ... shall no longer be obliged to make any statement in relation to that conduct in so far as it concerns the imposition of the fine.” 48. Until 1 July 2011, other provisions of the General State Taxes Act relevant to the case were the following: “... 3. If the objection is directed against a tax demand [or] a tax adjustment with respect to which: a. the required return has not been submitted; or b. the requirements pursuant to [inter alia, sections 47 and 49] have not been fully complied with, then the tax demand or tax adjustment shall be maintained in the objection proceedings, unless it is apparent that, and to what extent, the tax demand or tax adjustment is incorrect. The preceding sentence does not apply in so far as the objection is directed against a punitive fine. ...” “1. Everyone is obliged to make available to the Tax Inspector, when so requested: a. the data and information that can be of relevance for the levying of taxes in their regard; b. the books, documents and other information-bearing media, or their content – as the Tax Inspector sees fit – the consultation of which may be of relevance for the determination of facts that may influence the levying of taxes in their regard. 2. If tax law designates matters pertaining to a third party as matters pertaining to the presumed taxpayer (degene die vermoedelijk belastingplichtig is), then in so far as it concerns these matters, the same obligations apply to the third party. ...” “1. The data and information shall be given clearly, definitely and without any reservation, orally, in writing or in some other way – as the Tax Inspector sees fit – and within a time-limit to be set by the Tax Inspector. ...” “1. The inspector shall impose the fine in a decision against which an objection may be lodged. 2. ... [T]he Tax Inspector shall inform the taxpayer ... of the grounds of the imposition of the fine no later than in the decision referred to in the first paragraph. ...” 49. On 1 July 2011 amendments to the General State Taxes Act entered into force which, among other things, changed section 25(3) and added a new section 52a. As relevant to the case before the Court, the amended provisions read as follows: “... 3. If the objection is directed against a tax demand [or] a tax adjustment with respect to which the required return has not been submitted, or if it concerns an information decision (informatiebeschikking) within the meaning of section 52a(1), then the tax demand or information decision shall be maintained in the objection proceedings, unless it is apparent that, and to what extent, the tax demand or tax adjustment is incorrect. The preceding sentence does not apply in so far as the objection is directed against a punitive fine. ...” “1. If, in relation to a tax demand, supplementary tax demand or tax adjustment to be issued or a decision to be taken, the obligations flowing from [inter alia, sections 47 and 49] are not or not entirely complied with, ... the Tax Inspector can so establish by means of a decision against which an objection can be lodged (voor bezwaar vatbare beschikking) ([a so-called] information decision). In the information decision, the Tax Inspector shall draw attention to section 25(3). 2. The time-limit for issuing a tax demand, supplementary tax demand or tax adjustment to be issued or for taking a decision shall be extended by the period between the notification of the information decision taken in relation to that [tax demand, supplementary tax demand or tax adjustment] or decision in which it is established that the taxpayer has not or not entirely complied with his obligations and the moment at which this information decision becomes final or is annulled. 3. If the Tax Inspector issues a tax demand, supplementary tax demand or tax adjustment or takes a decision before the information decision taken in relation to that [tax demand, supplementary tax demand or tax adjustment] or decision has become final, the information decision shall lapse. 4. This section is without prejudice to the possibility for the Tax Inspector to bring proceedings before the civil courts with the aim to obtain an order for compliance with the obligations flowing from this Act on pain of forfeiture of penalty payments.” “1. In accordance with the provisions of this Directive the competent authorities of the Member States shall exchange any information that may enable them to effect a correct assessment of taxes on income and on capital. 2. There shall be regarded as taxes on income and on capital, irrespective of the manner in which they are levied, all taxes imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the disposal of movable or immovable property, taxes on the amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.” “1. The competent authority of a Member State may request the competent authority of another Member State to forward the information referred to in Article 1 (1) in a particular case. The competent authority of the requested State need not comply with the request if it appears that the competent authority of the State making the request has not exhausted its own usual sources of information, which it could have utilized, according to the circumstances, to obtain the information requested without running the risk of endangering the attainment of the sought after result. 2. For the purpose of forwarding the information referred to in paragraph 1, the competent authority of the requested Member State shall arrange for the conduct of any enquiries necessary to obtain such information.” “1. The competent authority of a Member State shall without prior request forward the information referred to in Article 1 (1), of which it has knowledge, to the competent authority of any other Member State concerned, in the following circumstances: (a) the competent authority of the one Member State has grounds for supposing that there may be a loss of tax in the other Member State; (b) a person liable to tax obtains a reduction in or an exemption from tax in the one Member State which would give rise to an increase in tax or to liability to tax in the other Member State; (c) business dealings between a person liable to tax in a Member State and a person liable to tax in another Member State are conducted through one or more countries in such a way that a saving in tax may result in one or the other Member State or in both; (d) the competent authority of a Member State has grounds for supposing that a saving of tax may result from artificial transfers of profits within groups of enterprises; (e) information forwarded to the one Member State by the competent authority of the other Member State has enabled information to be obtained which may be relevant in assessing liability to tax in the latter Member State. 2. The competent authorities of the Member States may, under the consultation procedure laid down in Article 9, extend the exchange of information provided for in paragraph 1 to cases other than those specified therein. 3. The competent authorities of the Member States may forward to each other in any other case, without prior request, the information referred to in Article 1 (1) of which they have knowledge.” “For the purpose of applying the preceding provisions, the competent authority of the Member State providing the information and the competent authority of the Member State for which the information is intended may agree, under the consultation procedure laid down in Article 9, to authorize the presence in the first Member State of officials of the tax administration of the other Member State. The details for applying this provision shall be determined under the same procedure.” “1. All information made known to a Member State under this Directive shall be kept secret in that State in the same manner as information received under its domestic legislation. In any case, such information: - may be made available only to the persons directly involved in the assessment of the tax or in the administrative control of this assessment, - may in addition be made known only in connection with judicial proceedings or administrative proceedings involving sanctions undertaken with a view to, or relating to, the making or reviewing the tax assessment and only to persons who are directly involved in such proceedings; such information may, however, be disclosed during public hearings or in judgements if the competent authority of the Member State supplying the information raises no objection, - shall in no circumstances be used other than for taxation purposes or in connection with judicial proceedings or administrative proceedings involving sanctions undertaken with a view to, or in relation to, the making or reviewing the tax assessment. 2. Paragraph 1 shall not oblige a Member State whose legislation or administrative practice lays down, for domestic purposes, narrower limits than those contained in the provisions of that paragraph, to provide information if the State concerned does not undertake to respect those narrower limits. 3. Notwithstanding paragraph 1, the competent authorities of the Member State providing the information may permit it to be used for other purposes in the requesting State, if, under the legislation of the informing State, the information could, in similar circumstances, be used in the informing State for similar purposes. 4. Where a competent authority of a Member State considers that information which it has received from the competent authority of another Member State is likely to be useful to the competent authority of a third Member State, it may transmit it to the latter competent authority with the agreement of the competent authority which supplied the information.” | 0 |
test | 001-158207 | ENG | RUS | ADMISSIBILITY | 2,015 | SHUMEYEV AND OTHERS v. RUSSIA | 4 | Inadmissible | András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska | 1. The applicants are Russian nationals living in various regions of the Russian Federation. The numbers and dates of lodging of their applications, and their full names, dates of birth and places of residence are set out in the Appendix. 2. , may be summarised as follows. 3. On various dates between 2005 and 2011 the police received information, in each of the applicants’ cases, implicating the applicants in drug-dealing. On the basis of that information, the police decided to carry out an undercover operation in the form of a test purchase of drugs from the applicants by undercover agents. 4. In all four cases, the police invited two randomly chosen attesting witnesses to observe the progress of the undercover operation. The attesting witnesses confirmed in their pre-trial depositions that the undercover agents had been searched prior to the test purchase and that they had bought controlled substances from the applicants with the banknotes marked and supplied by the police. They also attested that after the test purchase the police had searched the applicants or their premises, and seized and sealed controlled substances found on the applicants and other evidence that had been gathered. 5. The police also documented each step of the undercover operations. In particular, they drew up records of personal inspections of undercover agents, examinations of banknotes, test purchases, personal search and crime scene inspections. 6. The applicants were criminally prosecuted for drug-related offences under the Russian legislation in force. The undercover agents and police officers who had participated in test purchases of drugs testified during the trial, and as participants in the criminal proceedings, the applicants were able to question them. They were also able to submit various motions, present arguments in their defence and lodge objections. The attesting witnesses summoned by the prosecution were sought for but they failed to appear for various reasons, and the national courts read out their pre-trial statements regarding the investigative measures and admitted them as evidence despite the applicants’ objections. The procedural records drawn up by the police were also admitted as evidence by the courts. The contents of the pre-trial depositions of the attesting witnesses were identical to the relevant police records. 7. The applicants appealed against the judgments convicting them, submitting, inter alia, that their convictions had been unfair due to their inability to examine the attesting witnesses. The judgments were, however, upheld on appeal and became final. 8. Article 7 § 1 of the CCP (as in force at the material time) provided that the court, prosecution and investigators could not apply laws in breach of the provisions of the CCP. 9. Article 7 § 3 further provided that if the court, prosecution or investigators breached the provisions of the CCP in the course of criminal proceedings, evidence obtained as a result of such breach would be rendered inadmissible. 10. Chapter II of the CCP contained two different provisions governing the participation of witnesses and attesting witnesses in the criminal proceedings. 11. Article 56 provided that, “1. A witness (свидетель) is a person who may have knowledge of facts relevant to the investigation and resolution of a criminal case and who is subpoenaed to testify.” ... 7. If a witness fails to appear for no valid reason, his or her appearance may be enforced.” 12. Article 60 provided that, “An attesting witness (“понятой”) is a person disinterested in the outcome of the criminal case who is invited by an investigator to attest to an investigative measure being carried out and also to its substance, progress and results. Minors who are involved in a criminal case and their close relatives and relatives, and also investigators, cannot act as attesting witnesses.” 13. Article 164 of the CCP stipulated that body searches, searches of premises, seizure of evidence and other investigative measures had to be carried out by order of the investigators. It further required the recording of all investigative measures carried out. 14. Article 166 of the CCP established that all participants in investigative measures should receive a record thereof. They had to be informed of their right to make amendments and clarifications to the record and have them noted in it. Their remarks should be acknowledged and signed by the persons making them. 15. Article 170 of the CCP required at least two attesting witnesses to be present during, inter alia, the inspection of objects relevant to the criminal case, body searches, searches of premises and seizure of evidence. 16. Article 38 provided for admitting into evidence the records of investigative measures and trial records if they complied with the requirements of the CCP. 17. Article 75 provided that evidence obtained in breach of the provisions of the CCP would be deemed inadmissible. It further provided that inadmissible evidence would have no legal force and could not be relied on as grounds for criminal charges or for proving any of the circumstances for which evidence is required in criminal proceedings. 18. Article 89 prohibited the use of the results of a criminal investigation if they failed to satisfy the rules of evidence laid down in the CCP. 19. Article 217 and Article 219 stipulated the investigator’s obligation to examine and rule on motions submitted by the defendant after the review of materials of the criminal case, and to inform the defendant of his right to appeal against an adverse decision on his motion. 20. Article 235 provided that parties to a criminal case could request a trial court to exclude certain evidence. As a general rule, the burden of proof would be on the party which submitted a motion to exclude evidence, except where a defendant sought to exclude evidence obtained in violation of the provisions of the CCP, in which case the prosecution would have to provide evidence to the contrary. 21. Article 303 made it a crime for investigators, prosecutors and defence attorneys to forge evidence. | 0 |
test | 001-169475 | ENG | RUS | CHAMBER | 2,016 | CASE OF IDALOV v. RUSSIA (No. 2) | 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 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 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova | 4. The applicant was born in 1967 and lives in Lakha-Varanda, Chechen Republic. 5. On 11 July 2008 P. caused a traffic accident while driving and damaged the applicant’s car. According to P., the applicant threatened him, asking for cash for his car’s repair. 6. On 16 July 2008 P. reported the applicant to the regional police department for combatting organised crime. The police decided to run a special operation to arrest the applicant. They gave P. 2,000 United States dollars (USD) and 90,000 Russian roubles (RUB) in marked notes. At around noon several police officers arrived at a car market where P. worked. At about 5 p.m. the applicant entered P.’s office. P. met the applicant and gave him the money he had received from the police. Immediately thereafter, the policemen arrested the applicant. According to the police officers, the applicant resisted the arrest and they had to handcuff him. The applicant was then taken to the regional police department for combatting organised crime. At 5 p.m. the policemen searched the applicant and found heroin on him. Lay witnesses F. and R. were present during the search. The applicant alleged that it was the police officers who had planted the drug on him. 7. At 8 p.m. on 16 July 2008 police captain A. drew up an administrative arrest record, according to which the applicant had “failed to comply with the policemen’s legitimate request to present his identification document, resisted them and tried to abscond”. No legal assistance was made available to the applicant. 8. On 17 July 2008 at 12.45 p.m. investigator S. from the town police department opened a criminal investigation against the applicant on suspicion of illegal drug possession. At 6.20 p.m. she drew up a criminal arrest record. 9. On 18 July 2008 the Odintsovo Town Court authorised the applicant’s pre-trial detention. The court noted as follows: “As is apparent from the evidential material submitted, [the applicant] is suspected of having committed a serious offence and he has a prior criminal record. If released, he might abscond and interfere with [administration of justice]. ” 10. The applicant appealed, noting that he had been arrested by the police a day before the record of his arrest was prepared and that the Town Court had failed to take his fact into consideration. He also argued that the Town Court had ignored the fact that he had a permanent place of residence in Moscow, that he had been the sole provider for two minor children and his wife, that he was in the fourth year of study by correspondence at a higher educational establishment and that he had employment. Nor had the prosecutor furnished any evidence disclosing the applicant’s intent to abscond or to interfere with the administration of justice. Lastly, he noted that the arrest order did not indicate a time-limit for his detention. 11. On 5 August 2008 the Moscow Regional Court upheld the arrest order of 18 July 2008 on appeal. 12. On 15 September 2008 the Town Court extended the applicant’s detention until 17 November 2008. The court reasoned as follows: “As is apparent from the evidential material submitted, [the applicant] is charged with a serious offence and has a prior criminal record. Accordingly, if released, he might abscond and interfere with [administration of justice].” 13. On 12 November 2008 the Town Court extended the applicant’s detention until 31 December 2008. The court reasoned as follows: “Taking into account the fact that [the applicant] is charged with a serious offence which he committed whilst on parole, that he has a prior criminal record and that he might abscond, continue his criminal activities, and interfere with the administration of justice, it is necessary that [the applicant] remain in custody. ” 14. On 16 December 2008 the Town Court set the trial-date for 23 December 2008. The court also ordered that the applicant remain in custody pending examination of the case and noted as follows: “... According to the material submitted by the prosecutor, [the applicant] had been previously convicted. He is charged with a[n] ... offence classified as particularly serious ... . ... The court considers that, if released, [the applicant] might abscond. Furthermore, [the applicant’s] release might interfere with the comprehensive and objective examination of the evidence. Accordingly, the measure of restraint previously imposed on [the applicant] cannot be lifted.” 15. On 18 December 2008 the Town Court opened the trial. 16. On 22 May 2009 the Town Court extended the applicant’s detention until 8 September 2009 noting as follows: “Having heard the parties’ arguments, the court concludes that, in view of the fact that [the applicant] is charged with a ... grievous offence ... which he committed whilst on parole, the court considers that, if released, he might abscond or continue criminal activities. Furthermore, the [applicant’s] release might interfere with the comprehensive and objective examination of the case. Accordingly, ... the detention imposed on [the applicant] cannot be lifted.” 17. On 25 June 2009 the Town Court returned the case file to the prosecutor’s office for rectification of certain omissions and extended the applicant’s detention until 8 September 2009. The court referred to the gravity of the charges against the applicant and noted that the latter was charged with having committed a serious offence whilst released on parole. 18. On 16 July 2009 the Regional Court upheld the decision of 22 May 2009 on appeal. 19. On 23 July 2009 the Regional Court upheld the decision of 25 June 2009 on appeal. 20. On an unspecified date the prosecutor’s office returned the case file to the Town Court. 21. On 2 November 2009 the Town Court opened the trial. On the same date the applicant studied the material in the case file at the court-house. He tore several pages out of the case file and burnt them. 22. During the subsequent hearings the court heard evidence from a certain P., police officers And., Rom., Ak., Z., Shch., and T. − who had taken part in the applicant’s arrest − the head of the police unit Pl., lay witness R. − who had been present when the applicant was searched on 16 July 2008 − and forensic expert P., who had run a laboratory test on the heroin found on the applicant. 23. On 11 and 12 November and 2, 3, 4 and 8 December 2009 the applicant received repeated reprimands from the presiding judge for making threats and insulting persons present in the courtroom. The judge warned the applicant that he might be removed from the courtroom for continuing with such disruptive behaviour. 24. On 9 December 2009 the director of the company that provided the interpreters for the trial complained to the court that the applicant had threatened the interpreters who had earlier taken part in the proceedings. 25. On 16 December 2009 the applicant refused to leave the remand prison to attend a trial hearing. The hearing was adjourned. 26. On 17 December 2009 the court held the last trial hearing. The presiding judge confirmed the presence of the parties and witnesses. L., a police officer who had been in charge of the operation leading to the applicant’s arrest on 16 July 2008, appeared for questioning. The applicant insulted the witness. The presiding judge reprimanded the applicant and warned him that he would be removed from the courtroom if he persisted with his disruptive behaviour. The applicant started talking in Chechen. The interpreter refused to interpret and asked the court to relieve him of his duties. The presiding judge informed the parties that the interpreters who had earlier taken part in the proceedings had decided to refuse further engagement in view of the insults and threats made by the applicant. The applicant talked back to the judge in Chechen. The interpreter refused to interpret into Russian. The presiding judge again reprimanded the applicant and warned him about his possible removal from the courtroom. The presiding judge presented the report from the remand prison management stating that on 16 December 2009 the applicant had refused to be transported from the remand prison to the court-house for the hearing. The presiding judge asked the prosecution and defence whether it was possible, in the circumstances, to remove the applicant from the courtroom. The prosecutor did not object. The applicant stated that the presiding judge’s conduct clearly demonstrated that he was being pressurised by high-ranking law-enforcement officials to deliver an unlawful judgment in the applicant’s case and that his decision to remove the applicant from the courtroom would be unlawful and in contravention of the Convention. The court ruled as follows: “... the court decides to remove [the applicant] from the courtroom ... for the following reasons. [The applicant] has repeatedly been disruptive in the courtroom in the course of the trial, including the current hearing. In particular, ... while studying the material in the case file, [the applicant] destroyed five pages thereof. He repeatedly refused to appear in the courtroom referring to his needs to pray, eat, wash and go to the bathroom. On several occasions he refused to appear before the court alleging that he was ill. However, the emergency response doctors summoned did not confirm his allegation. He has insulted witnesses and other participants in the proceedings and shown disrespect for the judges participating in the trial by making negative comments about the judicial system in Russia. He claimed to know the home address of [a witness] and one of the judges. He has made statements and comments unrelated to the trial. During this hearing, [the applicant] insulted a witness ... . After [the applicant] said something in the Chechen language, the interpreter asked the court to [relieve him of his duties] ... . The head of the interpreters’ agency reported that [the applicant] spoke Chechen [in the courtroom] with the sole intention of insulting and threatening the interpreters.” 27. The trial continued in the applicant’s absence. The court questioned L., who, at the time, had been in charge of the special operation conducted in response to P.’s complaint about the applicant extorting money from him. The applicant’s lawyer was present and put questions to the witness. The court also established that witness F. had failed to appear and decided that the statement he had made earlier to the investigator should be read out. The court also read out statements made by witnesses Shch. and T. earlier during the trial as those witnesses had also failed to appear. Lastly, the court granted a request from the applicant’s lawyer and read out several earlier statements made by the applicant and several witnesses for the defence who had failed to appear. According to the record of the court hearing, the applicant refused to return to the courtroom to participate in the closing arguments. The judgment was read out in the applicant’s absence. 28. The Town Court found the applicant guilty as charged and sentenced him to four years’ imprisonment. The court based its findings on statements made by witnesses questioned by the investigator and the court, police reports and other material in the case file, and forensic evidence. The court accepted the prosecution’s version of events, namely that the applicant had been arrested by special police forces in the course of an operation targeting him as a racketeer as alleged by P. and that heroin had been found on him during the search conducted immediately after his arrest. 29. On 13 April 2010 the Moscow Regional Court upheld the applicant’s conviction on appeal. 30. On 11 December 2013 the Presidium of the Moscow Regional Court reviewed the applicant’s conviction and reduced the applicant’s sentence to three years and two months’ imprisonment. 31. On 21 May 2009 the applicant was taken to the Odintsovo police station. According to applicant, at the station he was assaulted by three police officers. They throttled him and pulled his arms behind his back causing him enormous pain. 32. On 21 and 22 May 2009 the applicant was examined by a paramedic. According to the official report, the applicant complained about chronic stomach pain. 33. On 22 May 2009 the applicant’s lawyer complained to the police and the prosecutor’s office about the incident of 21 May 2009. 34. On 25 May 2009 the police completed an internal inquiry into the applicant’s allegations of ill-treatment. It was established that five police officers had had to subdue the applicant during a body search. They had pinned him to the ground and handcuffed him. 35. On 10 July 2009 investigator B. refused to institute criminal proceedings against the alleged perpetrators. On 31 August 2009 his superior quashed the said decision and remitted the matter for further inquiry. 36. On 9 September 2009 investigator D. dismissed the applicant’s complaint as unsubstantiated and refused to institute criminal proceedings against the police officers. Relying on the evidential material obtained in the course of the inquiry, he concluded that the police officers had acted in accordance with the law. It appears that the applicant did not appeal against the decision of 9 September 2009. 37. Following communication of the application to the Government, on 4 February 2014 the Acting Head of the Investigative Committee of Odintsovo Town quashed the decision of 9 September 2009 and remitted the matter for further inquiry. The parties did not disclose the outcome of the proceedings. 38. On 25 September 2009, remand prison director M. ordered the applicant’s placement in a disciplinary cell. 39. According to the applicant, on their way to the disciplinary cell M. repeatedly hit the applicant against the wall, administering blows to his head and body. The applicant’s nose and lips began to bleed. Then the guards handcuffed the applicant and continued beating him. 40. According to the Government, the applicant refused to enter the disciplinary cell. Instead, he threw a punch at M.’s face and M. hit his head against the wall. M. tried to subdue the applicant by pulling his right arm behind his back. The applicant resisted and kicked M. Guard N. came to M.’s rescue and pulled the applicant’s arm behind his back. The applicant fell to the floor and his nose bled. The guards handcuffed the applicant and took him to a cell where he calmed down. The guards called an ambulance. 41. On the same date the prison director and the guards reported the use of force against the applicant. According to the reports, M. pulled the applicant’s right arm behind his back using a combat technique and guard K. handcuffed the applicant to put an end to his resistance. 42. On an unspecified date the applicant underwent a medical examination. According to the medical report the applicant had sustained the following injuries: bruises on the right forearm and shoulder, left shoulder, left armpit and left calf; a bruised wound on the lower lip. 43. On 6 October 2009 the applicant complained that he had been beaten up by M. On 15 October 2009 investigator Mar. dismissed the applicant’s allegations as unsubstantiated and refused to institute criminal proceedings against M. 44. On 12 October 2009 a medical forensic expert examined the applicant and his medical case history. The expert concluded that the applicant’s injuries could have resulted from impact by blunt and solid objects and that the applicant might have sustained the injuries on 25 September 2009 as a result of blows or a fall. The expert concluded that the injuries were not serious and had not caused any harm to the applicant’s health. 45. On 22 October 2009 the expert issued an additional forensic report, noting that it was impossible to determine the exact date on which the applicant had sustained the injuries. It could have been on 25 September 2009 or some time before or after that date. 46. On 7 October 2009 the prosecutor’s office opened a criminal investigation into the incident of 25 September 2009. The applicant was charged with the use of force against a State agent. 47. On an unspecified date the Town Court received the file and opened the trial. During the trial, the applicant maintained his innocence. He claimed that the remand prison director and the guards had beaten him up on 25 September 2009 and he had then been prosecuted on trumped-up charges to cover up for the beatings. 48. On 16 December 2010 the Town Court found the applicant guilty as charged and sentenced him to six years’ imprisonment. The court dismissed the applicant’s version of events as unsubstantiated, relying on the prosecution and defence witnesses’ statements and forensic evidence. On 17 March 2011 the Regional Court upheld the applicant’s conviction on appeal. The court also re-calculated the applicant’s sentence. It took into account that the applicant had two previous convictions and sentenced him cumulatively to seven years’ imprisonment. 49. On 11 December 2013 the Presidium of the Regional Court reclassified the charges against the applicant by way of supervisory review, reduced his sentence to five years’ imprisonment and sentenced him cumulatively to five and a half years’ imprisonment. 50. On 29 October 2010 the applicant was detained in remand prison no. IZ77/4 in Moscow. According to the applicant, the prison guards beat him and nine other inmates. According to the Government, the applicant was inciting other inmates to disobey the guards. He also threatened the guards and insulted them. The guards used rubber truncheons and handcuffs to subdue the applicant. 51. On 3 November 2010 the applicant took part in a hearing at the Supreme Court of the Russian Federation by means of video link. The applicant demonstrated to the judges extensive bruising on his stomach, chest and lower back and claimed that he had been beaten up by guards of the remand prison. 52. On 9 November 2010 the Supreme Court informed the Moscow City Prosecutor of the applicant’s injuries and forwarded the applicant’s complaint about the beatings in the remand prison. 53. According to the Government, on 12 January 2014 an investigator completed the inquiry into the incident of 29 October 2010 and refused to institute criminal proceedings against the prison guards. On 27 January 2014 the district prosecutor quashed the decision of 12 January 2014 and remitted the matter for further inquiry. The Government did not disclose the outcome. 54. According to the applicant, on 24 June 2012 he was beaten up whilst in detention in correctional colony no. IK-19 in the Sverdlovsk Region. According to the Government, the applicant had an altercation with inmate Ur. As a result, the applicant sustained bruises and a bone fracture on the right side of the face and concussion. On an unspecified date the authorities instituted criminal proceedings against Ur. The parties did not disclose their outcome. 55. On an unspecified date the applicant was transferred to correctional colony no. IK-2 in Yekaterinburg. 56. According to the applicant, on 29 September 2012 some time after 10 p.m. a group of young and strongly-built men entered his cell and beat him up. They were led by inmate O. 57. According to the applicant, on 1 October 2012 a man wearing the uniform of a major and accompanied by several medical orderlies entered the applicant’s cell. The major started beating the applicant, who was lying on the bed. The major then told the orderlies to pull the applicant off the bed and continued the beatings, administering multiple blows to the applicant’s head and other parts of the body. 58. On 7 October 2012 the applicant was transferred to correctional colony no. IK-19 in the Sverdlovsk Region. Upon arrival, he underwent a medical examination. The medical practitioners recorded a wound on the applicant’s head and a bruise near the hip bone. The applicant explained that he had sustained the injuries as a result of the beatings to which he had been subjected in correctional colony no. IK-2. The management of correctional colony no. IK-19 forwarded the relevant report to the regional investigation committee but it was never received by them. According to the Government, the authorities’ inquiry into the loss of the report is still pending. 59. According to the Government, the inquiries into the incidents of 29 September and 1 October 2012 are still pending. 60. Between 17 July 2009 and 13 April 2011 the applicant was detained in identical conditions in the temporary detention centre in Odintsovo, in remand prison no. IZ50/1 in Mozhaysk and in remand prison no. IZ-77/4 in Moscow. The cells were overcrowded, dirty, poorly ventilated and insufficiently lit. The toilet offered no privacy. The use of a shower was limited. 61. From 22 November 2012 to 11 January 2013 the applicant was held in remand prison no. IZ-66/1 in Yekaterinburg. 62. On numerous occasions between 10 November 2008 and 17 December 2009 the applicant was held in the temporary detention centre in Odintsovo. According to the Government, the centre comprised fifteen cells measuring 184 sq. m in total. The centre had an outdoor area where the inmates were able to exercise. The inmates were able to take a shower at least once a week. They were provided with three meals per day and an individual sleeping place, bed linen, toiletries, a bowl, a mug and a spoon. 63. According to the applicant, at all times the cells in the temporary detention centre were overcrowded and the personal space available to the inmates fell short of the statutory minimum standard of 4 sq. m. The cells were dirty and there was no ventilation. The lighting was poor and insufficient for reading. The access to shower facilities was limited. The applicant received one meal a day. On the days of the court hearings, the applicant did not have any meals at all. 64. The applicant did not provide a description of the conditions in which he was detained in remand prisons nos. IZ-50/1 in Mozhaysk and IZ77/4 in Moscow, beyond alleging that they were identical to the conditions of his detention in the temporary detention centre in Odintsovo. 65. On 22 November 2012 the applicant was placed in cell no. 423 in remand prison no. IZ-66/1 in Yekaterinburg. The cell measured no more than 15 sq. m and was equipped with four beds. Between seven and nine inmates were held in the cell, together with the applicant. 66. From 29 November to 28 December 2012 the applicant was held in cell no. 240. The cell was constantly overcrowded and housed between eighteen and thirty inmates. 67. From 29 December 2012 to 11 January 2013 the applicant was held in cell no. 2. It measured 6.23 sq. m and housed two inmates. 68. According to the applicant, on the days of the court hearings and on the days when there was a change of the applicant’s place of detention, he was woken up early and placed in an overcrowded holding cell. He was then taken to the place of his destination (a court-house or a detention facility) in a prison van. On each occasion the number of the persons transported with the applicant exceeded the van’s capacity of 24 persons. The vans were dirty and unventilated and had no heating. The trip lasted several hours. The van compartments were stiflingly hot in the summer and very cold in the winter. 69. According to the Government, the applicant was transported in GAZ vans which comprised two compartments measuring 6.2 sq. m and 1.2 sq. m respectively, in strict compliance with the vans’ design capacity. The vans were equipped with ventilation and heating. The trips from the temporary detention centre in Odintsovo to the Odintsovo Town Court lasted no more than 5 to 10 minutes. The trips from the same detention centre to the courts in Moscow lasted no more than three hours. 70. According to the applicant, at the court-house he was placed in a holding cell measuring 5 sq. m together with two to four other inmates. He was held in such conditions for several hours awaiting the hearing. He was allowed to use the toilet only once. The cell was not ventilated. All the other detainees smoked and the applicant, a non-smoker, was exposed to the others’ tobacco smoke. 71. On 13 April 2011 the applicant was transported to correctional colony no. IK-19 in the Sverdlovsk Region. The trip lasted from 13 to 27 April 2011. 72. According to the applicant, he was held with twelve to fourteen other inmates in a train compartment of which the capacity was a maximum of six persons. During the stops, the applicant was housed in remand prisons in Moscow, Chelyabinsk and Yekaterinburg. All the cells there were overcrowded. The applicant was not provided with an individual sleeping place. 73. According to the Government, the applicant was transported in a train compartment measuring 159 x 214 x 287 cm. At no time did the number of inmates transported in one compartment together with the applicant exceed ten persons, the compartment’s capacity being twelve persons. It was equipped with eight sitting and four sleeping places. The applicant was provided with dry food rations and drinking water. | 1 |
test | 001-183383 | ENG | ROU | COMMITTEE | 2,018 | CASE OF FARCAȘ AND OTHERS v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Egidijus Kūris;Iulia Motoc;Paulo Pinto De Albuquerque | 4. The applicants were born in 1935, 1945 and 1956 respectively and live in Ploieşti. 5. In 1975 a group of engineers patented an invention concerning a method for separating hydrocarbon. The first applicant is one of the inventors. The second and third applicants are heirs of the other members of the group. 6. On 26 January 1995 the applicants lodged an action for compensation against company R., a privately-owned former State company which had used the 1975 invention between 1985 and 1988 (for details about those proceedings, see Farcaş and Others v. Romania, no. 67020/01, §§ 7-22, 10 November 2005). 7. In a decision of 24 June 2002 the Braşov County Court allowed in part the action lodged by the applicants against company R., and ordered the latter to pay to the first applicant 2,284,679,617 Romanian lei (ROL), an amount representing compensation for the use, between 1985 and 1988, of the invention patented in 1975. The second and third applicants appealed, and in a decision of 8 November 2002 the Braşov Court of Appeal also awarded them compensation – ROL 2,230,620,676 to the second applicant and ROL 1,669,759,157 to the third applicant. 8. On 10 March 2004 the applicants and company R. signed an agreement for the payment of the compensation awarded by the court. Between 2 and 21 April 2004 the company paid about 20% of the amounts granted. 9. On 5 May 2005 the High Court of Cassation and Justice took note of the terms of the agreement of 10 March 2004 and concluded that company R. had withdrawn its appeal on points of law against the decision of 8 November 2002 (see paragraph 7 above), which thus became final. 10. Meanwhile, on 31 March 2004 company R. had sought its judicial reorganisation under a procedure provided for by Law no. 64/1995 on judicial reorganisation and bankruptcy. 11. On 28 April 2004 the Bacău County Court allowed the application, started the reorganisation proceedings and nominated a judicial administrator. The applicants’ claims were accepted by the County Court and recorded in the register of claims compiled by the judicial administrator in conformity with the provisions of the applicable law (tabloul creditorilor, hereinafter “the register of claims”). 12. The applicants lodged an objection to the register of claims, asking to be recognised as priority creditors (creditori privilegiaţi). Eleven other creditors also lodged objections against the records in the register of claims. 13. Meanwhile, on 24 November 2004 the judicial administrator had submitted a reorganisation plan to a vote by the creditors. It was proposed that the priority claims (creanţe privilegiate) be paid in full, and the remaining unsecured non-priority claims (creanţe chirografare) be paid at a rate of 20% of their value. In an interlocutory judgment of 8 December 2004 the Bacău County Court validated the plan after examining the objections raised by the unsecured creditors (creditori chirografari). In 2006 company R. paid its debts in accordance with the plan. 14. On 11 October 2007 the Braşov County Court held a hearing on the objections to the register of claims lodged by the applicants. The first applicant was present at the hearing to represent both himself and the other applicants. The County Court gave the parties until 18 October 2007 to submit written observations. On that date, in the applicants’ absence, it adjourned delivery of the judgment to 1 November 2007. The County Court gave its judgment on 1 November 2007; it found against the applicants. 15. On 23 January 2008, in accordance with the rules on notification in relation to court documents in insolvency proceedings (see paragraph 20 below), the judgment of 1 November 2007 was published in the Bulletin of Insolvency Proceedings (Buletinul Procedurilor de Insolvenţă, “the Bulletin”). 16. On an unspecified date the applicants enquired about the judgment’s date of delivery and asked the County Court to provide them with a copy of the judgment, which was sent to them on 31 January 2008; they received it on 4 February 2008. On 13 February 2008 they lodged an appeal by post. 17. Before the Braşov Court of Appeal, the applicants argued that, as they had not had access to the Bulletin, they had not been able to know on which date the judgment had been published. 18. In a final decision of 17 April 2008 the Court of Appeal dismissed that argument and concluded that the appeal had been made out of time, as it had been lodged more than ten days after 23 January 2008, the date on which the Braşov County Court’s judgment had been published (see paragraph 15 above). Relying on the Constitutional Court’s decision no. 1137 of 4 December 2007 (see paragraph 21 below), the Court of Appeal considered that the notification procedure via the Bulletin had offered sufficient safeguards to the participants in the proceedings, and had been justified by the nature of the insolvency procedure. 19. On 21 June 2010 the County Court closed the insolvency proceedings and noted that company R. had complied with all the obligations set out in the reorganisation plan (see paragraph 13 above), and thus it no longer had any debts. | 1 |
test | 001-170451 | ENG | SRB | COMMITTEE | 2,017 | CASE OF NIKOLIĆ AND OTHERS v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);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. In 1961 the applicants’ predecessors were deprived of certain land in favour of the State. 6. On 26 January 2006 the Niš Municipal Court ordered PIK Niš (the debtor), a company predominantly comprised of socially-owned capital, as the end user of that land, to pay the applicants specified amounts on account of the compensation for the land in question. 7. On 25 October 2006 and 1 February 2007 respectively, upon the applicants’ request to that effect, the Niš Municipal Court ordered the enforcement of the said judgment and further ordered the debtor to pay the applicants the enforcement costs. This judgment became both, final and enforceable by 16 August 2006. 8. Only one applicant, Mr Tomislav Đorđević, never lodged an enforcement request. 9. On 3 June 2009 the Niš Commercial Court opened insolvency proceedings in respect of the debtor (St. 10/09). 10. Only one applicant, Ms Milica Nikolić Jajčević, duly submitted her claims therein. 11. These insolvency proceedings are still ongoing. 12. On 2 March 2009, 31 August 2009 and 9 June 2010 respectively, all applicants lodged their constitutional appeals. 13. On 17 March 2011, 4 April 2012 and 23 May 2012, respectively, the Constitutional Court found a violation of the right to a hearing within a reasonable time in respect of all applicants, except Mr Tomislav Đorđević. However, the court did not award the applicants any damages, merely stating that the applicants “had not claimed non-pecuniary damages”. 14. The Constitutional Court dismissed the appeal in respect of one applicant, Mr Tomislav Đorđević, since he had failed to request enforcement of the judgment in question. | 1 |
test | 001-163820 | ENG | MLT | CHAMBER | 2,016 | CASE OF RAMADAN v. MALTA | 1 | Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | András Sajó;David Scicluna;Egidijus Kūris;Ineta Ziemele;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 6. The applicant was born in 1964 in Egypt and currently lives in Hamrun, Malta. 7. The applicant had a Maltese tourist visa, which had been issued in 1991 and had been valid for three months. Having overstayed this visa, he remained in Malta illegally. 8. In 1993, when the applicant was twenty-nine years of age and still living in Malta illegally, he met MP, a Maltese citizen, who at the time was seventeen years of age. Three months later, on 13 October 1993, they married in a civil ceremony. On 26 February 1994 they also married in accordance with the Catholic rite. 9. On 18 November 1993 the applicant enquired about his “exempt person status” (see paragraph 34 below) and on 23 November 1993 started the process to obtain Maltese citizenship on the basis of his marriage to a Maltese national. 10. The applicant’s exempt person status was confirmed on 2 March 1994. On 19 April 1994, following the processing of his application and consequent to the marriage, he was registered as a Maltese citizen. On 12 September 1994, he therefore lodged an application to renounce his Egyptian nationality (a copy of the relevant application form has not been submitted to the Court). It transpires from a letter issued by the Consul of the Embassy of the Arab Republic of Egypt in Malta that on 29 September 1994 the applicant’s request was approved and his Egyptian passport withdrawn. At the relevant time, dual nationality was not possible under either Egyptian or Maltese law. 11. According to the Government, in 1994 the applicant and MP had various marital problems, which led the applicant to leave the matrimonial home on two occasions. The applicant had behaved aggressively, and specifically on 5 June 1994 he had physically assaulted his pregnant wife, causing her a permanent disability. MP left the matrimonial home thereafter. 12. The applicant was charged, remanded in custody, and eventually tried and found guilty in respect of the act of assault. He was given a suspended sentence. 13. In the meantime, on 13 December 1994 a child, LR, was born of the marriage. LR is a Maltese citizen. The various family disputes continued between the couple. 14. On 8 February 1995 MP instituted court proceedings to annul the marriage. Following adversarial proceedings where both parties were represented by a lawyer, the applicant’s marriage was annulled by a judgment of 19 January 1998. The court delivering the judgment was satisfied (to the degree necessary in civil proceedings, namely on a balance of probabilities) that the applicant’s only reason for marrying had been to remain in Malta and acquire citizenship; thus he was positively excluding marriage itself, and there had been a simulation of marriage. Since no appeal was lodged against the judgment, it became final. 15. The applicant did not inform the authorities of the judgment concerning the annulment of his marriage and he remained resident in Malta and retained his Maltese citizenship. 16. On 30 June 2003 the applicant married VA, a Russian citizen, four months after their first encounter. The applicant enquired about the exempt person status of his Russian wife and was asked to produce a copy of the judgment of annulment. On 4 July 2003 the applicant produced a copy of the judgment and it was only at that time that the authorities became aware of the reason for the annulment of his first marriage. 17. Following an application to that effect, on 27 September 2004, VA was granted exempt person status and thus had full freedom of movement (see “Relevant domestic law” below). According to the Government, although this was contested by the applicant, attention was drawn to the fact that the benefit of such status would cease if the applicant lost his citizenship. Two sons were born of this marriage, VR and VL, in 2004 and 2005 respectively. They are both Maltese citizens. 18. On 8 May 2006 the applicant was informed that an order was to be made to deprive him of his Maltese citizenship (under Article 14(1) of the Citizenship Act (“the Act”) – see “Relevant domestic law” below), which, according to the judgment of 19 January 1998, appeared to have been obtained by fraud. He was informed of his right to an inquiry. 19. The applicant challenged that decision, claiming that it was not true that he had obtained his marriage by fraud and stressing that he had three Maltese children. 20. In consequence, proceedings were instituted to investigate the applicant’s situation and if necessary divest him of his Maltese citizenship. A committee was set up for this purpose in accordance with Article 14(4) of the Act. A number of hearings were held before the committee where the applicant was assisted by a lawyer. He was allowed to make oral and written submissions and submit evidence, including witness testimony. It appears from the documents available that the applicant contested the basis of the annulment decision and claimed that he had not been aware that he could have appealed against it. He also contested the findings of a court of criminal jurisdiction that had found him guilty of injuring his wife and causing her a permanent disability. 21. The applicant’s ex-wife, a citizenship department official and a priest also gave testimony. 22. The committee’s final recommendation to the Minister of Justice and Internal Affairs was not made available to the applicant. Requests by the applicant’s lawyer for a copy of the acts of those proceedings remained unsatisfied. 23. On 31 July 2007 the Minister ordered that the applicant be deprived of his citizenship with immediate effect, in accordance with Article 14(1) of the Act. 24. By a letter dated 2 August 2007 from the Director of the Department of Citizenship and Expatriate Affairs, the applicant was informed that the Minister of Justice and Internal Affairs had concluded that the applicant had obtained citizenship by fraudulent means and that therefore on 31 July 2007, in accordance with Article 14(1) of the Act, the Minister had ordered that he be immediately divested of his citizenship. He was required to return his certificate of registration as a Maltese citizen and his passport. 25. The applicant instituted constitutional redress proceedings, complaining under Articles 6, 8 and 14 of the Convention. He claimed that he had not had a fair trial and appropriate access to court for the determination on his right to citizenship. Moreover, the revocation of his citizenship had not been in accordance with the law. The prerequisites for such action had not existed as his first marriage had not been one of convenience. 26. By a judgment of 12 July 2011 the Civil Court (First Hall) in its constitutional jurisdiction rejected the applicant’s complaint under Article 6, finding that the committee set up for that purpose had not been a tribunal, but solely an investigative body capable of giving recommendations but not making final decisions. The court, however, found that the applicant’s Article 8 rights would be breached if, as a result of his being divested of his citizenship, he became an alien. His de jure family (in respect of the second marriage) would suffer irremediable upset if, as a father (of the two Maltese children of that marriage), he were required to move to another country. Thus, the revocation of citizenship in the present case was in breach of Article 8. Consequently, the court annulled the order of 31 July 2007 and considered that it was not necessary to rule on any further complaints. 27. On appeal, by a judgment of 25 May 2012 the Constitutional Court overturned the first-instance judgment in part. It rejected the Article 6 complaint on the basis that the provision was not applicable in the absence of a civil right. In that connection, it rejected the applicant’s contention that the revocation of citizenship affected his right to a family life and therefore was civil in nature, as citizenship was a matter of public law and fell under the prerogatives of the State. It also reversed the part of the judgment in respect of Article 8, commenting that it had not been established that the applicant had a family life in Malta, and, even if this were so, the revocation of his citizenship would not necessarily result in his having to leave Malta. Indeed, it had not transpired that the applicant would be denied Maltese residence or that he had applied for it and had been refused, nor had a removal order been issued. 28. Following the lodging of the application with the Court, on 16 November 2012 the applicant’s lawyer wrote to the relevant authorities informing them that the case was pending before the Court and that therefore no action should be taken on the basis of the order of 31 July 2007. No feedback, apart from an acknowledgment of receipt, was received concerning that letter. However, although the order to deprive the applicant of his citizenship with immediate effect remains in force, no action has been taken to date in pursuit of the order and no removal order has been issued. 29. Although the applicant considers that the implementation of the order is only a matter of time, he is currently still residing and carrying out his business in Malta. He has a trading licence, which is periodically renewed. He continued using a Maltese passport to travel until 2014, when it expired, as he had failed to return it to the authorities despite their request. 30. The applicant does not appear to have any contact with his first son, but claims to be in a family environment with his second wife and their children. Following the revocation of his citizenship, the applicant’s second wife lost her exempt person status and the attached freedom-of-movement rights. | 0 |
test | 001-146102 | ENG | SMR | ADMISSIBILITY | 2,014 | BIAGIOLI v. SAN MARINO | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applicants, Mr Marcello Biagioli and Mr Carlo Biagioli, are Italian nationals, who were born in 1942 and 1969 respectively and live in San Marino. They were represented before the Court by Ms Francesca Massari, a lawyer practising in Forli’, Italy and Ms Antonella Mascia, a lawyer practising in Strasbourg, France. 2. 1. Background of the case 3. The first applicant, Colonel Marcello Biagioli, was Commander in Chief of the San Marino Police. The second applicant, Mr Carlo Biagoli, is the first applicant’s son, who was a lawyer and notary by profession before being disbarred as a result of the criminal proceedings at issue in the present case. 4. In 2005 criminal proceedings were instituted against the applicants for making false declarations in public documents (reato di falso in atto pubblico) under Articles 73 and 295 of the Criminal Code on 1 March 2002. It was alleged that they had altered the content of the police daily record (foglio di servizio) of 16 June 1999 by adding that they had carried out a check-up on a specific car and person, whereas such a check-up had never been undertaken. 5. The applicants were brought before Judge V.C., who heard the case over a number of sittings during which witnesses and experts were called to testify. 6. On an unspecified date, by means of the relevant procedure, Judge V.C. lodged a request before the judge for extraordinary remedies (Giudice per i rimedi straordinari) to abstain (astensione) from hearing the case. On 25 February 2009, the request was accepted and the file was sent back to the Chief Justice (Magistrato Dirigente), whose duty it was to organise and distribute the case load within the courts (see Relevant domestic law and practice), in order for him to assign the case to another judge. 7. Although the Chief Justice was abroad at the time, on 3 March 2009, by means of a fax (fonogramma), the case was assigned to Judge B., as the only judge practising in the criminal field who had not had any dealings with the proceedings at issue. However, following his request, Judge B. was dispensed of hearing the case on grounds of “incompatibility”, as he had previously, in another case, manifested his opinion about the facts object of these proceedings. 8. By another fax of the same date, the Chief Justice assigned the case to Judge G.F., who usually dealt with civil and commercial cases, on the grounds that all the criminal judges had reasons for claiming incompatibility. The case was set to be heard on 30 March 2009. 9. On 30 March 2009 the applicants challenged the procedure and the decision to assign Judge G.F. to the case. They did so by means of (i) an application to the judge of criminal appeals; (ii) a complaint of nullity (querela nullitatis) to the constitutional jurisdictions; (iii) an administrative application accompanied by a provisional request to suspend the execution of the impugned proceedings; and (iv) pleadings before the first-instance court, namely Judge G.F., to the effect that his appointment was null, reiterating the same challenges as in the above-mentioned applications and referring, inter alia, to the principle that a tribunal had to be established by law. 10. On the same date, Judge G.F. ordered the transfer of the applicants’ challenges to the relevant bodies to be decided with urgency, but considered that it was not necessary to suspend the case. 11. Also on the same date, the judge of criminal appeals declared the applicants’ challenge inadmissible on the grounds that the law did not provide that such actions could be challenged autonomously before the criminal jurisdictions or, more specifically, the Criminal Appeal Court. 12. On 2 April 2009 the applicants’ complaint of nullity was also declared inadmissible for lack of competence of the above-mentioned court. It was observed that under San Marino law the impugned measures were provided for by means of internal regulations of the Judicial Council and orders of the Chief Justice, and did not amount to a res judiciata in civil matters or an arbitration decision (not subject to appeal), which would fall under the relevant legal provisions relating to a complaint of nullity. 13. The applicants’ provisional request before the administrative jurisdiction to suspend the execution of the proceedings was also rejected on 6 April 2009. However, the decision on the merits of the administrative request was not delivered until 8 November 2012, that is, after the decision on the criminal proceedings had become final. The Administrative Court considered that the decisions of the Chief Justice had been internal actions of a general nature, and as such had had no prejudicial effects on the applicants, who therefore had no standing to challenge them. Moreover, the Chief Justice’s decision had been based on section 6(4) of Law no. 145 of 30 October 2003 and had followed the usual practice of the San Marino courts. The court failed to comprehend how the applicants had been prejudiced by that practice, the aim of which was to expedite proceedings Nor could it understand how the applicants would have benefited from the nullification of the above-mentioned actions. 14. The applicants appealed. By a judgment of 20 March 2013 the administrative appeal court judge upheld the first-instance judgment and emphasised that such complaints were the competence of the criminal courts, rather than the administrative courts. 3. Interlocutory withdrawal proceedings 15. On 6 April 2009, before the start of what was to be the second hearing, the first applicant made a formal request for Judge G.F. to withdraw from the case (ricusazione) on the basis of section 10(2) of Law no. 145/2003 (see Relevant domestic law and practice) because Judge G.F. had, amongst his colleagues, said that “had the case been assigned to him, he would have, speedily and without doubt, found both applicants guilty”. The first applicant had been informed of this by means of an anonymous letter and it was later confirmed by Judge R.F. (Giudice Conciliatore), who had heard it from other persons (de relato). The first applicant also complained that Judge G.F. had been the victim of political and media pressure. 16. Judge G.F. referred the request to the judge for extraordinary remedies. 17. In the interlocutory proceedings regarding the request for withdrawal (ricusazione) before the judge for extraordinary remedies, the first applicant requested that a number of witnesses be heard to determine the factual basis of the request for withdrawal, namely whether they had actually been present and had heard the impugned statement viva voce or whether they had become aware of it through hearsay (de relato). 18. The Attorney General argued that the circumstances highlighted by the applicant were generic and that the facts exposed could not amount to situations provided for under section 10(2) of Law no. 145/2003. Judge G.F. also declared that he had never made such a statement. 19. On 4 May 2009 the judge for extraordinary remedies rejected the application for withdrawal, holding that even if its factual basis were true, it would not correspond to the reasons for withdrawal provided for by law (section 10(2) of Law no. 145/2003) and put forward by the applicant. The Court considered that the term “opined” in that provision had to be interpreted in the light of the right to freedom of expression and that judges could express general opinions that were not specifically informed opinions, among friends and colleagues, particularly when the latter were aware of the importance of maintaining the confidentiality of their conversations. It followed that in this respect it was superfluous to hear any witnesses. The court further explained that the letter produced as evidence by the applicants was highly unreliable, given that it was anonymous. While the evidence of Judge R.F. could have been of relevance, it was hearsay evidence and its origin or source had not been indicated, save that it appeared to have been heard in the courts. Given that G.F. had denied making the alleged statement, the court found no reason to conduct an investigation merely on the grounds of the vague and generic indications presented by the applicant. The court further noted that there was no reason to consider that the atmosphere of media pressure, or the prosecution’s zeal in conducting the proceedings speedily, could have had any effects on the serenity of G.F. No appeal lay against such a decision. 20. In the criminal proceedings on 8 June 2009 the first applicant reiterated his request for G.F.’s withdrawal. He raised the matter of the unconstitutionality of section 10(2) of Law no. 145/2003 as interpreted by the judge for extraordinary remedies and the established jurisprudence, in so far as it was in contrast with that established in Law no. 59 (the San Marino Human Rights Charter). Section 1 provided for the recognition of human rights as guaranteed in international treaties, particularly the European Convention on Human Rights and Fundamental Freedoms, specifically in relation to the right to be judged by an impartial tribunal. The first applicant further requested that the listed witnesses be heard. 21. By a judgment of 16 July 2009 the judge for extraordinary remedies declared the request inadmissible. Confirming that the law had been correctly interpreted in the judgment of 4 May 2009, he noted that the request, which was clearly a delaying tactic, was inadmissible both because it had already been the subject of a decision and because it was out of time. It followed that the court could not proceed to examine the merits of the constitutional complaint. It was, however, worth noting that in its decision of 4 May 2009 the court had taken into account the relevant human rights at issue. 22. The same request was reiterated a number of times, but was always rejected. Such action, together with a number of requests for the withdrawal of other judges in the proceedings (twelve requests in total), which also caused an unreasonable delay in the main proceedings, led to criminal proceedings being instituted against the first applicant for misdeeds towards public office (misfatto di attentato contro i poteri pubblici). By a final judgment of 30 January 2013 the latter was acquitted. The court considered that there were no statutory limits to the rights of the defence, thus no misdeed had objectively taken place. 4. Constitutional proceedings 23. During the criminal proceedings on 19 May 2010 (that is, after the prescriptive period for the charge at issue, as interpreted until then, had elapsed) Judge G.F. referred a constitutional question on prescriptive periods to the Constitutional Court. The issue raised concerned the interpretation of the legislation on prescriptive periods, which was introduced in 2003 pending proceedings, in particular in respect of section 17 of Law no. 83 of 28 October 1992, section 23(3) of Law no. 55/2003, and section 10 in fine of Law no. 145/2003 (see Relevant domestic law and practice), taken together. 24. By judgment no. 2/2010 of 19 July 2010 the Constitutional Court held that in the absence of an express will of the legislator, section 10 of Law no. 145/2003 had to be interpreted as meaning that the running of prescription is suspended (ie. prescription stops running) from the moment of the filing of any request for withdrawal or abstention, “filed (prodotte) following the entry into force of the law”, up to the date on which the requesting party was notified of the decision on the matter, irrespective of the date on which the offence was committed. Having noted the relevant international jurisprudence, it considered that the principle of lex mitior was being invoked in the present case in respect of procedural law. Indeed, Law no. 145/2003 did not change the prescription regime but simply intervened in an immediate manner in respect of withdrawal applications lodged after its entry into force. Given that such a law affected solely the procedural aspect of the proceedings, it was appropriate to apply the principle of tempus regit actum and not lex mitior. Moreover, the latter principle had to be seen against the background of other constitutionally protected rights, such as the right of access to court for civil parties, the economy of proceedings, and the right to have proceedings dealt with within a reasonable time and by an impartial tribunal. In that light it was only reasonable to interpret the relevant provisions as suspending prescription in respect of all withdrawal requests lodged after the coming into force of the law. 5. Resumption of the criminal proceedings before Judge G.F. 25. In the light of the constitutional pronouncement, the prosecution in the applicants’ case was continued, as according to the novel interpretation given to the law it was no longer time-barred. 6. Further interlocutory proceedings and the second set of constitutional proceedings 26. On 13 September 2010 the first applicant again requested the withdrawal of Judge G.F., and the latter again sent the file to the judge for extraordinary remedies. 27. On 28 March 2011 the judge for extraordinary remedies, of his own motion, referred the case to the Constitutional Court to determine the constitutionality of section 23 of Law no. 55/2003 and section 10 of Law no. 145/2003, in so far as they provided that the judge in the main proceedings must suspend the proceedings pending a decision on an interlocutory request. Thus, the inability of the judge to dismiss such a request on the basis that it had already been decided was hindering the defendants’ right to have proceedings heard within a reasonable time. 28. By judgment no. 7/2011 of 31 May 2011 the Constitutional Court found the above-mentioned provisions to be unconstitutional in so far as they did not allow for the continuation of the proceedings when a withdrawal application had been lodged on grounds already aired in a previous request, to the detriment of the principle that proceedings had to be heard within a reasonable time. To deem otherwise would allow proceedings to stall or even to become paralysed. It was therefore reasonable to come to such a finding, particularly because if the application were eventually rejected, no harm would ensue for the accused, and if it were accepted the newly assigned judge could carry out any necessary steps afresh, if so requested, thus guaranteeing the impartiality of the tribunal and without prejudice to the accused. 29. In consequence, on 7 June 2011 the criminal file was sent back to Judge G.F. for the resumption of the proceedings. 7. Continuation of the criminal proceedings 30. The main proceedings were resumed on 12 September 2011, on which date the applicants raised a constitutional plea concerning the interpretation of section 10 of Law no. 145/2003 as interpreted by the Constitutional Court in its judgment no. 2/2010 and in particular in the light of section 23 of Law no. 55/2003 as amended by the Constitutional Court’s judgment no. 7/2011. 31. The judge (G.F.) gave a deadline for the parties to make submissions regarding the admissibility of the issue raised by the applicants. 32. At the end of the hearing the applicants’ lawyers refused to continue representing the applicants. The applicants were assigned duty lawyers (difensore d’ufficio) who, following their request of 14 September 2011 obtained the postponement of the case to 21 September 2011. Following a subsequent request for a longer period to prepare their defence dated 15 September 2011, they obtained a postponement to 19 October 2011. 33. In the meantime, and before the deadline of 19 October 2011, the law regarding prescriptive periods was amended by means of Law no. 139 of 16 September 2011 (see Relevant domestic law and practice). In consequence, Judge G.F. declared the applicants’ referral request inadmissible, considering the new interpretation of the law (ius supervienens) applicable also to interlocutory requests for withdrawal which had been lodged before the entry into force of the law, but which were still pending decision. 34. Following their request of 13 October 2011 the applicants obtained a further postponement to 11 January 2012. 35. On 28 December 2012 the first applicant appointed a new lawyer, who asked the court to postpone the hearing scheduled for 11 January 2012 to allow him time to familiarise himself with the case before the final pleadings. The request was unsuccessfully reiterated on 3 and 5 January and again at the hearing of 11 January 2012, the judge having considered that the applicant had been duly represented by a duty lawyer and subsequently by his chosen lawyer. At that hearing the first applicant’s lawyer limited his defence to a plea of nullity of that hearing on the grounds that the applicant’s defence rights had been breached. 36. By a judgment of 4 April 2012 no. 81/2012, filed in the registry on 11 May 2012, Judge G.F. found both applicants guilty. The first applicant was sentenced to three years’ imprisonment and prohibited from holding public office for eighteen months, and the second applicant was sentenced to two years’ imprisonment and prohibited from holding public office for eighteen months. 8. Criminal appeal proceedings 37. The applicants lodged an appeal on the merits, also raising constitutional complaints. They complained that the assignment of the case to Judge G.F. had not been in accordance with the law, and that he had not been impartial. They asked (istanza istruttoria) the Appeal Court to hear at least two witnesses in relation to the matter. They further complained about the refusal to postpone the hearing following the change of lawyer. Lastly, they complained about the retroactive application of the laws of 2003 and subsequently 2011 relating to prescriptive periods. 38. By judgment no. 154/2012 of 28 September 2012 the Appeal Court upheld the first-instance judgment, reducing, however, the punishment, and dismissed the applicants’ appeal. Having confirmed the judgments on the merits, it also rejected the applicants’ specific pleas. It fully shared the Constitutional Court’s findings (in its judgment no. 2 of 2010) that Law no. 145 of 2003, prescribing limitation periods, was applicable to the case, which had started in 2005 according to the principle tempus regit actum. In addition, having regard to the amendments made in 2011 and having carried out a detailed re-examination of all the relevant suspensions, it confirmed that the prosecution of the offence had not become time-barred. 39. The Appeal Court noted that in San Marino the procedure for appointing a judge to a case was provided for not by statutory law but by the internal regulations of the Judicial Council and orders of the Chief Justice. Such a process did not therefore violate any European or San Marino constitutional principles, which did not provide that appointments under the single-judge formation be established by law. Even without considering any other reasons, it sufficed to look at the provisions of section 2(10) of Law no. 139/2011, which provided that, subject to a request to that effect, the Chief Justice could decide whether a substitution was necessary by means of an internal order, without any formalities, while a request for withdrawal was pending before the relevant judicial organ. However, even assuming that the procedure applied was not correct, and that the formal abstention procedure should have been carried out before designating Judge G.F., the fact that the Chief Justice had opted for a speedy decision to designate G.F. did not have any effect on the acts undertaken by the said GF. Indeed, in the absence of a procedure prescribed by law, the term “established by law” referred to the criteria related to a judge’s competence to hear a case, and not to the procedure used to assign a judge to a specific case. Even the Italian Constitutional Court had considered that such a principle only applied to the suitability of a judge to give judgment and to his capacity to hold such a function, and not to the internal organisation of the body in question. It followed that Judge G.F. had carried out perfectly lawful, legitimate and valid acts, in the full exercise of his judicial functions. 40. As to whether the judge was impartial, the question had already been repeatedly dismissed by the judge for extraordinary remedies during the first-instance proceedings and it would therefore be arbitrary and abusive to reassess the matter. It followed that the request to hear further witnesses could not be granted. 41. Regarding the refusal to postpone the hearing, the Appeal Court considered that there was no such right and that the judge had the discretion to decide whether to grant such a request – in the present case the judge had rightly considered the request as being a delaying tactic and had consequently done well to reject it. Moreover, in the present case, the first applicant had had a substantial amount of time to replace the duty lawyer, and therefore his request for a further three months had been exorbitant visà-vis the needs of the defence, which had not been limited by such a refusal. 9. Subsequent events 42. Following the above-mentioned finding of guilt, whereby the second applicant was sentenced to two years imprisonment and interdiction from public office for a year, sentence suspended for two years, the applicant was subject to disciplinary proceedings, in which he participated represented by his lawyers. 43. By a decision of 23 October 2012 the San Marino Chamber of Advocates and Notaries (CAN) disbarred the second applicant. It noted that Article 51 of Law no. 28 of 20 February 1991, provided that disbarment applied (importa, di diritto) in cases of a final finding of guilt under Article 295 (relevant to the present case), thus, the CAN had no room for evaluation, discretion or decision making, save for the determination of whether an irrevocable criminal judgment finding guilt actually existed. In the present case that fact had been ascertained and the judgment had been submitted by the applicant himself. It followed that the CAN’s finding applying such a sanction was simply declaratory, having the legislator provided for disbarment to be mandatory in such cases. It further rejected the applicant’s plea concerning prescription in respect of the disciplinary action and his request for suspension of the disciplinary proceedings due to pending administrative proceedings. It also considered that the disciplinary punishments provided by law were justified by a general principle, namely that of behaving in line with the duties of correctness, dignity and honour for the profession, even beyond the exercise of the professional activity, in so far as such behaviour may harm the common beliefs of the community. Indeed the law (Article 39 of Law no. 56 of 1995) could only be interpreted in the sense that actions undertaken outside the scope of one’s activity must be subject to disciplinary action if they affected society’s values, reflected on the professional reputation of lawyers or notaries, or compromised the image of the forensic and notarial categories. The correctness of this interpretation was evident given that according to the law the finding of guilt brought about disbarment mandatorily, as well as from the wording of Article 5 of Decree no. 105 of 2011 concerning the statute of the Chamber of Advocates and Notaries, and the correlation between Law no. 28 of 1991 and Decree no. 56 of 1995. 44. Its decision was confirmed in its entirety by the National Commission of Liberal Professions (libere professioni) on 16 January 2013, which rejected the applicant’s challenges, including that concerning the proportionality of the measure. 45. That decision was challenged before the Administrative Court. Pending those proceedings a request to suspend the effects of the Chamber’s decision pending a decision in the administrative proceedings was rejected on 3 May 2013, on the grounds that the second applicant had not shown what prejudice he had suffered and bearing in mind the interest of third parties and the crimes with which the second applicant had been found guilty by means of a final judgment. 46. By a judgment of 10 October 2013 the Administrative Court dismissed the applicant’s claims. The court recalled that in respect of disciplinary proceedings against lawyers, its role was limited to verifying that the decision in the disciplinary proceedings was in accordance with the law and not in abuse of power. The second applicant’s disbarment was in accordance with the law, namely Article 51 of Law no. 28 of 20 February 1991, which stated that such a measure applied (importa, di diritto) in cases of a final finding of guilt under Article 295 (relevant to the present case), irrespective of the punishment imposed. In the present case, the measure had not been applied “automatically” but following disciplinary proceedings which had respected the rights of due process. The organ deciding the matter had been composed as provided for by law, and no irregularities had transpired in respect of the reasons given by that organ, which was moreover free not to follow the expert’s view on the case, it not being mandatory by law, even though it would appear that such advice had in fact been taken on. Moreover, the court agreed with the findings in the disciplinary proceedings that the action had not been time-barred. Neither could it be of relevance that the applicant had been found guilty of actions performed in his “private life” and not in his professional life, as the law clearly did not exclude such a sphere. The court did not find the decision in the disciplinary proceedings to be unreasonable, indeed it had been dictated by law and therefore it had been the legislator that applied the specific sanction to the specific circumstances. 47. That judgment was confirmed on appeal on 24 March 2014. It highlighted that the law distinguished between minor crimes and more grave crimes when regulating the application of disbarment from a profession and that the application of such a serious sanction in the applicant’s case was wilfully decided by the legislator, leaving no discretion to the disciplinary commission. It was worth noting that in San Marino lawyers also carried out the functions of notaries, and a criminal conviction for making false declarations in public documents is objectively incompatible with the function of a public official which was by definition the guarantor of the truthfulness and veracity of documents. Thus, the fact that the law provided an automatic application of the sanction could not be considered unreasonable or disproportionate. 48. The decision to disbar the second applicant was communicated to the Employment Office, which in turn and in accordance with Articles 12, 13, 49 and 50 of Law No. 28 of 20 February 1991, namely the legal framework concerning the exercise of the liberal professions, struck him out from its list of liberal professionals. That entailed the automatic cancelling of his VAT number (codice operatore economico) as from 18 February 2013. According to the second applicant, that meant that he could no longer bill services rendered before 18 February 2013, nor could he take advantage of certain tax-related benefits. B. Relevant domestic law and practice 1. Abstention, withdrawals and incompatibility 49. Law no. 145 of 30 October 2003 (hereinafter “Law no. 145/03”) provides for the nomination of the judiciary, their terms of office and required competencies, as well as their different roles and obligations. 50. Section 1 of Law no. 145/2003 concerns the institution of the singlejudge tribunal. In so far as relevant it reads as follows: “[First-instance magistrates (Commissario della Legge) are assigned to specific courts] in accordance with the relevant legal provisions and the criteria relevant to the distribution of work approved by the Judicial Council. The magistrates of each specialised section have full competence and may be substituted in the exercise of the functions or jurisdiction of the section. If necessary, and without prejudice to the judicial work already assigned, the Chief Justice in accordance with the criteria established by the Judicial Council, may assign to judges in one specialised section, competencies relevant to another section. Appeal judges, whether in criminal, civil or administrative courts, may replace each other in the event of impediment or incompatibility. Substitution is automatic if there is an explicit provision to that effect, in the event that the position is vacant, or where there is more than one judge for each function. In all other cases replacement must be based on the criteria determined by the Judicial Council.” 51. Section 2 of Law no. 145/2003 provides for the nomination and “incompatibility” of judges or magistrates. In so far as relevant it reads as follows: “The position of magistrate is incompatible with the carrying out of any activities which are related to political parties or movements or any unions, as well as with presenting oneself as an election candidate, be it administrative or political. Nor is it compatible with exercising commercial or industrial activities or taking up the role of administrator or director of a company (sindaco in societa`). Moreover, in respect of first-instance judges as well as trainee judges, their role is incompatible with exercising a liberal profession, undertaking any other office or private or public employment, except for teaching in the tertiary sector.” 52. Section 6 of Law no. 145/03 attributes the power to organise and distribute the workload within the courts to the Chief Justice. In so far as relevant it reads as follows: “ (2) The Chief Justice has the power to organise and distribute the judicial workload according to pre-established criteria, as well as the duty to supervise (without interfering with the free decision making of each judge) and to co-ordinate and direct the judicial office, with the exception of merely administrative functions. (3) The Chief Justice attributes work to the ordinary, administrative, and lower competence first-instance judges as well as to trainee judges (Commissario della legge, giudici amminisrtivi di primo grado, giudici conciliatori, uditori commissariali) in accordance with their professional competencies, experience and academic background (titoli). He or she also establishes criteria for the purposes of distributing work between the appeal judges, with their agreement. (4) The Judicial Council (Consiglio Giudiziario) approves the criteria drawn up by the Chief Justice for the distribution of work, at its next session. (5)The first-instance judges [mentioned above] must fulfil in a timely manner the duties of their office and adapt to the orders given by the Chief Justice, save for any incompatibilities provided for by law – any other possible function may be undertaken only in accordance with the needs of the office and upon authorisation of the Judicial Council in its ordinary session. (6) The Chief Justice must present to parliament (il Consiglio Grande e Generale), through the Secretary of State for Justice, an annual report about the state of justice, including details about the work carried out by the magistrates and judges of every level ” 53. Section 9 of Law no. 145/2003 (before amendment in 2011), in so far as relevant, read as follows: “The Judicial Council may definitely remove a magistrate whose state of health or personal condition is such as to render his or her incompatibility with the exercise of his functions absolute and permanent. Otherwise it may suspend a magistrate temporarily, for an amount of time deemed absolutely necessary and for not more than six months, if the incompatibility is temporary.” 54. Section 10 of Law no. 145/2003 (before amendment in 2011), concerning abstentions and withdrawals, read as follows: “(1) A judge or magistrate must abstain when serious reasons exist related to relationships by descent or ascent (parentela), affinity, friendship or enmity, together with economic or work-related connections, between the judge or magistrate (or his or her close relative) and one of the parties or the lawyers in an administrative or civil case, or the accused or suspect or the victim or the lawyers in a criminal case. (2) A judge or magistrate must also abstain in the event that he or she has given advice or his or her opinion or has unnecessarily manifested his or her own informed conviction about the facts object of the criminal proceedings, as well as in the event of other instances of conflicts of interest. (3) In the circumstances referred to in the above subsections, if the judge does not abstain he can be requested to withdraw by the parties. (4) The judge or magistrate must also abstain where there exist circumstances which may compromise his impartiality or free judgment. (5) Save for when it is proved that the cause for abstention became known at a later date, a request to withdraw must, ... in criminal proceedings be lodged within 20 days from the notification of the first act by the impugned judge. (6) Prescription does not run and is therefore suspended from the date on which a request for a judge to abstain or withdraw is lodged, until the date on which the requesting party is notified of the decision on the matter.” 55. Point 2 of Part VI of the regulations on the distribution of work amongst the judges of single-judge tribunals and their substitutions, entitled “General Regulations for Magistrates of Single Judge Tribunals”, approved by the Judicial Council, and dated November 2003 provides as follows: “Incompatibility arises when a judge has already dealt with a case concerning the same facts, during which he or she has in some way expressed his or her opinion – and therefore the reason for abstention will already have existed when the case was assigned. Thus, it is a duty (onere) of the magistrate in case of incompatibility, and a legal obligation under section 10 of Law no. 45/2003 in the case of abstention, for the Magistrate to speedily withdraw from the case. The deadlines for abstention are the same as applicable for withdrawals [...] but there are no deadlines for the purposes of incompatibility, which depends on the powers of the Chief Justice to assign the case to another judge in the relevant field. For the correct functioning of the system, a judge who considers that he or she has reason to declare his incompatibility should, not later than five days after the case has been assigned to him, write a letter giving reasons to the Chief Justice. On the expiry of such time-limit, the judge must proceed by means of abstention as provided for by law. In the event that abstention is upheld or incompatibility recognised, a new judge competent in the relevant field must be assigned, in accordance with the criteria set out in the list of competencies.” 56. For the purposes of Law no. 145/2003 the Judicial Council is a representative council whose function is to provide guarantees in respect of the judicial system. It is usually composed of all the judges and presided by the two Captains-Regent (Capitani Reggenti – exercising the function of Head of State and Government) represented by the Chief Justice. The Secretary of State for Justice also attends but has no vote. 57. Section 2 of Law no. 139/2011 (see paragraph 61 below) provides for the procedure for abstentions by and withdrawals of magistrates. 2. Interlocutory requests 58. Section 23 of Law no. 55/2003 provided that when a request for the withdrawal of a judge was submitted, the judge before whom the case was being heard had to send the acts of the proceedings to the judge for extraordinary remedies to determine the matter, during which time the main proceedings would be suspended. 3. Prescription 59. At the time of the commission of the offence in the present case, namely 2002, section 17 of Law no. 83 of 28 October 1992 provided that prescription continues to run even pending an interlocutory proceedings concerning the withdrawal of a judge. 60. The legislation concerning the issue was amended in 2003 by the enactment of Law no. 145/2003, section 10 (cited in paragraph 54 above) which introduced a new rule regarding prescription, namely that: “Prescription does not run and is therefore suspended from the date on which a request for a judge to abstain or withdraw is lodged, until the date on which the requesting party is notified of the decision on the matter.” 61. In 2011 the law was again amended by means of section 9 of Law no. 2/2011 (amending section 10 of Law no. 145/2003, cited above) and section 2 of Law no. 139/2011. The latter provided that, pending interlocutory proceedings in respect of abstention or withdrawal, the main proceedings should be suspended, and that prescription would stop running, save in the event of any requests for withdrawal which appeared to be repetitive or used as a delaying tactic, in which case the impugned judge could continue to hear the main proceedings and prescription would continue to run. In criminal proceedings the impugned judge could also continue to hear the case but could not deliver a judgment. The relevant parts of that provision read as follows: “(1) A judge who comes across a situation of obligatory abstention as indicated in section 10 of Law no. 145 of 30 October 2003, as amended by section 9 of Law no. 2 of 16 September 2011, shall make a declaration to that effect, requesting the competent judge to dispense him or her from hearing and deciding the case in which the incompatibility exists. (2) Following notification to the parties, the request together with the acts of the proceedings shall be transferred to the competent judge. The request shall be accompanied by the relevant evidence. ... (4) The same applies for non-obligatory abstentions. (5) A request for withdrawal of a judge may be lodged at any time during the main proceedings. ... (7) Having received the request, the judge shall inform the Chief Justice and send the request to the registry for transmission to the judge with the relevant competence. If the request is made during the adversarial stage of criminal proceedings, the criminal-court judge should continue to hear the case but not deliver a judgment. ... (10) A request for withdrawal of a judge suspends the proceedings. Nevertheless, if such a request appears to be a delaying tactic or a repetition of previous requests, the impugned judge may continue to hear the case, or may ask the Chief Justice to replace him or her in order to allow for a speedy disposal of the case, despite considering the request to be unfounded. (11) In the event that, following a request for withdrawal, the judge declares his intention to abstain, the procedure concerning abstention should prevail. ... (17) Save for the circumstances described in subsection (10) above, in criminal proceedings prescription stops running from the time a request for abstention or withdrawal is lodged until the date when the relevant decision is notified to the requesting party if the case is still at the inquiry stage (istruttoria) or until the next hearing if the case is at the stage of judicial assessment (fase decidente). 62. Section 3 provided for the entering into force of this law on the fifth day following its publication. 4. San Marino Fundamental Human Rights Charter 63. Article 15 (4) of the San Marino Fundamental Human Rights Charter reads as follows: “Punishment may only be handed down by a judge established by law, on the basis of non-retroactive laws. The retroactive application of the law is only provided for when such law is more favourable.” 64. The above-mentioned article was interpreted by the San Marino single-judge tribunal (Giudice Unico) (judgment of the Criminal Appeal Court no. 105 of 7 October 2005) as prohibiting the retroactive application of the law in criminal matters, including those concerning prescription. 65. To the contrary, the Constitutional Court (Collegio Garante della costituzionalita` delle norme) in its judgment no. 2/2010 of 19 July 2010 held that “in the absence of an express will of the legislator, section 10 of Law no. 145/2003 must be interpreted as meaning that the running of prescription is suspended from the time at which a request for withdrawal or abstention is lodged, following the entry into force of the law, until the date on which the requesting party is notified of the decision on the matter, irrespective of the date of the commission of the offence”. 66. Section 10 of Law no. 145/2003 (together with section 23(3) of Law no. 55/2003), in so far as it concerned the suspension of the running of prescription, was subsequently found to be unconstitutional by the Constitutional Court in its judgment no. 7/2011 of 31 May 2011 as it ran contrary to the principle that proceedings should be conducted within a reasonable time. 67. In consequence, the relevant law was again amended by means of Law no. 139/2011 of 16 September 2011 (see above). | 0 |
test | 001-145231 | ENG | SVN | COMMITTEE | 2,014 | CASE OF JATAIRWAYS, A.D. BEOGRAD v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Angelika Nußberger;Helena Jäderblom | 4. On 4 December 1991 proceedings before the Ljubljana Court of Associated Labour were instituted against the applicant company by forty-seven of its former employees, following their dismissal from work. 5. By 28 June 1994 when the Convention came into force in respect of Slovenia, the court held one hearing. 6. A hearing was scheduled for 8 July 1998 but the Ljubljana Labour and Social Court was unable to serve the summons to the applicant company as the latter changed its address without informing the court. The court therefore ordered that all further court’s writings would be served on the applicant company by a publication on the court’s notice board. 7. On 30 June 1999 the Ljubljana Labour and Social Court held a hearing in the absence of the applicant company and issued its decision, deciding that the dismissal of the plaintiffs by the applicant company was illegal and ordering the applicant company to acknowledge their rights from the employment contract and to pay them outstanding salaries. The decision was served on the applicant company on 27 October 1999 through diplomatic channels. The applicant company appealed. 8. On 17 January 2001 the Higher Labour and Social Court upheld the first instance court’s decision in the part concerning the illegality of the dismissal, annulled the remainder of the decision and remitted the case back to the first instance court. 9. In the remitted proceedings the court’s writings were initially served on the applicant company. Later on, the applicant company authorized a Slovenian lawyer, M. J., to represent it in the proceedings. 10. On 17 December 2004 the first instance court held a hearing and decided to examine the claims of twenty-two of the plaintiffs separately from the remaining claims. On the same date it issued its decision on the claims of the remaining plaintiffs and upheld their claim concerning the payment of the outstanding salaries. The applicant company appealed. 11. On 15 March 2005 the Higher Court requested the applicant company’s representative to present his power of attorney. 12. On 31 May 2005 the plaintiffs filed a motion for interim order. 13. On 8 June 2005 the court made the interim order requested. 14. On 20 June 2005 the applicant lodged an objection against the interim order. 15. On 18 July 2005 the court dismissed the applicant’s objection. The applicant appealed. 16. On 14 October 2005 the Higher Labour and Social Court quashed the decision of 18 July 2005 and remitted the case back to the first instance court. 17. On 22 October 2005 the Ljubljana Labour and Social Court again dismissed the applicant’s objection against the interim order. The applicant appealed. 18. On 15 December 2005 the Higher Labour and Social Court upheld the applicant’s appeal, annulled the first-instance court’s decision of 8 June 2005 and dismissed the plaintiffs’ motion for an interim order. 19. On 9 November 2006 the Higher Labour and Social Court partially upheld the applicant company’s appeal against the decision of 17 December 2004 and modified the decision of the first instance court in the part concerning the payment of interest and dismissed the remainder of the appeal. The applicant company and the plaintiffs lodged an appeal on points of law. 20. On 6 February 2007 the applicant company was reminded by the court to pay the court fee for lodging an appeal on points of law. 21. On 28 February 2007 the applicant company was reminded by the court to pay the court fee for its reply to the appeal on points of law lodged by the plaintiffs. 22. On 25 February 2008 the Supreme Court dismissed both appeals on points of law and upheld the decision of the Higher Court. The applicant company lodged a constitutional appeal. 23. On 14 April 2008 the applicant company was again reminded to pay the outstanding court fees. 24. On 7 July 2008 the Constitutional Court dismissed the applicant company’s constitutional appeal. The decision was served on its representative on 20 August 2008. | 1 |
test | 001-183540 | ENG | LTU | CHAMBER | 2,018 | CASE OF BEINAROVIČ AND OTHERS v. LITHUANIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 6. The first applicant was born in 1915 and lived in Vilnius. The second applicant was born in 1943 and lives in Vilnius. The third applicant was born in 1932 and lives in Pagiriai in the Vilnius Region. The fourth applicant was born in 1950 and lives in Vilnius. 7. On various dates in 1991 the applicants or their relatives applied for restoration of their property rights to land which had been nationalised by the Soviet regime. 8. On 8 September 1992 the Vilnius District Court acknowledged that I.B. (the first applicant’s husband and the second applicant’s father) had a right to have his property rights to a plot of land in the village of Kryžiokai, near Vilnius, restored. 9. On 8 July 1993 the same court acknowledged that the fourth applicant had a right to have her property rights to a plot of land in Kryžiokai restored. 10. On 24 April 1996 the Seimas passed a law amending the administrative boundaries of certain municipal areas. Under that law, certain villages around Vilnius, including Kryžiokai and Vaidotai, became part of the Vilnius city municipality. 11. On 21 May 1998 the administrative authorities acknowledged that the third applicant had a right to have her property rights to a plot of land in Vaidotai restored. 12. On 20 December 2002 the Government approved a plan of forests of national importance (valstybinės reikšmės miškai) covering the whole country. It included forests situated in the former villages of Kryžiokai and Vaidotai. 13. On 7 May 2003 the Vilnius County Administration (hereinafter “the VCA”) restored I.B.’s property rights (see paragraph 8 above) by giving him 5.40 hectares of land in Kryžiokai. As he had died in 1992, the first applicant was issued a certificate of inheritance in respect of the plot on 27 June 2003. On 16 October 2003 she gifted it to the second applicant. 14. On 28 July 2008 the prosecutor of the Vilnius Region (hereinafter “the prosecutor”) lodged a claim with the Vilnius Regional Court, seeking to have I.B.’s property rights to 0.25 of the 5.40 hectares given to him annulled (see paragraph 13 above). The prosecutor submitted that, according to the data provided by the State Forest Management Service (Valstybinė miškotvarkos tarnyba), 0.25 hectares of the plot was covered by forest. Since that forest was situated in a city (see paragraph 10 above), it was considered a forest of national importance and could therefore only be owned by the State (see paragraphs 86, 88 and 89 below). The prosecutor noted that the forest had been included in the plan of forests of national importance adopted by the Government in 2002 (see paragraph 12 above), that is before the VCA had adopted its decision to give that land to I.B. In view of the circumstances, the VCA’s decision had to be declared unlawful and its effects annulled. The prosecutor asked that after annulling I.B.’s property rights to that part of the land, the first and second applicants’ property rights to it also be annulled. 15. The applicants disputed the prosecutor’s claim. They submitted that I.B. had acquired property rights in good faith, having lawfully participated in the restitution process carried out by the authorities, and their annulment many years later would be contrary to the principle of legal certainty. The applicants further submitted that Kryžiokai had been a rural area until 1996 (see paragraph 10 above) and the restoration of property rights had complied with the regulations concerning rural areas. They also submitted that, according to the Real Estate Register (Nekilnojamojo turto registras), their land was classified as agricultural and not forest, and the data of that Register had to be considered accurate until proven otherwise. 16. The VCA also disputed the prosecutor’s claim. It submitted that I.B.’s property rights had been restored in accordance with Government regulations adopted in 1998 and 2000 which had set out the rules of land reform in rural areas. The VCA argued that restoration of property rights was a continuous process and thus had to be carried out in accordance with the legislation in force when it began and not that which was adopted later. The VCA also submitted that the decision to restore I.B.’s property rights had been taken in coordination with other authorities, including the Vilnius Forest Authority (Vilniaus miškų urėdija), and they had not presented any objections. 17. The Ministry of Environment, which was a third party in the proceedings, asked the court to allow the prosecutor’s claim. It argued that the VCA’s decision to restore I.B.’s property rights had been contrary to mandatory statutory provisions stating that urban forests could only be owned by the State, and thus had to be annulled. 18. On 17 September 2009 the Vilnius Regional Court allowed the prosecutor’s claim. The court observed that the Constitution and other legislation established that forests of national importance could only be owned by the State (see paragraphs 86, 88 and 89 below). It quoted at length case-law of the Constitutional Court which emphasised the importance of forests to the environment and the obligation of the State to protect them in the public interest (see paragraphs 99-102 below). 19. The Vilnius Regional Court noted that the former village of Kryžiokai had become part of the Vilnius city municipality in 1996 (see paragraph 10 above). Therefore, in line with the Law on Forests, any forest in that area was urban forest (see paragraph 89 below). The court further noted that in 2002 the forest situated on the plot given to I.B. had been included in a Governmentapproved list of forests of national importance. Accordingly, when the VCA had adopted the decision to give that plot to I.B. (see paragraph 13 above), the forest situated on it had already been recognised as a forest of national importance. Therefore, the restitution had not been carried out in accordance with the law. The court held that, in such circumstances, I.B.’s and the applicants’ property rights could not take priority over the public interest and had to be annulled. 20. However, the court observed that, according to the Real Estate Register, the area covered by forest on the applicants’ plot amounted to 0.187 hectares and not 0.25 hectares as claimed by the prosecutor, and the data of that Register had to be considered accurate until proven otherwise. It therefore annulled I.B.’s property rights to 0.187 hectares of land, as well as the applicants’ rights to that part of the plot. 21. The prosecutor lodged an appeal against that decision and submitted that when determining the area covered by forest, the court should have relied on the data provided by the State Forest Management Service and not the Real Estate Register. The Ministry of Environment lodged a similar appeal. 22. The applicants and the VCA also lodged appeals. They argued that the VCA’s decision had complied with all the relevant legislation in force when it had been adopted, so it had to be considered lawful. They also submitted that the court had not addressed the argument that in the process of restoration of property rights Kryžiokai had to be regarded as a rural area and not a city. The applicants also submitted that the annulment of their property rights and the requirement for them to return the land to the State would cause them serious difficulties and should therefore not be implemented (see paragraph 95 below). 23. On 25 February 2010 the Court of Appeal upheld the appeals lodged by the prosecutor and the Ministry of Environment and dismissed those lodged by the applicants and the VCA. It reiterated that the Constitution and several laws prohibited the transfer of forests of national importance from the State into private ownership on any basis whatsoever, including restoration of property rights (see paragraphs 86 and 8891 below). Accordingly, it was immaterial that, as submitted by the VCA, its decision complied with certain regulations adopted during the restitution process. The Court of Appeal considered that the first-instance court had correctly found that the forest on the plot given to I.B. was urban forest and therefore a forest of national importance, and thus property rights in respect of that part had to be annulled. However, it stated that when determining the area covered by forest the information had to be taken not from the Real Estate Register but from the Register of Forests (Miškų kadastras), which was administered by the State Forest Management Service. According to the latter, the plot given to I.B. included 0.25 hectares of forest. The Court of Appeal therefore partly amended the decision and annulled I.B.’s property rights to 0.25 hectares of land, as well as the applicants’ rights to that part of the plot. It dismissed as unfounded the applicants’ argument that such a decision would cause them serious difficulties. The Court of Appeal ordered the applicants and the VCA to pay the State’s legal costs. 24. The applicants lodged an appeal on points of law. On 25 May 2010 the Supreme Court refused to accept it for examination on the grounds that it raised no important legal issues. 25. On 1 September 2008 the prosecutor lodged a further claim with the Vilnius Regional Court, seeking to have I.B.’s property rights to another 1.73 hectares of the 5.40 hectares given to him annulled (see paragraph 13 above), on the grounds that it was covered by a forest of national importance, as well as to have the applicants’ property rights to that part of the plot annulled. The prosecutor presented similar arguments as in the previous proceedings (see paragraph 14 above). The applicants, the VCA and the Ministry of Environment also submitted essentially the same arguments as in the previous proceedings (see paragraphs 15-17 above). 26. On 13 May 2009 the Vilnius Regional Court allowed the prosecutor’s claim. It noted that the presence of forest on the plot of land given to I.B. had been confirmed by the data in the Register of Forests. It also noted that that forest was included in the list of forests of national importance created in 2002 (see paragraph 12 above). The court observed that even though restoration of property rights was a continuous process and included the preparation of various documents, the final decision to restore property rights had to comply with the law in force at the time of the adoption of that decision. It concluded that the VCA’s decision to give the plot to I.B. (see paragraph 13 above) had been contrary to the Constitution and other legislation providing that forests of national importance could only be owned by the State (see paragraphs 86, 88 and 89 below). Accordingly, it annulled I.B.’s property rights to 1.73 hectares of the land, as well as the applicants’ rights to that part of the plot. The court observed that there was no dispute that I.B. had retained the right to restoration of his property rights, and the State was thus under an obligation to restore his rights to 1.73 hectares of land. 27. The applicants and the VCA lodged appeals against that decision. They argued that the VCA’s decision had been based on various administrative and procedural acts according to which the forest on the applicants’ plot had not been considered a forest of national importance, and thus had been lawful. The prosecutor and the Ministry of Environment contested the appeals. 28. On 6 April 2010 the Court of Appeal dismissed the appeals submitted by the applicants and the VCA and upheld the decision of the first-instance court in its entirety. It stated that the first-instance court had been correct in finding that the forest on the applicants’ plot was a forest of national importance and could thus only belong to the State. 29. The applicants lodged an appeal on points of law. On 9 July 2010 the Supreme Court refused to accept it for examination on the grounds that it raised no important legal issues. 30. According to the Government, on 11 May 2010 the VCA informed the applicants that there was no possibility of restitution in kind because there was no vacant land in the relevant area. According to the applicants, on 19 October 2010 they sent a letter to the National Land Service (the institution which took over the relevant functions of the VCA after an administrative reform hereinafter “the NLS”) stating that they were of advanced age and did not “have the energy or state of health to look for vacant land in the Vilnius area”. Copies of the VCA’s and the applicants’ letters have not been submitted to the Court. 31. On 23 February 2012 the applicants received a letter from the NLS confirming that, after the courts had annulled I.B.’s property rights to 1.98 hectares of land, he had retained the right to have those property rights restored. It also stated that there was no more vacant land in the former village of Kryžiokai and that I.B.’s property rights could be restored by: (i) assigning a plot of land or forest equal in value to the land held previously; (ii) providing securities; (iii) discharging liabilities to the State; (iv) transferring, free of charge, a new plot of land equal in value to the land held previously for the construction of an individual home in the city or rural area where the previously held land was situated; or (v) providing monetary compensation (see paragraph 92 below). The applicants, as I.B.’s heirs, were asked to inform the authorities of their choice as to the form of restitution. It is unclear whether the applicants replied to this letter. 32. On 24 July 2012 the applicants received another letter from the NLS which again confirmed that, after the courts had annulled I.B.’s property rights to 1.98 hectares of land, he had retained the right to have those property rights restored. It stated that there was a possibility for the applicants to receive a plot of land for the construction of an individual home in the Vilnius city area but as there were 4,806 other candidates waiting to receive plots in the area, the restitution process would take a long time. The applicants were asked to consider an alternative form of restitution, such as a plot of land in a rural area, a plot of land for the construction of an individual home in a different city, or monetary compensation (see paragraph 92 below). They were also informed that there remained about 0.10 hectares of vacant land in the former village of Kryžiokai, so if they wished to receive a plot in that area, their request would be considered when the land plan was being prepared. 33. On 21 August 2012 the applicants sent a letter to the NLS. They submitted that the annulment of their property rights to 1.98 hectares of land had caused them pecuniary damage in the amount of 331,000 Lithuanian litai (LTL approximately 95,900 euros (EUR)), according to an assessment of the value of the land carried out in May 2012. In the applicants’ view, being put on the list with 4,806 other candidates and being made to wait for an undetermined period of time for restitution was unacceptable. The applicants asked to be allocated a plot of land for the construction of an individual home in Vilnius in the order of priority, and if that was not possible, to be informed how many plots were available in Vilnius and when they might expect to receive one. They also stated that they would agree to receive a plot of land in Kryžiokai but would first want to know its exact location. The applicants stated that they did not wish to choose any other form of restitution. 34. On 14 December 2012 the NLS approved the list of candidates to receive plots of land in several areas around Vilnius. The applicants were included in that list as candidates to receive 1.98 hectares of land. On 31 December 2012 the NLS held a meeting in which candidates were offered plots in the relevant areas. The second applicant took part in that meeting and chose three plots, measuring a total of 0.3627 hectares. She was offered more plots but refused them because there were electricity installations on them. The minutes of the meeting, approved by the NLS, stated that the next meeting of candidates would be held on 16 April 2013 and those who had not chosen their plots yet, including the second applicant, would be invited to participate. The Court was not provided with any information as to whether that meeting took place, whether the applicants were invited to attend and whether they did so. 35. On 21 August 2014 the NLS adopted a land plan of the aforementioned areas around Vilnius, as well as the list of individuals who would be allocated plots in those areas. The applicants were included in the list and were entitled to receive four plots of land, measuring a total of 0.4035 hectares. 36. On 7 October 2015 the first applicant died. The second applicant was issued a certificate of inheritance on 3 August 2016. 37. On 29 January 2016 the NLS adopted a decision to restore I.B.’s property rights by giving him five plots of agricultural land, measuring a total of 0.7883 hectares. The decision stated that the rights to the remaining 1.1917 hectares would be restored later. 38. On 26 April 2016 the NLS approved the list of candidates to receive plots of land in several other areas around Vilnius. I.B. was included in that list as a candidate to receive 1.1917 hectares of land. On 18 May 2016 the NLS held a meeting in which candidates were offered plots in those areas. The second applicant took part in that meeting and chose two plots, measuring a total of 0.18 hectares. It does not appear that she was offered any more plots in that meeting. 39. On 31 August 2017 the NLS adopted a land plan of several areas around Vilnius, as well as the list of individuals who would be allocated plots in those areas. I.B. was included in the list and was entitled to receive two plots of land, amounting to a total of 0.18 hectares. 40. According to the latest information provided to the Court, the first and second applicants’ property rights to 1.1917 hectares of land have still not been restored. 41. On 6 April 2004 the VCA restored the third applicant’s property rights by giving her and another candidate, G.D., joint ownership of 0.52 hectares of agricultural land and 2.12 hectares of forest in Vaidotai. The third applicant’s share of the jointly owned forest was one hectare. 42. On 9 April 2009 the prosecutor lodged a claim with the Vilnius City Second District Court, seeking to have the applicant’s and G.D.’s property rights to the 2.12 hectares of forest annulled (see paragraph 41 above). The prosecutor submitted that the forest was situated in a city (see paragraph 10 above) and was thus considered a forest of national importance which could only be owned by the State (see paragraphs 86, 88 and 89 below). The prosecutor noted that the forest in question had been included in the plan of forests of national importance adopted by the Government in 2002 (see paragraph 12 above), that is before the VCA had adopted its decision to give that forest to the applicant and G.D. Accordingly, the VCA’s decision had to be declared unlawful and its effects annulled. 43. The applicant disputed the prosecutor’s claim. She submitted that the VCA’s decision to give the forest to her and G.D. had been taken in line with the law in force at the material time and in coordination with the relevant authorities, including the Vilnius Forest Authority. The applicant also argued that, in line with the case-law of the Constitutional Court, forests which belonged to private individuals and were subsequently declared to be of national importance did not have to be taken into State ownership, as owners’ rights could be restricted in order to protect the forest. She therefore asked the court to protect her property rights. 44. The VCA also disputed the prosecutor’s claim. It submitted that the restoration of property rights to the land in the former village of Vaidotai had been carried out in line with the regulations applicable to rural areas. It also submitted that the decision to give the forest in question to the applicant and G.D. had been based on several administrative acts adopted in 2000, and so the decision could not be annulled as long as those acts remained in force. 45. The Ministry of Environment, which was a third party in the proceedings, asked the court to allow the prosecutor’s claim. It argued that at the time when the VCA had adopted the decision to give the forest to the applicant and G.D., the forest had officially been urban forest (see paragraph 10 above) and had been included in the list of forests of national importance (see paragraph 12 above). Accordingly, the VCA’s decision had been contrary to mandatory statutory provisions (see paragraphs 86, 88 and 89 below) and had to be annulled. 46. On 4 March 2009 the Vilnius City Second District Court allowed the prosecutor’s claim. It reiterated that, in line with the Constitution and the Law on Forests, urban forests were considered forests of national importance and could only belong to the State (see paragraphs 86, 88 and 89 below). The court also emphasised the importance of forests to the environment and the obligation of the State to protect them in the public interest. It then noted that the former village of Vaidotai had become part of the Vilnius city municipality in 1996 (see paragraph 10 above), so any forests within that area were urban forests. The court also observed that the forest given to the applicant and G.D. had been included in the list of forests of national importance approved by the Government in 2002 (see paragraph 12 above). Accordingly, the VCA’s decision to give that forest to the applicant and G.D. had been adopted after the forest had already become a forest of national importance (see paragraph 41 above). The court held that it was immaterial whether other administrative acts on which the VCA’s decision had been based remained valid (see paragraph 44 above) because property rights had been restored to the applicant and G.D. by that decision and not by any other acts. The court therefore annulled the applicant’s and G.D.’s property rights to the 2.12 hectares of forest. 47. The applicant and the VCA lodged appeals against that decision, raising essentially the same arguments as before (see paragraphs 43 and 44 above). In addition, the applicant submitted that her property rights to the forest in question had been challenged four years after it had been given to her, and thus she had lost the opportunity to have her property rights restored because there was almost no vacant land left in Vilnius or the surrounding area. 48. On 13 August 2009 the Vilnius Regional Court dismissed the appeals and upheld the first-instance court’s decision in its entirety. It considered that that court had been correct in finding that the forest in question was a forest of national importance and that the VCA’s decision had thus been contrary to mandatory statutory provisions prohibiting the transfer of such forests into the ownership of private individuals. In response to the applicant’s argument that she had lost the opportunity to have her property rights restored (see paragraph 47 above), the Vilnius Regional Court stated that Lithuanian law provided for partial restitution, and that where it was impossible to restore property rights in natura, it could be done in other ways, including by monetary compensation (see paragraphs 92 and 97 below). Therefore, the court considered that the applicant had retained the right to have her property rights restored in one of the forms provided for by law. 49. The applicant and the VCA lodged appeals on points of law, relying on essentially the same arguments as before (see paragraphs 43, 44 and 47 above). In addition, the applicant submitted that she had acquired the property in good faith and that ordering her to return it to the State would cause her serious difficulties (see paragraph 95 below). She argued that she could no longer receive a plot in the same area because there was no more vacant land there and that she would not receive fair compensation either because property prices had decreased. The applicant submitted that the public interest to protect forests could be achieved in other ways, such as by imposing on her special conditions for use of the forest. 50. On 5 February 2010 the Supreme Court dismissed the appeals on points of law and upheld the findings of the lower courts. It observed that restoring property rights to forests in valuable areas had been prohibited since the beginning of the restitution process in Lithuania. Accordingly, individuals could not have a legitimate expectation to acquire property rights to such forests. It also stated that the VCA, as the institution in charge of restoration of property rights, was under an obligation to ensure that its decisions complied with all relevant legislation adopted throughout the entirety of the restitution process. 51. The Supreme Court reiterated that when a transaction was annulled, the parties had to return to one another everything that they had received from that transaction (see paragraph 94 below). It stated that the lower courts had not identified any exceptional circumstances why that rule should not be applied in the present case, nor had the applicant pointed to any such circumstances. The Supreme Court noted that the applicant had retained the right to have her property rights restored in accordance with the law, so her argument that she would experience serious difficulties (see paragraph 49 above) had to be dismissed as unfounded. 52. On 7 April 2010 the applicant sent a letter to the VCA seeking to be given a plot of land in the former village of Vaidotai. On 11 May 2010 the VCA informed the applicant that there was no vacant land in Vaidotai and asked her to choose another form of restitution (see paragraph 92 below). 53. On 29 October 2010 the applicant sent a letter to the NLS stating that she was 78 years old and did not “have the energy or the state of health to participate in the complicated restitution process for a second time”. The applicant stated that she had lost her property because of the unlawful actions of the VCA, therefore the NLS, as the VCA’s successor, had to compensate her for the pecuniary and non-pecuniary damage which she had sustained. She asked the NLS to provide her with a list of plots of land equal in value in the Vilnius city area to which her property rights could be restored. 54. On 13 December 2010 the NLS informed the applicant that, in accordance with the law, her property rights could be restored by assigning her a plot of land equal in value to the land held previously or by providing securities, but that there was no possibility of her receiving a plot of land for the construction of an individual home in a city. The letter provided the address of a website on which the applicant could find information about vacant plots of land, and she was asked to submit a request to the municipal authorities indicating the area in which she wished to receive a plot equal in value. It was also stated that if she was dissatisfied with the response given, she could lodge a complaint with the director of the NLS. 55. On 16 December 2011 the applicant sent a request to the NLS for compensation in securities. On 1 February 2012 she received a reply informing her that compensation in the form of securities was temporarily unavailable. 56. On 6 March 2012 the applicant submitted a request for a plot of land for the construction of an individual home in the town of Trakai. On 30 May 2012 in a letter to the NLS she reiterated her wish to receive a plot in Trakai and stated that she also wished to receive a plot of land in Vilnius, but did not wish to have her property rights restored by monetary compensation. 57. On 23 July 2012 the NLS sent a letter to the applicant confirming that, after the courts had annulled her property rights to one hectare of land (see paragraph 41 above), she had retained the right to have those property rights restored. She could be given a plot of land for the construction of an individual home in Vilnius or Trakai, but there were many other candidates waiting to receive plots in those areas (4,806 and 94 respectively, and the land plan for Trakai had not been prepared yet), therefore the restitution process would take a long time. She was asked to consider an alternative form of restitution, such as a plot of land in a rural area, a plot of land for the construction of an individual home in a different city or monetary compensation. She was also informed that there remained some vacant land in the former village of Vaidotai, so if she wished to receive a plot in that area, her request would be considered when the land plan was being prepared. It is unclear whether the applicant replied to that letter or submitted any requests concerning the form of restoration of her property rights. 58. On 7 October 2013 the NLS approved the list of candidates to receive plots of land in several areas around Vilnius. The applicant was included in that list as a candidate to receive 1.12 hectares of land. On 9 October 2013 she was sent an invitation to attend a meeting of candidates on 22 October 2013. She did not take part in that meeting. On 24 October 2013 she was sent an invitation to attend a meeting of candidates on 6 November 2013. She did not take part. The applicant submitted to the Court that she had not been informed of those meetings. 59. On 5 April 2016 the NLS approved the list of candidates to receive plots of land in several other areas around Vilnius. The applicant was included in that list as a candidate to receive 1.12 hectares of land. On 22 April 2016 the NLS held a meeting of candidates to receive plots of land in those areas. Her representative took part in the meeting but did not provide a form of authority. 60. On 17 May 2016 the NLS held another meeting of candidates to receive plots of land in the aforementioned areas. The applicant participated in that meeting but did not choose any of the plots offered to her. The minutes of the meeting do not indicate the reasons for her refusal. The applicant submitted to the Court that the plots offered to her had had electricity installations on them and had therefore been “worthless”. 61. According to the latest information provided to the Court, the third applicant’s property rights to one hectare of land have still not been restored. 62. On 10 December 2003 the VCA restored the fourth applicant’s property rights by giving her 2.67 hectares of land in the villages of Kryžiokai and Naujaneriai. On 25 April 2005 she sold 1.5 hectares of the land given to her in Kryžiokai to another individual, J.S., for LTL 495,000 (approximately EUR 143,400). The sale agreement was certified by a notary. 63. On 15 December 2008 the prosecutor lodged a claim with the Vilnius Regional Court, seeking to have the applicant’s property rights to 0.15 of the 2.67 hectares given to her annulled (see paragraph 62 above). The prosecutor submitted that, according to the data provided by the State Forest Management Service, the 0.15 hectares were covered by forest. Since it was situated in a city (see paragraph 10 above), it was considered a forest of national importance and could thus only be owned by the State (see paragraphs 86, 88 and 89 below). The prosecutor asked that after annulling the applicant’s property rights, the sale agreement between her and J.S. be annulled in respect of that part of the land. 64. The applicant disputed the prosecutor’s claim. She submitted that there had not been any forest on the land before its nationalisation, and if a forest had grown there afterwards, that should not preclude the restoration of her property rights. She also submitted that she had not acted unlawfully, so the property could not be taken from her. The applicant argued that if authorities or officials had acted unlawfully, the State should have to buy the land from her, and that the public interest should be protected without prejudice to her rights. 65. The VCA also disputed the claim. It argued that the applicant’s property rights had been restored in accordance with the legislation in force at the material time, and that the decision had been taken in coordination with various authorities, including the Ministry of Environment and the Vilnius Forest Authority, which had not presented any objections. 66. The Ministry of Environment, which was a third party in the proceedings, supported the prosecutor’s claim. 67. On 29 March 2010 the Vilnius Regional Court allowed the prosecutor’s claim. It observed that even though the Real Estate Register did not contain information about the presence of forest on the applicant’s land, it had been proven by the data provided by the State Forest Management Service. The court reiterated that forests of national importance could only be owned by the State (see paragraphs 86, 88 and 89 below), and that forests situated in cities were considered forests of national importance, irrespective of whether they had been officially designated as such (see paragraph 102 below). It observed that the former village of Kryžiokai had become part of the Vilnius city municipality in 1996 (see paragraph 10 above). Accordingly, the court held that the VCA’s decision to restore the applicant’s property rights had been unlawful and had to be annulled. 68. Finding that the applicant had not had a right to acquire the 0.15 hectares of land in question, the Vilnius Regional Court held that, consequently, she had had no right to sell the land, and thus the sale agreement between her and J.S. in the relevant part also had to be annulled. In accordance with the Civil Code, J.S. was ordered to return 0.15 hectares of land to the State, and the applicant was ordered to return LTL 49,500 (approximately EUR 14,340) to J.S. (see paragraph 94 below). The court noted that the applicant had retained the right to restoration of her property rights, and that the restitution process had to be “continued at the expense of the VCA or its successor, by finalising (and not starting afresh), in the same order of priority, the restitution process that had already begun”. It accepted the applicant’s argument that she might face financial difficulties as a result of having to return money to J.S. because she no longer had the necessary amount. The court gave the applicant six months from the date on which the decision became final to return the money to J.S. It observed that it had no authority to directly order the VCA to complete the restoration of the applicant’s property rights within that period of time, but that “the activity of the VCA or its successor in the restitution process could constitute grounds for reducing the possible expenses of that institution, if [the applicant and J.S.] were found to have suffered losses as a result of unlawful acts established in the present decision ... and had to be compensated”. 69. The applicant lodged an appeal against that decision, presenting essentially the same arguments as before (see paragraph 64 above). She also argued that the order to pay the money to J.S. should not have been imposed on her but on the VCA, since it was the latter which had acted unlawfully. 70. On 7 February 2011 the Court of Appeal dismissed the applicant’s appeal and upheld the decision of the first-instance court in its entirety. The court stressed that forests of national importance could not be transferred into private ownership on any basis whatsoever, including restitution of nationalised property (see paragraph 101 below). It stated that the institutions responsible for adopting decisions on restoration of property rights had to verify whether all the conditions for restitution provided by law were complied with and, when deciding to restore property rights in natura, whether the property in question was not a type which could only belong to the State. Accordingly, the VCA, when adopting the decision to restore the applicant’s property rights, had been under an obligation to verify whether that decision complied with the law in force at the time of its adoption. 71. The Court of Appeal held that the finding that the applicant’s property rights had been restored in contravention of the law enabled it to consider that she had acquired those property rights in bad faith (nesąžininga įgijėja). It stated that the applicant and J.S. “could not be considered bona fide acquirers merely because the land in question had become private property as a result of a decision adopted by a public authority”. It also stated that when an individual knew or ought to have known that an administrative decision might be contrary to the law, he or she could not rely on his or her good faith. 72. The Court of Appeal further observed that even though the unlawful restoration of property rights had been the result of a decision adopted by the VCA, under the law it was not possible to order the VCA, and not the applicant, to return the money paid for the plot in question to J.S. (see paragraph 69 above). The court considered that requiring J.S. to return the plot to the State and the applicant to return the money to J.S. would not cause “serious difficulties for the defendants” (see paragraph 95 below). It also reiterated that the applicant had retained the right to restoration of her property rights in one of the forms provided for by law. 73. The applicant lodged an appeal on points of law. On 29 March 2011 the Supreme Court refused to accept it for examination on the grounds that it raised no important legal issues. 74. On 25 October 2011 the applicant paid LTL 49,500 to J.S. 75. On 23 February 2012 the applicant received a letter from the NLS confirming that she had retained the right to have her property rights to 0.15 hectares of land restored. It stated that there was no more vacant land in Kryžiokai and that her property rights could be restored by: (i) assigning a plot of land or forest equal in value to the land held previously; (ii) providing securities; (iii) discharging liabilities to the State; (iv) transferring, free of charge, a new plot of land equal in value to the land held previously for the construction of an individual home in the city or rural area where the previously held land was situated; or (v) providing monetary compensation (see paragraph 92 below). The applicant was asked to inform the authorities of her choice as to the form of restitution. 76. On 7 March 2012 the applicant sent a letter to the NLS stating that she had suffered pecuniary damage in the amount of LTL 49,500 as a result of the actions of the authorities. The applicant expressed her wish to be given a plot of land of 0.15 hectares, and if the value of that plot was lower than LTL 49,500, that the difference be paid to her as damages. 77. On 24 July 2012 the applicant received another letter from the NLS. It stated that there was a possibility of her receiving a plot of land for the construction of an individual home in the Vilnius city area but as there were 4,806 other candidates waiting to receive plots in that area, the restitution would take a long time. The applicant was asked to consider an alternative form of restitution, such as a plot of land in a rural area, a plot of land for the construction of an individual home in a different city or monetary compensation. She was also informed that there was a possibility for her to receive land in Kryžiokai, so if she wished to receive a plot in that area, her request would be considered when the land plan had been prepared. 78. On 21 August 2012 the applicant sent a letter to the NLS. She reiterated that the annulment of her property rights to 0.15 hectares of land had caused her pecuniary damage in the amount of LTL 49,500. In her view, being put on the list with 4,806 other candidates and being made to wait for an undetermined period of time for restitution was unacceptable. The applicant asked to be allocated a plot of land for the construction of an individual home in Vilnius in the order of priority, and if that was not possible, to be informed how many plots were available in Vilnius and when she might expect to receive one. If she could not be given such a plot, she wished to receive compensation of LTL 49,500. The applicant stated that she did not wish to choose any other form of restitution. 79. On 14 December 2012 the NLS approved the list of candidates to receive plots of land in several areas around Vilnius. The applicant was included in that list as a candidate to receive 0.15 hectares of land. On 31 December 2012 the NLS held a meeting in which candidates were offered plots in the relevant areas. The applicant took part in that meeting. According to the minutes of the meeting approved by the NLS and signed by the applicant, she refused the plot which was offered to her and stated that she wished to wait for the decision of the European Court of Human Rights in her case. 80. On 26 April 2016 the NLS approved the list of candidates to receive plots of land in several other areas around Vilnius. The applicant was included in that list as a candidate to receive 0.15 hectares of land. 81. On 27 April 2016 the NLS sent a letter to the applicant inviting her to attend a meeting of candidates on 18 May 2016 in which she would be offered a plot. The applicant did not take part in that meeting. 82. On 18 May 2016 the NLS sent a letter to the applicant inviting her to attend a meeting of candidates on 1 June 2016 in which she would be offered a plot. It is unclear whether the applicant took part in that meeting. 83. According to the latest information provided to the Court, the fourth applicant’s property rights to 0.15 hectares of land have still not been restored. | 1 |
test | 001-146832 | ENG | BIH | ADMISSIBILITY | 2,014 | MURATSPAHIĆ v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | 1. The applicant, Ms Malka Muratspahić, is a Bosnian-Herzegovinian citizen, who was born in 1957 and lives in Goražde. She was represented before the Court by Mr N. Mulalić, a lawyer practising in Sarajevo. 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 21-22 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 so 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 15 below). It became operational on 1 January 2008. 7. The applicant’s father, Sulejmen Odžaković, disappeared in unknown circumstances in an area controlled by the VRS forces (Gornja Podkozara in the vicinity of Goražde) on an unknown date in May 1992. 8. On 2 October 2002 Ms Biljana Plavšić, one of the war-time leading political figures of the Republika Srpska, pleaded guilty before the ICTY to having participated in the persecution of Bosniacs and Croats from certain territories of Bosnia and Herzegovina. She was sentenced to 11 years’ imprisonment. 9. Cases against Radovan Karadžić, the war-time civilian leader of the Republika Srpska, Ratko Mladić, the war-time military leader of that Entity, and Vojislav Šešelj, a leading political figure of Serbia in the 1990s, are also pending before the ICTY. They are charged with the participation in a joint criminal enterprise to permanently remove Bosniacs and Croats from “the territories of Bosnia and Herzegovina claimed as Bosnian Serb territory” (see, for example, the third amended indictment against Radovan Karadžić, § 9). 10. In the absence of any information about the disappearance and death of the applicant’s father, no formal charges have been brought yet in respect of this particular case. At the same time, domestic authorities have finalised investigations into some other killings committed as a part of a widespread and systematic attack against the non-Serb civilian population of the pre-war municipality of Goražde in May 1992; an indictment has thus far been issued against one person – D. Š. – and criminal proceedings are pending. 11. The applicant did not seek a declaration of presumed death with respect to her father. 12. The applicant’s father was identified by DNA on 25 May 2005. 13. On 9 November 2005 the Human Rights Commission held that there had been a violation of Articles 3 and 8 of the Convention. It ordered the authorities to release any and all information in their custody pertaining to the fate or whereabouts of the applicant’s father and to conduct a full, meaningful, thorough and detailed investigation aimed at making known the fate or whereabouts of the applicant’s father and bringing the responsible to justice. No compensation was awarded. 14. 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. 15. 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). 16. 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. 17. 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. 18. 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). 19. 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 16 above). 20. Despite the fact that the verification process outlined in paragraph 19 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). 21. 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 22 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. 22. 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. 23. 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 22 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 | 001-153901 | ENG | ITA | CHAMBER | 2,015 | CASE OF CESTARO v. ITALY | 3 | Preliminary objection joined to merits and dismissed (Article 34 - Victim);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Respondent State to take measures of a general character (Article 46-2 - Legislative amendments);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä | 6. The applicant was born in 1939 and lives in Rome. 7. The twenty-seventh G8 Summit took place in Genoa on 19, 20 and 21 July 2001 under the chairmanship of Italy. 8. In the run-up to the Summit a large number of non-governmental organisations had set up a coordinating group known as the Genoa Social Forum (“GSF”) with a view to organising an “anti-globalisation” Summit in Genoa during the same dates (see Final Report of the Parliamentary inquiry into the events during the Genoa G8 Summit (see “Final Rapport of the Parliamentary Inquiry”), pp. 7-18). 9. Since the meeting of the World Trade Organisation in Seattle in November 1999, such demonstrations by the “anti-globalisation” movement have been organised during inter-State summits and meetings of international institutions on different aspects of global governance. They have sometimes been accompanied by acts of vandalism and clashes with the police (ibid.). 10. Law No. 349 of 8 June 2000 (“Law No. 349/2000”) had assigned the task of organising the preliminary meetings and the Final Summit of the Heads of State and Government scheduled for July 2001 to a plenipotentiary body set up within the Prime Minister’s Office. Several meetings were attended by representatives of the GSF, the Head of the plenipotentiary body, the Prefect of Genoa, the Minister of the Interior, the Minister for Foreign Affairs and local authority representatives (see Final Report of the Parliamentary Inquiry, pp. 18-21). 11. Substantial security measures were put in place by the Italian authorities (see Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 12, ECHR 2011). Under section 4(1) of Law no. 149 of 8 June 2000, the prefect of Genoa was authorised to deploy military personnel. In addition, the part of the city where the G8 were meeting (the historic centre) was designated as a “red zone” and cordoned off by means of a metal fence. As a result, only residents and persons working in the area were allowed access. Access to the port was prohibited and the airport was closed to traffic. The red zone was contained within a yellow zone, which in turn was surrounded by a white (normal) zone. 12. According to the information garnered by the Genoa police department up to July 2001 (see Final Report of the Parliamentary Inquiry, p. 23), the various groups expected to take part in the demonstrations were broken down into various blocs depending on the danger they posed: the non-dangerous “Pink Bloc”; the “Yellow Bloc” and the “Blue Bloc”, which were deemed to comprise persons likely to vandalise property, set up street and railway blockades and cause confrontations with the police; and lastly, the “Black Bloc”, which embraced several anarchist groups and more broadly, demonstrators dressed in black and wearing masks and balaclavas who had systematically wreaked havoc during other summits. 13. On 19 July 2001 two demonstrations took place during the day without incident. Disorder occurred during the evening (see Final Report of the Parliamentary Inquiry, p. 25). 14. On 20 July several demonstrations had been announced for various areas of the city, and rallies were scheduled for specific squares (“piazze tematiche”) (see Final Report of the Parliamentary Inquiry, pp. 25-27). 15. On the morning of 20 July the Black Bloc sparked numerous incidents and clashes with law-enforcement officers, and ransacked banks and supermarkets (see Giuliani and Gaggio, cited above, § 17). Marassi Prison was attacked and a number of police stations were vandalised (see Giuliani and Gaggio, cited above, § 134, and Final Report of the Parliamentary Inquiry, p. 26). 16. The Black Bloc sparked similar incidents while the Tute Bianche, a group broadly belonging to the “Yellow Bloc”, were marching along Via Tolemaide. Tear gas was fired on the Tute Bianche demonstrators by carabinieri, who charged forward, making use of their truncheons and non-regulation batons. The demonstrators split up, though some of them responded to the attack by throwing hard objects at the law-enforcement officers; armoured vehicles belonging to the carabinieri drove up at high speed, knocking down the barriers erected by the demonstrators and forcing the demonstrators to leave. Clashes between demonstrators and law-enforcement officers continued in the adjacent areas (see Giuliani and Gaggio, cited above, §§ 17-20, 126-127 and 136). 17. Similar clashes occurred at around 3 pm in Piazza Manin (see Final Report of the Parliamentary Inquiry, p. 26). 18. At around 3.20 pm, during a clash in Piazza Alimonda, Carlo Giuliani, a young demonstrator, was hit by a shot fired from a jeep of carabinieri attempting to escape the demonstrators (see Giuliani and Gaggio, cited above, §§ 21-25). 19. On 21 July the final anti-globalisation demonstration took place, attended by some 100,000 persons (see Giuliani and Gaggio, cited above, § 114). 20. The looting and unlawful damage began in the morning and continued all day throughout the city. In the early afternoon the march ran into a group of some one hundred individuals facing the security forces. Further clashes ensured, with the security forces firing tear gas and charging the crowd, also involving the orderly demonstrators (see Final Report of the Parliamentary Inquiry, pp. 27-28). 21. During the two days of incidents several hundred demonstrators and members of the security forces were injured or suffered from the effects of tear gas. Whole districts of the city of Genoa were laid waste. 22. On the morning of 21 July 2001 the Head of Police ordered Prefect A., Deputy Head of Police and Head of the plenipotentiary body, to assign the task of searching the Paul Klee School to Mr M.G., Head of the CID Central Operational Department (the “SCO”) (see judgment no. 1530/2010 of the Genoa Court of Appeal of 18 May 2010 (the “appeal judgment”), p. 194). Some twenty individuals were arrested following that operation, but they were immediately released by order of the prosecution or the investigating judge (see appeal judgment, p. 196). 23. It transpires from Prefect A.’s statements to the Genoa Court that the order issued by the Head of Police was explicable by his desire to move on to a more “incisive” phase involving arrests of suspects in order to dispel any impression that the police had remained inert vis-à-vis the looting and unlawful damage perpetrated in the city. The Head of Police had wanted to set up large-scale joint patrols directed by officers from the mobile units and the SCO and coordinated by trusted officers, with a view to stopping the Black Bloc (see judgment no. 4252/08 delivered by the Genoa Court on 13 November 2008 and deposited on 11 February 2009 (the “first-instance judgment”), p. 243; see also judgment no. 38085/12 of the Court of Cassation of 5 July 2012, deposited on 2 October 2012 (the “Court of Cassation judgment”), pp. 121122). 24. At 7.30 pm on 21 July M.G. ordered M.M., Head of the Genoa General Investigations and Special Operations Department (DIGOS) to second officers from his unit in order to from joint patrols with other officers from the Genoa mobile unit and the SCO (see Final Report of the Parliamentary Inquiry, p. 29). 25. The Genoa Municipal Council had provided the GSF and other bodies with access to the premises of two adjacent schools in Via Cesare Battisti in order to install a multimedia centre. In particular, the Diaz-Pascoli School (“Pascoli”) accommodated a press unit and temporary lawyers’ offices, while the Diaz-Pertini School housed an Internet access point. Following thunderstorms over the city which had hampered access to some camping sites, the Municipality had authorised the use of the Diaz-Pertini School as a night accommodation centre for demonstrators. 26. On 20 and 21 July, residents in the area reported to the police that young people dressed in black had gone into the Diaz-Pertini School and taken materiel from the site linked to the ongoing works in the school. 27. Early in the evening of 21 July one of the joint patrols proceeded along Via Cesare Battisti, sparking a heated verbal reaction from dozens of persons standing outside the two schools. An empty bottle was thrown at the police vehicles (see first-instance judgment, pp. 244-249, and Court of Cassation judgment, p. 122). 28. On their return to the police station, the police officers who had headed the patrol recounted the events at a meeting called by the most senior police officials (including Prefect A., Prefect L.B., Police Commissioner C. and M.G.). 29. Having contacted the GSF official to whom the Diaz-Pertini School had been assigned, the police decided to conduct a search of the premises in order to secure evidence and possibly arrest the Black Bloc members responsible for the unlawful damage. Having discussed and dismissed the idea of bombarding the school with tear gas, they agreed on the following modus operandi: a police unit made up essentially of officers belonging to a division specialising in anti-riot operations who had benefited from ad hoc training (the VII Nucleo antisommossa operating within the Rome mobile unit) was to “secure” the building; another unit would carry out the search; lastly, a carabinieri unit would surround the building to prevent suspects escaping. The Head of Police was also informed about the operation (see first-instance judgment, pp. 226 and 249-252, and Final Report of the Parliamentary Inquiry, pp. 29-31). 30. Late in the evening a large number of police officers from various units and departments left the Genoa police station for Via Cesare Battisti (see Final Report of the Parliamentary Inquiry, ibid.). According to the Court of Cassation judgment, the total number of officers participating in the operation was “approximately 500 police officers and carabinieri, the latter being responsible exclusively for encircling the building”. The appeal judgment (p. 204) pointed out that that figure had never been precisely substantiated. 31. At around twelve midnight the members of the VII Nucleo antisommossa, having arrived close to both schools with helmets, shield and tonfa-type truncheons, together with other similarly equipped officers, began to run towards the premises. A journalist and a municipal councillor standing outside the schools were kicked and struck with batons (see first-instance judgment, pp. 253-261). 32. Some of the persons occupying the Diaz-Pertini School who had been outside re-entered the building and closed the gates and entrance doors, attempting to block them with school benches and wooden planks. The police officers assembled in front of the gate, which they forced open with an armoured vehicle after unsuccessful attempts to shoulder-charge them. Finally, the aforementioned police unit broke down the entrance doors (ibid.). 33. The officers invested all the floors of the building, many of them in complete darkness. With, in most cases, their faces concealed by scarves, they began to punch, kick and club the occupiers, shouting threats at their victims. Groups of officers even struck seated or prostrate persons. Some of those who had been awakened by the noise were struck while still in their sleeping bags, while others were assaulted while holding their hands up as a sign of capitulation or showing their identity documents. Some of the occupiers attempted to escape and hide in the school toilets or lumber-rooms, but they were caught and beaten up, and some of them were hauled out of their hiding places by the hair (see first-instance judgment, pp. 263-280, and appeal judgment, pp. 205-212). 34. The applicant, who was sixty-two years of age at the material time, was on the ground floor. Having been awakened by the noise, when the police arrived he sat down against the wall beside a group of persons with his arms in the air (see first-instance judgment, pp. 263-265 and 313). He was mainly struck on the head, arms and legs, whereby the blows caused multiples fractures: fractures of the right ulna, the right styloid, the right fibula and several ribs. According to the applicant’s statement in the Genoa Court, the healthcare staff who arrived at the school after the violence had subsided attended to him last, despite hiss cries for help. 35. The applicant was operated on at the Galliera hospital in Genoa, where he remained for four days, and then a few years later, at the Careggi hospital in Florence. He was granted over forty days’ unfitness for work. The aforementioned injuries left him with a permanent weakness in his right arm and leg (see first-instance judgment, pp. XVII and 345). 36. Shortly after the storming of the Diaz-Pertini School, a police unit stormed the Pascoli School, where journalists were filming events both outside and inside the Diaz-Pertini School. A radio station was broadcasting the events live. 37. When the police officers arrived the journalists were forced to stop filming and broadcasting. Cassettes containing the reports filmed over the three days of the Summit were seized and the GSF lawyers’ hard disks were seriously damaged (see first-instance judgment, pp. 300-310). 38. After the storming of the Diaz-Pertini School the security forces emptied the occupiers’ rucksacks and other luggage without attempting to identify their owners or to explain the nature of the operation under way. They wrapped some of the items collected in a black flag in the school gymnasium. During that operation, some of the occupiers were taken to the gymnasium and forced to sit or lie down (see first-instance judgment, pp. 285-300). 39. The ninety-three persons occupying the school were arrested and charged with conspiracy to commit unlawful damage and destruction. 40. Most of them were taken to hospitals in the city. Some were immediately transferred to the Bolzaneto barracks. 41. During the night from 21 to 22 July the Head of the Italian police press unit, who was interviewed close to the schools, stated that during the search of the premises the police had found black clothing and balaclavas similar to those used by the Black Bloc. He added that the numerous bloodstains in the building had stemmed from injuries sustained by most of those occupying the Diaz-Pertini School during clashes with the police the previous day (see first-instance judgment, pp. 170-172). 42. The next day, at the Genoa police station, the police showed the press the items seized during the search, including two Molotov cocktails. They also showed the uniform of an official who had taken part in the storming of the Diaz-Pertini School, displaying a clean cut which might have been caused by a knife (ibid.). 43. The prosecution against the occupiers on charges of conspiracy to commit unlawful damage and destruction, serious or aggravated résistance to the police and the unlawful carrying of weapons led to the acquittal of all concerned. 44. The Genoa public prosecutor’s office initiated an investigation to ascertain the facts underlying the decision to storm the Diaz-Pertini School and to shed light on the methodology of the operation, the alleged knife attack on one of the officers and the discovery of the Molotov cocktails, as well as the events that had occurred in the Pascoli School. 45. In December 2004, after some three years of investigations, twenty-eight police officers and officials were committed for trial. Two further sets of proceedings concerning three other officers were subsequently joined to the initial proceedings. 46. The applicant had claimed damages at the preliminary hearing on 3 July 2004. A total number of 119 parties claiming damages, including dozens of Italians and foreigners who had occupied both schools, as well as trade unions and other non-governmental associations, came to a. 47. Those proceedings concerned the events in the Diaz-Pertini School, where the applicant had been accommodated (see paragraphs 31-34 above), and the events in the Pascoli School (see paragraphs 36 and 37 above). They involved hearing more than 300 individuals, both defendants and witnesses (including many foreigners), two expert opinions and the viewing of a great deal of audio-visual materiel. 48. The charges relating to the events in the Diaz-Pertini School were as follows: giving false information for inclusion in a document, simple and aggravated slander, misfeasance in public office (particularly on account of the unlawful arrest of the persons occupying the buildings), simple and aggravated bodily harm and unlawful carrying of weapons of war. 49. By judgment no. 4252/08 of 13 November 2008, deposited on 11 February 2009, the Genoa Court found twelve of the accused guilty of providing false information (one accused), simple slander (two accused) and aggravated slander (one accused), simple and aggravated bodily harm (ten accused) and the unlawful carrying of weapons of war (two accused). The court sentenced them to between two and four imprisonment, a prohibition of holding public office for the period of the main sentence and, jointly and severally with the Ministry of the Interior, payment of costs and expenses and of damages to the parties claiming the latter, to whom the court awarded advances of between 2,500 and 50,000 euros (EUR). The applicant, in particular, was awarded an advance of EUR 35,000, which was paid in July 2009 following an attachment. 50. In determining the main sentences the court had regard to the mitigating circumstances that the perpetrators of the offences had no criminal records and that they had acted in a state of stress and fatigue. One of the convicted persons was granted a conditional suspension of sentence, whereby the court ordered that the conviction should not appear on his criminal record. Furthermore, pursuant to Law No. 241 of 29 July 2006 laying down the conditions for remission of sentence (indulto), ten of the convicted persons were granted total remission of the main sentences, and one of them, who had been given a four-year prison sentence, was granted a three-year remission. 51. In the reasons for the judgment (373 pages of a total of 527), the court first of all rejected the argument that the operation had been planned from the outset as a punitive expedition against the demonstrators. It accepted that the security forces might reasonably have thought, in the light of the events preceding the storming of the buildings (particularly the information provided by local residents and the attack on the patrol during the afternoon of 21 July – see paragraphs 26-27 above), that there were also members of the Black Bloc in the Diaz-Pertini School. It held, however, that the events at issue constituted a clear violation of the law, “of human dignity and of respect for the individual” (di ogni principio di umanità e di rispetto delle persone). The court considered that even in confronting members of the Black Bloc, the security forces were allowed to force inasmuch as the latter was necessary in order to overcome violent resistance from the persons occupying the buildings, subject to proportionality between the resistance encountered and the means used. According to the court neither the applicant nor, for instance, a slightly built young woman who had also been present could have put up such resistance as to justify the blows which they had received, causing bruising and fractures. 52. The court also emphasised that the prosecution had not requested the committal for trial of the actual perpetrators of the violence on account of the difficulty of identifying them, and that the police had not cooperated effectively. It noted in that connection that the prosecution had been provided with old photographs of the officers accused and that it had taken seven years to identify one particularly violent officer – filmed during the storming of the buildings – even though he had been easily recognisable by his hairstyle. 53. In its assessment of the individual responsibility of the accused, the court held that having regard to the circumstances of the case, the perpetrators had acted in the conviction that their superiors tolerated their acts. The fact that some officers and officials who had been in situ right from the beginning of the operation had not stepped in immediately to halt the violence had encouraged the officers of the VII Nucleo antisommossa and the other members of the security forces in their actions. The Court therefore took the view that only those senior officials could be considered guilty of aiding and abetting the offence of causing bodily harm. 54. The court then considered the prosecution argument that the security forces had produced false evidence and recounted fictitious events with a view to justifying, a posteriori, both the search of the premises and the acts of violence. 55. As regards the behaviour of the persons occupying the buildings before the police stormed them, the court observed that the video recordings added to the case file had not shown them throwing any large objects from the building, but that it might be considered, according to the statements of a witness and the attitude of the police officers, who had been filmed with their shields raised above their heads, that a number of small objects (coins, bolts, etc.) had probably been thrown at the officers while they had been attempting to break down the entrance door to the school. 56. As regards the alleged knife attack on an officer, the court, drawing on the results of the expert opinion prepared on that officer’s behaviour and the evidence at its disposal, observed that it could neither find that that attack had actually taken place nor preclude the possibility that it had in fact occurred. 57. Moreover, the court noted that the two Molotov cocktails shown to the press on 22 July had been found by the police in the city during the afternoon of 21 July and subsequently brought, at the behest of the Deputy Police Commissioner of Genoa, to the schoolyard towards the end of the search of the premises, and that they had ended up, under obscure circumstances, mingled with the items that had been gathered together in the gymnasium. 58. Finally, the court considered that the police report on the operation contained a misleading description of the facts, because it stated that all those occupying the school had resisted violently and glossed over the fact that most of them had been injured by the security forces. 59. The accused, the prosecutor’s office with the Genoa Court, the Principal State Prosecutor, the Ministry of the Interior (which was civilly liable) and most of the victims, including the applicant, all appealed to the Genoa Court of Appeal against the first-instance judgment. By judgment no. 1530/10 of 18 May 2010, filed on 31 July 2010, the court of appeal altered the challenged judgment. 60. The Court of Appeal found the accused guilty of the following offences: providing false information (seventeen accused), aggravated bodily harm (nine accused) and the unlawful carrying of weapons of war (one accused). It imposed prison sentences on them of between three years and eight months and five years and prohibited them from holding public office for five years. Pursuant to Law No. 241 of 29 July 2006, all those convicted were given the benefit of a three-year remission of sentence. 61. Since the limitation period for offences of aggravated slander (in the case of fourteen accused), abuse of public authority on account of the unlawful arrest of the persons occupying the Diaz-Pertini School (twelve accused) and simple bodily harm (nine accused) had elapsed, the Court of Appeal discontinued proceedings against them. The proceedings against the Head of the VII Nucleo antisommossa, who had been convicted at first instance for causing aggravated bodily harm, were also discontinued on account of mitigating circumstances. Finally, the Court of Appeal acquitted a person accused of simple slander and unlawful carrying of a weapon of war and another person accused of simple slander. 62. Most of the sentences involving payment of damages and costs and expenses as passed at first instance were upheld in substance, and, at the appeal level, the accused persons who had been convicted for the first time were also held civilly liable. 63. In the reasons for the judgment (120 pages of a total of 313), the Court of Appeal firstly pointed out that even if the suspicions concerning weapons used by the Black Bloc members during their looting could, in principle, have justified searching the schools, there was nevertheless scant evidence that all the persons occupying the two schools were armed and could be considered as belonging to the Black Bloc. 64. The Court of Appeal further stated that several factors demonstrated that the operation had in no way been geared to identifying the members of the Black Bloc and had been quite different in nature. 65. First of all, right from the planning stages of the “search” the senior police officials had allegedly specified that the VII Nucleo antisommossa and other heavily armed officers would be in the front line of the security forces; those units had not been given any precise instructions concerning the use of force against those occupying the school, their sole task being to “secure” (mettere in sicurezza) the building. 66. Secondly, even those individuals who had been outside the Diaz-Pertini School and had not put up the least resistance had been immediately attacked by the security forces. 67. Thirdly, the security forces had launched their assault by breaking down the doors without attempting to negotiate with the occupiers, explaining that a “non-violent search” was to be carried out, or to induce them voluntarily to open the door, which, according to the Court of Appeal, they had justifiably closed. On entry into the building the officers had systematically beaten those inside in a cruel and sadistic manner, inter alia using non-regulation batons. According to the Court of Appeal, the traces of blood to be seen on the photographs taken during the inspection of the premises had been fresh and could only have stemmed from the above-mentioned violence, contrary to the “shameful contention” (vergognosa tesi) that they had been the result of injuries sustained during the clashes which had occurred over the previous days. 68. In the light of those factors the Court of Appeal concluded that the aim of the whole operation had been to carry out a large number of arrests, even in the absence of any judicial purpose, the main thing being to remedy a media image of a powerless police force. The most senior officials of the security forces had therefore surrounded the VII Nucleo antisommossa with a heavily armed unit equipped with tonfa-type truncheons capable of dealing lethal blows, and that unit have been exclusively instructed to neutralise the persons occupying the Diaz-Pertini School, stigmatising them as dangerous troublemakers who had caused all the unlawful damage of the previous few days. The violent and coordinated action of all the officers who had participated in the operation had been the logical consequence of the instructions given. 69. Therefore, according to the Court of Appeal, all the most senior officials of the VII Nucleo antisommossa, as a minimum, had been guilty of causing the injuries inflicted on the persons occupying the buildings. As regards the higher-ranking police officers, the Court of Appeal pointed out that the decision not to request their committal for trial had impeded proper assessment of their criminal responsibility. 70. Furthermore, the Court of Appeal held that once the decision to storm the building and make the arrests had been taken, the security forces had attempted to justify their action a posteriori. 71. In that connection the Court of Appeal noted that during the investigation the persons occupying the school had been attributed responsibility for offences which they had not committed: the investigation had in no way shown that the occupiers had resisted the security forces or that they had thrown objects at them while standing in the schoolyard, whereby some of the officers had probably raised their shields merely as a precaution; and above all, having regard to all the circumstances of the case, the alleged knife attack on an officer during the storming of the building had proven to be a “bare-faced lie”. 72. The Court of Appeal further noted that the most senior officials in the security forces who were present in situ, had decided to place both the Molotov cocktails that had been found elsewhere during the afternoon among the items collected during the search, with a view to justifying the decision to conduct the search and to arrest the persons occupying the school. The Court of Appel took the view that since the arrests had been devoid of any factual or legal basis, they had been unlawful. 73. In determining the appropriate sentences, the Court of Appeal found that apart from the Head of the VII Nucleo antisommossa, who had attempted to limit the violence and had finally admitted the offences during the proceedings, no mitigating circumstances could be acknowledged in respect of the other accused. Having regard to the applicant’s statements, the Court of Appeal pointed out that the members of the security forces had turned into “violent thugs” indifferent to any physical vulnerability bound up with sex and age and to any sign of capitulation, even on the part of persons who had just been abruptly awakened by the noise of the attack. Moreover, the officers had compounded the violence with threats and insults. In doing so they had discredited Italy in the eyes of the international community. Moreover, once the violence had been perpetrated, the security forces advanced a whole series of fabricated “facts” implicating the occupiers. In the Court of Appeal’s opinion, the systematic and coordinated nature of the act of violence committed by the police officers and the aforementioned attempts to justify them a posteriori constituted a deliberate, concerted effort rather than a state of stress and fatigue. 74. Nevertheless, having regard to the fact the whole impugned operation had originated in the instruction from the Head of Police to carry out arrests and that the accused had therefore clearly acted under the psychological pressure of that instruction, the Court of Appeal determined the sentences on the basis of the minimum penalty laid down in criminal law for each of the offences in question. 75. The accused, the State Prosecutor with the Genoa Court of Appeal, the Ministry of the Interior (which was civilly liable) and some of the victims, appealed on points of law against the appeal judgment; the applicant and other victims claimed civil damages in those proceedings. 76. By judgment no. 38085/12 of 5 July 2012, deposited on 2 October 2012, the Court of Cassation essentially upheld the impugned judgment, although it declared the offence of aggravated bodily harm for which ten of the accused had been convicted at first instance and nine at second instance (see paragraphs 49 and 60 above). 77. In its grounds of judgment (71 pages of a total of 186), the Court of Cassation first of all examined the objection as to the constitutionality of Article 157 of the Criminal Code on statute-barring of criminal offences as submitted by the State Prosecutor under Article 3 of the Convention and, secondarily, under Article 117 § 1 of the Constitution. It observed that – as the first- and second-instance decisions had noted, in a finding which had never in fact been contested – “the violence perpetrated by the police during their storming of the Diaz-Pertini school [had been] egregious”. The “utmost gravity” of the police conduct stemmed from the fact that the widespread violent acts committed throughout the school premises had been unleashed against individuals who were obviously unarmed, sleeping or sitting with their hands up; it was therefore a case of “unjustified violence [which], as rightly pointed out by the State Prosecutor, [was carried out] for punitive purposes, for retribution, geared to causing humiliation and physical and mental suffering on the part of the victims”. According to the Court of Cassation, the violence might have qualified as “torture” under the terms of the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment or else as “inhuman or degrading treatment” under Article 3 of the Convention. 78. The Court of Cassation noted that in the absence of an explicit criminal offence within the Italian legal system, the impugned violent acts had been prosecuted on the basis of simple or aggravated bodily harm, which offences, pursuant to Article 157 of the Criminal Code, had been the subject of a discontinuance decision on the ground that the limitation period had expired during the proceedings. It noted that that had been why the State Prosecutor had complained of the contradiction between the regulations on the statute-barring of the criminal offences laid down in Article 157 of the Criminal Code – inasmuch as that provision did not include ill-treatment within the meaning of Article 3 of the Convention among the offences not subject to limitation – and in Article 3 of the Convention, which, in accordance with the Court’s well-established case-law, required the imposition of appropriate penalties on ill-treatment and therefore impeded the limitation of offences or criminal proceedings in cases of ill-treatment. Nevertheless, the Court of Cassation considered that a change in the rules on limitation as envisaged by the State Prosecutor lay outside the jurisdiction of the Constitutional Court because, under Article 25 of the Italian Constitution, only the law could establish offence and criminal penalties. 79. As regards the convictions for offence of bodily harm, the Court of Cassation, having reiterated the events preceding the impugned police storming of the school (see paragraphs 25-30 above), considered logical the Court of Appeal’s finding that the instruction from the Head of Police to carry out arrests had, right from the outset, “militarised” the search operation which the police was to conduct in the school. The Court of Cassation held that the very large number of officers and the lack of instructions regarding alternatives to a tear-gas assault on the school (see paragraph 29 above) and regarding the use of force against the occupiers, among other factors, showed that that operation had not been designed as a peaceful search of the premises. The operational methods used had caused virtually all the persons occupying the school to be beaten up, which explained the Court of Cassation’s upholding of the responsibility, inter alia, of the officials heading the VII Nucleo antisommossa. First of all, the latter had given no instructions on how the building was to be “secured” and had at no stage informed the officers of the possible presence of harmless individuals; secondly, they had not prevented the attacks on persons standing outside the building, the violent storming of the school and the assault on the persons occupying the premises. In conclusion, as the Court of Appeal had rightly found, those officials had been aware that violence was inherent in that type of operation. The Court of Cassation noted, however, that even the offences of aggravated bodily harm had become statute-barred on 3 August 2010 by dint of scheduling, the calculation criteria and the interruptions of proceedings provided for in Articles 157 et seq. of the Criminal Code as amended by Law No. 251 of 5 December 2005. 80. The Court of Cassation also upheld the findings of the appeal judgment as regards the offences of providing false information, slander and unlawful carrying of weapons of war perpetrated in the framework of a “disgraceful whitewashing operation” in order to justify a posteriori the violence perpetrated in the school and the arrest of those occupying it. The Court of Cassation noted that the persons occupying the school had not put up any résistance either before the entrance door had been broken down or inside the premises, and also that the occupiers had not been in possession of Molotov cocktails, which had been brought into the school from the outside by the police. Therefore, the Court of Cassation declared mendacious the police reports to the contrary and slanderous the conspiracy charges levelled against the occupiers. As regards the conclusions of the appeal judgment concerning the alleged knife attack on an officer, the Court of Cassation merely specified the sentence passed on two officers convicted of providing this false information (three years and five months, as indicated in the reasons given for the appeal judgment, rather than three years and eight months as indicated in the operative part). Finally, it passed a sentence of three years and three months on one of the convicted officers for providing false information, on account of the limitation on the offence of aggravated bodily harm and the resultant inapplicability of the calculation criterion laid down in Article 81 of the Criminal Code because of the continuous nature of the offences. 81. The charges levelled against officers for the events in the Pascoli School concerned arbitrary search and damage to property. 82. By judgment no. 4252/08 (see paragraph 49 above), the Genoa Court held that the storming by the police officers of the Pascoli School had been the result of a mistake in identifying the building to be searched. It also found that no clear evidence had been provided to conclude that the accused had actually caused the damage complained of in the Pascoli School. 83. On the other hand, by judgment no. 1530/10 (see paragraph 59 above), the Genoa Court of Appeal found that there had been no mistake or misunderstanding behind the police storming of the Pascoli School. According to the Court of Appeal, the security forces had tried to destroy all film evidence of the storming of the neighbouring Diaz-Pertini School and had deliberately damaged the lawyers’ computers. It nevertheless decided to discontinue proceedings against the police officer charged because the impugned offences had become statute-barred. 84. By judgment no. 38085/12 (see paragraph 76 above) the Court of Cassation upheld that decision. It emphasised that the Court of Appeal had fully justified its conclusions by noting that the police had carried out an arbitrary search of the Pascoli School geared to seeking out and destroying audio-visual material and all other documentation concerning the events in the Diaz-Pertini School. 85. On 2 August 2001 the Presidents of the Chamber of Deputies and the Senate decided to order an inquiry (indagine conoscitiva) into the events during the Genoa G8 Summit by the Constitutional Affairs Committees of both chambers of Parliament. For that purpose it set up a commission comprising eighteen Deputes and eighteen Senators. 86. On 20 September 2001 the commission submitted a report setting out the conclusions of the majority of its members, entitled “Final Report of the Parliamentary Inquiry into the events during the Genoa G8 Summit”. According to the Report the search of the Diaz-Pertini School “could probably be seen as the most significant example of the organisational shortcomings and operational dysfunctions”. | 1 |
test | 001-173379 | ENG | RUS | COMMITTEE | 2,017 | CASE OF TSIBAKOV 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) | Branko Lubarda;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 and also raised other complaints under the provisions of the Convention. | 1 |
test | 001-155195 | ENG | ROU | COMMITTEE | 2,015 | CASE OF OPREA AND OTHERS v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Johannes Silvis;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 inadequate conditions of detention. In some of the applications, the applicants also raised complaints under other provisions of the Convention. | 1 |
test | 001-171091 | ENG | RUS | COMMITTEE | 2,017 | CASE OF LOBKOV AND RASSOLOV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 4. The first applicant was born in 1980 and lives in Sharya, the Kostroma Region. 5. The applicant was held in remand prison IZ-44/1 in Kostroma in the following cells: 6. The parties disagreed on the design capacity of the cells and the actual number of inmates. 7. The first applicant, relying on three hand-written statements from his co-detainees, submitted that Cell 49 had contained three two-tier bunk beds with metal sheets welded to beds on the upper and lower levels to create additional sleeping places. Cell 49 was used to accommodate between ten and twenty prisoners. Cell 43 contained two two-tier bunk beds and accommodated four prisoners. 8. The Government submitted that the number of prisoners in the cells had not exceeded the occupancy limit. Cell 29 had three sleeping places, Cell 49 four places and Cell 43 two places. They submitted selected pages from the prison registration log. All of these pages, except one dated 24 July 2009, indicate that Cell 49 was designed for four persons and accommodated as many prisoners. The number “4” appears to be written over a different number that was erased. The entry of 24 July 2009 indicated that Cell 49 was designed for ten persons and accommodated eight prisoners. Similarly, the entries in respect of Cell 29 show traces of erasures and alterations. Its design capacity is listed as two or three places and the actual population is always three prisoners. 9. The second applicant was born in 1958 and has been serving his term of imprisonment in Ivdel, the Sverdlovskiy Region. 10. Between 14 July 2009 and 4 July 2010 the second applicant was held in remand prison IZ-59/1 in the Perm Region. According to him, the facility was overcrowded. In particular, Cell 90 measuring 40 sq. m accommodated up to sixteen inmates. 11. According to the Government, the second applicant was held in cells 80, 90, 92, 98 and 103. The actual number of inmates detained in the cells did not exceed their designed capacity. Each inmate had more than 3 sq. m of personal space. Other conditions were satisfactory. The Government submitted selected pages from registration logs, some of which appears to contain erasures and alterations in the fields showing the number of inmates in Cell 90. On some pages the listed total number of inmates is ten less than the number produced by adding up the population of individual cells. | 1 |
test | 001-166488 | ENG | HRV | CHAMBER | 2,016 | CASE OF CINDRIĆ AND BEŠLIĆ v. CROATIA | 3 | No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 6. The applicants were born in 1973 and 1975 respectively and live in P. 7. The applicants lived with their parents in A, Croatia. In August 1991 the first applicant joined the Croatian Army and left his home, and in November 1991 the second applicant went to live in Germany. 8. In the second half of November 1991 the Yugoslav People’s Army, together with Serbian paramilitary forces, gained control of A, which thus became a part of the “Serbian Autonomous Region of Krajina” (hereinafter “the Krajina”). 9. On 6 January 1992 two unknown men took the applicants’ parents, S.C. and P.C., from their home in A. On 7 January 1992 the bodies of the applicants’ parents were driven by municipal employees in a truck to the front of their house. The applicants’ uncle was called and he gave the municipal employees clothes for the burial of the applicants’ parents. 10. On 7 January 1992 the A police carried out a search of a flat occupied by X in A and found an automatic gun, a hand gun and some bullets. 11. On 7 January 1992 the A police interviewed police officers R.B., M.S., D.J., V.K., M.T., D.K. and M.M. The police officers, apart from R.B., had been on duty at a checkpoint in R. Street in A between 7 p.m. on 6 January 1992 and 7 a.m. on 7 January 1992. 12. R.B. said that on 6 January 1992 at about 7 p.m. police officer X had asked him, R.B., as his hierarchical superior, for permission to take a short leave of absence. He, R.B., had granted the request. R.B. did not know when X had returned to duty at the police station, but thought that he had seen him between 11 p.m. and midnight that same evening. 13. M.S. said that at about 8 p.m. on 6 January 1992 a vehicle had approached the checkpoint and D.J. had stopped it. At that time he, M.S., had been in the barracks. D.J. and D.K. had entered and asked him if he knew a police officer with a birthmark on his face or a Volkswagen vehicle with the number 44 as the last digits on its registration plates, which he did not. At about 10 p.m. the same day, however, he stopped a Volkswagen vehicle which had 44 as the last two digits on its registration plates. The vehicle was driven by police officer X, who was known personally to M.S., D.J. and D.K. confirmed that it was the same vehicle which had passed from the opposite direction at about 8 p.m. 14. D.J. said that at about 8.10 p.m. on 6 January 1992 a vehicle of Volkswagen make had approached the checkpoint and that he had stopped it. The driver had been dressed in the uniform of the civil police. D.J.’s attention had been diverted by a vehicle which had come from the opposite direction and he had stopped it. At that moment the Volkswagen had suddenly started up and left in the direction of K. D.K. told him that he had not had the time to fully examine the vehicle but that he had seen that the driver and the person in the front passenger seat were dressed in the uniforms of the civil police. He had also seen two civilians in the back seat, a man and a woman. D.K. noted down the registration number of that vehicle. At about 11 p.m. the same day police officer M.S. stopped a vehicle which had arrived from the direction of K and asked the other police officers on duty whether it was the same vehicle they had stopped at about 8 p.m., which D.J. confirmed. The only occupants were the driver and the person in the front passenger seat. D.J. asked them who the other passengers had been and where they had taken them. The driver said that the passengers had been S.C. and P.C. and that they had left them in a village. 15. M.T. and D.K. confirmed the above events. 16. On 8 January 1992 the A police interviewed X and Y, two police officers. They both admitted that on 6 January 1992 they had taken S.C. and P.C. in X’s vehicle. On the outskirts of A the police had stopped them. However, the attention of the police had been diverted by another vehicle and X and Y had quickly driven away. They had taken S.C. and P.C. to the village of J. X said that there they had taken S.C. and P.C. out of the vehicle and started walking. He had been carrying an automatic gun and at one point S.C. had attempted to take it from him, resulting in a commotion in which the weapon had fired and killed S.C. After that Y had shot and killed P.C. Y said that X had killed S.C. when they had arrived in J and then forced him, Y, to kill P.C. 17. On 9 January 1992 the A police lodged a criminal complaint with the B public prosecutor against X and Y, alleging that on 6 January 1992 at 10.30 p.m. in J, a village near the town of A, they had killed S.C. and P.C. They had first driven the victims in X’s vehicle to J and taken them out of the vehicle. X had then killed S.C. with an automatic gun and Y had killed P.C. with a hand gun. 18. On 28 January 1992 the B County Court opened an investigation in respect of X and Y on suspicion of killing S.C. and P.C. 19. On 13 April 1992 an investigating judge of the B County Court commissioned a ballistics report. 20. In August 1995 the Croatian authorities regained control of the town of A. In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (“UNTAES”). On 15 January 1998 the UNTAES mandate came to an end and the transfer of power to the Croatian authorities began. 21. On 16 April 1996 the A police interviewed M.C., the brother of the late S.C., who told them that his brother and his brother’s wife had been killed on 6 January 1992. Their bodies had been given to him by the police of the “Serbian Autonomous Region of Krajina” and he had been allowed to bury them. 22. On 19 September 2000 the C police interviewed M.M., who said that on 6 January 1992 he had been on duty, together with M.B., at the entrance to village J. At about 9 p.m. he and M.M. had been walking towards a ramp by the barracks where all patrols had their meeting point and had heard a vehicle being driven, followed by several gun shots and then a vehicle starting up again. When they arrived at the meeting point they found Lj.Č., D.J. and M.P. there, who told them that “two fools [had] just brought two people in a car and killed them by the road.” None of the officers on patrol dared go to the crime scene. Soon they all went home. In the morning of 7 January 1992 the police from A came to M.M.’s house and took him to A police station, where they interviewed him and told him that X and his friend had killed S.C. and his wife. He had heard that X had moved to Bosnia and Herzegovina. 23. On 21 September 2000 the C police interviewed the applicants, who had learned from B.Ž., who lived with their parents during the relevant period, that X and Y had been charged with the killing of the applicants’ parents. 24. On 4 January 2001 an investigating judge of the C County Court (Županijski sud u C) ordered an investigation concerning X and Y, who were not available to the Croatian authorities, on suspicion of killing S.C. and P.C. An international arrest warrant was also issued against the suspects, who had absconded. 25. On 8 February 2002 the Ministry of the Interior asked the Ministry of Justice whether extradition proceedings would be instituted against the suspects. 26. On 14 January 2005 Interpol in Washington informed the Croatian authorities that the Department of Homeland Security in Cleveland, Ohio, had a valid location for Y. On 19 January 2005 the Ministry of the Interior informed the Ministry of Justice, asking the latter to institute proceedings for Y’s extradition. On 20 January 2004 the Ministry of Justice asked the C County Court for the relevant documents with a view to seeking Y’s extradition from the United States authorities. All the evidence from the case file was translated into English and on 11 January 2006 the Ministry of Justice sent a “request for [Y’s] temporary arrest” to the US Department of Justice through diplomatic channels. 27. On 10 January 2007 the Ministry of Foreign Affairs informed the Ministry of Justice that the US Department of Justice had requested some additional documents. On 10 May 2007 the C County Court sent the requested information and documents to the Ministry of Justice. 28. It appears that on 12 and 13 February 2008 the Croatian and US authorities held consultations in Zagreb in connection with the extradition of Y. 29. On 8 April 2008 the C County State Attorney’s Office again asked the Ministry of Justice to seek Y’s extradition. On 17 June 2008 the Ministry of Justice sent additional documents to the US Department of Justice in connection with Y’s extradition. 30. In April 2009 the US Department of Homeland Security asked the Croatian Ministry of Justice for legal assistance in connection with the criminal investigation pending against Y in the United States on charges of attempted procurement of United States citizenship by fraud, and fraud and misuse of visas, permits and other official documents. They asked for all documents related to any criminal offences Y might have committed. This request was forwarded to the State Attorney’s Office on 7 January 2013. 31. On 26 March 2014 the State Attorney’s Office forwarded the requested documents, translated into English, to the US Department of Homeland Security. 32. In 2002 the Ministry of Justice agreed that an international arrest warrant should be issued in respect of X. 33. On 2 January 2008 an investigating judge of the C County Court asked the competent court in Serbia to hear evidence from X in connection with the killing of S.C. and P.C. On 28 July 2008 the Serbian authorities asked for a certified translation of that request and all relevant documents into the Serbian language. 34. On 13 August 2008 the Croatian Ministry of Justice sent a note to the Serbian Ministry of Justice to the effect that, according to an agreement between the two States, each State party had the right to communicate in its own language and to submit documents in that language without the need for translations. 35. On 18 February 2009 the Serbian authorities heard evidence from X. He said that the criminal proceedings against him and Y for the murder of S.C. and P.C. had been instituted in 1992 in the B Municipal Court and that they had been acquitted. He also denied any involvement in the killing of S.C. and P.C. On 3 March 2009 his statement was forwarded to the Croatian authorities. 36. On 16 March 2006 the applicants brought a civil action against the State in the C Municipal Court (Općinski sud u C), seeking non-pecuniary damages in the amount of 500,000 Croatian kuna (HRK) each (about 65,500 euros (EUR)), in connection with the killing of their parents. They relied on sections 1 and 2 of the 2003 Liability Act. 37. On 9 March 2007 the C Municipal Court granted the applicants’ claim and awarded them each HRK 300,000 (about EUR 40,000), finding that the killing of the applicants’ parents had been an act of terror. This judgment was reversed by the C County Court on 3 December 2009. The applicants were also ordered to pay the State HRK 52,500 (about EUR 6,800) in costs, comprising the fees chargeable for the State’s representation by the State Attorney’s Office. The relevant part of that judgment reads as follows: “The plaintiffs in the first-instance proceedings based their claim for damages on the provisions of the 2003 Liability Act .... It is necessary to point to the content of section 3 of that Act, which provides that the obligation to compensate for damage exists irrespective of whether the person responsible has been identified, criminally prosecuted or found guilty. However, having regard to the correct establishment of the facts by the first-instance court, which found that the events at issue had occurred on 7 January 1992 in the village of J, in the then occupied territory of the Republic of Croatia which at that time was under the control of illegal formations of the “Serbian Republic of Krajina” and outside the control of the Republic of Croatia and its lawful bodies, the appellant’s submission that [the killing of the plaintiffs’ parents] ... amounted to war-related damage is well-founded. Section 2 of the Act on the Assessment of War-related Damage ... provides that war-related damage is damage caused by enemy or illegal groups, or legal bodies of the Republic of Croatia, as well as accomplices of these groups and bodies, where that damage occurred directly or indirectly at the time specified in section 1 of that Act (from 15 August 1990 until the end of hostilities and war operations conducted against the Republic of Croatia). Therefore, given the nature, place and time of the events at issue (the killing of innocent civilians in the occupied territory of the Republic of Croatia during the Homeland war), it is to be concluded that the events at issue are to be legally classified as war-related damage and that the appellant is not responsible for them or for the damage thus caused. ...” 38. This judgment was upheld by the Supreme Court on 19 June 2012. The court endorsed the County Court’s finding that the killing of the applicants’ parents amounted to war-related damage and added, in so far as relevant, the following: “Even though the act giving rise to the plaintiffs’ claim for damages presents certain similarities with a terrorist act since [both] imply [an act of] violence, the act of damage [in the present case] differs significantly from terrorist acts in its features since it contains additional elements and amounts to war-related damage for which the defendant is not liable. This is because the damage did not occur in the territory under the de facto sovereignty of the Republic of Croatia but in the then occupied territory, where there was no possibility for lawful action by the bodies of the Republic of Croatia; this circumstance excludes the otherwise objective liability of the defendant. Furthermore, the act of damage in the present case was not carried out with the sole aim of seriously disturbing public order (this being the aim characteristic of an act of terror) but also involved the use of force, killing and expulsion of the civilian population on that territory with the aim of destroying the internal security and stability of the Republic of Croatia and preventing its lawful bodies from functioning. ...” 39. On 1 February 2013 the applicants lodged a constitutional complaint. They argued, inter alia, that in a number of its previous judgments the Supreme Court had recognised the plaintiffs’ right to compensation for damage caused by death during the Homeland War in Croatia, and cited seven judgments of that court adopted between 2006 and 2010 (see paragraph 52 below). The constitutional complaint was dismissed on 9 May 2013. | 1 |
test | 001-171500 | ENG | UKR | CHAMBER | 2,017 | CASE OF PALCHIK v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);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);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);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Síofra O’Leary;Yonko Grozev | 4. The applicant was born in 1954 and is currently residing in Kostyantynivka. Before his arrest the applicant was the managing director of a private company, A. 5. A. concluded a contract with E., a Russian company, undertaking to export a certain amount of ferromanganese to Russia. 6. During the period from March 2000 to April 2001 the applicant, in his capacity as the director of A., concluded contracts with four Ukrainian companies, F., T., M. and Sh. (“the seller companies”) According to those contracts A. would buy the goods from the companies and pay them sums which included value added tax (VAT). 7. On a number of occasions between March 2000 and April 2001 A. exported ferromanganese to Russia, delivered it to E. and received payment for it. Subsequently, A. claimed and, in April 2002, received from the Ukrainian authorities a refund of the VAT mentioned in the contracts with the seller companies. 8. In 2002 criminal proceedings were instituted against the applicant. According to the investigating authorities, the contracts which A. had concluded with the four seller companies were fictitious and had been concluded for the sole purpose of obtaining export VAT refunds. In fact those companies had not sold ferromanganese to A. Instead, the applicant and his co-defendants had bought the ferromanganese from private persons, without concluding any contracts with them and without paying VAT on those transactions. The applicant had then forged certificates of quality and fraudulently obtained certificates of origin for the goods. Using all the above documents, A. had exported the goods to Russia. He had then obtained or applied for VAT refunds based on the fictitious documents. 9. The applicant stated that the contracts had not been fictitious and the certificates had not been forged. A. had legally bought ferromanganese from the private companies, exported it to Russia and received tax refunds. 10. During the pre-trial investigation, the investigating authorities questioned managers of the four seller companies and the owner of a lorry which had been used for transporting the goods. They made certain statements the domestic courts subsequently found to be incriminating. In particular, managers of the four seller companies said that the contracts had been either forged or fictitious and that no actual shipments of the goods had taken place. Some of the managers repeated those statements in the course of confrontations with the applicant conducted in the course of the pre-trial investigation. Detailed information about the statements of the witnesses and confrontations can be found in the Table set out in paragraph 17 below. 11. On an unspecified date the investigation was completed and the case was referred to the Kostyantynivka Court for trial. 12. On at least five occasions between 28 November 2003 and 27 August 2004 the court ordered the Donetsk regional police to bring the witnesses listed in the Table below to court hearings, but the police failed to do so for various reasons. 13. On 27 August 2004 the police informed the court, in response to its latest order to bring the witnesses to court, that S., K. and R. (see Elements 1-3 in the Table below) were away from Donetsk on holiday. 14. At the court hearing held on the same day the prosecutor, in the light of the above-mentioned information from the police, asked the court to read out the pre-trial statements of the witnesses who had failed to appear, including all those listed in the Table below. The defence did not object and the statements were read out. The court then proceeded to examine the documents in the file. 15. On 29 September 2004 the applicant’s lawyer requested the court to summon S., K. and R. again (see Elements 1-3 in the Table below), because the examination of documents had revealed inconsistencies in their pre-trial statements and because the reasons for their failure to appear had not been established. The trial court refused the request on the grounds that the statements of those witnesses had already been read out at the trial. 16. On 24 December 2004 the court found the applicant guilty of smuggling (export of ferromanganese based on forged documents), misappropriation accompanied by abuse of office (receipt of tax refunds on the basis of fictitious and forged documents), abuse of office, and forgery of documents. For the charge of misappropriation accompanied by abuse of office the applicant was sentenced under the Criminal Code of 2001 to seven years and six months’ imprisonment with a ban on holding managerial positions for two years. He was also sentenced to various other more lenient punishments under the Criminal Code of 2001, but the court held that the most severe of the applicant’s punishments absorbed the more lenient ones. The final sentence was thus seven years and six months of imprisonment with a ban on holding managerial positions for two years. 17. In convicting the applicant the court relied, in particular, on the statements of a number of witnesses given during the pre-trial investigation, as shown in the below Table: Table. Witness evidence 18. The trial court also relied on certain inconsistencies between the official records of the applicant’s company and the shadow accounting records discovered by the authorities. 19. The applicant and his lawyer appealed. They stated, inter alia, that the trial court had relied on the evidence of witnesses who had not been examined at the trial and that he should have been tried for smuggling under the Criminal Code of 1960. 20. On 4 March 2005 the Donetsk Regional Court of Appeal held that the applicant should be deemed to have been convicted for smuggling under the Criminal Code of 1960 instead of the Criminal Code of 2001. Otherwise, the Court of Appeal upheld the findings of the first-instance court and the applicant’s sentence. 21. According to the applicant, the appellate court did not give him a copy of the decision of 4 March 2005, despite his numerous requests. 22. In March 2005 the applicant’s lawyer appealed on points of law to the Supreme Court against the decisions of 24 December 2004 and 4 March 2005 and enclosed copies of those decisions with her appeal. In May, June and August 2005 the applicant lodged his own appeals with the Supreme Court, stating, inter alia, that the trial court had relied on evidence of witnesses who had not been examined at the trial. The applicant also stated that he should have been tried for misappropriation, abuse of office and forgery under the Criminal Code of 1960, rather than the Code of 2001, but did not provide any details. 23. On 6 September 2005 the Supreme Court heard the case in the presence of the prosecutor but in the absence of the applicant and his lawyer, who were not informed of the date and time of the hearing. The Supreme Court dismissed the appeals lodged by the applicant and his lawyer, stating that the lower courts’ findings had been based on a substantial amount of evidence, in particular the statements of the directors of the seller companies made at the investigation stage. 24. On 15 May 2009 the applicant was released from detention following a presidential pardon. | 1 |
test | 001-167798 | ENG | RUS | COMMITTEE | 2,016 | CASE OF IVANNIKOV v. RUSSIA | 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) | Alena Poláčková;Helen Keller;Pere Pastor Vilanova | 4. The applicant was born in 1985 and lives in the Tula Region. 5. In the late evening of 28 October 2005 the applicant paid a visit to his friend Ch. who worked as a guard at a parking lot. On 29 October 2005 at 3 a.m. Ch., while making a round of the parking lot, discovered N. who was severely beaten up and was lying on the ground. Ch. called the police and the ambulance. The ambulance doctor K., when arrived, pronounced N. dead. 6. On 2 November 2005 the prosecutor’s office opened an investigation into N.’s death. On several occasions it was suspended due to the investigator’s failure to identify the perpetrator. Both the applicant and Ch. were questioned as witnesses. 7. On 29 June 2006 the investigator questioned Kuv. who submitted that in December 2005 Ch. had told him about the events of 28-29 October 2006 implicating the applicant in N.’s death. According to Kuv., the applicant’s family had put pressure on him in order to make him recant. He was then granted anonymity and referred to in the case-files materials as S.N. 8. On 25 July 2006 the prosecutor questioned Ch. granting him anonymity. According to Ch., on 29 October 2005 N. showed up at the guard’s shack. He wanted to take a shortcut through the parking lot. Ch. refused to open the gate. The applicant swore at N. saying that he would show N. the way out and would beat him up. The applicant left together with N. Then he returned and told Ch. that he had beaten N. on the stairs and that N. had fallen down. According to the applicant, he had overdone with the beatings. Ch. went to look at N. who was still alive. It took Ch. some time to call the ambulance. The applicant asked him to keep the incident secret. 9. On the same day the applicant was arrested on suspicion of manslaughter. He remained in custody pending investigation. On an unspecified date he was charged with murder 10. On 31 August 2006 the Proletarskiy District Court of Tula opened the trial. The applicant pleaded not guilty. The trial judge questioned the applicant’s mother S. who submitted that Ch. had told her that policemen had threatened him to make him testify against the applicant. Ch.’s anonymity was lifted and he also testified in court. He confirmed that he had falsely accused the applicant due to the pressure put on him by policemen. 11. On 11 September 2006 the prosecutor asked the court to question S.N. in the conditions excluding visual observation of the witness to the parties to the proceedings. He further explained that the decision to grant anonymity to the said witness had been taken in the course of the preliminary investigation of the case in order to ensure his safety and security of person. The trial judge left the courtroom and questioned S.N. in the presence of the trial secretary in a separate room. S.N. reiterated his earlier statement made to the police which was similar with Ch.’s testimony. Then the judge and the secretary returned to the courtroom where the judge read out S.N.’s testimony. The prosecutor, the applicant and his lawyer were allowed to put questions to the witness through the trial secretary. In response to the questions put by the applicant’s lawyer, S.N. explained he had fear of the applicant’s relatives who put pressure on him. 12. On 29 September 2006 the court heard I., a friend of the applicant and Ch. She submitted that she had been in the guard’s shack with Ch. on 28 October 2005. When N. had showed up, the applicant had not been there yet. 13. The trial judge also heard, upon the applicant’s request, L. and Naz., the applicant’s relatives, and D., Ch.’s mother, who claimed that Ch. had told them about the police putting pressure on him. 14. The other witnesses who testified during the trial were (1) R., Sv. and Z., who had seen N. on 28 October 2005 and confirmed that he had been in an inebriated state on that day, (2) K., the ambulance doctor who had pronounced N. dead and (3) police officer Yu., who had questioned Ch. in the course of investigation. The court also reviewed the crime scene investigation report and the forensic medical report which indicated that N.’s death resulted from a cranio-cerebral injury. 15. On 31 January 2007 the District Court found the applicant guilty of manslaughter and sentenced him to six years’ imprisonment. The court based its findings on Ch.’s testimony given by him as an anonymous witness in the course of the investigation. As regards Ch.’s testimony during the trial, the court considered it unreliable, in view of Ch.’s friendship with the applicant. The court took also into account the fact that the inquiry conducted by the prosecutor’s office in this connection found no case to answer against the policemen who had allegedly put pressure on Ch. It further relied on N.S.’s testimony. The court did not consider D., I., L., Naz. and S. as credible witnesses due to them being the applicant’s relatives or friends. 16. On 30 May 2007 the Tula Regional Court upheld the applicant’s conviction on appeal. | 0 |
test | 001-179844 | ENG | RUS | COMMITTEE | 2,018 | CASE OF LEVIN AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Article 5-4 - Speediness of review) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-181821 | ENG | HRV | GRANDCHAMBER | 2,018 | CASE OF ZUBAC v. CROATIA | 2 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Alena Poláčková;Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Georgios A. Serghides;Guido Raimondi;Helena Jäderblom;Jon Fridrik Kjølbro;Julia Laffranque;Linos-Alexandre Sicilianos;Luis López Guerra;Nona Tsotsoria;Paul Lemmens;Síofra O’Leary;Georges Ravarani;Ksenija Turković | 9. The applicant was born in 1959 and lives in Bijela (Montenegro). 10. On 29 September 1992, the applicant’s father-in-law, Vu.Z., represented by his wife K.Z., concluded a contract with F.O. and H.A. for the exchange of his house in Dubrovnik for a house in Trebinje (Bosnia and Herzegovina). 11. Vu.Z. died on an unknown date between 2001 and 2002. 12. On 14 August 2002 the applicant’s husband M.Z., who was a son of Vu.Z., represented by a certain M.Č. from Herceg Novi (Montenegro), brought a civil action in the Dubrovnik Municipal Court (Općinski sud u Dubrovniku) against F.O.’s heirs and H.A., seeking to have the contract for the exchange of the houses declared null and void and to obtain the possession of the house in Dubrovnik. M.Č. was a practising lawyer in Montenegro. 13. M.Z. claimed that the contract had contained incorrect information with regard to the legal status of the house in Trebinje and that K.Z. had not had the necessary authorisation to sign such a contract. He further alleged that the contract had been signed under duress because of circumstances arising from the war in Croatia. He also submitted that the difference in the values of the properties exchanged had been disproportionate in that the house in Dubrovnik was worth about 250,000-300,000 euros (EUR) and the house in Trebinje some EUR 80,000-90,000. Lastly, he stressed that it had been impossible for him to regularise his ownership of the house in Trebinje due to the irregularities in the contract. 14. In his action, M.Z. indicated the value of the subject matter of the dispute (vrijednost predmeta spora) at 10,000 Croatian kunas (HRK) (approximately EUR 1,300 at the time). 15. On 16 August 2002 the Dubrovnik Municipal Court (hereafter: “the Municipal Court”) invited M.Z. to clarify the circumstances relating to his legal representation, in particular by providing a valid power of attorney, and to provide some further documents concerning his claim. 16. A first hearing in the case was held on 3 March 2003. At that hearing, the Dubrovnik Municipal Court instructed M.Z. to provide documents attesting to his standing as heir of Vu.Z. 17. Further to this hearing, the parties exchanged pleadings and documentary evidence requested by the Municipal Court. 18. At a hearing on 13 December 2004 the respondents insisted that the issue of M.Z.’s representation by M.Č. needed to be clarified. The latter stated that he would no longer represent M.Z., who would instruct a lawyer in Croatia to represent him. 19. A further hearing was held on 1 February 2005. M.Z. was represented by I.B., a lawyer practising in Dubrovnik (who is also representing the applicant in the current proceedings before the Court). At the hearing, the lawyer I.B. corrected some clerical omissions in the civil action and reiterated the arguments for declaring the contract null and void as set forth in the civil action, namely that the contract had been signed under duress, that the legal status and ownership of the house in Trebinje had not been properly stated and that there had been a disproportionate difference in the value of the properties. In reply to a question by the trial judge concerning the validity of the power of attorney issued by Vu.Z. to his wife K.Z. (see paragraphs 10 and 13 above), I.B. stressed that he did not consider that power of attorney to be invalid as an original had been deposited in the relevant register. The respondents challenged the arguments advanced on behalf of M.Z. on the basis that there were no grounds for declaring the contract null and void. 20. At a hearing on 6 April 2005 the lawyer I.B. explained that following the termination of the hearing he would no longer represent M.Z., who would in future be represented by the applicant (his wife). At the same hearing, I.B. submitted two documents. In the first he requested that the validity of the power of attorney issued by Vu.Z. to his wife K.Z. (see paragraphs 10, 13 and 19 above) be examined on the grounds that there were doubts as to its authenticity. In the same document he asked that a preliminary measure (injunction) be issued preventing any disposal of the property in dispute. In the second document he explained that the value of the subject matter of the dispute had been set too low, and indicated the new value of the subject matter of the dispute at HRK 105,000 (approximately EUR 14,160 at the time). 21. At the same hearing, the respondents contested the suggestion that there was any issue with the validity of the power of attorney, pointing out that at a hearing held on 1 February 2005 I.B. had not challenged that validity. The respondents also opposed the request for an injunction. Finally, they objected to the change of the value of the subject matter of the dispute, arguing that it had been increased only in order to enable the claimant to lodge an appeal on points of law. 22. After hearing the parties’ pleas, the Municipal Court questioned the respondents as witnesses. Following their questioning, at M.Z.’s request the Dubrovnik Municipal Court adjourned the hearing in order to obtain the original of the impugned power of attorney and reserved its decision on the request for an injunction. No decision was adopted with regard to the change of the value of the subject matter of the dispute. 23. On 25 April 2005 the Municipal Court ordered M.Z. to pay court fees of HRK 1,400 (approximately EUR 190 at the time) for bringing the civil action. It assessed the fees by reference to a value of the dispute set at HRK 105,000. 24. At a hearing on 13 September 2005 the Municipal Court examined the materials available in the file, following which it concluded the hearing. 25. By a judgment of 27 September 2005 the Municipal Court dismissed M.Z.’s claim and the request for an injunction. It found that despite repeated attempts to summon M.Z. to the hearing, he had failed to appear without providing any valid reasons. Also, in the light of the parties’ arguments, including on the issues regarding the power of attorney on the basis of which the contract had been concluded, it found no grounds to doubt the validity of the contract. The Municipal Court ordered that M.Z. was to bear all the litigation costs, including the expenses of the opposing parties, in the amount of HRK 25,931.10 (approximately EUR 3,480 at the time). It assessed the costs of the proceedings by reference to the value of the subject matter of the dispute indicated at the hearing on 6 April 2005, namely HRK 105,000. The relevant part of the judgment reads as follows: “... [T]he costs of the proceedings were awarded to the respondents [and assessed] according to ... the value of the dispute indicated by the claimant (HRK 105,000 (page 58 [of the case-file]) which this court accepted.” 26. On 12 December 2005 the first-instance court ordered M.Z. to pay court fees of HRK 1,400 for the judgment. It also assessed these fees by reference to a value of HRK 105,000 for the dispute. 27. By judgment of 1 October 2009 the Dubrovnik County Court (Županijski sud u Dubrovniku; hereafter: “the County Court”) dismissed an appeal by M.Z. and upheld the first-instance judgment. The relevant part of that judgment reads as follows: “In view of the fact that the [first-instance judgment] is challenged in its entirety, thus including also the decision on the costs of the proceedings, and although the appeal is not specified in that respect, [it is to be noted that] the decision on the costs of the proceedings is based on the relevant law and adequate reasons are provided.” 28. On 24 May 2010 M.Z. lodged an appeal on points of law (revizija) with the Supreme Court challenging the findings of the lower courts. 29. On 7 October 2010 M.Z. died. The proceedings were taken over by his wife Vesna Zubac, the applicant, as his heir. 30. By a decision of 30 March 2011 the Supreme Court declared the appeal on points of law inadmissible ratione valoris, finding that the value of the subject matter of the dispute was below the statutory threshold of HRK 100,000 (approximately EUR 13,500 at the time). It held that the applicable value of the subject matter of the dispute was that set out in the claimant’s statement of claim in the civil action. The relevant part of that decision reads as follows: “With regard to section 40 (3) of the Civil Procedure Act if, in a situation referred to in subsection 2, it is obvious that the value of the subject matter of the dispute indicated by the claimant is too high or too low, so that an issue arises concerning jurisdiction over the subject matter, the composition of the court, the type of proceedings, the right to lodge an appeal on points of law, the authorisation for representation or the costs of proceedings, the court shall, ex officio or upon the objection of the respondent, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the first session of the main hearing before the respondent has begun litigation on the merits of the case, quickly and in an appropriate manner verify the accuracy of the value specified and, by a decision against which no separate appeal is allowed, determine the value of the subject matter of the dispute. It follows that when an action does not concern a sum of money the claimant is obliged to indicate the relevant value of the subject matter of the dispute in the civil action, after which the claimant is not allowed to change the [indicated] value of the dispute. Only a court may set the value of the subject matter of the dispute, ex officio or if an objection is raised by the respondent, if it establishes that the value indicated in the civil action is too high or too low, by the latest at the preparatory hearing or, if no preparatory hearing has been held, at the main hearing before the examination of the merits. In the present case the value of the subject matter of the dispute indicated in the statement of claim is 10,000 Croatian kunas. Later on, at the hearing of 6 April 2005, the claimant’s representative indicated the value of the subject matter of the dispute at 105,000 Croatian kunas considering that it had been indicated too low in the civil action. However, the claimant did not amend the claim at the same time. The first-instance court did not adopt a decision on a new value for the dispute because the procedural requirements under section 40 (3) of the CPA [Civil Procedure Act] were not met. It follows that the relevant value of the subject matter of the dispute is the one indicated by the claimant in the civil action, namely 10,000 Croatian kunas, because the claimant was not allowed to change the indicated value if he did not amend his claim at the same time.” 31. By a decision of 10 November 2011 the Constitutional Court summarily declared a constitutional complaint by the applicant, complaining, inter alia, of a lack of access to the Supreme Court, inadmissible on the grounds that the case raised no constitutional issues. On 30 November 2011 it served its decision on the applicant’s representative. | 0 |
test | 001-182865 | ENG | RUS | COMMITTEE | 2,018 | CASE OF LIPAYEV v. RUSSIA | 4 | No violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Alena Poláčková;Dmitry Dedov | 4. The applicant was born in 1975 and was detained in Vladivostok at the relevant time. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 18 April 2016 the applicant was arrested on charges of fraud. Four days later the Pervorechensky District Court of Vladivostok authorised his pre-trial detention. The detention was further extended on 15 June and 14 September 2016. 7. On 25 April, 20 June and 16 September 2016 the applicant appealed against the detention orders of 22 April, 15 June and 14 September 2016. The Primorye Regional Court dismissed the appeals on 1 June, 5 July and 25 October 2016, respectively. | 1 |
test | 001-181602 | ENG | HRV | COMMITTEE | 2,018 | CASE OF GREGURIĆ v. CROATIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Kristina Pardalos;Pauliine Koskelo;Ksenija Turković | 4. The applicant lives in Kutina. 5. From 1 January 2001 the applicant concluded several consecutive fixed-duration contracts of employment with the company C.N.S. Ltd. concerning the same post. The contracts were for a continuous period which in total amounted to over seven years and seven months. 6. On 5 June 2009 the applicant’s employer returned the applicant’s employment registration book to him, without any written or oral notification, showing that his employment had been terminated. 7. On 20 July 2009 the applicant brought a civil action before the Ivanić Grad Municipal Court (Općinski sud u Ivanić Gradu). He asked it to recognise that he had concluded an open-ended contract of employment, given that he had been in continuous employment with his employer for over three years, which was the time-limit for fixed-term employment contracts under the Labour Act. He also asked the Municipal Court to establish that his employment had not been terminated and to order his reinstatement. 8. On 22 January 2010 the Ivanić Grad Municipal Court dismissed the applicant’s claim as time-barred. 9. Upon an appeal by the applicant, on 16 February 2011 the Velika Gorica County Court (Županijski sud u Velikoj Gorici) quashed the firstinstance decision and remitted the case for fresh consideration. It held that the first-instance court should have declared the applicant’s claims inadmissible as time-barred, without examining it on the merits. 10. In the fresh proceedings, the Ivanić Grad Municipal Court on 6 May 2011 declared the applicant’s action inadmissible as having been lodged outside the prescribed time-limit. The first-instance court, relying on section 133 of the Labour Act, held that the applicant and his employer had concluded a fixed-term contract lasting until 31 May 2009 and that the applicant must have known that his contract would end on that day. He had not concluded a new contract of employment with his employer and he had therefore been obliged to lodge an application for the protection of his rights with his employer within the fifteen-day time-limit, starting from 1 June 2009. However, he had failed to do so and consequently his claim had been lodged out of time. Rejecting the applicant’s argument, the firstinstance court also held that the defendant company had not been obliged to adopt a formal decision on terminating his employment or to send him any other kind of notification, given that he must have known that his contract would come to an end on 31 May 2009. 11. On 12 May 2011 the applicant lodged an appeal with the Velika Gorica County Court. 12. On 26 July 2011 the Velika Gorica County Court upheld the firstinstance decision. 13. On 14 November 2011 the applicant lodged an appeal on points of law (revizija) with the Supreme Court (Vrhovni sud Republike Hrvatske), which was dismissed as ill-founded on 25 September 2012. The Supreme Court also held that the applicant had failed to seek the protection of his rights in respect of his employer within the deadlines prescribed by section 133 of the Labour Act. Accordingly, his claim had been lodged out of time. 14. On 14 March 2013 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske). He complained that the courts had wrongly declared his claim inadmissible because it had been of a declaratory nature and as such had not been subject to deadlines. He relied on a decision by the Velika Gorica County Court of 16 January 2013 in the case of a colleague of his, who for the same reasons as the applicant had also sought to have the court recognise that he had concluded an open-ended contract of employment. In that decision the Velika Gorica County Court, in accordance with instructions given in the Supreme Court’s decision no. Revr-1697/11 of 6 June 2012, had dismissed the defendant’s (the employer’s) objection that the claim was time-barred. Namely, the Supreme Court had held that the claim had been of a declaratory nature and as such was not subject to deadlines. 15. On 6 May 2013 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. | 1 |
test | 001-154728 | ENG | SVN | CHAMBER | 2,015 | CASE OF Y. v. SLOVENIA | 1 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Stefan Trechsel | 5. The applicant was born in Ukraine in 1987 and arrived in Slovenia in 2000 with her sister and mother, who had married a Slovenian. 6. Between July and December 2001, at the age of 14, she was allegedly repeatedly sexually assaulted by a family friend, X, 55 years old at the time, who together with his wife often took care of her and helped her in preparations for beauty contests. 7. In July 2002 the applicant told her mother about the alleged sexual assaults by X, but was unwilling to talk about them with anyone else. 8. On 15 July 2002 a priest gave a statement to the Maribor police, in which he said that the applicant’s mother had told him about her concern that the applicant had been raped by X. 9. On 16 July 2002 the applicant’s mother lodged a criminal complaint against X, in which she alleged that X had forced the applicant to engage in sexual intercourse with him on several occasions. 10. On 17 July 2002 the applicant was questioned by Maribor police officers and described how X had forced her to engage in various sexual activities. As regards the time frame of the assaults, the applicant stated that X had first attempted to kiss her before July 2001, when she had started modelling for fashion shows. She proceeded to give an account of a number of occasions when X had sexually assaulted her. On one occasion X had lain on top of her while she was sleeping at his house and had attempted to have sexual intercourse with her, spreading her legs with one hand and putting his other hand over her mouth to prevent her from screaming, but he was interrupted by his younger son coming up the stairs. On another occasion, when they were at a swimming pool, he had groped her in the water. On yet another occasion X had allegedly taken the applicant to an abandoned workshop owned by his family and performed oral sex on her. Moreover, according to the applicant, X had forced her to perform oral sex on him at least three times, once at his home, once at his company’s garage, and the third time in his van, which he had parked in woods near the town. On that last occasion the applicant had allegedly tried to escape; however, being unfamiliar with the surroundings, she had come back to the van. The applicant stated that X had on several occasions attempted to have intercourse with her, but that she had not been certain whether he had managed to achieve penetration. She further stated that she had tried to defend herself by crying and pushing X away, but without success. 11. The applicant was also examined by an expert in gynaecology, who found that her hymen was intact. Moreover, in the course of July and August 2002 the police questioned X, who denied any sexual relations with the applicant, and three other people. 12. Following a series of unsuccessful attempts to obtain specific information from the police as regards the progress of the investigation, the applicant’s mother complained to the Maribor District State Prosecutor’s Office (hereinafter “the State Prosecutor’s Office”). 13. On 27 June 2003 the State Prosecutor’s Office sent a letter to the Maribor police, urgently requesting a copy of the criminal complaint lodged against X. 14. On 18 August 2003 the police sent a report to the State Prosecutor’s Office stating that the applicant had failed to provide a detailed account of her allegations or to indicate the locations where the alleged rapes had taken place. The police noted that the applicant had given the impression of being under severe psychological stress and in fear of her mother’s reaction. They concluded that it was impossible to confirm her allegation of rape, and equally impossible to establish the reasons for her serious emotional distress. 15. On 28 August 2003 the State Prosecutor’s Office lodged a request for a judicial investigation in respect of X based on charges of sexual assault on a minor below the age of fifteen. The request alleged that X had forced the applicant to engage in oral sex and had had sexual intercourse with her on at least three occasions, despite her refusal and attempted resistance. 16. On 7 January 2005 X was summoned to appear before the investigating judge of the Maribor District Court. He refused to give an oral statement. On 10 March 2005 X, represented by a lawyer, submitted a written statement in which he denied the charges. He also submitted a medical report which indicated that his left arm had been disabled since birth. 17. On 26 May 2005 the investigating judge issued a decision to open a criminal investigation in respect of X. An appeal by X against this decision was rejected by the pre-trial panel of the Maribor District Court. 18. On 17 October 2005 the applicant was examined as a witness before the Ljubljana District Court, which had been asked to carry out the witness examination because the applicant lived in the area. The examination resumed on 8 November 2005. Neither X nor his counsel was informed of this examination. The applicant testified in detail as to when, where and how the alleged offences had taken place. She first described the assault which had occurred in X’s house, while she had been sleeping there, reiterating that X had been disturbed by his son. According to the applicant’s statement, the second assault had occurred when, instead of driving the applicant home, X had parked in the woods and started to kiss her forcefully. X had then undressed the applicant, parted her legs with one hand and held her wrists with the other and again attempted to have intercourse with her, but there had been no penetration. The applicant further recounted that X had on another occasion taken her to the family’s abandoned workshop and had performed oral sex on her. She stated that she had attempted to free herself of his grip, but that X had again pinned her wrists down and also slapped her across the face. Again, vaginal intercourse had been attempted but had not actually occurred. X had ordered her not to talk to anyone about this, or he would have her and her family deported from Slovenia. The applicant added that she remembered these three occasions well and the events had occurred just as she described them, and that there had been a number of other similar incidents between July and December 2001. 19. On 13 and 20 December 2005 X’s wife and another witness were examined by the investigating judge of the Maribor District Court. 20. On 13 January 2006 the Koper District Court, at the request of the Maribor District Court, examined witness D., who testified that the applicant had told her of the alleged rape. 21. On 14 April 2006 the investigating judge examined witness H., who was an employee of the company owned by X and his wife. H. testified that she had not seen X behaving improperly towards the applicant on the company’s premises. 22. On 16 May 2006 the investigating judge appointed an expert in gynaecology, B., in order to establish the probability that the applicant had engaged in sexual intercourse in the period between July and December 2001. The latter carried out a consultation with the applicant, who refused a clinical examination. She told B., among other things, that despite the attempts made by X there had been no actual sexual penetration. During the consultation, B. confronted the applicant with an orthopaedics report stating that X could not have used his left arm in the ways described by her, to which the applicant answered that she had seen X use it to lift heavy items. B. also presented the applicant with the police report stating that she had not been able to give a detailed account of the sexual assaults and specific locations, and asked her why she had not defended herself against X, for instance by scratching or biting. The applicant replied that she had not defended herself and had been unable to do so. On 19 June 2006 the expert prepared his report, which was based on the evidence in the file, including a gynaecological report from 2002 which showed that the applicant’s hymen was intact at that time, and the conversation with the applicant. He found that there was nothing to indicate with certainty that the applicant had had sexual intercourse with X at the material time. In addition to his medical opinion, the expert commented that there were certain inconsistencies in the applicant’s account of the events in issue. It can be seen from the report that neither of the alleged inconsistencies was related to any medical issue. 23. On 20 June 2006 the investigating judge appointed an expert in clinical psychology, R. The latter, after holding a consultation with the applicant, submitted her report on 4 July 2006, and concluded as follows: “Since 2001 Y. has shown all the symptoms of a victim of sexual and other kinds of abuse (emotional, behavioural and physical symptoms) ... In addition to the emotional consequences, the girl shows very typical behavioural patterns relating to the abuse experienced by her, and also some physical symptoms (disturbed sleep, nightmares, collapsing). The symptoms are indicated in the report ... The gravity of the consequences – physical and sexual in particular – is difficult to assess at the present time. But, like the short-term ones, the long-term consequences can be predicted. Their real extent will become apparent at key stages of the girl’s life and in stressful situations ... Because of these effects, which are most serious in her psychological sphere ... it is of very marginal importance whether during the perpetrator’s violent behaviour the child victim experienced hymen defloration or not ... Sexual behavioural patterns can only be assessed properly by an expert in clinical psychology ...” 24. On 15 September 2006 the Maribor district prosecutor’s office indicted X for sexual assault of a child below the age of fifteen under Article 183 §§ 1 and 2 of the Criminal Code. An objection by X to the indictment was rejected by the pre-trial panel of the Maribor District Court on 20 October 2006. 25. The Maribor District Court scheduled a hearing for 27 June 2007. However, the hearing was adjourned at X’s request on the basis of a document which showed that he was now on sick leave for several weeks. 26. A hearing was then scheduled for 3 October 2007, but adjourned at X’s counsel’s request. The next hearing was to be held on 12 November 2007. However, owing to the absence of a jury member, the hearing was adjourned. Subsequently, X informed the court that he was about to go on a business trip, for which reason the next hearing was postponed until 16 January 2008. 27. On 16 January 2008 X failed to appear before the court. On 17 January 2008 he submitted a sick-leave certificate. 28. On 25 January 2008 X’s counsel informed the court that X had revoked his power of attorney and that he would be represented by another lawyer, M., from then on. However, the court received no new power of attorney authorising M. to act as X’s counsel. Since X was accused of a criminal offence requiring mandatory representation, on 28 January 2008 the court appointed M. as counsel for X . 29. On 14 March 2008 the court held a hearing, from which the public was excluded on the grounds of protection of privacy and public morals. The court heard evidence from X. At the hearing the applicant’s counsel sought to have M., X’s counsel, disqualified on the ground that in 2001 the applicant and her mother had sought advice from him on the matters in issue. Furthermore, the applicant’s mother had been intimately involved with him. M. denied that he had ever seen the applicant or her mother and said that he only knew that the lawyer at whose firm he had been working at that time had represented the applicant’s mother’s estranged husband in divorce proceedings. The panel dismissed the application, ruling that no statutory grounds existed for disqualifying M. as counsel. 30. On 14 March 2008 X submitted written pleadings, claiming that he would have been unable to use physical force on the applicant, as his left arm had been seriously disabled since birth and was 15 cm shorter than his right arm. X alleged that he had practically no use of his disabled arm. Moreover, he asserted that he and his family had been helping the applicant and her sister to integrate into their new community and learn Slovene, while their mother had been busying herself with her private activities. According to X, the charges of sexual assault were prompted by the applicant’s mother, who wished to extort money from him. 31. On 14 April 2008 the court held a second hearing in the case. X was questioned by the State prosecutor, mostly about the use of his left arm, and in this connection conceded that, although he usually drove automatic cars, he did occasionally drive a smaller manual transmission car. However, when asked whether he had ever driven a truck, X replied that this had no bearing on the case, acknowledging nevertheless that he had a licence to drive all categories of road vehicles. Then the applicant was summoned to testify, the court granting her request for X to be absent from the hearing room. While recounting the instances of sexual abuse by X, the applicant cried repeatedly and the hearing was adjourned for a few minutes on that account. X’s counsel M. then questioned the applicant, asking her how tall she had been and how much she had weighed at the material time. The applicant became very agitated and asked M. why, having been the first to hear her story, he was asking those questions and was now acting as X’s counsel. M. commented that this was part of the tactics. The hearing was then adjourned owing to the applicant’s distress. 32. On 9 May 2008 the court held a third hearing. The questioning of the applicant continued in the absence of X. When asked how she felt about the situation with hindsight, she cried and said that no one had helped her and that the proceedings had been dragging on for several years, during which she had had to keep reliving the trauma. 33. On 27 August 2008 the applicant lodged a supervisory appeal under the Protection of the Right to a Hearing without Undue Delay Act of 2006 (hereinafter “the 2006 Act”) with a view to accelerating the proceedings. 34. On 26 September 2008 the court held a fourth hearing, from which the public was excluded, at which X personally asked the applicant over a hundred questions, starting with a comment in the form of a question “Is it true that you have told and showed me that you could cry on cue and then everybody would believe you?” It does not appear from the record of the hearing that the applicant made any reply. X then asked the applicant a series of questions aimed at proving that they had seen each other mainly at gatherings of their families or when the applicant, in need of transport or other assistance, had actively sought his company. Among the questions asked by X were the following: “Is it true that I could not have abused you on the evening of the event as you stated on 14 April?”, “Is it true that if I had wished to satisfy my sexual needs, I would have called you at least once?”; “Why did you call me in September and ask me to take you out of town if I had already raped you five times before that date?”, “Why were you calling me, because I certainly never called you?”, or “Is it true that you specifically asked that we drive out of town alone, because you wished to talk to me and to celebrate your success at a beauty pageant?” The applicant insisted that she had not called X, nor had she initiated any outings with him, but that he had called her. X also asked the applicant whether she had told him that, once she had a boyfriend, she would always be on top, as she wanted to be the mistress. 35. Moreover, X claimed that the charges of rape were fabrications by the applicant’s mother. Hence, he asked the applicant numerous questions about her mother, including about her knowledge of Slovene, her work, and her personal relationships. Further, X confronted the applicant with the medical report which indicated that his left arm was seriously disabled. The applicant insisted that she had seen X using his left arm in his daily life, including driving cars, lifting and carrying his children and their school bags, and carrying boxes and bottles. Throughout the questioning, X disputed the accuracy and credibility of the applicant’s answers, extensively commenting on the circumstances described by her and rejecting her version of events. He continued to do so even after the presiding judge explained to him that he would have the opportunity to make his comments after the applicant’s questioning. 36. During the cross-examination, X repeated a number of questions and was eventually warned against doing this by the presiding judge. Moreover, the presiding judge ruled out of order seven questions that she perceived had no bearing on the case in issue. 37. On three occasions, when the applicant became agitated and started crying, the court ordered a short recess. After one of these recesses X asked the applicant whether she would feel better if they all went to dinner, just as they used to, and maybe then she would not cry so much. 38. At one point the applicant requested the court to adjourn the hearing as the questions were too stressful for her. However, after being told by X that the next hearing could not be held until after 19 November 2008 when he would be back from a business trip, the applicant said, while crying, that he should continue with his questioning as she wanted to get it over with. Eventually, after four hours of cross-examination of the applicant, the presiding judge adjourned the hearing until 13 October 2008. 39. X’s wife, mother-in-law and an employee of his company were examined at the next hearing, all three of them asserting that X had very little use of his left arm and certainly could not lift any burdens. 40. On 24 November 2008 a sixth hearing was held. The questioning of the applicant by X took an hour and a half. When questioned by X’s counsel M., the applicant again asserted that she had told him the whole story a long time ago. M. denied this, stating that if he had been informed he would have advised the applicant to go to hospital and to the police. Once the applicant’s questioning was over, her mother was questioned, mostly about her private relationships. 41. At the end of the hearing X’s counsel M. confirmed that he had encountered the applicant’s mother when he was working at a law firm with a lawyer who had represented her in certain court proceedings. He also stated that he would inform the court within three days as to whether he would request leave to withdraw from representing X in the proceedings in issue. On 25 November 2008 M. requested leave from the court to withdraw from the case, as he had been personally affected by certain statements made by the applicant’s mother. 42. At a hearing of 15 December 2008 the court dismissed the request by X’s counsel M., finding that there were no statutory grounds disqualifying him from representing M. The gynaecologist, B., was examined as a witness. He acknowledged that in order to clarify the circumstances he had also addressed certain issues in his report that had not been part of the investigating judge’s request. Moreover, he reiterated that the applicant’s hymen had been intact at the material time. 43. On 22 January 2009 the court held an eighth hearing in the case and examined the expert in clinical psychology, R., who again stated that sexual abuse which had happened long ago could not be proved by any material evidence, and that only the psychological consequences could be assessed. She further reiterated that the applicant displayed clear symptoms of sexual abuse. 44. On 20 February 2009 the court appointed T., another expert in gynaecology, to give an opinion on whether the applicant could have had sexual intercourse at the material time, given the results of her medical examination (see paragraph 11 above). On 10 March 2009 the expert submitted his report, which stated that those results were not inconsistent with the applicant’s account of the events in issue. 45. On 16 March 2009 the court held a hearing at which it appointed N., an expert in orthopaedics, to prepare an opinion as to whether, in view of his disabled left arm, X could have performed the acts described by the applicant. 46. On 5 May 2009 N. submitted his report, in which he found that X’s left arm was severely disabled, and that for those reasons some of the events could not have happened in the way described by the applicant. 47. On 8 June 2009 the court held a hearing at which N. was questioned. Further to questions put by the applicant’s counsel, N. explained that he had based his opinion on the documents in X’s medical file, the X-rays brought to him by X, and an examination of X. 48. A hearing was held on 9 July 2009. The applicant requested that N. be questioned further. 49. On 29 September 2009 the court held the twelfth and last hearing in the case. At the hearing the applicant and the State Prosecutor questioned N., who stated, inter alia, that X could only use his left arm to assist the right arm in carrying out specific tasks, and that he had practically no strength in his left arm. In the expert’s opinion, X would not have been able to spread the applicant’s legs with his left arm, and neither would he have been able to take off his trousers as alleged by her. After being asked by the prosecutor whether his assessment was based on the assumption that the applicant had used all her strength to resist X, N. stated: “I did not base my conclusion on that assumption, as I did not know whether she had resisted or whether she had willingly submitted.” After being asked whether the applicant, who was 14 years old at the time, could have resisted X, who had allegedly been lying on top of her, he said he believed so. N. also testified that although X had more than ordinary strength in his right arm, he could not have assaulted the applicant in the way she alleged. 50. After the examination of N., the applicant, who had sought and obtained an opinion from another orthopaedist outside the court proceedings which indicated that X might still have limited use of his left arm, asked for another orthopaedics expert to be appointed, on the grounds that there was doubt about N.’s conclusions. This request was rejected by the court as unnecessary, as was the applicant’s request for the court also to call as witnesses her sister and her mother’s former husband, who had allegedly seen X rowing with both arms. A request by the prosecutor for the applicant to be examined again was also rejected. 51. At the end of the hearing the court pronounced judgment, acquitting X of all charges. In view of this verdict, the court recommended that the applicant pursue her claim for damages, which she had submitted in the course of the proceedings, before the civil court. 52. On 15 December 2009 the applicant lodged a new supervisory appeal under the 2006 Act. On 22 December 2009 she received a reply from the court informing her that the reasoning of the judgment had been sent to her that day. 53. In the written grounds the court explained that the expert orthopaedics report contested X’s ability to carry out certain acts described by the applicant, for which he would have had to use both arms. As explained by the expert, X was not capable of even moving his left hand in a position which would have allowed him to take his trousers off or spread the applicant’s legs. According to the court, the fact that some of the applicant’s allegations were disproved by the expert raised some doubts as to her entire version of the events. On the basis of the principle that any reasonable doubt should benefit the accused (in dubio pro reo), the court had acquitted X. As regards the report by the expert in psychology R., which found that the applicant had suffered sexual abuse, the court noted that it could not ignore the judgment delivered in another set of proceedings concerning the applicant’s mother’s estranged husband, in which the competent court had accepted that he had engaged in sexual activity in front of the applicant and her sister and had also behaved inappropriately towards the applicant. 54. On 30 December 2009 the State Prosecutor lodged an appeal, in which she criticised the court for not considering the fact that owing to his age, gender and body mass X was much stronger than the applicant, and was also in a position of power on account of his economic and social status. Moreover, she pointed out that X had operated manual transmission vehicles, which required him to use both his arms. The prosecutor further argued that the criminal offence in question did not require the sexual act to have been committed by force; it was sufficient that the applicant opposed it. She also stressed that the proceedings had already been pending for eight years, which had aggravated the trauma suffered by the applicant. 55. The appeal was dismissed by the Maribor Higher Court on 26 May 2010, which found that the reasoning of the first-instance court’s judgment was clear and precise regarding the doubt that X had committed the alleged criminal acts. 56. The applicant subsequently asked the Supreme State Prosecutor to lodge a request for the protection of legality (an extraordinary remedy). On 28 July 2010 the Supreme State Prosecutor informed the applicant that the aforementioned request could only concern points of law and not the facts, which the applicant had called into question. 57. On 11 February 2011 the applicant and the Government reached an out-of-court settlement under the 2006 Act in the amount of 1,080 euros (EUR), covering all pecuniary and non-pecuniary damage incurred by the applicant as a result of a violation of her right to a trial without undue delay in the criminal proceedings in issue. The applicant also received EUR 129.60 in respect of the costs incurred in the proceedings. | 1 |
test | 001-175464 | ENG | TUR | CHAMBER | 2,017 | CASE OF MUSTAFA SEZGİN TANRIKULU v. TURKEY | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano | 5. The applicant, who was born in 1963, is a member of the Turkish Parliament and lives in Ankara. At the time of the events giving rise to the present application he was the president of the Diyarbakır Bar Association. 6. On 2 June 2005 the daily newspaper Hürriyet reported statements by a senior intelligence officer, who claimed that the National Intelligence Agency of Turkey (“MİT”) had been intercepting the telephone conversations and email correspondence of a number of people on the basis of approximately ninety court decisions over the previous ten years. The intelligence officer stated that the surveillance had been continuous until March 2005, when the MİT had stopped it in order to wait for the entry into force of the new Criminal Code. However, when a bomb attack had occurred in March in Kuşadası, killing a police superintendent, the MİT had gone to the Sixth Division of the Diyarbakır Assize Court (“the Diyarbakır Assize Court”) to seek permission for the interception of communications. 7. In a decision dated 6 May 2005, relying on Article 22 of the Constitution and sections 2, 4, 11 and 16 of Law no. 4422, the Diyarbakır Assize Court had granted the MİT permission to monitor and examine all electronic communications in order to identify and arrest terrorist suspects with international connections as well as to collect evidence and to prevent crime by having early intelligence of it. The MİT had obtained permission to intercept all domestic or international telephone calls and communications provided between 8 April and 30 May 2005 by national telecommunications company Türk Telekom, private mobile network operators and Internet providers and to obtain information contained in SMS, MMS, GPRS and fax communications, as well as caller IDs, correspondents’ IP addresses and all other communication-related information. 8. On 6 June 2005, after reading the article, the applicant filed a criminal complaint with the Diyarbakır Principal Public Prosecutor’s Office against the judge, S.T., who had delivered the Assize Court decision in question, the public prosecutor, the MİT agents who had sought permission to monitor and examine communications, and the MİT agents who had implemented the decision. Relying on a number of newspaper and online articles, the applicant alleged that S.T. had decided that the records of all domestic and international electronic communications between 8 April and 30 May 2005 should be given to the MİT by the telecommunications companies. The judge had made that decision in complete disregard of the legislation then in force and without carrying out any research or requiring proof. The impugned decision had been of a very general nature since it had not included the names of any suspects or indicated the date, location or address of people whose communications would be intercepted. As a consequence, any person, including himself, who had used a landline or mobile telephone to communicate between the above-mentioned dates, had been a victim of the impugned decision. The applicant maintained that the decision had violated his rights protected by Article 8 of the Convention and had also contravened Articles 20 and 23 of the Constitution, which protected private life and the freedom of communication respectively, since the accused had obtained records of his communications and restricted his freedom of communication without any justification. Lastly, the applicant contended that the implementation of the decision, which had been in contravention of section 2 of Law no. 4422, required the punishment of those responsible. 9. On 20 June 2005 the Diyarbakır Principal Public Prosecutor decided to disjoin the case concerning the MİT officials and to register it separately because the prosecution of MİT officials required the Prime Minister’s permission. 10. On 30 September 2005 the Diyarbakır Principal Public Prosecutor decided not to prosecute the MİT officials who had implemented the Diyarbakır Assize Court’s decision. He decided that the MİT officials had merely implemented the court’s decision when intercepting and examining communications and that the implementation of court decisions was required by law and did not constitute a crime. In any event, there was no evidence that the telecommunications companies had given any records to the MİT officials or that they had monitored communications over the Internet. The Public Prosecutor also referred to a decision by the Ankara Principal Public Prosecutor not to prosecute over the same issue (decision no. 2005/35575, 17 June 2005) in relation to a number of other complaints brought against the Diyarbakır Assize Court’s decision. 11. On 25 October 2005 the applicant filed an objection with the Siverek Assize Court against the above decision, alleging that the Diyarbakır Public Prosecutor had failed to carry out an investigation into his complaints concerning an alleged violation of his rights guaranteed by Articles 8 and 13 of the Convention. 12. On 30 November 2005 the Siverek Assize Court dismissed the applicant’s objection, holding that the Principal Public Prosecutor’s decision against prosecution had complied with the legislation since the MİT officials had implemented a court decision and had not committed any offence. 13. On 6 April 2006 the Ministry of Justice decided not to take an action against the public prosecutor and the judge as it found that their acts fell within judicial discretion. The Ministry considered that although the impugned interception decision had been in breach of the national and international legal norms, the aim was to locate the terrorists before they acted and to take the necessary security measures against them. For the Ministry, the decision did not display ‘ill-will’ towards any individual or institution and the complainants had failed to demonstrate that they had been affected by the impugned decision in any way. On an unspecified date the applicant filed an objection against this decision. On 31 October 2007 the Third Division of Ankara Administrative Court dismissed the objection. | 1 |
test | 001-178863 | ENG | RUS | COMMITTEE | 2,017 | CASE OF KURUSHINA AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. | 1 |
test | 001-170436 | ENG | CHE | CHAMBER | 2,017 | CASE OF OSMANOĞLU AND KOCABAŞ v. SWITZERLAND | 1 | No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion;Manifest religion or belief) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. The applicants were born in 1976 and 1978 respectively and live in Basle. 7. The first applicant, who was born in Turkey, moved to Switzerland at the age of 10. On completing a business-studies course in Basle, he returned temporarily to Turkey to attend classes in Islamic studies; while there, he met the second applicant, who became his wife. She moved to Switzerland in 1999 under the provisions for family reunion. When the present application was lodged she was on a training course to become a playgroup leader (Spielgruppenleiterin). The first applicant speaks fluent Swiss German. 8. Three daughters were born to the applicants, on 8 July 1999, 22 June 2001 and 7 July 2006 respectively. The present application concerns only the first two daughters. They were initially enrolled in the Vogelsang primary school in Basle. The eldest daughter subsequently attended an “orientation school” (Orientierungsschule, between the primary and secondary levels). 9. Swimming lessons are part of the compulsory school curriculum; under the applicable legislation in the canton of Basle Urban, pupils cannot be exempted until they reach puberty (see paragraph 27 below). This fact was brought to the applicants’ attention on 11 August 2008 through a recommendation entitled “Guidelines on dealing with religious matters in schools” (see paragraph 27 below). The applicants, who are devout Muslims, refused to send their daughters to the swimming lessons on the grounds that their beliefs prohibited them from allowing their children to take part in mixed swimming lessons. They stated that although the Koran did not instruct women to cover their bodies until puberty, their beliefs required them to prepare their daughters for the precepts that would be applied to them from that point onwards. As the holders of parental responsibility for their daughters, the applicants alleged that there been a violation of their own rights. 10. By a letter of 13 August 2008, the Public Education Department of the Canton of Basle Urban (Erziehungsdepartement des Kantons Basel-Stadt) advised the applicants that under section 91 (9) of the Education Act of the Canton of Basle Urban (see paragraph 24 below), they were liable to a maximum fine of 1,000 Swiss francs (CHF) (around 923 euros (EUR)) each if their daughters did not comply with the obligation to attend school. 11. On 30 March 2010 the head teacher of the school held a meeting with the applicants in order to resolve the situation. The applicants continued to refuse to send their daughters to the swimming lessons. By letters of 30 March and 4 May 2010, the applicants were again invited to send their daughters to the swimming lessons. In spite of these attempts by the school, the applicants’ daughters continued to be absent from the swimming lessons. 12. On 4 May and 14 June 2010 the school authorities asked the Head of the Public Education Department to open fixed-penalty proceedings against the applicants. On 17 June 2010 the applicants were invited to comment again as part of those proceedings. 13. By a letter of 28 July 2010, the education authorities ordered the applicants to pay a fine of CHF 350 (about EUR 323) per parent and per child (a total of CHF 1,400 CHF – about EUR 1,292) for acting in breach of their parental duties (see section 91 (8) and (9) of the Education Act of the Canton of Basle Urban, paragraph 24 below). 14. An appeal by the applicants against that decision was dismissed by the Court of Appeal of the Canton of Basle Urban (Appellationsgericht des Kantons Basel-Stadt) on 30 May 2011. 15. Drawing on its leading decision of 24 October 2008 (see Federal Supreme Court judgment 135 I 79; paragraph 29 below), the Federal Supreme Court, by a judgment of 7 March 2012, dismissed an appeal by the applicants, holding that the authorities’ refusal to exempt their daughters from mixed swimming lessons in primary school had not breached the applicants’ right to freedom of conscience and belief. 16. It accepted that this refusal represented a breach of freedom of religion. Nonetheless, it considered that the swimming lessons formed part of the compulsory school curriculum in the Canton of Basle Urban and that this obligation had a sufficiently solid legal basis. It cited, firstly, section 22 of the Education Act of the Canton of Basle Urban, which stated that gymnastics was one of the compulsory lessons in primary school, and section 139 of the same Act, stating that at least three hours of the pupils’ weekly timetable was to be spent in physical education. It also held that, under section 17 of the Act, boys and girls at primary-school level were, in principle, to attend classes together. It further stated that, in accordance with section 68 of the Act, the precise organisation of this subject, especially the various lessons and the number of hours allocated to them, was set out in the curriculum, point 9.2.4 of which provided that swimming formed part of compulsory gymnastics and sports lessons. 17. The Federal Supreme Court then pointed out that pupils could be exempted from lessons or from certain subjects, and any such decision was to be taken by the school authorities at the request of teachers or of persons responsible for the children’s education (section 66 (5) and (6) of the Education Act; see paragraph 24 below). It noted that detailed information on exemptions was set out in point 34 of the School Regulations (Schulordnung) of the Canton of Basle Urban, and that the arrangements for dealing with religious issues in schools were included in a Recommendation (Handreichung) that had been issued by the Education Department of the Canton of Basle Urban in September 2007. It added that, under point 5.1 of that recommendation, exemption from swimming classes could only be granted to pupils who had reached the age of puberty. It also indicated that from the sixth year of school (that is, generally when pupils had reached the age of twelve), girls and boys attended physical education and swimming lessons separately (point 5.3 of the recommendation). 18. The Federal Supreme Court further held that the applicants’ argument that the recommendation had no legal validity was irrelevant in this case, in so far as, in its view, the recommendation was in any event merely a tool to assist in balancing the competing interests involved in reaching a decision on an exemption request. It also considered the fact that swimming was not taught in all the canton’s schools and that ice-skating, which also appeared as a lesson in the curriculum, was not taught at all in practice, to be irrelevant in assessing the legal basis. The Federal Supreme Court accordingly concluded that the measure had a valid legal basis. 19. As to the public interest and the proportionality of the interference, the Federal Supreme Court upheld the lower court’s judgment to the effect that it was of paramount importance to ensure that children were integrated, irrespective of their origin, culture or religion. It further considered that the interference was lessened by the fact that the swimming lessons were mixed only until the age of puberty, and that the impact of the measure was attenuated by the accompanying measures (separate changing rooms and showers, and the option of wearing a burkini). 20. The Federal Supreme Court also found irrelevant the applicants’ argument that their children were receiving private swimming lessons, holding that what was at stake for the children was not simply learning to swim, but also submitting to the conditions surrounding the teaching itself (äussere Bedingungen des Unterrichts). It held that the school’s function of social integration, valid in respect of all pupils, required that exemptions for swimming classes be granted only sparingly. The refusal to grant an exemption in the present case thus corresponded to its new practice, according to which educational obligations were, in principle, to be recognised as prevailing over compliance with the religious precepts (religiöse Gebote) of one part of the population. For that reason, the comparison with exemptions granted for medical reasons was also irrelevant. 21. Having regard to the foregoing factors, the Federal Supreme Court concluded that the refusal to grant an exemption from the mixed swimming classes had not breached the applicants’ right to freedom of religion. | 0 |
test | 001-170361 | ENG | BGR | CHAMBER | 2,017 | CASE OF STAMOVA 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);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (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;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev | 5. On 28 April 1993 the applicant rented a municipally-owned shop in the town of Primorsko. The shop consisted of a metal structure built on a concrete foundation on a municipally-owned plot of land. 6. On 18 September 1995 the applicant asked Tsarevo Municipal Council to be allowed to purchase the shop under the preferential privatisation procedure for tenants of State and municipally-owned property, as provided for in section 35(1) of the Transformation and Privatisation of State and Municipally-Owned Enterprises Act (Закон за преобразуване и приватизация на държавни и общински предприятия – hereinafter “the Privatisation Act”). She also expressed the wish to buy the plot of land on which the shop was built. As the municipal council did not reply, the applicant applied for judicial review of the municipality’s tacit refusal to sell the shop to her. The first-instance court rejected that application on 31 March 2003. 7. In a final judgment of 4 November 2003, rectified for errors in October 2004, the Supreme Administrative Court quashed the lower court’s judgment, finding that it had not dealt with all the evidence submitted by the applicant. The last-instance court then observed that the parties were in agreement that, at the time of her privatisation request, the applicant had had a valid rent contract for the shop with the municipal authorities. It further found, on the basis of the submitted evidence, that the shop constituted a separate property unit measuring 140 square metres and that all statutory conditions for privatising the shop under the preferential privatisation procedure had been present. As to the land on which the shop was built, the court observed that it was not part of the rental contract and thus its inclusion in the privatisation of the shop was a matter of discretion for the municipal authorities. The court referred the case back to Tsarevo Municipal Council with instructions for it to open a privatisation procedure by offering to sell the shop to the applicant. 8. In 2004 the applicant again asked Tsarevo Municipal Council to examine her privatisation proposal. As she did not receive a reply, she applied for judicial review of its tacit refusal to sell the shop to her. 9. In a final judgment of 28 November 2005, the Supreme Administrative Court held that the applicant met the conditions for the privatisation of the shop. The court specified that, following changes to the country’s administrative map, the privatisation decision had to be taken by Primorsko Municipal Council and it referred the case back to it. 10. On 25 November 2005 and later again on 30 October 2006, Primorsko Municipal Council explicitly refused to sell the shop to the applicant. She brought judicial review proceedings in respect of those refusals. 11. In a final judgment of 31 March 2008 the Supreme Administrative Court revoked the refusals as null and void, finding that the municipal council had been obliged to sell the shop to the applicant. The court briefly noted that, whatever the circumstances, no proof had been presented to it by the municipal council in support of its objection that the shop no longer physically existed. 12. In the meantime, in March and April 1996, the municipal company managing the shop informed the applicant that she had no lease contract for 1996 and invited her to vacate the premises. On an unknown date in 1997, that company lodged a rei vindicatio claim against the applicant. In a final judgment of 3 July 2002, the Supreme Court of Cassation dismissed the company’s claim, holding that the applicant’s lease contract could not be terminated pending the privatisation procedure pursued by her. 13. On 16 February 1999 the mayor of Primorsko (hereinafter “the mayor”) ordered the municipal company to demolish the shop. Following a complaint lodged by the applicant with the Governor of the Burgas Region, the latter revoked the mayor’s order on 18 April 2000, finding that the mayor had not been competent to dispose of municipal property without a prior decision of the municipal council to that effect. The Governor further stated that, pending the privatisation procedure, the lease contract with the applicant could not be terminated. 14. On an unknown date in 1999, the municipal company sold the shop to a private company. On 12 May 1999 the buyer, assisted by municipal employees, prevented the applicant from entering the shop. Following a complaint lodged by the applicant with the prosecutor, on 27 May 1999 the latter established that the buyer had acted in an abusive manner and ordered the police to assist the applicant in regaining possession of the shop. According to the applicant, after she had re-entered the property she discovered that the electricity supply had been cut off. It appears that she ran the shop without electricity until an unspecified date in 2001, when the electricity supply was restored. 15. In 2000 the buyer brought a rei vindicatio claim in court against the applicant. In a final judgment of 14 October 2003, the Supreme Court of Cassation dismissed that claim, confirming the reasoning in the lower court’s judgment. The last-instance court found in particular that the buyer had not acquired ownership of the shop and that, in any event, the applicant was protected by the Privatisation Act in that she could not be evicted from the shop pending the examination of her privatisation proposal. 16. Primorsko Municipal Council considered that the shop was dilapidated and unsafe on account of the corrosion of its metal structure and ordered its sale for demolition. At some point in 2005 the municipal council sold the shop to an individual and on 14 February 2006 the mayor ordered the new buyer to demolish the shop. Even though on the following day, 15 February 2006, the mayor revoked his own order, the buyer dismantled the shop on 18 February 2006 with the assistance of the police. The applicant was informed of the demolition by an acquaintance who happened to pass by the shop on the day it was pulled down. She had not known about the sale of the shop before it was demolished. 17. The parties dispute what happened to the applicant’s goods and belongings. According to the Government, they were listed and taken for safekeeping. According to the applicant, they were destroyed together with the shop. 18. In 2006 the applicant requested that criminal proceedings be opened against the mayor and the chairperson of Primorsko Municipal Council for breach of duties and obstruction of the enforcement of a final court judgment. In a decision of February 2007 the prosecutor refused her request. He found that it was impossible to open criminal proceedings as the refusals to privatise the shop had been issued by the municipal council, a collective body, whereas criminal responsibility was personal. 19. On 18 October 2006 and 22 May 2008 respectively the applicant again requested Primorsko Municipal Council to examine her privatisation proposal. In a letter of 10 September 2008 the council informed her that her case was factually and legally complex, and that an ad hoc commission would be formed to propose a solution. On 20 January 2009 the ad hoc commission proposed that an enquiry be made with the Privatisation Agency (the State body in charge of the privatisation of State-owned property). In two letters dated 5 March 2009, sent respectively to the applicant and the municipality, the Privatisation Agency observed that the question about the demolition of the shop had not been raised in the proceedings before the courts. The Agency nonetheless held that the municipality was obliged to comply with court judgments. 20. In February 2011, the applicant lodged a claim with the Burgas Administrative Court for damages against the Primorsko municipal authorities for their failure to implement the final judgments in her favour. The claim was lodged under the State and Municipalities Responsibility for Damage Act 1988 (“the SMRDA”). The court split the claim to be examined into two separate sets of proceedings – the first one against the municipality (община) and the second one against the municipal council (общински съвет). 21. In the first set of proceedings, in which she challenged the mayor’s order of 14 February 2006 that the shop be demolished (see paragraph 16 above), the applicant sought damages for loss of opportunity (пропуснати ползи). The Burgas Administrative Court found that the applicant had no standing to pursue this claim because she had not been the addressee of the mayor’s order. Although the shop had been demolished shortly after the order had been issued, that had been irrelevant in respect of the legal proceedings brought by the applicant, given that she had sought compensation for damage specifically stemming from the mayor’s order. The court dismissed the applicant’s claim and terminated the proceedings. That ruling was upheld by the Supreme Administrative Court in a final decision of 17 October 2011. 22. In the second set of proceedings the applicant sought both pecuniary and non-pecuniary damages stemming from the failure of the municipal council to decide on her privatisation request by implementing the final court judgments ordering it to offer to sell the shop to her. 23. She specified that she sought pecuniary damages in respect of: the rent she had had to pay between January 1998, when her request to privatise the shop should have been granted, and February 2006, when the shop had been demolished; those of her belongings that had been destroyed together with the shop; the loss of income resulting from the impossibility of collecting rent from a company with which she had concluded a contract on 17 January 2006 in respect of part of the shop; and the impossibility of increasing her investment by buying the plot on which the shop stood and by building upon it. 24. In addition, the applicant sought non-pecuniary damages in respect of the intense stress and emotional suffering that had led her to fall into a lasting and severe depression, which had been the result of the shop’s demolition and of the failure of the municipal council to sell it to her, despite the final judgments. She provided medical records in respect of her failing health and the related hospital treatment she had undergone. 25. Examining the applicant’s claim, the Burgas Administrative Court considered that she was complaining of the municipal council’s tacit refusal to reply to her request of 23 May 2008 to buy the shop. On 3 January 2014 the court found that both claims, for pecuniary and non-pecuniary damages, were admissible. 26. As to the merits, the court held that the claim for pecuniary damages was unjustified and also that there was no causal link between the municipal council’s refusal to privatise the shop and the applicant’s claims for loss of financial opportunity as a result of the impossibility of buying the land and building on it. 27. As regards the applicant’s claim for non-pecuniary damages, the court accepted it as justified on the basis of the evidence submitted during the proceedings (see paragraph 24 above). In particular it found that it had been demonstrated that the applicant had suffered significantly as a result of the municipal council’s refusal to open a privatisation procedure vis-à-vis her. The court held that the applicant’s suffering had been caused by the municipal council’s tacit refusal to act upon the final court judgment of 2008. The applicant had succumbed to depression, which had manifested itself in acute feelings of hopelessness and a perception that any future efforts would be futile, as well as in feelings of helplessness, insomnia, a disturbance of memory functions, and attention disorder. Those conditions had further led to a serious deterioration in the applicant’s family environment, given that she had directed all her frustration and negative emotions towards her young daughter. The court awarded the applicant the entirety of her claim, namely about 20,000 euros (EUR), plus interest, as well about EUR 6,500 for costs and expenses. It further declared null and void the municipality’s tacit refusal to act upon her request of 23 May 2008, and returned the case to it for it to take the appropriate action. 28. After an appeal lodged by the municipal council, the Supreme Administrative Court found that the lower court had wrongly concluded that the municipal council’s silence amounted to a new tacit refusal to privatise the shop. The applicant was seeking damages stemming from the absence of a privatisation procedure launched by the municipality in respect of the shop. The administrative procedure concerning the privatisation of the shop had begun with the applicant’s initial request of 18 September 1995 (see paragraph 6 above) and had not been completed. The applicant’s subsequent requests to the same effect had not created a new obligation on the part of the municipality concerning the privatisation of the same shop. 29. The last-instance court further held that, as regards the first final court decision in the applicant’s favour (that of 4 November 2003) it had not created obligations on the part of Primorsko Municipal Council, given that the respondent party required to act under that decision had been the Tsarevo municipality (see paragraph 7 above). Primorsko Municipal Council had only been expected to act in respect of the second final judgment on that question (see paragraph 9 above). 30. As regards the municipal authorities’ explicit written refusal of 25 November 2005 to open a privatisation procedure (see paragraph 10 above), the court noted that that refusal had been declared null and void in 2008 by another of its benches for being contrary to the first final court decision of 2003 (see paragraph 11 above). 31. The last-instance court conceded that, objectively, the declaration of the municipal council’s refusal as null and void corresponded to one of the statutory prerequisites for the pecuniary liability of the council. However, the remaining conditions for the council being held so liable had not been met. In particular, the court held – without elaborating further – that the applicant had failed to prove both the existence of actual damage and the causal link of any such damage to the municipal council’s refusal to privatise the shop by offering to sell it to her. 32. Furthermore, the applicant’s claim in respect of the council’s refusal of 25 November 2005 had been inadmissible on account of the expiry of the five-year limitation period, as calculated as of the date of that refusal. Moreover, the council tacit refusal to act upon the 31 March 2008 court decision was of no consequence, given that the shop had no longer physically existed at that time. 33. Importantly, the obligation on the municipal authorities to privatise property under the Privatisation Act existed only vis-à-vis individuals who met the conditions stipulated under that Act. The applicant, however, was not among those persons. The reason was that she had not had a valid contract with the municipality at any of the times when she had requested the latter to sell the shop to her, because the contract concluded in 1993 had expired prior to those times. 34. Moreover, as a matter of principle, the liability of a municipality, or of the State for that matter, under the SMRDA did not include loss of opportunity but only already incurred losses. Consequently, the applicant could not claim loss of opportunity in these proceedings. 35. In respect of the applicant’s claim for non-pecuniary damages, the court emphasised that these could only be incurred by an individual and not by an enterprise. It was true that in legal terms the sole trader was a physical, as opposed to a legal, person; however, the damage suffered by the applicant stemmed specifically from the economic activity carried out by her in her capacity as a sole trader. Consequently, the applicant as an individual was not entitled to compensation for damage that could have been sustained in the context of the economic activity of the trader. In view of the above, the lower court had wrongly granted the applicant’s claim for non-pecuniary damages. 36. On the basis of the above, the Supreme Administrative Court quashed the lower court’s judgment and dismissed the applicant’s claims in a final judgment on 3 December 2014. It also held that the applicant had to pay to the municipal council about EUR 4,000 for legal costs and expenses. 37. On 5 January 2015 the applicant asked the Supreme Administrative Court to rectify its judgment of 3 December 2014 in the part in which it had ordered her to pay the legal costs claimed by the other party (the municipal council). She pointed out that the municipal council had not presented proof that it had indeed incurred those expenses and that, in any event, the council should not be allowed to benefit from its unlawful failure to implement the judgments in her favour. The applicant sought, alternatively, a reduction in those costs. 38. The Supreme Administrative Court found her request admissible but rejected it as unjustified (неоснователна) in a final decision of 2 June 2015. On 25 November 2015 the bailiff invited the applicant to voluntarily comply with the final judgment of 3 December 2014, indicating that failure to pay the sum due would result in the forced sale of items of the applicant’s personal movable and immovable property. | 1 |
test | 001-164669 | ENG | SRB | CHAMBER | 2,016 | CASE OF MUČIBABIĆ v. SERBIA | 3 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1926 and lives in Novi Sad. His son, Mr Vojislav Mučibabić, was born in 1951 and died on 23 June 1995. The present case concerns the investigation into the death of the applicant’s son. 6. On 23 June 1995 a powerful explosion occurred at the facilities of Grmeč, a company with headquarters in Belgrade. 7. It transpires from the judicial decisions and the case file that the explosion was caused by the covert production of composite solid rocket fuel under the auspices of the State Intelligence Service. 8. The general information the Court has been able to procure as to the production of rocket fuel and the risk of an explosion at production sites may be summarised as follows. 9. Composite fuel, also known as composite propellant, is a broad class of solid chemical fuels that are used as propellants in rockets. The rocket-fuel sheets resemble PVC folia but are less stable and require a specialised location with a high level of preventive measures and safety precautions. They are composed of fuel and oxidiser. An example of a fuel is phenol formaldehyde and of an oxidiser, ammonium perchlorate (“AP”). AP is a powerful oxidiser, which explains why it is used mainly in solid propellant rocket boosters, including space shuttles and military missiles. 10. AP is a white, granular, crystalline solid or powder. Its explosive characteristics depend on particle size and granulometric composition. It is a class 4 oxidiser (it can cause an explosive reaction) when particles measure over 15 micrometres. It is classified as an explosive when particles measure less than 15 micrometres. It has been apparently involved in a number of accidents. AP is stable when properly stored, transported and handled at temperatures below 150 degrees Celsius (oC). The amount put in any pile must be limited and storage sites must be designed with blast walls. The risks of explosion and fire associated with AP arise mainly when there is a large proportion of AP in a premix or when it is exposed to intensive heat or an organic compound. When heated to 300oC, AP degrades organic adhesive, breaking cemented joints. Complete reactions leave no residue. 11. At a series of meetings, an Intelligence Service executive had apparently agreed to the production of rocket fuel with a private company, JPL Systems (hereinafter “JPL”). The latter’s experts were supposed to provide the formula and certain components, including oxidisers. Certain Grmeč managers had allegedly been requested to make available a mill with two counter-rotating rollers in its facilities for the production of polyvinyl chloride sheets, as well as other substances and its experts. 12. On 23 June 1995, most of the components were blended together in a batch mixer in another company, transported in aluminium bins to Grmeč in a private car by JPL experts and stored next to the mill. When the mixture was put on the mill and extraction of the sheets of rocket fuel started, an explosion occurred in the presence of more than twenty workers from the two commissioned companies. As a consequence, the applicant’s son and ten other people died, while ten others were seriously injured. 13. It appears from the Serbian Business Register and the expert reports that neither Grmeč nor JPL was licensed and adequately equipped for the production of rocket fuel at the material time. 14. At about 9 p.m. on 23 June 1995 the investigating judge on duty, M.A., arrived at Grmeč to inspect the scene of the incident. V.V., the Deputy District Public Prosecutor Office (hereinafter “the prosecutor”), Z.L., a crime inspector, and V.M., a crime-scene technician, were also present. 15. According to the investigating judge’s two-page report of his inspection of the incident scene (zapisnik o uviđaju), at about 6.30 p.m. on 23 June 1995 a massive explosion occurred during the production of a new product – polyvinyl chloride sheets. The explosion greatly damaged the production room and killed a number of people who had been involved in the production process. When the investigating judge arrived at the scene, unspecified members of the factory’s security staff and the Belgrade police prevented him and the prosecutor from entering the production room. They were requested to examine the scene two to three steps away from the entrance door for security reasons, given that the damaged roof could have collapsed. The judge noticed that it had been a powerful explosion, and that the production room had been covered in dust and pieces of the roof, which also prevented a good overview of the room. As the judge could not inspect the incident scene, in order to gather evidence he talked to the director, R.U. He had to wait thirty minutes for the director to be found and to finish his telephone call with the Belgrade mayor, N.Č. The director stated that the explosion had occurred when the factory’s experts with a team of additional experts (part of the statement is illegible) had apparently tested a new product-manufacturing process with which he was not familiar. However, he clarified that the manufacturing process required special security measures and teams, and named all of the factory’s experts involved, including the applicant’s son as a chief engineer. The technical director, S.K., stated that his team of between seventeen and twenty employees had been testing a new product and that experts from other companies and faculties “might have been involved” in the manufacturing process that afternoon. Presuming that ten people had died, he anticipated that the cause of the explosion may have been “an unwanted, unexpected and unknown chemical reaction which had ‘broken out’ during the process”. The investigating judge instructed (a) the Belgrade police’s expert team and the factory experts to continue looking for those involved who had died or survived; (b) the crime-scene technician to collect and register all traces, objects and details which might help to elucidate the account of the events and to make an appropriate file in that respect; (c) the removal of all the corpses to the Institute for Forensic Medicine for post-mortem examinations to determine the cause of death; and (d) the transfer of all the survivors to the appropriate medical centres. All those activities and the relevant documentation were to form an integral part of the incident report. 16. In his two-page report on the forensic inspection of the incident scene (izveštaj o kriminalističko-tehničkom pregledu lica mesta), the crime inspector, Z.L., noted that there had been traces of the destruction caused by a massive explosion which had occurred at about 6 p.m. on 23 June 1995 at the Vinfleks factory (production room) where bituminous materials were produced. He reported that nine corpses had been found and gave the names of several injured people who had been transported to hospital (one of them had died there) as well as a short statement by one of the workers who had been nearby. The inspector reported that the police firemen had already started extinguishing the fire, that the crime-scene technicians, M.P. and M.Š, had taken photographs, and that the criminal police (Kriminalistička služba (UZSK)) had taken on the case. The identification of the casualties and the cause of the explosion should have been determined the following day by specialised teams of criminal police. No other documents, photographs, scheme of the scene or results of any chemical or toxicological analysis, if any, have been submitted to the Court with the case file; nor apparently were they made available to the applicant. 17. On 24 June 1995 an additional forensic report was drawn up after the fingerprinting and photographing of the bodies. The bodies were transferred for post-mortem examination, together with additional body parts which had been found in the meantime, while the clothing was sent to the prosecutor’s office. 18. The post-mortem examination of victims’ bodies was carried out between 24 and 26 June 1995 by the Institute for Forensic Medicine of the Faculty of Medicine in Belgrade. The autopsy reports stated that the victims’ deaths had been violent and caused by the destruction of or damage to some vital organs and/or third and fourth-degree burns from the explosion, or complications thereafter. 19. On 24 June 1995 the Belgrade police ex officio set up a commission to examine the cause of the explosion. The commission was comprised of several officers from the Security Institute (Institut bezbednosti MUP-a Srbije), as well as two professors from the Mechanical Engineering Faculty in Belgrade, B.J. and Ð.B., who were also the co-owners of JPL (see paragraph 11 above). 20. Following site inspections between 23 and 26 June 1995 and computer simulations of the explosions, two experts from the Security Institute, B.G. and P.P., submitted their report to the DDPO on 9 August 1995. As regards the cause and origin of the accident, the experts stated (a) that the explosion appeared to have been initially caused by the heat generated by the mill’s rollers during the production of composite fuel; (b) that static electricity could not have ignited the composite fuel, premix or fuel sheet; (c) that the primary blast of the premix or the composite fuel sheet on the mill’s two counter-rotating rollers had most probably been caused by the presence of a mechanical object in the premix, which had ended up between the rollers; and (d) that the initial blast had led to two secondary explosions of the premix, which was stored in two aluminum bins next to the mill. 21. On 30 August 1995 the Labour Ministry inspectorate lodged a criminal complaint against the Director of Grmeč, R.U., for breaching health-and-safety regulations (see paragraphs 76-77 below). Previously, on 3 July 1995 the Ministry had informed the prosecutor that on 24 and 26 June 1995 they had been refused access to the factory and to documentation for inspection, and that Grmeč had not informed them to that date about the fatal incident, as required by the relevant law. 22. It would appear that the prosecutor lodged a request for a formal preliminary judicial investigation against unknown persons from Grmeč in respect of the explosion (zahtev za sprovođenje pojedinih istražnih radnji). On 13 September 1995 the applicant sought to be granted victim status. 23. On 8 March 1996 the applicant and two other victims’ relatives lodged a criminal complaint against a number of senior executives of Grmeč and JPL (R.U., D.M., S.K., D.Z., Lj.R., Z.O., B.I. and V.B.), on the grounds that there was a reasonable suspicion that they had committed grave breaches of public safety regulations (see paragraph 76 below, Article 194 § 2 in conjunction with Article 187 § 4 of the Criminal Code). 24. The experts’ report of 9 August 1995 was served on the applicant on 15 April 1996. Two weeks later, the applicant submitted numerous objections and posed questions. He questioned, inter alia, the expert commission’s authorisation to investigate the case, the fact that it had focussed on the cause of the explosion without establishing whether the appropriate safety precautions had been taken, and the experts’ conclusions, which were pure presumption. 25. On 5 June 1996 the prosecutor lodged a request with the Belgrade District Court that the police experts be heard. 26. At a hearing scheduled for 4 December 1996, however, the investigating judge did not take statements from the experts. The applicant again objected to the experts’ report. The investigating judge endorsed the experts’ request to be provided with all questions in writing and to be given another month to answer. In their reply of 15 April 1997, the experts clarified that (a) on 23 June 1995 at the scene of the incident, where they had gone ex officio, the investigating judge had instructed them orally to establish the cause of the explosion; (b) they had not made any plan or programme for the expert report; (c) they had not had sufficient information (for example, on the original premix or the final product) to examine and determine the cause of the blast, but they had found traces of AP at the accident scene and had been provided with the formulae of the premix by JPL; (d) they could not say whether the fire had started on the rollers, the fuel or the rocket-fuel sheet; (e) they had not found any documentation about the planning or technology programme of the production of rocket fuel which had led to the blast; and that (f) their task had been to establish the cause of, and not the responsibility for, the explosion. 27. On 14 May 1997 the applicant amended his criminal complaint, relying on Article 194 § 2 in conjunction with Article 187 § 4 of the Criminal Code (see paragraph 76 below). 28. Following the prosecutor’s proposal of 10 June 1997, a month later the court appointed the Military Institute to determine and submit a report on whether the cause of the explosion had been of a technical nature or a human mistake. On 18 July 1997 the Institute informed the investigating judge that it did not have the capacity to do so. 29. On 28 November 1997 the Belgrade Chemistry Faculty was appointed to determine the cause of the explosion, whether it could have been avoided and the possible liability in that respect. 30. Following two unsuccessful attempts to receive additional relevant data, on 12 May 1998 the Professor of the Belgrade Chemistry Faculty, I.J., submitted his report. He claimed that it was based on reliable data collected by the Security Institute, given that, owing to the lapse of time, it was impossible to analyse any samples found on the site. He clarified further that he had not used most of the Institute’s documentation, as it concerned computer-generated and simulated experiments of assumed events which could only indirectly hint at the possible answers. The expert stated that the collected data were incomplete and did not contain quantitative figures of the samples examined to allow any deeper analysis of the collected evidence or its compliance with the account of the events that had allegedly led to the explosion. While not excluding the possibility that the cause of the explosion might have been the one suggested by the police experts, the expert observed that the possible exposure of AP to humidity could have made it sensitive to an organic compound and the explosion could have been caused by a piece of paper, wood or engine oil, especially in the presence of unwanted metal or soot particles. 31. The expert also noted the following issues as relevant: (a) although explosive, carcinogenic and other dangerous substances were used during the production process, no technical-technological documentation and certificates for them had been found; (b) the purity of the components, especially of AP, was questionable (it was described as light pink powder, whereas it was a white, crystalline substance); (c) the samples revealed, unusually, included the presence of phosphates, which were not components of composite fuel, or equipment for the maintenance of the mill or the building itself; (d) the production process and technology did not seem to have been accurately specified and followed, as certain components had been added and mixed on the mill in the course of the production process; and (e) an unacceptably high number of individuals present had indicated that they did not know what had been produced and that other safety measures had probably not been taken. 32. Following the prosecutor’s proposal of 13 June 1998, the investigating judge heard evidence from a number of witnesses to and surviving victims of the accident (eighteen out of the nineteen were from Belgrade) on ten occasions between 10 November 1998 and 15 October 1999. They were asked who had allowed V.B. to bring the premix to Grmeč, and whether they had known what it contained and what safety measures had been taken. On 27 July 1999 and 18 February 2000 respectively the investigating judge also interviewed Mr Radosav Lukić and Mr Jovica Stanišić, Deputy Head and Head of the State Intelligence Service. 33. On 1 March 2000 the investigating judge returned the case file with the collected evidence to the prosecutor. 34. On 9 June 2000 the investigating judge, on the prosecutor’s initiative, withdrew the case file and sealed the statements of the State Intelligence Service executives, classifying them as State secret. 35. On 12 June 2000 the public prosecutor decided not to prosecute, relying on secret evidence and information. He stated that a detailed analysis of the facts had been provided in an official note of 15 March 2000, which had been classified as confidential. He summarily dismissed the applicant’s criminal complaint on the grounds that there were no elements of crimes prosecuted ex officio (da se prijavljeno delo ne goni ex officio), invoking Articles 184 to 187 of the Criminal Code. By a letter of the same date, the applicant was informed about the prosecutor’s decision and notified that he could pursue a subsidiary criminal prosecution within eight days of the date the letter had been served on him by lodging a request for an investigation (zahtev za sprovođenje istrage). 36. The applicant alleged that despite his request, he had not had access to the case file until 10 June 2000. In the meantime, he commissioned an expert report by the court’s permanent specialist on explosives and blasts, M.A.L. In her report of 11 May 2000, the specialist stated that most of the police experts’ work had been incomplete or irrelevant, and gave the reasons for her assertions. She found that neither Grmeč nor JLP had been registered and properly equipped for working with explosive materials, and that their employees had lacked the necessary skills and competences. She confirmed in principle, and further elaborated on, the findings of the Chemistry Faculty’s expert and itemised the numerous failures of the two companies to comply with the relevant provisions of the Explosive Substances, Flammable Liquids and Gases Act concerning transporting and working with explosive materials (see paragraphs 84-86 below). 37. On 20 June 2000 the applicant instituted subsidiary prosecution against R.U., S.K., R.Č., V.B., J.T. and R.L. by lodging a request with the Belgrade District Court that a criminal investigation be opened into breaches of safety regulations, referring to Articles 194 § 2 and 187 §§ 1 and 3 of the Criminal Code (see paragraph 76 below). 38. On 27 September 2000 the investigating judge of the Belgrade District Court refused to open the investigation sought by the applicant (izrazio neslaganje sa zahtevom), and referred the case to a three-judge criminal panel (see paragraph 81 below). 39. On 3 October 2000 the three-judge panel of the District Court upheld the investigating judge’s decision, having established that rocket fuel had been produced on the orders of the then Serbian President, Mr Milošević, and Mr Stanišić (see paragraphs 7 and 32 above). The applicant appealed on 21 October 2000. 40. On 28 December 2000 the Supreme Court of Serbia quashed that decision. On 25 January 2001 it referred the case back to the Belgrade District Court for additional investigation, holding that the prosecuting authorities had failed to assess the evidence properly. 41. A month after the prosecutor’s request of 19 March 2001, the investigating judge commissioned the Military Technical Academy (Vojno-tehnička akademija-Katedra za raketna goriva) to draw up a fresh expert report in respect of the explosion. The Academy refused, claiming that it did not have the power to do so. 42. On 10 May 2001 the investigating judge appointed the Security Institute to draw up the report, but that institute also refused, referring to its report of 9 August 1995 (see paragraph 28 above). 43. On 12 June 2001 the investigating judge informed the applicant that there was no other available institution to carry out a fresh expert report and that, instead, he could file an indictment directly if he so wished. 44. In June and August 2001 the applicant filed an indictment and requested further investigative measures. 45. On 25 March 2002 the criminal chamber of the District Court sent the case file back to the investigating judge, referring to the Supreme Court’s decision of 28 December 2000 (see paragraph 40 above). The chamber instructed the investigating judge to open an investigation and interview the suspects. It stated that the three-judge panel of the District Court would again decide on his refusal to open an investigation once the suspects had been heard. It explained that it would be inappropriate to proceed with a subsidiary indictment without first carrying out an investigation, even with the investigating judge’s permission to file a direct indictment, if the suspects had never been questioned. 46. On the same date, the investigating judge opened an investigation. Between 16 September and 10 October 2002 he questioned all five suspects and gave individual decisions on investigation in respect of each of them. 47. On 29 October 2002 the investigating judge again appointed the Military Technical Academy to draw up a report establishing in a clear and conclusive manner the cause of the explosion and which irregularities in the production process had led to the blast. In a short report drawn up in December 2002, the Academy stated this time that their task was apparently to examine the cause of the explosion, not the possible failure of any of the suspects to protect those involved from the risk of explosion. 48. On 8 April 2003 the investigating judge closed the investigation. The applicant was informed and instructed that he could file an indictment as a subsidiary prosecutor within fifteen days if he so wished. 49. On 22 April 2003 the applicant and two others filed an indictment, laying blame on four former senior executives of Grmeč and JPL, R.U., S.K., R.Č. and V.B., as well as on Mr R.L., former Deputy Head of the Intelligence Service, for failing to take measures that had been required of them to prevent the lives of the applicant’s son and others from being avoidably put at risk or to mitigate casualties. By 3 July 2003, the District Court rejected all of the objections raised by the defence that the indictment was defective, and upheld the indictment. 50. The beginning of the trial was scheduled for 12 December 2003 and then for 22 March 2004, but was adjourned on both occasions by the court because it had been unable to secure the proper composition of its bench and/or some of the defendants had not been properly summoned. 51. The trial before the Belgrade District Court eventually started on 14 May 2004, when the court heard two defendants and adjourned the hearing because the scheduled time had lapsed. The three scheduled hearings (14 June 2004, 16-17 September 2004 and 18 January 2005) were adjourned because of the presiding judge’s other commitments and/or because one or more of the defendants had failed to appear in court. 52. At a hearing held on 15-16 March 2005, the court heard four defendants (S.K., R.U., V.B. and R.Č.) and adjourned to decide on further objections to the indictment. Between 23 March 2005 and 7 December 2005, the competent courts dismissed the indictment in respect of R.L. and R.Č., because the applicant had failed to name them as suspects in his earlier criminal complaint for the crimes at issue (see paragraph 23 above), which were, in principle, supposed to be prosecuted firstly ex officio. The hearing scheduled for 24 October 2005 was adjourned to allow the court to decide on R.Č.’s objection, and the next hearing scheduled for eleven months later, on 13 September 2006, was cancelled as the case file had been at the Supreme Court to decide on appeals on points of law lodged by other suspects (R.U, S.K. and V.B.) against the courts’ decisions on their objections. 53. On 25 September 2006 the indictment was slightly amended with regard to the facts. 54. On 20 November 2006, the trial recommenced before a new chamber, and also owing to the lapse of time since the previous hearing. The court heard the defendants and two witnesses. 55. On 6 February 2007 the applicant requested the District Court to re-examine whether the classification of the testimonies of two Intelligence Service executives as State secret had been in accordance with the law, and to add them to the case file if appropriate. No decision in respect of his request has been submitted to the Court. 56. The trial recommenced once again before a new trial chamber on 12 February 2007, when the court heard two defendants and three witnesses. On 14 and 15 May 2007, the court heard four new witnesses, as well as R.L. and R.Č. The three hearings set for 13 February, 5 September and 12 November 2007 were adjourned or cancelled owing to a strike by court clerks (zapisničara) and/or as the witnesses had not been summoned properly or had failed to appear. The court imposed fines on four witnesses for failure to appear in court. 57. The trial recommenced before yet another trial chamber on 11 February 2008, as well as again because of the lapse of time. The court heard one witness and adjourned the hearing because it had been unable to maintain the proper composition of its bench. Two further scheduled hearings (15 April and 8 September 2008) were cancelled at the request of the defendants or their lawyers for private or professional reasons and/or because of the inadequate summoning of witnesses. 58. On 17 July 2008 the applicant lodged a new bill of indictment against R.L. and R.Č. 59. The trial started anew because of the lapse of time on 24 November 2008, when the court again heard defendants and four witnesses. On 28 November 2008 the present proceedings were joined with the criminal proceedings against R.L. and R.Č. The two hearings scheduled for 2526 February and 23 April 2009 were cancelled due to the failure of the defendants’ lawyers to appear in court and/or the difficulties of successfully tracing certain experts after so many years. 60. On 24 June 2009 the trial re-started again because of the lapse of time, but could not proceed as the competent experts failed to appear in court. The judge fined one of the experts. On 16 September 2009 the court heard one police expert (B.G.). The hearing scheduled for 15 December 2009 was adjourned because of the absence of two forensic experts (P.P. and I.J.) and the defendants’ attorneys. 61. Following judicial reforms, on 1 January 2010 the case was assigned to another judge of the newly competent Belgrade High Court and the proceedings had to begin anew. The hearing fixed for 21 May 2010 was cancelled because the court had been informed that R.L. had been found dead on 19 February 2010, as well as because one of the defendants’ lawyers had not been properly summoned. 62. On 6 July 2010, the court discontinued the proceedings against R.L. In order to speed up the trial, the applicant amended the indictment, accusing the defendants of being co-accomplices in serious breaches of safety regulations (see paragraph 77 below, Article 288.2 in conjunction with Article 278.3 of the Criminal Code). The hearing was adjourned until 19 October 2010 to allow the defendants to readjust their defence to the slightly amended indictment. The latter hearing was also not held due to a judiciary strike. 63. By September 2011, the District Court had held one hearing and adjourned another four hearings. Specifically, during a very short hearing on 11 February 2011 one defendant and a number of witnesses had been re-heard, whilst the hearings of 8 December 2010 and 24 March 2011 had been adjourned because the defendants’ lawyers had not appeared. The hearing scheduled for September 2011 was cancelled by the court itself because it had, apparently, been unable to secure the proper composition of its bench. When one of the parties to the proceedings complained about the delay, the Belgrade High Court informed him that the case had been classified as “backlog” and would be dealt with shortly. 64. On 24 April 2013 the court rendered the first-instance decision. It acquitted the defendants, finding that there was insufficient evidence to declare them guilty of the offences with which they had been charged. The judgment was served on the applicant on 8 September 2013. 65. According to the information made available by the parties, the case is still pending before the Belgrade Court of Appeal. 66. On 10 September 2010 the applicant lodged an appeal with the Constitutional Court (Ustavni sud), complaining about the length of the criminal proceedings described above. He complained, in particular, of obstacles and obstructions within the criminal proceedings, of not being involved in the investigative activities and of having had no access to the case file. 67. On 14 July 2011 the Constitutional Court held that the applicant had suffered a breach of his “right to a trial within a reasonable time” in respect of the ineffective, inadequate and lengthy criminal proceedings before the first-instance court, and ordered the latter to bring the impugned proceedings to a conclusion as soon as possible. In order to establish its jurisdiction ratione materiae, the court held that the criminal proceedings concerned the right to life, which was a civil right. The Constitutional Court also declared that the applicant was entitled to non-pecuniary damages, in accordance with Article 90 of the Constitutional Court Act. The applicant does not seem to have been served with that decision until October 2011. 68. On 31 October 2011 the applicant’s lawyer lodged a request with the Commission for Compensation. In so doing, he relied on the Constitutional Court’s decision, and sought 10,000,000 dinars (RSD) in compensation on account of the pecuniary and non-pecuniary damage suffered. 69. On 27 December 2011 the Commission for Compensation offered to pay the applicant the sum of RSD 100,000 (at the time approximately 840 euros (EUR)) for the non-pecuniary damage referred to in the Constitutional Court’s decision. According to the information contained in the case file, the applicant refused to accept that amount, deeming it insufficient. 70. Instead, on 17 July 2012 the applicant lodged a claim with the Belgrade Court of First Instance (Osnovni sud), noting that he had not received an appropriate offer from the Commission for Compensation, which was why he was entitled to bring a separate civil suit in this respect (Article 90 of the Constitutional Court Act, see paragraph 63 above). The applicant sought RSD 10,000,000 (at the time approximately EUR 85,000) for the non-pecuniary damage sustained. 71. On 12 December 2013 the Belgrade Court of First Instance accepted the applicant’s claim in part and awarded him RSD 500,000 (approximately EUR 4,330). The applicant was exempted from paying court stamp duty on account of his age and indigence. 72. On 14 May 2014 the Belgrade Court of Appeal (Apelacioni sud), decreased the award to RSD 300,000 (approximately EUR 2,580). The court stated that the payment of the original award would be contrary to the purpose of compensation and that the State could not be responsible for the omissions of third parties. According to information made available by the parties, the awarded amount has not yet been paid. 73. It would appear that on an unspecified date the applicant lodged another constitutional appeal with the Constitutional Court in respect of the compensation. The Court has not been informed by the parties about the outcome of the proceedings before the Constitutional Court. 74. Despite the Court’s request to the Government to provide it with the information indicating the ownership structure of Grmeč and JPL as of June 1995, the documents provided by the Government concerned only the legal status of Grmeč as of 1997, when it was incorporated as a limited liability company (društvo sa ograničenom odgovornošću). Nevertheless, documents in the Court’s possession show that in 1995 it was a well-established “socially-owned” holding company (društveno preduzeće/poslovni sistem) licenced for the production of homogeneous flooring and other products made of PVC masses. Its Vinfleks factory was apparently registered for the production of bituminous materials. 75. JPL was registered as a privately-owned company in 1995 for other services than the production of rocket fuel. It would appear that soon after the explosion the company was re-registered as Brunner, and that some of its co-founders, including R.Č. and B.J., further re-registered the company or established new companies called Infinity and/or EdePRO. According to media reports, a new explosion occurred on the EdePRO premises in November 2008. One person died and three were injured. 76. The Criminal Code 1977 (published in the Official Gazette of the Socialist Republic of Serbia – “OG SRS” – no. 26/77, amendments published in OG SRS nos. 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia – “OG RS” – nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. The relevant provisions read as follows: “(1) Whosoever by fire, flood, explosive, poison or poisonous gas, ionising or radioactive radiation, engine power or other generally dangerous act or generally dangerous means causes danger to life or body of people or to property of larger scale, shall be punished with imprisonment of between six months and five years. (2) The penalty specified in paragraph 1 of this Article shall also be imposed on an official or responsible person who fails to install prescribed equipment for protection against fire, explosion, flood, poison, poisonous gas, ionising or radioactive radiation, or fails to maintain these in proper order, or fails to use the equipment in time of need, or generally fails to observe regulations or technical protection standards and thereby causes danger to life or body or to property of large scale. (3) If a number of people are gathered at the location of the offences specified in paragraphs 1 and 2 of this Article, the offender shall be punished with imprisonment of between one and eight years. (4) If the offence specified in paragraphs 1 and 3 of this Article is committed by negligence, the offender shall be punished with imprisonment of up to three years.” “If the offence specified in Article 187 §§ 1-3, Article 188 § 1, Article 189 §§ 1-2 and Article 190 § 1 hereof resulted in the death of one or more persons, the offender shall be punished with imprisonment of not less than three years.” 77. The Criminal Code 2005 (published in OG RS no. 85/05 of 6 October 2005, amendments published in OG RS nos. 88/05 of 14 October 2005, 107/05 of 2 December 2005, 72/09 of 3 September 2009 and 111/09 of 29 December 2009) entered into force on 1 January 2006. It contains similar provisions (Articles 278 and 288 § 2 thereof), but the prescribed penalties are now imprisonment of between one and six years (instead of imprisonment of between one and eight years) for breaching general safety regulations at a location where a number of people are gathered, and imprisonment of between two and twelve years (instead of imprisonment of not less than three years) for the breach of general safety regulations which resulted in the death of one or more persons. 78. The Code of Criminal Procedure 2001 (published in the Official Gazette of the Federal Republic of Yugoslavia – “OG FRY” – no. 70/01 of 28 December 2001, amendments published in OG FRY no. 68/02 of 19 December 2002 and OG RS nos. 58/04 of 28 May 2004, 85/05 of 6 October 2005, 115/05 of 27 December 2005, 49/07 of 29 May 2007, 20/09 of 19 March 2009 and 72/09 of 3 September 2009) entered into force on 28 March 2002. The relevant domestic provisions are contained in Articles 19, 20, 46, 61, 64, 235, 242, 243, 379, 406 and 425 of the Code. 79. Most criminal offences (including those mentioned above) are subject to public prosecution, but some minor offences are only subject to private prosecution. The public prosecutor’s discretion to decide whether to press charges, however, is bound by the principle of legality, which requires that he must act whenever there is a reasonable suspicion that a crime subject to public prosecution has been committed. The public prosecutor must undertake measures necessary for the preliminary investigation of crimes subject to public prosecution and the identification of the alleged perpetrators. To that end, he is vested with the power to co-ordinate the work of various law-enforcement agencies and other governmental bodies. 80. If the public prosecutor finds, based on the evidence before him, that there is a reasonable suspicion that a certain person has committed a crime subject to public prosecution, he will request the competent court to open an official investigation or file a bill of indictment. If, however, the public prosecutor decides that there is no basis for the institution of such proceedings, he must issue a reasoned decision and also inform the victim of that decision; the victim then has the right to take over the prosecution of the case on his or her own behalf, in the capacity of “subsidiary prosecutor”, within eight days of the notification of the public prosecutor’s decision. 81. A subsidiary prosecutor may submit a request for the opening of an investigation or file an indictment. If an investigating judge refuses to open the investigation sought, the case will be referred to a three-judge criminal panel to issue a decision in that respect within forty-eight hours. A further appeal is allowed. If the prosecution has already been taken over by a subsidiary prosecutor, the public prosecutor nevertheless has the power to resume the prosecution of the matter ex officio. 82. At the relevant time the acquisition, production, trade and/or storage of armaments and explosive and flammable substances should have been carried out in compliance with numerous health-and-safety requirements and in the manner set out by the relevant laws and bylaws, as appropriate. 83. The Manufacturing of Armaments and Military Equipment Act of the Socialist Federal Republic of Yugoslavia prescribed the conditions for and manner of, inter alia, the production of armaments and military equipment needed to supply the Yugoslav army and for national defence in general, as well as the legal status of enterprises empowered to do so. Only enterprises which were empowered or contracted by the national defence authorities or by an extraordinary federal law were licensed to produce armaments and military equipment. The licensed enterprises were required to observe preventive measures and safety precautions, organise special units and adopt technical and physical firefighting-related plans and programmes in that respect. Under the law, the national defence authorities were responsible for supervision of the implementation of the law, while the data on capacity, development programmes and production of weaponry were confidential. 84. The Explosive Substances Trade Act of the Socialist Federal Republic of Yugoslavia and the Explosive Substances, Flammable Liquids and Gases Act of the Republic of Serbia regulate the terms and procedures for issuing authorisation, competence and control of the authorities, and their supervision over implementation of the legislation. The legislation also provides for other matters of importance for the production and trade of explosive and/or flammable substances that are not used in the military and mining sectors. Weaponry may be produced by registered enterprises, which have been licensed by the competent interior affairs authorities (at the level of the Republic of Serbia or of the autonomous provinces) following a positive opinion provided by the competent authorities in charge of national defence. No manufacturing permits may be used until the competent authorities have verified that the enterprise has met all the necessary requirements in respect of location, technical equipment, safety and preventive measures, storage and staff training, as required by the law. 85. The licensed enterprises are required to ensure that all preventive measures are carried out and that people and neighbouring buildings are protected. They must hold records of the materials produced and technologies used (to be verified by the competent State authorities). They must also make sure employees are properly informed about the production technology and the risks, and trained to control or deal with them, and obtain authorisation for the transportation of explosive and flammable substances. Furthermore, the enterprises are required to put in place adequate checks and regularly review their implementation of the prescribed requirements and measures. 86. Lastly, the interior affairs authorities of the Republic of Serbia or its provinces are responsible for supervision of the implementation of the regulations in respect of the production of explosive substances, while the municipal interior affairs authorities have a supervisory role in respect of all other activities and measures. 87. The relevant legislation sets out the liability for disciplinary, criminal or misdemeanour offences, as appropriate, for failures to adhere to the regulations. | 1 |
test | 001-181196 | ENG | RUS | COMMITTEE | 2,018 | CASE OF SHVEDOV AND OTHERS v. RUSSIA | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance) | Alena Poláčková;Helen Keller;Pere Pastor Vilanova | 4. Between 2005 and 2012 the applicants were charged and subsequently convicted of different criminal offences. Their cases were examined by appeal courts in the absence of the applicants and/or their lawyers. Convictions were upheld. 5. Information relevant to the criminal proceedings against the applicants appears in the appended table below. | 1 |
test | 001-165442 | ENG | SWE | GRANDCHAMBER | 2,016 | CASE OF J.K. AND OTHERS v. SWEDEN | 1 | Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iraq);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Carlo Ranzoni;Dmitry Dedov;Guido Raimondi;Helena Jäderblom;Iulia Motoc;Jon Fridrik Kjølbro;Kristina Pardalos;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Síofra O’Leary;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer;Pere Pastor Vilanova | 8. The applicants, a married couple and their son, were born in 1964, 1965 and 2000 respectively. 9. The applicants were brought up in Baghdad. Since the 1990s the husband (the first applicant) had run his own construction and transport business with exclusively American clients and had had his office at the United States military base “Victoria camp” (seemingly referring to Camp Victory). Several of his employees had on occasion been warned not to cooperate with the Americans. 10. On 26 October 2004 the first applicant was the target of a murder attempt carried out by al-Qaeda. He had to stay in hospital for three months. There, unknown men asked for him, after which he was treated in three different hospitals. 11. In 2005 his brother was kidnapped by al-Qaeda members, who claimed that they would kill him because of the first applicant’s collaboration with the Americans. His brother was released through bribery a few days later and immediately fled from Iraq. The applicants fled to Jordan and stayed there until December 2006, before returning to Iraq. 12. Soon afterwards, al-Qaeda members placed a bomb next to the applicants’ house. However, it was detected by the first applicant’s wife (the second applicant), and the American forces arrested the perpetrator. During interrogation, the perpetrator confessed that he had been paid by al-Qaeda to kill the first applicant and disclosed the names of sixteen people who had been designated to watch the applicants. Thereafter, the applicants moved to Syria, although the first applicant continued his business in Iraq. During this time, al-Qaeda destroyed their home and the first applicant’s business stocks. 13. In January 2008 the applicants returned to Baghdad. In October 2008 the first applicant and his daughter were shot at when driving. The daughter was taken to hospital, where she died. The first applicant then stopped working and the family moved to a series of different locations in Baghdad. The first applicant’s business stocks were attacked four or five times by al-Qaeda members, who had threatened the guards. The first applicant stated that he had not received any personal threats since 2008 as the family had repeatedly moved around. The son (the third applicant) had spent most of his time indoors for fear of attacks and had only attended school for his final examinations. The applicants had never asked the domestic authorities for protection, fearing that the authorities lacked the ability to protect them and might disclose their address, on account of alQaeda’s collaboration with the authorities. The applicants maintained that, in the event of their return to Iraq, they risked persecution by al-Qaeda and that the first applicant appeared on al-Qaeda’s death list. 14. On 14 December 2010 the first applicant applied for asylum and a residence permit in Sweden. On 11 July 2011 his application was rejected since he was registered as having left the country. 15. On 25 August 2011 the first applicant applied anew for asylum and a residence permit in Sweden, as did the other applicants on 19 September 2011. As to their state of health, the first applicant still had an open and infected wound on his stomach where he had been shot in 2004. They submitted several documents, including identity papers, a death certificate for the first and second applicants’ daughter and a medical certificate for the first applicant’s injury. 16. All three applicants were given an introductory interview by the Migration Agency (Migrationsverket) on 26 September 2011. Subsequently, the first and second applicants were given a further interview on 11 October 2011, which lasted almost three and a half hours. The third applicant was interviewed briefly for a second time and the first applicant was interviewed a third time. The applicants were assisted by State-appointed counsel. 17. On 22 November 2011 the Migration Agency rejected the applicants’ asylum application. In respect of the Iraqi authorities’ ability to provide protection against persecution by non-State actors, the Agency stated: “... Every citizen should have access to police authorities within a reasonable visiting distance. During the past few years the police authorities have taken numerous measures to fight against corruption, clan and militia connections and pure criminality within the police. The current country information, however, shows that there are serious shortcomings in the police’s work on crime-scene investigations and inquests. One of the reasons is probably that many police officers are relatively new and lack experience, and that it takes time to introduce a new method of investigation based on technical evidence. This problem is naturally accentuated by the fact that many individual police officers live under a threat emanating from different terrorist groups, which is likely to diminish their effectiveness. Nevertheless, the current country information shows that the number of suspects who have been prosecuted during the past few years has increased significantly. Even if fewer than half of all suspects are eventually prosecuted, this is still an improvement. The Iraqi security forces have been reinforced significantly and no longer have any shortcomings in human terms. Instances of police infiltration, which were previously widespread, have decreased significantly. The leading representatives of the police authority have expressed both their willingness and their ambition to maintain general security in Iraq. The current country information also shows that it has become more difficult for al-Qaeda Iraq to operate freely in Iraq and that there has been a significant decline in sectarian violence. Today violence is mainly aimed at individual targets, especially civil servants, police, security forces and some minorities. ...” Regarding the assessment of the applicants’ refugee status, as well as their need for alternative protection, the Agency held as follows: “... The Migration Agency notes that [the first applicant] had a contract with the Americans until 2008. For this reason [the first applicant] has been exposed to two murder attempts, his brother has been kidnapped and [the first and second applicant]’s daughter has been killed. Furthermore, on several occasions, [the first applicant] has suffered physical damage to his house and stock. [The first and second applicants] are convinced that al-Qaeda is behind these abuses. The family are also afraid of al-Qaeda in the event of their return. The Migration Agency notes that [the first applicant] stopped working for the Americans in 2008 after his and [the second applicant]’s daughter was killed. The Migration Agency further notes that [the first applicant] stayed in Baghdad until December 2010 and that [the second and third applicants] lived in Baghdad until September 2011. During this period they were not exposed to any direct abuses. [The first applicant] has, however, been indirectly threatened on four or five occasions by the people who guard his stock. Also, his stock has been attacked. [The first and second applicants] explained that they had managed to escape from abuses because they were in hiding and living in different places in Baghdad. The Migration Agency notes that [the first and second applicants] have two daughters who live with their grandmother in Baghdad and a daughter who is married and lives with her family in Baghdad. These family members have not been exposed to any threats or abuses. The Migration Agency notes that the abuses which the family claim to be at risk of being exposed to are criminal acts which their home country’s authorities have a duty to prosecute. In order to decide whether the family can enjoy protection against the abuses they fear, the Migration Agency notes the following. In accordance with the principle that it is for an asylum-seeker to justify his or her need for protection and that it is primarily for the applicant to provide relevant information for the assessment in the case, the onus must be on the applicant to plead that he or she cannot or, owing to a severe fear of the consequences, for example, will not avail himself or herself of the protection of the authorities available in Iraq. In addition, the applicant must justify this. The shortcomings which still exist in the Iraqi legal system are then to be noted and evaluated in the context of the individual assessment of each asylum case. The circumstances on which an applicant relies in arguing that protection by the authorities is deficient are first of all examined in the usual way. In those cases in which the alleged risk of persecution or other abuses does not emanate from the authorities, which as a rule is the case in Iraq, the applicant must show what efforts he or she has made to be afforded protection by the authorities. The applicant can do this either by relying on evidence or by giving a credible account of events which appear plausible. When assessing the authorities’ ability to protect against threats of violence emanating from terrorist groups or unknown perpetrators in a specific case, the individual’s situation, as well as the severity of the violence or threats, their nature and their local reach, must be assessed individually (see Migration Agency, Legal opinion on protection by the authorities in Iraq, 5 April 2011, Lifos 24948). The Migration Agency considers that the family have been exposed to the most serious forms of abuses (ytterst allvarliga övergrepp) by al-Qaeda from 2004 until 2008. Such abuses, however, took place three years ago and nowadays it is more difficult for al-Qaeda to operate freely in Iraq. [The first and second applicants] never turned to the Iraqi authorities for protection. [The first applicant] has stated that the Iraqi authorities lack the capacity to protect the family. Further, he has stated that he did not dare to turn to the authorities because he would then have been forced to disclose his address, which could have resulted in al-Qaeda being able to find him. [The second applicant] has stated that al-Qaeda works together with the authorities. As stated earlier, the Migration Agency finds that there has been a significant decline in instances of police infiltration, which previously were widespread. Against the background of the fact that [the first and second applicants] have not even tried to seek the protection of the Iraqi authorities, the Migration Agency considers that they have not made a plausible case that they would not have access to protection by the authorities in the event of potential threats from al-Qaeda upon returning to Iraq. Against this background, the Migration Agency finds that [the first and second applicants] have not made a plausible case that the Iraqi authorities lack the capacity and the will to protect the family from being exposed to persecution within the meaning of Chapter 4, section 1, of the Aliens Act or to abuses within the meaning of Chapter 4, section 2, first subsection, first point, first line, of the Aliens Act. The Migration Agency notes in this context that there is no armed conflict in Iraq. The Migration Agency therefore finds that the family are not to be regarded as refugees or as being in need of alternative or other protection, for which reason the family do not have the right to refugee status or alternative protection status. The Migration Agency notes that fierce tensions between opposing factions are prevalent in Baghdad. Nevertheless, against the background of the above reasoning, the Migration Agency finds that the family also cannot be regarded as being otherwise in need of protection, within the meaning of Chapter 4, section 2a, first subsection, of the Aliens Act. The family do not therefore have any right to a status falling under any other need of protection. ...” In conclusion, the Migration Agency found that there were no grounds to grant the family residence permits. Against this background, the Migration Agency rejected the family’s application and ordered their deportation from Sweden on the strength of Chapter 8, section 1, of the Aliens Act. 18. The applicants appealed to the Migration Court (Migrationsdomstolen), maintaining that the Iraqi authorities had been and would be unable to protect them. They had contacted the police following the fire to their home and the first applicant’s business stock in 2006 and 2008 and the murder of the first and second applicants’ daughter in 2008, but thereafter they had not dared to contact the authorities owing to the risk of disclosing their residence. Together with their written submissions, they enclosed a translated written statement allegedly from a neighbour in Baghdad, who stated that a masked terrorist group had come looking for the first applicant on 10 September 2011 at 10 p.m. and that the neighbour had told them that the applicants had moved to an unknown place. The neighbour also stated that, just after the incident, the first applicant had called him and been told about the incident. The applicants also submitted a translated residence certificate/police report allegedly certifying that their house had been burned down by a terrorist group on 12 November 2011. Furthermore, the applicants submitted a DVD containing an audiovisual recording of a public debate on television concerning corruption and the infiltration of al-Qaeda members within the Iraqi administration. The applicants mentioned in that connection that the first applicant had participated in the public debate, which had been broadcast on the Alhurra channel in Iraq on 12 February 2008, that is to say, four years earlier. Finally, submitting various medical certificates, the applicants contended that the first applicant’s health had deteriorated and that he could not obtain adequate hospital care in Iraq. The Migration Agency made submissions before the Migration Court. It stated, among other things, that the documents submitted concerning the alleged incidents on 10 September and 12 November 2011 were of a simple nature and of little value as evidence. 19. On 23 April 2012 the Migration Court upheld the Migration Agency’s decision. Concerning the need for protection, the court held: “It is undisputed in the present case that the applicants’ grounds for protection must be examined in relation to Iraq. The general situation in Iraq is not such that as to confer the automatic right to a residence permit. Therefore, an individual assessment of the grounds for protection invoked by the applicants must be made. The applicants have alleged that they are in need of protection upon returning to Iraq as they risk being exposed to ill-treatment by al-Qaeda because [the first applicant]’s company did contract-based work for the Americans in Iraq until 2008. The Migration Court considers that the alleged events took place in the distant past, that it is difficult to see why there would still be a threat as [the first applicant] no longer performs such work, and that, in the event that some threats should still exist, it appears likely [framstår som troligt] that the Iraqi law-enforcement authorities are both willing and able to offer the applicants the necessary protection. In such circumstances, there are no grounds to grant the applicants any residence permit on the basis of a need for protection. ...” 20. The applicants appealed to the Migration Court of Appeal (Migrationsöverdomstolen). Their request for leave to appeal was refused on 9 August 2012. 21. On 29 August 2012 the applicants submitted an application to the Migration Agency for a re-examination of their case. They maintained that the first applicant was under threat from al-Qaeda because he had been politically active. They enclosed a video showing the first applicant being interviewed in English, a video showing a demonstration, and a video showing a television debate. 22. On 26 September 2012 the Migration Agency refused the applicants’ application. The applicants did not appeal to the Migration Court against that decision. | 1 |
test | 001-162864 | ENG | AUT | CHAMBER | 2,016 | CASE OF FÜRST-PFEIFER v. AUSTRIA | 3 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer | 5. The applicant, Ms Gabriele Fürst-Pfeifer, is an Austrian national who was born in 1964 and lives in Mödling. She is a psychiatrist and has been registered since the year 2000 as a psychological expert for court proceedings in custody and contact-rights-related disputes and decisions on public care as well as child abuse. Specialised in the psychological examination of children and adolescents, her focus is mainly on custody and contact-rights-related disputes. 6. The online publication “meinbezirk.at” was published and edited by the “Print” Multimedia Company GmbH, a private company which had its registered office in St. Pölten. 7. The regional weekly print publication Bezirksblatt, which was sent to every household of the district free, was published and edited by the “Print” Zeitungsverlag GmbH, a private company which had its registered office in Innsbruck. 8. On 23 December 2008 an article was published in “meinbezirk.at” as well as in the print version of Bezirksblatt, which stated as follows: “The quality of experts in the spotlight (Gutachterqualität im Visier) Disclosed: Court Expert for custody proceedings a case for therapy (Aufgedeckt: NÖ Sorgerechts-Sachverständige selbst ein Therapie-Fall) Suffering from up-and-down mood swings, panic attacks, suicidal thoughts and hallucinations, together with paranoid ideas – but working as a court-appointed expert. In the last 12 years she has examined over 3.000 married couples in custodyrelated disputes. Now it seems, it gets rough for [the applicant] as an expert report about her psychological condition has been disclosed ... A psychological expert report by Dr. M. was commissioned in 1993 in the course of civil proceedings (action because of an alleged breach of promise of marriage) which unearthed the deficiencies of [the applicant] described above. Moreover, Dr. M. came to the conclusion that the applicant’s impairments were hereditary, as the history of her family showed an accumulation of these impairments. Three years later, the applicant was introduced to the “expert community” at the Wiener Neustadt Regional Court, and her integrity was beyond reproach for a decade – until now.” 9. The passage was followed by comments by a member of the Green Party, who had made a criminal complaint against the applicant with the Public Prosecutor’s office, the Youth Advocate at the Regional Government of Lower Austria, and the Vice-President of the Wiener Neustadt Regional Court, who was responsible for managing the list of experts at the court. At the end of the article it was mentioned that the applicant was no longer answering her phone and had withdrawn from all her cases. 10. As a result of the article the applicant was confronted with questions related to it from colleagues and patients, and proceedings were initiated at the Wiener Neustadt Regional Court to clarify whether she was still fit to work as a court-appointed expert. In the course of those proceedings the applicant’s mental status was also set to be examined. 11. On 14 January 2009 the applicant lodged an action with the St. Pölten Regional Court. She sought damages under section 8a of the Media Act (Mediengesetz) and the publication of the judgment claiming that the article and in particular the passages dealing with the psychological expert report on the applicant had violated her intimate personal sphere and compromised her publicly. However, she did not argue that the expert report had been obtained unlawfully. 12. On 3 April 2009 the St. Pölten Regional Court (Landesgericht St. Pölten) allowed the applicant’s action, ordered the publisher to pay damages in the amount of 5,000 euros (EUR) and the operative part of the judgment to be published. Furthermore, the publisher was to bear the costs of the proceedings. The court found that an average reader would understand the article as putting the expert opinion from 1993 in direct relation to the applicant’s work as an expert now, thus questioning the quality of her work. The article, that also featured the applicant’s full name and the description of her psychological impairment, touched her intimate personal sphere, since it created a link between her mental state and the quality of her work. However, the information itself did not allow for such a link, especially since the expert opinion dated from 1993 and dealt only with a very specific question in the context of civil proceedings at the time. The incomplete and manipulative content of the article was not able to meet the standards of reporting on matters of fact. Furthermore, the court did not consider that there was a direct link between the contents of the article and the applicant’s public position, given that she mainly worked as an expert in custody cases, which were not usually heard in public. Furthermore, it could be assumed that the applicant, a psychiatrist herself and a medical doctor, was managing her illness well and was able to do her work without any impairments. 13. The publisher appealed on points of law and fact, as well as against the sentence (Berufung wegen Nichtigkeit, Schuld und Strafe). 14. Thereupon, on 30 November 2009, the Vienna Court of Appeal (Oberlandesgericht Wien) heard the appeal, set aside the judgment of the lower court, and dismissed the applicant’s action. The Court of Appeal confirmed that the article and the impugned passages giving opinions on the applicant’s mental state affected her intimate personal sphere and were capable of compromising her. However, the content of the article was true, as it only repeated true information that had not been disputed by the applicant. Furthermore, the court did not find the article to be incomplete or manipulative, but sufficiently well-balanced and faithful to the different sides of the story in that it also referred to the fact that the applicant’s integrity had never been questioned in ten years; the court also asked for statements from the Vice-President of the Wiener Neustadt Regional Court, a member of the Green Party, and the Youth Advocate of the Regional Government of Lower Austria. 15. The Court of Appeal further found that the publication in issue was directly linked to the applicant’s public status. She had been included in the list of experts to be appointed by the courts since the year 2000 and had been appointed in several cases. This regular work as an expert in court proceedings belongs beyond doubt to the public sphere (“...ist zweifellos dem öffentlichen Leben zuzuordnen...”) as she took part in association with the State-organised judiciary and held an important position in connection with the decision-making process of judges. Even though the impugned expert opinion dated from 1993 and concerned a period in the applicant’s life prior even to that date, the reporting in question touched sufficiently upon the present public activities of the applicant. Considering the importance and sensitivity of the area of custody proceedings and the dominant role of experts in the field, the psychological integrity of an expert assigned to those cases had to be beyond doubt. Any reservation in relation to the mental health of experts – if based on sufficient reasons – had to be met with a thorough investigation in the interest of good conduct of the administration of justice, which was what had happened as the next step in the present case. According to the Court of Appeal, the article took up doubts arising from the neurologist opinion in 1993 without denying the applicant’s abilities as an expert in the area. The truthful information in the article and the public interest in the subject matter justified the article’s critical questioning of exactly those abilities. 16. That judgment was served on the applicant’s representative on 17 December 2009. 17. In the meantime the applicant lodged an action with the Innsbruck Regional Court on 7 April 2009. She sought damages under section 8a of the Media Act (Mediengesetz) and publication of the judgment claiming that the article, and in particular the passages dealing with the psychological expert report on her, violated her intimate personal sphere and compromised her publicly. 18. On 2 October 2009 the Innsbruck Regional Court (Landesgericht Innsbruck) granted the applicant’s action, ordered the publisher to pay damages in the amount of 5,000 euros (EUR) and the publication of the operative part of the judgment. Furthermore, costs were awarded against the publisher. The court found that the average reader would understand the article as stating that the applicant was incapable of being an expert in custody proceedings because of her own mental health impairments in 1993 and that this placed in question the quality of the applicant’s work so far. That the applicant’s psychological illness was directly linked to the intimate personal sphere was beyond doubt. The present article not only mentioned the applicant’s mental health status, but also grossly exaggerated individual symptoms, which was also capable of compromising her. The article was so incomplete and distorted that it could not be considered a report of matters of fact. The Regional Court in particular noted that the article did not mention that the period of examination was even earlier than 1993 and that only certain aspects of the expert opinion had been published, while others had not. Scandalously the article created the impression that the applicant had rendered decisive opinions in custody proceedings for over a decade while herself suffering from the symptoms described above. Furthermore, the publication was not linked in any way to the applicant’s public status (“...steht [...] in keinem unmittelbaren Zusammenhang mit dem öffentlichen Leben der Antragstellerin”). There was no connection between the applicant’s work at present and her mental health status years ago. Her work in the context of custody proceedings was also not conducted in public. 19. The publisher appealed on points of law and fact, as well as against the sentence (Berufung wegen Nichtigkeit, Schuld und Strafe). 20. Thereupon, on 11 February 2010, the Innsbruck Court of Appeal (Oberlandesgericht Innsbruck) granted the appeal, set aside the judgment of the lower court, and dismissed the applicant’s action. In contrast to the Regional Court it found that the average reader would understand from the article at issue that in 1993 an expert opinion was rendered in respect of the applicant that showed the above-mentioned psychological impairments. However, the article also stated that the applicant’s integrity had not been questioned for over a decade. The article, while focusing on the applicant’s work in custody proceedings, gave space to comments from the Youth Advocate of the Regional Government of Lower Austria, a member of the Green Party, and the Vice-President of the Wiener Neustadt Regional Court. The article did not indicate however that the applicant was not competent to exercise her profession as a psychological expert. Furthermore, the published information was true. The fact that only parts of the expert opinion were repeated in the article did not render the article distortive, nor the relevant information untrue. 21. As regards the connection to the public sphere and public interest, the Court of Appeal found that the State administration, together with the administration of justice, belonged to the public sphere. The applicant had been included in the list of court-commissioned experts since the year 2000, and her repeated work as an expert in court proceedings must be considered as belonging to the public sphere. The activity was closely linked to the administration of justice, and had a considerable influence on judges’ decision-making processes. The impugned article concerned the applicant’s activity as an expert in custody proceedings. Considering the importance and sensitivity of the area of custody proceedings and the dominant role of experts in the field, the psychological integrity of an expert assigned to those cases had to be beyond doubt. Any reservation in relation to the mental health of experts – if based on sufficient reasons – had to be met with a thorough investigation in the interest of the proper administration of justice, which had happened as a next step in the present case. Insofar, a truthful report linked to a person’s public status, which also contained information belonging to the intimate personal sphere must be permitted to be published. The Court of Appeal concluded that the article, by way of an appropriate commentary, critically examined a matter of public interest and therefore exercised its role as a “public watchdog”. 22. That judgment was served on the applicant’s representative on 11 March 2010. | 0 |
test | 001-184269 | ENG | BGR | CHAMBER | 2,018 | CASE OF BOYADZHIEVA AND GLORIA INTERNATIONAL LIMITED EOOD 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) | André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The first applicant was born in 1954 and lives in Sofia. The second applicant was registered in 1992 and has its registered place of business in Sofia. 6. At the time of the events in question the first applicant was registered as a sole trader. At that time the main commercial activity of the two applicants was trade in medicaments. 7. In February and March 2006 the first applicant sold medicaments to a company called K., for which she was paid 22,043.23 Bulgarian levs (BGN), the equivalent of 11,275 euros (EUR), in total. 8. Between December 2005 and April 2006 the second applicant also sold medicaments to K., receiving a total of BGN 33,344.05 (the equivalent of EUR 17,055) by way of payment. 9. In September 2006 other companies which were creditors of K., including E., applied for the commencement of insolvency proceedings against K. Their request was allowed in a judgment of 17 November 2006 of the Plovdiv Regional Court (hereinafter “the Regional Court”), which declared company K. insolvent, opened insolvency proceedings and appointed a trustee. It noted that K. had ceased its payments to E. and other creditors in October 2005, and held that the initial date of the company’s insolvency was therefore 30 October 2005. 10. In January 2007 the trustee prepared the first list of K.’s creditors, which included company E. 11. In May 2007 company E. brought proceedings against the first applicant under section 646(2) of the Commerce Act, as in force at the time (see paragraph 25 below), seeking to have the payments K. had made to her during the so-called “suspect period” – the period between the initial date of insolvency as declared by the Plovdiv Regional Court and the commencement of the insolvency proceedings (the payments described in paragraph 7 above) − declared null and void and the sum received by her returned to the insolvency estate. 12. The action was allowed in a judgment of the Regional Court of 31 October 2007. Observing that it was undisputed that K. had paid the first applicant BGN 22,043.23 during the “suspect period”, and without analysing the matter any further, it ordered her to pay back this sum to the insolvency estate, plus default interest. 13. That judgment was upheld on 12 March 2008 by the Plovdiv Court of Appeal (hereinafter “the Court of Appeal”). 14. The Court of Appeal’s judgment was enforceable and, at the request of K.’s trustee, a bailiff opened enforcement proceedings against the first applicant for the sums due to the insolvency estate. In December 2008 the applicant settled that debt, which also included interest and costs and expenses related to the enforcement proceedings. 15. In the judicial proceedings against the first applicant, in a final decision of 21 January 2009 the Supreme Court of Cassation refused to accept for examination an appeal on points of law lodged by her. 16. In April 2007 company E. brought proceedings against the second applicant under section 646(2) of the Commerce Act, as in force at the time (see paragraph 25 below), seeking to have the payments K. had made to it during the “suspect period” between 30 October 2005 and 17 November 2006 (payments described in paragraph 8 above) declared null and void and the sum received by the applicant returned to the insolvency estate. 17. The action was allowed in a judgment of 23 January 2008 of the Regional Court. While it acknowledged that the transactions between the second applicant and K. had not damaged the latter’s interests, because K. had received equivalent goods in exchange for its payments to the applicant, the Regional Court added that the Commerce Act “did not take account” of such considerations. It thus ordered the second applicant to pay back to the insolvency estate the sum of BGN 33,344.05, plus default interest. 18. Upon appeal by the second applicant, on 10 June 2008 that judgment was upheld by the Court of Appeal, which stated once again that section 646(2) of the Commerce Act did not require any proof that the contested payment had damaged the interests of K.’s remaining creditors; such damage, as well as the knowledge about it, were to be considered “presumed”. 19. Since the Court of Appeal’s judgment was enforceable, a bailiff opened enforcement proceedings against the second applicant for the sums owed by it to the insolvency estate. The second applicant settled that debt, which included interest and costs and expenses related to the enforcement proceedings, in October 2008. 20. In the main judicial proceedings against the second applicant, in a final decision of 29 July 2009 the Supreme Court of Cassation refused to accept for examination an appeal on points of law lodged by it. 21. In the insolvency proceedings against K., the majority of its assets were distributed among its creditors between November 2007 and October 2008. In two decisions delivered in November and December 2008 the trustee in bankruptcy added the State to the list of creditors, with claims exceeding BGN 5,000,000. As the State was a privileged creditor, almost all payments from the insolvency estate after that were made to it, but a substantial proportion of the debts owed to it by K. nonetheless remained unpaid. 22. The applicants did not make use of the possibility afforded to them by section 648 of the Commerce Act (see paragraph 29 below) to join the insolvency proceedings as creditors of K. Two other companies in a similar situation – they had also been obliged to return sums to the insolvency estate on the basis of section 646(2) of the Commerce Act – did join the insolvency proceedings, but received no part of the sums owed to them. 23. The insolvency proceedings continued until 2014, when company K. was wound up. | 1 |
test | 001-147468 | ENG | TUR | CHAMBER | 2,014 | CASE OF BAYTAR v. TURKEY | 3 | Remainder inadmissible;Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-e - Free assistance of interpreter) (Article 6 - Criminal proceedings;Right to a fair trial;Article 6-1 - Fair hearing);Non-pecuniary damage - award | András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 5. The applicant was born in 1949 and lives in Van. 6. On 30 April 2001 the applicant went to Muş prison during visiting hours to see her brother, who was being held there in connection with a case related to the PKK, an illegal armed organisation. 7. The staff responsible for body searches found on the applicant “close to the left side of her abdomen”, a piece of paper that had been folded several times and wrapped in tape. It was an unsigned letter dated 24 April 2001, written by a member of the PKK and addressed to another member. 8. The applicant was taken into police custody on the same day and questioned in Turkish by the gendarmes the following day. During the interview she stated that she had picked up the object in question in Van at the bus stop where she was waiting for the bus to Muş. She had thought that the object might have some value and had intended to remove the wrapping once she was alone. 9. On 1 May 2001 she gave a statement to the same effect before the public prosecutor and then before the District Court. As she was illiterate, she signed the statements with her fingerprint. 10. She was remanded in custody after being examined and was released on 5 July 2001. 11. On 27 September 2001 the State Security Court of Van acquitted the applicant, considering her version of events to be credible. 12. On 17 December 2001 the applicant visited her brother again in Muş prison during a religious festival. After the visit she was taken into police custody. 13. The police report drawn up that same day stated that the staff responsible for body searches had discovered, hidden in the lining of the applicant’s dress, a sixteen-page document consisting of rolled-up onionskin paper protected by adhesive tape. According to the report, the document contained, in particular, information about the PKK’s strategy and its activities in prisons, about the conduct to be adopted vis-à-vis the prison authorities and about prison staff. 14. She was questioned in Turkish by two gendarmes on 18 December 2001. The report stated that she had been reminded of her right to the assistance of a lawyer but had waived that right. As to the facts, she had stated that she had seen a wrapped object in the prison waiting room and had picked it up out of mere curiosity, placing it in her bra. She added that, during the search, the prison officers had discovered the object and had unwrapped it. She had noticed pieces of paper covered in writing. During her visit to her brother she had told him about the incident but he had not said anything about it. The gendarmes had then arrested her as she was leaving the prison. 15. In response to a question about her personal status, she replied that she was married to G.I. on the basis of a religious marriage, not a civil one, and that they had had five children together. Her husband had another partner with whom he had had six children. 16. When asked whether she worked for the PKK, she replied in the negative. She added that, on the first occasion, she had picked up the object thinking it might contain gold and that it was with the same thought in mind that she had taken the paper in the waiting room. 17. In response to a question about ten pieces of gold discovered on her during the search, she stated that half of them belonged to her daughter and the other half were hers. 18. After she had been questioned, the public prosecutor called for her to be remanded in custody. As a result she was brought before the District Court judge. 19. Finding that she did not speak Turkish with sufficient fluency, the judge asked a member of the applicant’s family who was waiting in the corridor outside the courtroom to act as interpreter. The relative accepted. 20. The applicant stated once again that she had found the document in question in the waiting room. Immediately afterwards, she claimed that this statement, and the one previously taken by the gendarmes, concerned events that had occurred seven months earlier; that no document had been discovered on her person when she last visited the prison; that she had thought the gendarmes were questioning her about earlier events; and that, not being able to read or write, she had signed the police report with her fingerprint without knowing what it said. When she was informed of the report’s content she disputed its veracity. 21. On 18 December 2001, after the hearing, the applicant was remanded in custody and criminal proceedings were brought against her before the State Security Court of Van for membership of an illegal armed organisation and, in the alternative, for aiding and abetting such an organisation. 22. At the various hearings before that court the applicant was assisted by a lawyer and an interpreter. 23. In the course of the proceedings, the defence disputed the prison officers’ version of events. Counsel argued that no document had been found on the applicant, adding that, according to her, a document had certainly been found on a female visitor during the search carried out on entering the premises and that person had nevertheless been authorised to visit on the grounds that it was a public holiday. The prison officers had failed to arrest her when she left the prison on account of the large number of visitors that day. Having realised that the visitor in question had evaded their control, the officers had decided to arrest the applicant instead, because they knew that a similar accusation had already been made against her. In addition, the defence stated that in her statement to the gendarmes the applicant had said that the impugned object had been found in her bra, whereas the record of the incident indicated that it had been found in the lining of her dress. 24. On 12 May 2002 two female prison officers were interviewed on the basis of a warrant. The first, C.A., stated that she had personally found the impugned document in the lining of the applicant’s dress during the body search. The second, F.A., confirmed this version and stated that she had been called immediately by her colleague after the discovery. 25. Testimony was also taken from a number of defence witnesses. Two women who were visiting the prison on the day of the incident stated that they did not know if the applicant had been searched on entering the prison. Another testified that she had entered the prison at the same time as the applicant but not had seen her being searched. One of the applicant’s brothers testified that he had arrived at the prison with her but that they had become separated during the body search before coming together again to visit their brother. In their conversation with the latter, the applicant had never mentioned any incident during her body search. 26. On 29 May 2002 the applicant was given a prison sentence of three years and nine months for aiding and abetting an illegal armed organisation. In its reasoning, the State Security Court observed that, in the first case, the applicant had claimed to have found the impugned document at a bus stop in Van, and that, in the second, she had stated during the investigation that she had found the document in the prison waiting room. It noted that the applicant had reiterated this statement to a district judge before claiming that she had been talking about the first case and that no document had in fact been found on her during the body search of 17 December 2001. The court took the view that there were some serious inconsistencies in the applicant’s explanations. It noted that if she had really believed that the questioning by the gendarmes and the district judge concerned the events of 30 April 2001 she should logically have stated that she had found the impugned document not in the waiting room of Muş prison but in Van. It concluded that the version of events given by the applicant and the defence witnesses was not credible, and it accepted the testimony of the two prison officers, which confirmed the findings in the relevant police report. The court thus found the applicant guilty as charged. 27. On 7 October 2002 the Court of Cassation quashed that judgment on a procedural ground. 28. On 18 April 2003 the State Security Court convicted the applicant again and handed down the same sentence. Moreover, taking into account the time she had already served, it ordered her release. 29. That judgment was quashed on 19 January 2004 on an appeal on points of law by the applicant. The Court of Cassation took the view that the offence with which she was charged had been incomplete and had remained at the attempt stage. It dismissed the applicant’s other grounds of appeal on points of law, including the question of the absence of an interpreter in police custody. 30. On 3 May 2004 the State Security Court sentenced the applicant to one year and three months’ imprisonment for attempting to aid and abet an illegal armed organisation. It adopted the same reasoning as that of its previous judgments. 31. On 6 June 2005 the Court of Cassation referred the case back to the first-instance court stating that, in accordance with Law no. 5252, setting out the rules and procedures for the application of the new Criminal Code which had recently entered into force, the case had to be re-examined in the light of that new code to determine whether the applicant could be granted the benefit of a more lenient provision. 32. On 19 September 2005 the Van Assize Court (formerly the State Security Court) convicted the applicant once again, adopting the same reasoning as that of its previous judgments, and specifying that the provisions of the former code were more lenient. 33. The applicant appealed on points of law against that judgment, submitting in particular that she had not been assisted by an interpreter while in police custody. 34. Her appeal was dismissed on 31 October 2006. | 1 |
test | 001-145466 | ENG | FRA | GRANDCHAMBER | 2,014 | CASE OF S.A.S. v. FRANCE | 1 | Preliminary objection dismissed (Article 34 - Victim);Preliminary objections dismissed (Article 34 - Actio popularis);Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for private life;Article 8 - Right to respect for private and family life);No violation of Article 14+9 - Prohibition of discrimination (Article 14 - Discrimination) (Article 9 - Freedom of thought conscience and religion;Article 9-1 - Manifest religion or belief) | Aleš Pejchal;André Potocki;Angelika Nußberger;Dean Spielmann;Elisabeth Steiner;Erik Møse;Ganna Yudkivska;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Paul Lemmens | 10. The applicant is a French national who was born in 1990 and lives in France. 11. In the applicant’s submission, she is a devout Muslim and she wears the burqa and niqab in accordance with her religious faith, culture and personal convictions. According to her explanation, the burqa is a full-body covering including a mesh over the face, and the niqab is a full-face veil leaving an opening only for the eyes. The applicant emphasised that neither her husband nor any other member of her family put pressure on her to dress in this manner. 12. The applicant added that she wore the niqab in public and in private, but not systematically: she might not wear it, for example, when she visited the doctor, when meeting friends in a public place, or when she wanted to socialise in public. She was thus content not to wear the niqab in public places at all times but wished to be able to wear it when she chose to do so, depending in particular on her spiritual feelings. There were certain times (for example, during religious events such as Ramadan) when she believed that she ought to wear it in public in order to express her religious, personal and cultural faith. Her aim was not to annoy others but to feel at inner peace with herself. 13. The applicant did not claim that she should be able to keep the niqab on when undergoing a security check, at the bank or in airports, and she agreed to show her face when requested to do so for necessary identity checks. 14. Since 11 April 2011, the date of entry into force of Law no. 20101192 of 11 October 2010 throughout France, it has been prohibited for anyone to conceal their face in public places. | 0 |
test | 001-156254 | ENG | TUR | CHAMBER | 2,015 | CASE OF CINGILLI HOLDİNG A.Ş. AND CINGILLIOGLU v. TURKEY | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;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);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 3. The applicants were the main shareholders of Demirbank, established in 1953. In 1999 Demirbank was ranked the fifth largest private bank in Turkey, with 193 branches and 3,885 employees. 4. By a decision dated 6 December 2000 (no. 123), the Banking Regulation and Supervision Board (Bankalar Düzenleme ve Denetleme Kurulu – hereinafter referred to as “the Board”) decided to transfer the management and control of Demirbank to the Savings Deposit Insurance Fund (Tassarruf Mevduat Sigorta Fonu – hereinafter “the Fund”), pursuant to section 14 (3) of the Banking Activities Act (Law no. 4389). In its decision, the Board held that the assets of Demirbank were insufficient to cover its liabilities and that the continuation of its activities would threaten the security and stability of the financial system. Accordingly, Demirbank’s management and control, and the privileges of its shareholders except for dividends, were transferred to the Fund. The Fund also confiscated all properties belonging to Demirbank. 5. On 2 February 2001, the applicant company brought administrative proceedings against the Banking Regulation and Supervision Agency (Bankalar Düzenleme ve Denetleme Kurumu – hereinafter referred to as “the Agency”) before the Ankara Administrative Court, seeking the annulment of the decision of 6 December 2000 regarding the transfer of Demirbank to the Fund. 6. The Ankara Administrative Court found that it lacked jurisdiction and transferred the case to the Supreme Administrative Court. 7. In its submissions before the Supreme Administrative Court, the applicant company claimed that its property rights had been violated. It also raised a plea of unconstitutionality under section 14 of the Banking Activities Act. The applicant company further stated that prior to November 2000, Demirbank had never encountered major financial problems. It was pointed out that pursuant to section 14 (2) of the Act, a bank with financial difficulties should first be given a warning to strengthen its financial structure and be allowed time to take specific measures. However, no such warning had been given in the instant case. Secondly, the Board had not claimed that Demirbank’s financial situation was so weak that it could not be strengthened even if specific measures were taken. Lastly, the applicant company stated that following the transfer of the bank to the Fund, a General Assembly composed of the Fund’s officials had exonerated the former managers of Demirbank, holding that they had not been at fault in the incident leading to the bank’s transfer. 8. After examining the file, on 3 June 2003 the Supreme Administrative Court dismissed the case. It held that the takeover of the bank by the Fund had been in accordance with section 14 (3) of the Banking Activities Act. The applicant company lodged an appeal. 9. On 18 December 2003 the Joint Administrative Chambers of the Supreme Administrative Court decided to quash the decision of 3 June 2003. In its judgment, the court held that prior to ordering the transfer of Demirbank to the Fund, the Board should have carried out an objective evaluation of the bank’s financial situation. The court also concluded that the Board should first have ordered Demirbank to take specific measures in accordance with section 14 (2) of the Banking Activities Act before applying section 14 (3) of the Act. 10. On 29 April 2004 a request for rectification lodged by the Agency was refused. 11. The case was remitted to the Supreme Administrative Court, which delivered its decision on 5 November 2004, upholding the decision of the Joint Administrative Chambers of the Supreme Administrative Court. In its decision the Supreme Administrative Court held that: “... Demirbank did not have any serious financial problems until the economic crisis in November 2000. The amount of the bank’s risky credit in Government Bonds for Domestic Borrowing aimed at securing Treasury debt was not too high compared to its total credit, its asset quality was high due to its five affiliate banks abroad, and furthermore, the major shareholders had not targeted the resources of the bank. Although Demirbank had been able to resolve its liquidity problem and it had fulfilled all obligations towards individual and corporate clients using its own assets, it was decided that it fell within the scope of section 14 of the Banking Activities Law. It is therefore understood that the administrative act pertaining to the taking over of Demirbank by the Savings Deposit Insurance Fund based on paragraphs (b) and (d) of section 14 of the Banking Activities Act, without investigating any further possible options or specific measures to enable the Bank to establish a balance of liquidity, was unlawful. ... In the light of the foregoing, the Banking Regulation and Supervision Board’s decision of 6 December 2000 ordering the takeover of Demirbank by the Fund is unanimously annulled.” 12. A further appeal and a request for rectification lodged by the Agency were rejected on 14 April 2005 and 15 December 2005 respectively. The final decision was served on the applicant company’s representative on 13 March 2006. 13. In the meantime, while the proceedings against the Agency were still pending, on 20 September 2001 the Fund entered into an agreement with the HSBC bank, and sold Demirbank to the latter for 350,000,000 US Dollars. 14. On 20 September 2001 the second applicant brought administrative proceedings against the Fund in the Ankara Administrative Court, seeking the annulment of the agreement to sell Demirbank to HSBC. 15. Given that the transfer of Demirbank to the Fund had been found to be unlawful by the Joint Administrative Chambers of the Supreme Administrative Court, on 21 April 2004 the Ankara Administrative Court annulled the agreement entered into by the Fund and HSBC on 20 September 2001. In its decision the Ankara Administrative Court held that: “... It can be seen that, given the shareholding structure of Demirbank before the transfer, 72,55 % was owned by Cıngıllı Holding A.Ş., that the claimant who owned shares in this company was a shareholder of the aforementioned bank, that all shares of Demirbank were taken over by the Savings Deposit Insurance Fund pursuant to section 14 of the Law no. 4389, that the claim requesting the annulment of the Banking Regulation and Supervision Board’s decision dated 6 December 2000 regarding this taking over was dismissed by a judgment on 3 June 2003 delivered by the Supreme Administrative Court, and that this judgment was subsequently quashed by the judgment of 18 December 2003 of the Joint Administrative Chambers of Supreme Administrative Court. In its judgment, the Joint Chambers of the Supreme Administrative Court held that the taking over of Demirbank by the Savings Deposit Insurance Fund based on Section 14 paragraphs (b) to (d) of the Banking Activities Act was unlawful and it accordingly declared the act as null and void. It was decided that the decision regarding the taking over of the bank had been adopted without investigating the possible options to enable the bank to establish a balance of liquidity and taking the relevant precautions, given that it would have been possible for the bank to continue its banking activities since it did not have any serious financial problems until the financial crisis of November 2000, the amount of the bank’s risky credit in Government Bonds for Domestic Borrowing aimed at securing Treasury debt was not too high compared to its total credit, its asset quality was high compared to the five affiliate banks based abroad, the majority shareholders had not targeted the resources of the bank, the bank had been included within the scope of section 14 of Law no. 4389 to enable it to the resolve its liquidity problem and it had fulfilled all obligations towards individual and corporate clients using its own assets. It is therefore understood that, pursuant to the annulment of the decision pertaining the taking over of Demirbank by the Savings Deposit Insurance Fund by the Joint Chambers of the Supreme Administrative Court, the subsequent sale of Demirbank to HSBC Bank has also become unlawful and the decision that is the subject of these proceedings is therefore unlawful. This act is therefore declared null and void.” 16. An appeal and a request for rectification lodged by the Fund were rejected on 3 June 2005 and 24 February 2006 respectively. 17. On 11 May 2006 the second applicant requested the Agency to comply with the Supreme Administrative Court’s judgments and to enforce them. Relying on the restitutio in integrum principle, she requested that Demirbank be returned to its previous owners. 18. On 10 July 2006 the Agency informed the second applicant that it would be impossible to enforce the judgments as, following its sale to HSBC, Demirbank had been struck off the commercial register. | 1 |
test | 001-158468 | ENG | POL | CHAMBER | 2,015 | CASE OF STANKIEWICZ AND OTHERS v. POLAND (No. 2) | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Yonko Grozev | 5. The first two applicants were born in 1974 and 1953 respectively. The first applicant is a journalist working for the daily newspaper Rzeczpospolita and the second applicant was, at the material time, its editorinchief. The third applicant is Gremi Media sp. z o.o. (at the material time Presspublica sp. z o.o.), the publisher of Rzeczpospolita. It is a limited liability company represented by the chairman of its board of directors, Mr P. Bien, and its vice chairman, Mr R. Dobrzyński. Its registered office is in Warsaw. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In October 2004 the Polish government submitted a draft amendment to the Tax Act (Ordynacja Podatkowa) to the Sejm. During the drafting process various bodies and individuals, including the National Council of Legal Advisers (Krajowa Rada Radców Prawnych), were invited to submit their comments. Their opinion was prepared by Ms D.S., a former senior civil servant, who was a well-known expert on tax law and a member of its legislative committee. She further acted as an expert and adviser at meetings before the parliamentary finance subcommittee where amendments to the Tax Act were being examined. One of the amendments proposed by the Council to section 181, and defended by Ms D.S. at the meetings, consisted of limiting what could be used as evidence in tax proceedings to material collected in criminal proceedings, but only once they had been concluded. The law as it stood did not contain such a limitation and allowed, for instance, material collected in a pending criminal investigation to be used as evidence. Her proposal was accepted by the subcommittee and later by the Sejm and, together with other amendments to the Tax Act, entered into force on 1 September 2005. 8. On 14 and 15 September 2005 the first applicant wrote three articles describing the possible consequences of the amendment to section 181 of the Tax Act, the legislative process leading to its adoption and the role that Ms D.S. had apparently played. One of the articles contained comments made by Ms D.S. and featured her photograph. 9. The first applicant and another journalist analysed the recordings of all the parliamentary finance subcommittee meetings during which amendments to the Tax Act were discussed. Two articles which appeared in Rzeczpospolita on 14 September 2005 contained transcripts of the subcommittee’s meeting of 17 February 2005 at which the section 181 amendment was discussed. The journalists interviewed Mr J.K., a Member of Parliament who chaired the subcommittee, Mr M.W., an appellate prosecutor and Ms D.S. Their statements were quoted in the articles, as was a statement made by an unidentified member of the government during the subcommittee meeting. 10. The first article, “Mafia pays no taxes” (Mafia nie zapłaci podatków), appeared as a cover story on 14 September 2005. The subheading and an excerpt from the article read as follows: “[Subheading] Two words introduced to the new Tax Act have paralysed the prosecution of the petrol mafia, Rzeczpospolita has discovered. Our investigation reveals who changed the law and when it was changed. However, even we do not know why the government did not take any action. ... [text] Some days ago, the newest version of the Tax Act, enacted by the Sejm in June, entered into force. Problems then started. Because of one provision in the law, cooperation between the tax and prosecution authorities has been totally blocked... Such cooperation has so far led to successful prosecutions in many high-profile cases, such as those concerning the battle against the petrol mafia.” 11. The article also explained that the amendment to section 181 of the Tax Act limited what could be used as evidence in tax proceedings to only material collected in criminal proceedings which had already been concluded. This was a real setback for the tax authorities, who could no longer rely on evidence the prosecution had been collecting in proceedings which were pending. According to the author of the article, such an amendment could prolong the tax authorities’ effective investigation into tax evasion for many years, until the criminal courts arrived at their final decision in a case. 12. The second article, which had the headline “Mafia to pay no taxes” (Mafia podatków nie zapłaci) appeared on page 5 of the same edition of Rzeczpospolita of 14 September 2005. It featured a photograph of Ms D.S. The wording of the article, in so far as relevant, read as follows: “[subheading]The amendment to the Tax Act which made it harder to prosecute the petrol mafia was introduced during a subcommittee meeting – Rzeczpospolita has established. ... [text] As we have established, the above-mentioned amendment to section 181 [of the Tax Act] was proposed by Ms D.S. of the National Council of Legal Advisers during a subcommittee meeting on 17 February. Strictly speaking, it was outside her remit as she is not a member of parliament. However, she was an adviser to the subcommittee and warmly encouraged MPs to introduce the amendment, even though no such change had been proposed. Ms D.S., a former senior civil servant at the Ministry of Finance, and today counsel at a prestigious law firm, received support from the subcommittee chairman and even a government representative... Ms D.S., in an interview for Rzeczpospolita, argues that her intention was to protect the interests of the taxpayer.... [Question:] ‘You have changed the legal system, but you are not a member of parliament or the government. Was it your idea?’ [Answer:] ‘I believed that the wording of the legal provision in question was incorrect. It had to be changed.’” 13. On 15 September 2005 Rzeczpospolita published the third article, which had the headline “Dubious law to be changed” (Zmienią podejrzane prawo). In so far as relevant, it stated as follows: “[Subheading] This cannot be. The Deputy Minister of Finance is outraged after Rzeczpospolita disclosed the story behind the change in the law which has helped the petrol mafia. ... [Text] The Deputy Minister [S.S. ...] is surprised by [how] the unfortunate amendment was introduced. ‘It is unacceptable’, he says. ‘I have the Tax Department’s backing that this amendment should be corrected immediately.” 14. The article included quotes from interviews with two Deputy Ministers and one official, all from the Ministry of Finance. It also contained a paragraph describing the recent developments in several ongoing investigations against the petrol mafia. 15. On 12 October 2005 Ms D.S. lodged a claim for the protection of her personal rights against all three applicants, seeking compensation in the amount of 200,000 Polish zlotys (PLN), the equivalent of approximately 50,000 euros (EUR). 16. On 17 August 2007 the Warsaw Regional Court dismissed her claim. It established that both the journalist who had written the articles and the editor-in-chief had been diligent in collecting information for all three of them. The articles in question reflected the evidence submitted by the defendants both in form and in content. The amendment to section 181 of the Tax Act had indeed been proposed by Ms D.S., as she had been invited to represent the National Council of Legal Advisers during the finance subcommittee’s deliberations on the draft law. Had she not voiced her opinion regarding the need to amend section 181, the amendment would most probably not have been introduced. The court stressed that since the claimant had voluntarily entered the public domain, she should respect the rights of others, in particular journalists, to criticise her actions. The first applicant, while preparing material for the articles, had had access to draft laws, legal opinion on those drafts, the finance committee’s minutes, recordings of the subcommittee’s deliberations and interviews with prosecutors, from which he took quotations. The court thus concluded that information provided by the defendants had been truthful and collected diligently. The court considered that the incident described by the defendants had been a very important matter of public interest, as it had shown how easy it could be to influence a change in the law. The controversies surrounding the amendment to the Tax Act had led to section 181 being restored to its previous form in February 2006. The aim of the articles had been to draw the public’s attention to the amendment to section 181 of the Tax Act. The court also considered that the applicants had had a right to publish a photograph of Ms D.S., as she had been a public figure. The photograph could have easily been taken while she had been carrying out her duties for the subcommittee in the present case. 17. The claimant, Ms D.S., lodged an appeal against this judgment. 18. On 21 May 2008 the Warsaw Court of Appeal allowed the appeal and action and amended the judgment in question. The court ordered the applicants to publish an apology and pay PLN 20,000 to charity, disagreeing with the Regional Court’s assessment of the case. It considered that by using headlines, subheadings and several statements, the applicants conveyed the suggestion that Ms D.S. had been responsible for the negative consequences the amendment had had on the law. These statements included: “astonishing amendment”, “cooperation between the tax authorities and prosecutors totally blocked”, “she ... encouraged MPs to introduce the amendment, even though no such change had been proposed”, “[Ms D.S. has] changed the legal system”, “was it your idea?”, “the amendment was proposed in an astonishing manner by a guest of the subcommittee”. The court considered that the information contained in the articles had not been truthful, and that the journalists had not been diligent. It also considered that by publishing her picture, the applicants had breached the claimant’s right to protect her image. 19. On 5 June 2009 the Supreme Court quashed the judgment and remitted the case to the appellate court. It considered that procedural provisions had been breached; in particular, the judge rapporteur should have withdrawn from the case given doubts as to his impartiality. Moreover, the Supreme Court criticised the vague wording of the apology the defendants had been ordered to publish, and the lack of clarity as to which statements had breached the defendant’s personal rights. 20. On 22 October 2009 the Warsaw Court of Appeal allowed the action and ordered the applicants to publish an apology and pay PLN 20,000 to charity. The court considered that the defendants should publish the following apology on the cover of Rzeczpospolita: “[All three applicants] apologise to Ms D.S. for [damaging] her good name by publishing articles without factual basis in Rzeczpospolita on 14 September 2005 (‘Mafia pays no taxes’ and ‘Mafia to pay no taxes’) and on 15 September 2005 (‘Dubious law to be changed’), which have ruined her good name and professional reputation.” 21. The court considered that the claimant had proved, to a sufficient degree, that the articles in question had breached her personal rights, as they insinuated that she had been responsible for adopting an amendment which had negative consequences. Its arguments were similar to those outlined in its judgment of 21 May 2008. It considered the statement “[Ms D.S. has] changed the legal system” untrue because as an adviser to the subcommittee, it would have been outside her remit. The use of headlines, subheadings and certain statements conveyed the suggestion that the amendment had been introduced in the “interests of the [petrol] mafia”. Those statements included: “astonishing amendment”, “cooperation between the tax authorities and prosecutors totally blocked”, “she ... encouraged MPs to introduce the amendment, even though no such change had been proposed”, “[Ms D.S. has] changed the legal system”, “was it your idea?”, “the amendment was proposed in an astonishing manner by a guest of the subcommittee”. Moreover, by featuring a photograph of Ms D.S. in one of the articles, the applicants had “strengthened the message that [she] was the person responsible for having introduced an amendment convenient for the mafia, which [had] paralysed cooperation between the prosecution service and the tax services”. The court considered that the defendants had used the claimant’s photograph unlawfully, as the fact she was a public figure had not absolved them from asking her permission. It further stated: “The Court of Appeal has no grounds to consider that the defendants rebutted the presumption under Article 24 of the Civil Code that their actions were unlawful. The fact that the journalists relied on the comments of other individuals, even if they had indicated their sources, in this case the prosecutors, does not make such practice lawful. Such types of expression do not absolve a journalist from exercising particular diligence and care in collecting and using material. ... The defendants did not show that their actions were lawful; the suggestion they made, namely that the claimant had ‘changed the law’ had been untrue, their duty to act with particular diligence and care had not been fulfilled, and their direction of criticism against the claimant had not been in the public interest or compatible with the principle of coexistence with others. It had been unnecessary to ruin the claimant’s good name and reputation in order to express an opinion about an amendment to section 181. It is known how laws are passed and the claimant, acting lawfully and openly, did not change the law in force and could have only had a minor impact on the legislative process, in which the final decision did not depend on her. The suggestion that she changed the law is untrue, and making out that she had been responsible for changes in the law undermines journalistic integrity. The defendants did not provide any evidence to suggest that the claimant had acted in the interests of the [petrol] mafia. Other suggestions, namely that the amendment had caused the fight against the mafia and cooperation between the tax and prosecution authorities to become paralysed, were also untrue. The authors of the articles did not seek the opinion of specialists in tax law, nor did they try to explain the reasons behind the amendment. Their reporting was one-sided and formed far-fetched conclusions, creating an atmosphere of sensationalism and scandal ...” 22. On 20 January 2011 the Supreme Court amended the judgment as regards the wording of the apology. It held that the applicants should publish the following text: “[All three applicants] apologise to Ms D.S. for ruining her good name through the composition and use of headlines and subheadings in the daily newspaper Rzeczpospolita on 14 September 2005 (‘Mafia pays no taxes’ and ‘Mafia to pay no taxes’) and 15 September 2005 (‘Dubious law to be changed’), suggesting that, as an adviser to the Sejm’s finance subcommittee, she had been guided by reasons unworthy of merit and had infringed the principles of honesty.” The Supreme Court considered that the Court of Appeal’s guidelines for the apology were expressed too broadly, particularly as the latter acknowledged that the articles in question had a factual basis. In the present case, certain suggestions were made through the choice of headlines and subheadings, which led to the claimant’s personal rights being breached. Lastly, the Supreme Court considered that the fact that the defendants had taken quotations from public servants could exclude their liability, but only in so far as the wording of the comments quoted was concerned and not the “composition of the articles which led to negative suggestions [being made], creating an untrue picture of the person in question”. | 1 |
test | 001-184481 | ENG | RUS | COMMITTEE | 2,018 | CASE OF SINYUSHKIN AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Alena Poláčková;Dmitry Dedov | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-163056 | ENG | BIH | COMMITTEE | 2,016 | CASE OF ŠLAKU v. BOSNIA AND HERZEGOVINA | 4 | Violation of Article 14+P1-3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 of Protocol No. 1 - Stand for election;Right to free elections-{general});Violation of Article 1 of Protocol No. 12 - General prohibition of discrimination;Violation of Article 1 of Protocol No. 12 - General prohibition of discrimination | Carlo Ranzoni;Khanlar Hajiyev | 5. The applicant was born in 1963 and lives in Sarajevo. 6. The applicant belongs to BiH’s Albanian ethnic minority. He actively participates in the social and political life of the country. 7. On 26 August 2010 the applicant obtained written confirmation by the Central Election Commission that in accordance with the Constitution of Bosnia and Herzegovina members of ethnic minorities were ineligible to stand for election to the Presidency and the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina. | 1 |
test | 001-159764 | ENG | HUN | CHAMBER | 2,016 | CASE OF SÜVEGES v. HUNGARY | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1972 and lives in Budapest. He submits that he is a practicing Catholic. According to the documents in the case-file he is a teacher of religion by profession. 6. On 2 June 2005 the applicant was arrested on suspicion of misuse of explosives. 7. On 11 May 2007 the Central Investigation Prosecutor’s Office indicted the applicant in the Pest County Regional Court on charges of incitement to aggravated murder and unlawful possession of firearms and explosives. 8. The first hearing in the case took place before the Pest County Regional Court on 17 December 2007. Up until 10 March 2009 the trial judge, Ms K.B.H., held 24 hearings. 9. Later, the applicant was charged by the Budapest Chief Prosecutor’s Office with armed robbery. The two sets of criminal proceedings were joined by the Pest County Regional Court on 22 June 2009. 10. The applicant challenged the trial judge for bias, which motion was dismissed. At the applicant’s renewed request, the trial judge recused herself. A new judge, Ms Gy.Sz., was appointed to try the case. She held 11 hearings in the period June to December 2009. This judge eventually declared herself biased; and the case was assigned to yet another judge, Ms A.F., who held 23 hearings between September 2010 and April 2011. 11. Meanwhile, on 25 October 2010 the applicant was indicted by the Komárom-Esztergom Regional Prosecutor’s Office for aggravated murder. The case was joined to the ongoing criminal proceedings on 28 January 2011 by the Pest County Regional Court. 12. On 17 April 2011 applicant challenged Ms A.F. for bias. On 24 June 2011 the Budapest Court of Appeal dismissed this motion. It pointed out that the trial judge had declared herself impartial, along with the four other eligible judges of the Pest County Regional Court. Despite the decision of the Court of Appeal, the trial judge eventually recused herself, since, in her view, the applicant’s letters addressed to the Regional Court had infringed her dignity. 13. Subsequently, in July 2011 the case was assigned to another judge at the Pest County Regional Court, Mr S.P., who did not hold any hearing. On 25 January 2012 he also recused himself following the applicant’s different motions, apparently containing insinuations. The remaining three judges of the Pest County Regional Court declared themselves biased as well. On 31 January 2012 the Budapest Court of Appeal appointed the Budapest High Court to try the case. The trial judge at the High Court held the first hearing on 7 May 2012. 14. On 28 February 2014 the applicant was found guilty and sentenced to life imprisonment with the possibility of parole after 30 years. 15. On 2 July 2015 the second-instance court quashed this judgment and remitted the case to the first-instance. The case is currently pending there. 16. In the context of the above proceedings, on 4 June 2005 the Kaposvár District Court remanded the applicant in custody. 17. His detention was repeatedly prolonged at the statutory intervals until 30 May 2008 when the Budapest Court of Appeal suspended his detention and ordered him to serve a prison sentence which had become enforceable in connection to other criminal proceedings unrelated to the present case. 18. On 21 May 2010, on the new charges of aggravated murder put forward by the Komárom-Esztergom Regional Prosecutor’s Office, the Tatabánya District Court again remanded the applicant in custody. The decision was upheld on appeal by the Komárom-Esztergom Regional Court on 1 June 2010. 19. The applicant was actually placed in pre-trial detention again on 2 February 2011, after having served his prison sentence. He submitted that under the law, his detention should have been reviewed within six months, that is, on 2 August 2011 at the latest but that this had not taken place. 20. On 10 February 2011 the applicant filed an interlocutory application for his immediate release and placement in house arrest with the Pest County Regional Court. The court dismissed the application on the same day. The applicant appealed without success. His further requests for release or, alternatively, a less coercive measure were to no avail. 21. On 21 November 2011 the Budapest Appellate Public Prosecutor’s Office requested the Budapest Court of Appeal to review the applicant’s pre-trial detention under section 132(2) of the Code of Criminal Procedure. 22. On 5 December 2011 the detention was extended until the delivery of the first-instance judgment under section 129(1)(b) and (d) of the Code of Criminal Procedure (risks of absconding and of reoffending). The Budapest Court of Appeal held that there was a risk that the applicant might abscond given the seriousness of the charges and the gravity of the punishment and reoffend given that he was a multiple recidivist and the number of offences he was charged with. 23. The Kúria endorsed this decision on 6 January 2012, holding that the impending severe punishment substantiated the risk of absconding, due to which the applicant’s presence at the proceedings could not be ensured in any other way. It also observed that the last offence had been committed by the applicant during his conditional release from his nine-year imprisonment, thus there was a real risk of reoffending. The court dismissed the arguments put forward by the applicant concerning his health status, unspecified, and concluded that his personal conditions did not militate for a less severe measure. 24. The applicant’s pre-trial detention reached the statutory time-limit of four years on 2 February 2012. On 23 January 2012 the Budapest Surroundings High Court placed the applicant under house arrest with continuous police surveillance, to be carried out in the flat of Ms I.T, an acquaintance of the applicant. The applicant was allowed to leave the flat every second Wednesday of the month, between 8 a.m. and 4 p.m. The court noted that the reasons for the applicant’s detention were still valid, and a less restrictive measure was to be applied only because the statutory fouryear time-limit for pre-trial detention had expired. The court also dismissed the applicant’s request for release on the undertaking not to leave his place of residence. According to the court, the applicant’s argument concerning his mother’s ill health and the modest financial situation of his host could not serve as a ground for the application of a less stringent measure. 25. On 8 February 2012 the Budapest High Court extended the applicant’s house arrest until the adoption of the first-instance judgment. It noted that the applicant was charged with a crime punishable with 10 to 15 years’, or life, imprisonment which in itself demonstrated the risk of absconding. It also relied on the applicant’s previous criminal conduct and the number of offences the applicant had been charged with to find that there was a risk of reoffending 26. On 5 March 2012 the Budapest High Court granted the applicant’s request for leave for 21 March 2012 to visit his mother in hospital between 8 a.m. and 12 noon and to undergo dental treatment. 27. On 8 March 2012 the applicant requested his release from house arrest, pointing out that he had no income on his own and intended to work. He also produced a job offer from a company. His request was dismissed on 14 March 2012 by the Budapest High Court on the ground that no new circumstances existed that would affect the necessity of the house arrest. 28. On 16 April 2012 the applicant was granted exceptional leave from house arrest for every last Friday of the month between 9 a.m. to 3 p.m. to visit his hospitalised mother. The remainder of the applicant’s request, that is leave from house arrest twice a week, was dismissed. 29. His further request for extraordinary leave to visit his mother for five hours on 21 June 2012 and to study his case file at the premises of a non-governmental organisation was granted on 18 June 2012. 30. On 16 July 2012 the applicant was granted leave to visit his father in the town of Pápa on 28 July 2012 between 6 a.m. and 6 p.m. 31. The applicant’s further request for leave for medical reasons was granted on 18 July 2012. However, the Budapest High Court dismissed his application for leave so as to look after his mother on a daily basis, in particular to assist her with insulin injections. The court reasoned that Ms I.T., the applicant’s acquaintance and a co-defendant in the criminal proceedings, who lived in the flat of the applicant’s mother, could do so in his stead. The court also stated that lengthy daily leave would be incompatible with the house arrest. 32. The applicant’s further motions for leave to accompany his mother to medical examinations were granted on 20 July and 1 August 2012 for 23 July (between 3 p.m. and 10 p.m.) and 3 and 15 August 2012, respectively. 33. The applicant lodged further requests for leave in August 2012 to visit his terminally ill father in Pápa twice a month, to take his mother home after her hospitalisation and to make certain arrangements with her bank and her previous workplace, since she was under guardianship proceedings. 34. By a decision of 14 August 2012 the Budapest High Court granted the applicant leave to visit his father every fourth Saturday between 6 a.m. and 6 p.m., and to accompany his mother coming home from hospital on 22 August between 7 a.m. and 10 a.m. His request to visit his mother’s financial institution and workplace was dismissed, since he had not specified their addresses, whereas under section 138(1) of the Criminal Procedure Code, leave could be granted only for a specific time and destination. As regards the applicant’s more frequent visits to his father, the court noted that regular, long-term leave from the house arrest would jeopardise its purpose of securing the applicant’s presence throughout the proceedings. The applicant appealed, arguing that the time period to assist his mother was too short, that his father’s health was deteriorating fast, requiring more frequent visits, that is, every second week, and that he had already submitted the contact details of his mother’s financial institution and workplace. On 1 October 2013 the Budapest Court of Appeal, acting as a second-instance court, found that the applicant’s appeal concerning the restricted time to assist his mother was well-founded, nonetheless no longer pertinent, because she had already left the hospital. The remainder of the applicant’s appeal was dismissed. 35. The applicant’s further requests for leave to visit his ill father, lodged on 14 August and 2 September 2012, were not granted. The applicant’s father died on 8 October 2012. 36. On 10 October 2012 the court granted the applicant leave for the period 15 to 17 October 2012 to make arrangements concerning the funeral of his father. 37. On 3 December 2012 the Budapest High Court released the applicant from house arrest with an undertaking not to leave his place of residence. The court observed that there were no grounds to believe that the applicant would pervert the course of justice or reoffend. Nonetheless, in its view, he was charged with a serious offence requiring a coercive measure. 38. On appeal, the Budapest Court of Appeal reversed the first-instance decision and placed the applicant under house arrest on 20 December 2012. It noted that given the seriousness of the offence there existed a danger of his absconding and given his previous multiple convictions, a risk of reoffending. 39. On 21 December 2012 the Budapest High Court dismissed the applicant’s motion for leave to attend Mass on every Sunday between 7 a.m. and 11 a.m. and his further request for leave on 27 and 28 December 2012 and 2 and 4 January 2013. The court observed that the applicant, being a teacher of religion by profession, was not disproportionately restricted in the exercise of his religious conviction. This decision was upheld on appeal on 24 January 2013, the Court of Appeal holding that the applicant’s religious conviction did not justify the granting of permissions of leave from the house arrest; and that such permissions were normally to reflect an intervening change in the detainee’s personal circumstances. The court noted that such a request could only be granted if it was submitted concerning a specific place and purpose. 40. Meanwhile, the applicant’s host, Ms I.T. complained on a number of occasions to various authorities that the police officers surveying the applicant interfered with her private life. She also submitted that, as she had indicated from the beginning of the house arrest, she did not have the necessary financial means to accommodate the applicant. 41. On 7 January 2013 Ms I.T. submitted a motion to the Budapest High Court stating that the applicant was to leave her flat since she could not further provide for him. On the same day, the applicant requested the court to establish the place of his house arrest at a camping site in Nagyteve. He was informed by the court that, according to information received by the relevant authorities, the camping site was not suitable for residence during the winter. Notwithstanding this information, the applicant maintained his request. 42. A new decision was issued by the investigating judge on 8 January 2013 establishing the place of the applicant’s house arrest at the Nagyteve camping site. On 8 January 2013 the Pápa Police Department issued a report on the applicant’s presence at the camping site, stating that the “weather conditions, the lack of food supply and the poor hygienic conditions” endangered the applicant’s health. On 9 January 2013 the Veszprém County Chief Police Department lodged a request with the Budapest High Court to amend its decision of 8 January 2013 since the camp site was unsuitable for long-term residence. 43. On 14 January 2013 the applicant sought the termination of his house arrest again. His motion was dismissed on 16 January 2013 by the Budapest High Court, which stated that there was no reason to overturn the decision of 20 December 2012 and that he had been aware of the conditions of the camping site when he had requested to be committed there. 44. On 18 January 2013 the local general practitioner arranged for the applicant to be admitted to Pápa Hospital. The examinations carried out at the hospital did not result in the finding of any such disease as warranting the applicant’s further treatment, so he was released on the same day and placed in a social care institution in Pápa. 45. On 21 January 2013 the Budapest High Court amended its decision of 8 January 2013 and ordered the applicant’s house arrest to be carried out in the flat of Ms I.T. again. The applicant’s appeal against this decision was to no avail. In its decision of 26 February 2013 the Budapest Court of Appeal reiterated that the applicant was a multiple reoffender charged with serious crimes, thus the risk of absconding and reoffending existed. The court also noted that had the statutory maximum of detention on remand not expired, the most restrictive measure should have been applied. It further argued that the measure was not disproportionate, since the protraction of the proceedings had been compensated for by the statutory discontinuation of the applicant’s detention on remand. The court also dismissed the applicant’s argument that some co-defendants were released from house arrest. 46. On 10 July 2013 the Budapest High Court carried out the statutory review of the applicant’s house arrest and, at the same time, decided on the applicant’s request for release. During the court hearing the judge presented to the applicant and the prosecutor a letter allegedly originating from one of the applicant’s previous cellmates. The writer of the letter informed the court that the applicant intended to obstruct the criminal proceedings by physically threatening the investigating judge and subsequently requesting his exclusion for bias, initiating criminal proceedings against the trial judge for judicial errors and absconding and inciting the co-accused to do so. The applicant sought direct access to the document, arguing that without receiving information on the author’s identity he was unable to challenge this latter’s motivation and the credibility of the content of the letter. Relying on the protection of the author’s personal data as provided in section 60(1) of the Criminal Procedure Code, the court dismissed the applicant’s request. 47. The court upheld the applicant’s house arrest because of the risk of reoffending and absconding as provided in section 129(2)(b) and (d) of the Criminal Procedure Code. In its decision the court relied on the seriousness of the crimes and the gravity of the impending punishment in holding that there was a likelihood that the applicant would abscond. It also held that given the fact that the applicant was a recidivist, there was a risk of reoffending. In its decision the court mentioned the letter as one of the factual elements to consider. 48. On 22 July 2013 the Budapest High Court authorised the applicant to leave house arrest to undergo physiotherapy every second weekday in the period 22 July to 15 August 2013. 49. On 8 August 2013 the applicant’s request for leave to take up a job and to look after his ill mother on a daily basis was dismissed by the Budapest High Court, which found that such a daily leave would defeat the purpose of house arrest. 50. On 12 September 2013 the applicant was appointed as his mother’s guardian. 51. The applicant stayed in house arrest until 8 November 2013, when he was placed in pre-trial detention in connection with criminal proceedings concerning another offence. 52. As of 2 July 2015 the applicant has been again in pre-trial detention following the second-instance court’s decision to quash his conviction and remit the case to the first-instance. | 1 |
test | 001-179420 | ENG | TUR | CHAMBER | 2,017 | CASE OF JOANNOU v. TURKEY | 3 | Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano | 6. The applicant was born in 1953 and lives in Enfield (United Kingdom). 7. The complaints raised in this application arise out of the Turkish military intervention in northern Cyprus in July and August 1974. The general context of the property issues arising in this connection is set out in the cases of Cyprus v. Turkey ([GC], no. 25781/94, §§ 13-16 and 28-33, ECHR 2001IV), and Demopoulos and Others v. Turkey (dec.) ([GC], nos. 46113/99 and 7 others, §§ 4-16, ECHR 2010). 8. In 1997 the applicant was gifted five plots of land, or shares in them, by her aunt, who died in 1998. In 2008 she was also gifted an additional share of one of the plots of land by her mother. According to the certificates of ownership provided by the Department of Lands and Surveys of the Republic of Cyprus, the applicant is the sole owner of four plots of land and owns a 9/16 share of the fifth plot. 9. The land lies in the village Koma Tou Yialou (Kumyali) in the “TRNC”. The total area of the land is some 18 dönüm. 10. In 2007 the applicant instructed a law firm in Nicosia, which duly obtained a valuation report on the land from a Turkish Cypriot chartered surveyor. The valuation report of 3 December 2007 assessed each of the five plots of land and provided valuations for them, which ranged from 500 pounds sterling (GBP) per dönüm to GBP 10,000 per dönüm. 11. In October 2011 the applicant obtained a further valuation report by a chartered surveyor from the Republic of Cyprus. This report valued the five plots of land, including the economic loss and interest (all calculated for the period between 1974 and 2011), at 2,690,962 euros (EUR) in total. 12. In February 2017 the applicant obtained a new valuation report from the Land Registration Office of the Republic of Cyprus which assessed the value of the property in question, including economic loss and interest accrued since 1997 (when the applicant became owner of the property) to December 2016, at EUR 2,088,366 in total. 13. In May 2008 the applicant, through her Turkish Cypriot representatives, filed a claim with the IPC under Law no. 67/2005 (see paragraphs 41-43 below) ‒ supported by an affidavit ‒ claiming restitution of her property and/or compensation at the property’s current market value and damages for loss of use of the land in question. The total compensation sought was GBP 100,000 per dönüm (GBP 1,800,000 or approximately EUR 2,285,000). 14. In her affidavit the applicant attested that the property in question had been transferred to her after 1974 by her aunt, who had owned it since before 1974. The affidavit also attested that there were no mortgages, liabilities or restrictions on the property in question, that the applicant lived in South Cyprus in a house owned by a Turkish Cypriot, and that she was paying rent to the Republic of Cyprus. The file also contained the applicant’s identity documents (British passport and Cypriot identity card), certificates from the Republic of Cyprus Land Registry and Surveys Department concerning the ownership and legal status of the applicant’s plots of land (indicating no mortgages, liabilities or other restrictions), and a document issued by the relevant Cypriot authority showing that the applicant lived in a house owned by a Turkish Cypriot and had been billed 270 Cypriot pounds (CYP) by way of rent for the period 1 April 2003 to 30 June 2004. 15. The applicant’s claim was communicated to the “TRNC” Attorney General as provided under Law no. 67/2005 and the relevant IPC Rules (see paragraph 43 below). 16. On 5 May 2010, the Attorney General’s Office submitted an opinion to the IPC in reply to the applicant’s claim. It relied on an affidavit by the “TRNC” Director of the Land Registry and Surveys Department, who explained that their records showed that one of the registered owners of the property in question was Chrystollou Nicola Stavrinou (the applicant’s aunt), that Maria Nicola Stavrinou (the applicant’s mother) was the owner of part of one of the plots of land, and that the applicant had failed to demonstrate that she was the legal heir of the two registered owners. He also considered that the applicant’s compensation claim was excessive and unfounded. 17. A directions hearing before the IPC took place on 25 May 2010. The applicant’s representative stated that they had received the Attorney General’s opinion only on the day of the hearing and thus asked for an adjournment in order to prepare their case. The Attorney General’s representative did not object and the hearing was adjourned until 1 June 2010. 18. At a directions hearing on 1 June 2010 the applicant’s representative undertook to obtain a valuation report and a document showing that the plots of land had been transferred to the applicant by way of donation. The Attorney General’s representative requested that documents showing that the applicant was the legal heir of Chriystolleuo Nicola Stavrou [sic.] should be provided, as well as proof of the amount of rent she was paying for the Turkish Cypriot house where she lived in the South, or alternatively the lease agreement by which the house had been allocated to her. The Attorney General’s representative also undertook to submit a search document from the “TRNC” Land Registry and Surveys Department, and indicated that he reserved his right to submit and request further documents. The hearing was adjourned so that the parties could obtain the relevant documents. 19. On 3 June 2010 the Attorney General submitted the search document of the “TRNC” Land Registry and Surveys Department relating to the plots included in the applicant’s claim. 20. On 6 June 2012, through her representative, the applicant asked permission to amend her initial claim. She submitted that she had in the meantime become the sole owner of the plot of which she had previously owned a 5/6 share and that in October 2011 she had obtained a valuation report indicating that the value of her properties was EUR 2,690,962 (see paragraph 8 above). 21. At a preliminary hearing on 18 June 2012, after the Attorney General’s representative stated that he had no objections with regard to the amendment of the applicant’s claim; the President of the IPC accepted the amendment and instructed the applicant to submit her amended claim and the Attorney General’s Office to submit an opinion in that regard. 22. On 6 July 2012 the applicant complied with the order and amended her claim, seeking compensation in accordance with the new findings and developments concerning her property title. 23. On 20 November 2012 the applicant submitted the documents requested by the Attorney General’s representative on 1 June 2010 (see paragraph 18 above). In particular, the applicant submitted certificates issued by the head of the local community (mukhtar) explaining that there were inconsistencies in the spelling of the applicant’s aunt’s name in different documents. The mukhtar explained that the latter had held Cypriot identity document no. 327090 and had been variously known as: Christallou Nikola Stavrinou, Chriystallou Nicola Stavrinon, Christallou Nicola Stavrinou, Christalla Nikola and Chrystallou Nicola, but these were one and the same person. The mukhtar further certified that she had never married and that before her death she had gifted her immovable property to her sister’s daughter, the applicant (Andriani Ioannou, holder of a Cypriot identity card). In support of the mukhtar’s certificates, the applicant submitted her aunt’s identity documents (including a Cypriot identity document). The applicant also submitted documents showing the transfer of title from her aunt to her in respect of the plots of land in question. She also submitted documents showing that she had been allocated a Turkish Cypriot house in the South and had paid CYP 342 by way of rent for the period 1 June 2000 to 31 December 2001 and CYP 270 for the period 1 April 2003 to 30 June 2004. 24. A preliminary hearing before the IPC scheduled for 10 January 2013 was adjourned due to the absence of the Attorney General’s representative, who could not attend the hearing for family reasons. 25. At a preliminary hearing on 25 January 2013 the “TRNC” authorities were represented by the Attorney General’s representative and the undersecretary of the Housing Affairs Department. They asked the applicant to submit the birth certificates of her aunt and her mother and a title deed for the property which she now owned in its entirety. The hearing was adjourned to enable the applicant to obtain the documents in question. 26. On 19 February 2013 the applicant submitted the requested documents, which also included documents confirming that her aunt had never been married. 27. At a preliminary hearing on 25 April 2013 the “TRNC” representatives asked the applicant to submit certificates from the mukhtar showing that the names Andriani Joannou, Andriani Ioannou and Andriani Georgiou Antoniou all referred to the applicant, and further certificates showing that her aunt had been variously known as Chrystollou Nicola Stavrinou, Chrystolleuo Nicola Stavriou, Chrystolleui Nicolou Stavriou, Nikola Hristallu (Nicola Hrystallou), Hristalla Nicola and Hrystallou Nicola (Nikola), and that her mother had been variously known as Maria Nicola Stavrinou, Maria Stavrinou, Maria Georgiou and Maria Georgios, and that their antecedent Nikolas Stavrinou (Nicolas Stavrinou), had also been known as Nicola Stavrinou and Nicola Stavrinu. The hearing was adjourned to permit the applicant to obtain the requested documents. 28. On 9 May 2013 the applicant submitted certificates from the mukhtar showing that the aforementioned different names referred to the same individuals, namely the applicant, her mother, her aunt and their antecedent, respectively. The mukhtar’s certificates also identified these individuals on the basis of their identity card numbers. A certificate dated 8 May 2013 indicated that the applicant’s mother was variously known as Maria Nicola (Nicolas, Nikola, Nikolas) Stavrinou and her aunt as Chrystolleui Nicolou Stavriou. 29. At a preliminary hearing on 24 October 2013, at which the applicant was also present, the “TRNC” representatives argued that the mukhtar’s certificates were incomplete and that the names Maria Nicola (Nicolas, Nikola, Nikolas) Stavrinou, for the applicant’s mother, and Chrystolleui Nicolou Stavriou, for the applicant’s aunt, should be added. The representative further argued that an official document should be submitted showing that the applicant’s aunt had not married and did not have any other heirs. He also requested a document showing that there were no liabilities attaching to the property in question. Upon production of these documents, the Attorney General’s representative would be prepared to settle the case by paying GBP 60,000 to the applicant. 30. In reply, the applicant’s representative stated that they would obtain the requested documents. However, he pointed out that they had already produced documents showing that the applicant’s aunt had never married and this was anyway apparent from the fact that she had never changed her last name. The applicant’s representative also pointed out that the applicant’s aunt had transferred the property in question to the applicant while she was still alive. He asked for an adjournment in order to consider the Attorney General’s settlement offer. 31. On 16 January 2014 the applicant’s representative asked that a hearing be held before the IPC. 32. A further examination of the case before the IPC took place on 1 March 2016. The President and members of the IPC questioned the applicant’s representative with regard to the instructions he had received from the applicant concerning the case. As the applicant was not present and could not be reached at that time to give clear instructions concerning the case, the hearing was adjourned. 33. On 9 March 2016 the applicant’s Turkish Cypriot representatives informed her representative in the Republic of Cyprus that the fact that an application had been lodged with the Court had caused them upset. They also stated that they would not represent the applicant in further proceedings. 34. A hearing before the IPC was held on 28 June 2016. The applicant’s Turkish Cypriot representative explained that she had informed the applicant of her wish to withdraw from the case. However, she was unable to provide an official document to that effect and the hearing was therefore adjourned in order for the representative to complete the formalities for withdrawal. 35. On 19 August 2016 the applicant took over the files from her Turkish Cypriot representatives. 36. At a hearing on 28 September 2016 the IPC accepted the applicant’s Turkish Cypriot representatives’ withdrawal from the case and decided that the applicant should be contacted directly during the future course of the proceedings. Another hearing was scheduled for 12 October 2016. 37. On 15 October 2016 the applicant informed the IPC that she had not received the summons to the hearing of 12 October 2016 until 13 October 2016. 38. A further meeting for the examination of the case, at which the applicant was personally present, was held on 2 March 2017. The “TRNC” representatives argued that the applicant should provide further documents showing the exact dates of birth of her mother and her aunt as well as the respective death certificates. Furthermore, they argued that the applicant could not be considered to be a legal heir of her aunt for the purpose of Law no. 67/2005 as she had obtained the property at issue from her aunt while the latter was still alive. The applicant contended that these arguments were being raised for the first time now and she therefore asked for a formal hearing to be openedThe proceedings before the IPC are still pending. | 1 |
test | 001-163348 | ENG | LTU | CHAMBER | 2,016 | CASE OF BAKANOVA v. LITHUANIA | 3 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1951 and lives in Klaipėda. 6. The applicant’s husband, V.B., born in 1953, worked as a mechanic in cargo ships. On the morning of 24 October 2007, while on a work voyage to Brazil on the private ship Vega, he was found dead in his cabin. He was lying on his back in bed, with the blanket drawn up to his chest, his right hand bent and pressing his chest. On the same day, the ship’s captain assembled a commission to investigate the death. Having inspected V.B.’s cabin, the captain sent a report about the death to his superiors in Klaipėda, the Limarko shipping company. 7. The following day, 25 October 2007, a Brazilian doctor, P.C.J., gave acute heart attack (ūmus miokardo infarktas) as V.B.’s cause of death. The Brazilian authorities also issued an authorisation to preserve V.B.’s body (žmogaus palaikų konservavimo aktas). The authorisation noted that there were no indications against preserving the body, and therefore V.B.’s remains were set to be embalmed with the help of chemicals (phenol, formalin and others) at 8 a.m. that day. Afterwards, the body of the applicant’s husband’s was put in a zinc coffin and shipped to Lithuania, which it reached on 1 December 2007. On 25 October 2007 the ship’s captain and chief engineer were questioned by the Brazilian police authorities. The police also inspected the cabin where V.B. had been found dead. Considering that no crime had taken place and that V.B. had died of a heart attack, the Brazilian police sent the investigation material to a local court. 8. The death certificate issued by the Brazilian authorities on 5 November 2007 gave heart attack as V.B.’s cause of death. 9. On 25 October 2007 a Lithuanian prosecutor opened a criminal investigation on the basis of Article 176 of the Criminal Code (see paragraph 51 below), after receiving notification of V.B.’s death from Limarko. The prosecutor ordered the Klaipėda Seaport Police to conduct the investigation. 10. On 9 November 2007 Limarko provided the investigators with the following documents: the captain’s service report; an extract from the ship’s logbook of 24 October 2007; a report on the circumstances of V.B.’s death, signed by the captain and two assistant captains; two reports (one by the captain and one by the chief engineer) to the Brazilian authorities; statements by twelve members of the crew; the death certificate issued on 5 November 2007 in Brazil; documents about the work instructions given to V.B.; his qualifications and photographs from his cabin. 11. On 21 November 2007 the applicant requested that the prosecutor and the State Labour Inspectorate (Valstybinė darbo inspekcija, a State body responsible for safety at work, hereinafter – “the SLI”) examine her husband’s body and investigate the cause of his death and his working conditions on the ship. She submitted that conditions on the Vega were dangerous, and could have led to her husband’s death. 12. In the meantime, on 16 November 2007 the applicant was granted victim status in the criminal proceedings. 13. On 29 December 2007 the prosecutor refused to continue the criminal investigation, finding that there had been no signs of a crime or anything to disprove a finding that the victim had died because of a heart illness. In particular, the forensic report from Brazil had shown no sign of poisonous chemicals in V.B.’s body fluids; there had also been no traces of alcohol, and V.B.’s body had been embalmed because there had been no indications against such a procedure. Preservation of the body by chemical means irreparably altered the chemical composition of the blood, and therefore there had been no reason to carry out a further examination of the body. The prosecutor noted that in April 2007 V.B. had passed medical check, which showed that he had been fit to serve at sea. The Vega’s logbook had had no entry about V.B. ever complaining about his health. 14. After a complaint by the applicant, that decision, however, was quashed by the Klaipėda Regional Court on 13 February 2008. The court held that the prosecutor had failed properly to investigate the applicant’s submission that her husband had died because of dangerous conditions on the Vega. The pre-trial investigation resumed. 15. Between January and April 2008, the Klaipėda Seaport Police questioned as witnesses the sailors who had worked on the Vega with V.B. The sailors testified that V.B., who was a refrigerator mechanic, worked in the machinery section of the ship, where the refrigerators were placed. There had been frequent fires in the machinery section of the ship during the voyage by the Vega. When fires broke out, there was a strong smell of fumes. When there was a fire in the machinery section, the air conditioning in the ship’s cabins did not work, and the temperature would rise as high as 50˚C. In the run up to 24 October 2007, the ship had been preparing to have goods loaded. For that reason, V.B. had worked for about a week prior to his death in the machinery section preparing refrigerators for the shipment. The applicant’s husband was seen working in the machinery section both with and without a gas mask. In the week before his death, V.B. had worked intensively and rested little. No repairs in the machinery section had been carried out until V.B.’s death. After the death, the ship had been repaired in a Brazilian port, after which there had been no smell of gas in the machinery section. The witnesses also stated that V.B. had not complained about his health or stated that he had any heart problems. 16. The applicant was also questioned. Citing conversations with her late husband, the applicant said that in reality the conditions of work on the Vega had been very difficult as the ship had been in a bad technical state and its mechanics had had to deal permanently with fires and leaks of gas, without any adequate protection. 17. The SLI’s report of 27 March 2008, no. SD-5662, stated that the SLI had examined the possible cause of V.B.’s death. The SLI held that the reasons for V.B.’s death were not connected to his work. The SLI discontinued its investigation, on the grounds that V.B.’s death certificate had indicated that he had died of a heart attack, and that the authorisation to preserve his body had read that there had been no indication against such an action. When examining the applicant’s complaint, the SLI had obtained internal correspondence between Limarko and the Vega, which showed that the working conditions on the ship had been hard – the ship’s machinery, including the main engine, would often break down, and the engine emitted combustion gases into the ship; there had also been frequent fires. However, according to the SLI, V.B.’s duties did not include repairs to the main engine or extinguishing fires, and he had not done such jobs. The SLI did not have any other proof that the working conditions on the Vega had been harmful. The SLI also observed that they had not performed any readings on the ship, because they had not been able to check it when it was at sea. 18. On 7 April 2008 Limarko stated that it had been informed about a breakdown of the main engine, which could have led to a worsening of the working conditions on the Vega. Repairs had taken place in the summer of 2007, and the problems had finally been solved in November 2007. 19. On 31 December 2008 the pre-trial investigation was discontinued by the prosecutor for a second time. The prosecutor held that no crime had taken place and that the applicant’s husband had died of a heart attack, when ‘the ship was on a voyage in the Atlantic Ocean near the Brazilian port of Imbituba’. The prosecutor also relied on the testimony given by an expert, V.A. during the hearing in April 2008 before the Klaipėda Regional Administrative Court (see paragraph 49 below). On the basis of V.B.’s medical record of 15 June 2001 that expert had testified that V.B. had a partial blockage of the nerve in the heart which makes the heart contract. If the nerve did not work properly, heart arrhythmia could occur, which could in turn cause a heart attack. The position of V.B.’s body was typical of someone who had died of a heart attack. According to that expert, fire could cause a heart attack if a person had been in a smoky environment or a closed space, and there had been a lack of oxygen. However, a heart attack would happen at a slower pace than a person would die of suffocation. Death from a heart attack caused by a fire could not take a day or week to happen. The prosecutor noted that, according to the Brazilian authorities who had considered that the cause of death was a heart attack, no poisons or other toxic materials had been found in the applicant’s body fluids. The prosecutor also pointed out that V.B.’s health had been checked on 24 April 2007, and it had been concluded that he had been “fit to work in the fleet”. 20. Following a request by the applicant, on 8 January 2009 she was allowed access to the entire criminal case file, which by then comprised 279 pages. 21. On 16 January 2009 the applicant appealed against the prosecutor’s decision to discontinue the criminal investigation. She argued that there had been many flaws in the investigation and that the conclusions as to her husband’s death had been unclear. In particular, the applicant submitted that the SLI’s decision not to treat the death as an accident at work had been hasty. The applicant was also dissatisfied that the SLI had not inspected the Vega itself, nor had it questioned the crew members, who could have confirmed the unsafe working conditions on board. There had also been no autopsy, nor any test for toxins in her husband’s skin or hair. The body had been embalmed too quickly, without such examinations. The applicant further submitted that Lithuanian diplomats had not been present when the body had been embalmed. The applicant also pointed out that her husband had been healthy: he had been examined by a doctors’ commission in April 2007 and that that conclusion was valid for one year; moreover, her husband had not complained about any heart issue. The applicant also maintained that even local journalists in the town in Brazil where V.B.’s death had been given as a heart attack had not been able to find contact data for doctor P.C.J., thus raising doubts about his credentials. 22. On 21 February 2009 the Klaipėda City District Court granted the applicant’s appeal. The court observed that on 10 September 2008 the applicant had asked the prosecutor to order an expert examination to establish whether the constant breathing of combustion gases could cause a heart attack, and to ask the Brazilian authorities to provide the report on her husband’s autopsy and the results of blood tests, as those documents had not been present among those brought back with V.B.’s body. She had also asked for documents confirming whether it had been verified that V.B. could have died of poisoning by combustion gases; for the questioning of doctor V.G., who had signed the conclusion of the doctors’ commission (of April 2007) as to V.B.’s health; and for other investigative actions. Given that the applicant had had the status of a victim, the prosecutor had been under an obligation to take a decision on those requests. However, he had ignored the applicant’s requests for three months, until he had taken the decision to discontinue the criminal investigation, which had been in breach of Article 178 of the Code of Criminal Procedure (see paragraph 52 below). 23. On 20 March 2009 the Klaipėda Regional Court upheld the lower court’s decision. It emphasised that what was at issue was a criminal investigation into charges of a violation of requirements to protect health and safety at work. Having examined the pre-trial investigation material, the regional court concluded that the kind of breaches alleged by the applicant had not been properly examined during the criminal investigation. Furthermore, as could be seen from the SLI’s report of 27 March 2008, the inquiry performed by that body had not been sufficiently comprehensive either (see paragraph 17 above). Accordingly, it could not be stated that the pre-trial investigation into the circumstances of V.B.’s death had been performed thoroughly. In the opinion of the Klaipėda Regional Court, it was therefore vital to continue the pre-trial investigation and to eliminate the doubts raised by the applicant as to the reliability of the results of the medical examination of V.B.’s body, and to establish whether V.B. had indeed worked in harmful conditions during the voyage, including whether regulations on hours of work had been observed. Should breaches of working conditions be established, it was also necessary to order a forensic expert to perform an objective investigation and to establish whether such breaches had had any impact on V.B.’s death. Without a comprehensive examination of those aspects, it had not been reasonable or lawful to discontinue the pre-trial investigation. 24. On 24 March 2009 the prosecutor ordered the Klaipėda Seaport Police to establish the whereabouts of the Vega and whether it was possible to inspect the ship; to question everyone who worked on it, including about working conditions, as noted in the applicant’s complaint; to obtain documents from Limarko related to safety at work; and to ask the SLI whether they had examined the actual working conditions on the ship. The prosecutor also asked the Klaipėda Seaport Police to prepare a request to the Brazilian authorities for legal assistance. 25. On 31 March 2009 the Klaipėda Seaport Police asked Limarko for documents about the technical state of the ship on 24 October 2007, information about the ship’s whereabouts, and whether it was possible to inspect it. On 10 April 2009 the shipping company Limarko replied that the ship usually worked in the region of south west Africa; currently it was near the coast of Namibia. The ship had passed its yearly check by authorised certification company Det Norske Veritas on 21 August 2007 in Walvis Bay port in Namibia, and the inspector of that company had had no remarks as to the technical state of the ship’s machinery. That report was given to investigators. 26. On 9 June 2009 the prosecutor again asked the Klaipėda Seaport Police to “take active measures” to question everyone who had been working on the ship at the relevant time. It was also necessary to obtain V.B.’s medical records and question the doctor who on 15 June 2001 had diagnosed V.B. with a heart problem, and to obtain documents from Limarko related to repairs in the machinery section of the ship, to fires on board and to issues of safety at work. 27. In reply to the investigators’ inquiry of 26 May 2009, on 16 June 2009 the SLI wrote that its inspectors had not examined the working conditions on the Vega because, as far as they knew, the ship had not returned to Lithuanian ports after V.B.’s death. It had not been technically possible to examine the ship in the ports of other countries. The SLI noted that the circumstances of V.B.’s death had been examined on the basis of the documents provided by Limarko and on the experts’ conclusions. 28. On 22 July 2009 the applicant wrote to the prosecutor, questioning why Limarko had not requested that the Brazilian authorities perform a test for toxic substances in the body as such an examination could have been performed within four to six weeks. She stated that she had not been asked whether any other reports by experts should have been done, yet V.B.’s body had been taken straight away to a funeral parlour on 24 October and embalmed at 8 a.m. the following day. The applicant emphasised that the ship at that time had been put up for sale. She asked that the ship’s documents up to the time of the sale be examined to establish whether there were any toxic gases in the machinery room or other factors that made for unsafe working conditions. She mentioned the records in the logs of the machinery room; the service reports to Limarko by the captain and chief mechanic; the description of repairs to the main engine; and the work which her husband performed on the ship. Lastly, the applicant asked the prosecutor to inform her whether and when Limarko had been ordered to keep copies of its communications with the ship during its voyage. 29. Between April 2009 and August 2010 investigators questioned crew from the Vega, some of them repeatedly. 30. In addition, on 7 July 2009 doctor V.G. stated that from February 2001 he had worked as chief doctor at the sailors’ health-care centre (Jūrininkų sveikatos priežiūros centras) in Klaipėda. On 15 June 2001 V.B. had passed a medical board exam as being fit to serve at sea. The conclusion of the medical board examination had been signed by doctor V.G. himself, and it meant that the applicant’s husband was healthy enough to work at sea. The partial blockage of the nerve on the right side of his heart, as seen in the cardiogram, had no effect on V.B.’s health, nor on his ability to work at sea. In the doctor’s opinion, inhalation of combustion gases could lead to poisoning, but not to an acute heart attack. 31. On 9 September 2009 another witness, V.S., stated that he had been a chief mechanic on the Vega in June 2007, but had later refused to work on the ship because of poor working conditions. Failures of the main engine meant that fires on the ship had been frequent, happening almost daily. All the fires and repairs had been registered in the machinery logbook. Limarko had been notified of those facts. The crew had worked in the machinery room wearing respirator masks, but no gas masks had been provided. V.B. would spend about four hours (per day) in the machinery room. 32. On 13 October 2009 the Klaipėda Seaport Police transferred the criminal file to the applicant so that she could acquaint herself with it. By then, the file comprised 418 pages. 33. On 7 January 2010, in reply to a request made the same day by the prosecutor, the Lithuanian Maritime Safety Administration (Lietuvos saugios laivybos administracija) noted that the Vega had been taken off the register of Lithuanian ships, because a foreign company, Pantex Trading Limited (Nevis), had bought the ship. 34. In reply to a question from the Klaipėda Seaport Police of 18 January 2010, Limarko confirmed that it had sold the Vega to a third party. It noted that the records from the ship’s machinery room, which the investigators had been seeking, had been destroyed before the ship had been transferred to the new buyers, and thus could not be provided. 35. On 25 February 2010 the investigators again provided the case file to the applicant. It by then comprised three volumes and 565 pages. 36. On 26 May 2009 the Klaipėda Seaport Police sent documents to Klaipėda prosecutors concerning a request for legal assistance to be sent to the Brazilian authorities. The police stated that in order to establish whether V.B.’s death had been caused by dangerous conditions on the Vega, it was important to establish whether an autopsy of V.B. had been performed and his blood tested (and, if so, to provide the results of the autopsy and the tests), and whether the Brazilian authorities had inspected the Vega after the death to examine the working conditions on board. 37. On 13 October 2010 the Klaipėda Seaport Police submitted a fresh request to the Klaipėda prosecutors for legal assistance from the Brazilian authorities, this time adding a request that doctor P.C.J. be questioned. The prosecutor then returned the documents, because they had not met the right requirements. On 1 February 2011 the General Prosecutor’s Office sent a request for legal assistance to the Brazilian authorities. 38. On 3 December 2010 a response to the request for legal assistance was received from the Brazilian authorities. However, according to the Lithuanian investigators, the documents contained only internal correspondence between the Brazilian authorities about the fact that V.B. had died. As a result, there had been no new information relevant for the investigation. 39. On 24 August 2010 the Klaipėda Seaport police asked experts from the State Forensic Medicine Service (Valstybinės teismo medicinos tarnyba) to answer the following questions: 1) what is characteristic evidence that a person has died from an acute heart attack and is it possible to conclude that a person has died from a heart attack without an autopsy; 2) could a dangerous working environment in a non-ventilated ship machinery room (where emission gases were present) have had an impact on V.B.’s death, that is, could such conditions have caused an acute heart attack; 3) how long must a person work in a harmful working environment, where there is an elevated level of emission gases, before getting a heart attack. 40. On 7 December 2010 the forensic experts J.R. and R.S. prepared a report stating that they had not been provided with any medical documents about V.B.’s autopsy (if one had ever been performed), any blood results or other medical records. Neither were they provided with documents, confirmed by special diagnostic methods, about the exact level of combustion gases on the ship. Therefore, they could rely only on the testimony of the crew who had worked on the ship with V.B. 41. Proceeding on that basis, the experts stated that, in medical practice, death certificates without an autopsy were delivered only when there was documented medical data that the person had been ill with a long-term disease (sirgo lėtine liga), that the circumstances of death were clear, and that there was no evidence that the cause of death could have been due to physical injuries or other external factors. 42. For the experts, it was known from the criminal case file that V.B. had been found dead in a cabin. Without examining the body, and in the absence of any data about V.B.’s state of health, or information about any physical injuries or external factors (for example, acute gas poisoning), which could have caused his death, it was possible only to state (galima tik teigti) that the cause of V.B.’s death was that his heart had stopped for unknown reasons. In that case, it was impossible to either confirm or deny that an acute heart attack had been the cause of V.B.’s death. Accordingly, it was not possible to establish a possible link between V.B.’s working in harmful conditions and his death. 43. The experts also stated that the main reason for an acute heart attack was a failure of arterial blood vessels. That happened when physical exhaustion or nervous tension caused the heart muscle suddenly to need a lot of oxygen. Long working hours, in an environment where there were elevated levels of emission gases, was not a risk factor for a heart attack. 44. The prosecutor then discontinued the investigation on 14 December 2010, concluding that no crime had been committed ‘on the ship, which sailed under a Lithuanian flag’. According to him, although the existence of harmful working conditions and leaks of gases in the engine room of the ship had been confirmed, they could not have caused the victim’s heart failure. 45. That decision was upheld by a higher prosecutor, and then by the Klaipėda City District Court on 11 August 2011. The first instance court noted, inter alia, that the cause of V.B.’s death had already been established by final decisions in administrative courts. 46. The applicant appealed against the decision to discontinue the criminal investigation, arguing that the report by the specialist, J. R., had not definitely confirmed that her husband had died of a heart attack, given that no autopsy had been carried out. She pointed to shortcomings in the investigation, such as the absence of blood test results and toxicology tests, and the lack of documents concerning safety at work on the ship. The applicant also pointed out that the ship’s logbooks had not been obtained, and that the ship had not been inspected. 47. By a final ruling of 12 September 2011, the Klaipėda Regional Court dismissed the appeal. The court noted that the cause of death had already been established by the final and binding decision of 5 February 2009 by the Supreme Administrative Court in the administrative case (see paragraph 50 below). In addition, the criminal court held that the investigation had been wide-ranging, that numerous witnesses and experts had been questioned and that the necessary forensic examinations had been carried out. As concerned the applicant’s argument about the collection of additional evidence, it was considered as serving no purpose given the amount of time which had elapsed. The criminal court also noted that at certain stage the expert, V.A., had been questioned by the first-instance court of criminal jurisdiction, and had testified that V.B. could have died from his heart condition. 48. In parallel to the ongoing criminal investigation, the applicant also started administrative court proceedings, asking that her husband’s death be recognised as a work accident. 49. By a decision of 7 April 2008, the Klaipėda Regional Administrative Court acknowledged, on the basis of the SLI report of 18 December 2007, that work conditions on Vega were bad, and the main engine would often break down, causing leaks of dangerous gases. For that reason many mechanics had left the ship. However, the administrative court also took into account the conclusion by a forensic expert V.A. about V.B.’s earlier heart condition and that fire or smoke on the ship, even if they had been present, could not have caused V.B.’s heart attack (see paragraph 19 above). As a result, the applicant’s claim before the administrative courts for her husband’s death to be recognised as a work accident was dismissed. 50. On 5 February 2009 the Supreme Administrative Court upheld the lower court’s decision. | 1 |
test | 001-145789 | ENG | SWE | CHAMBER | 2,014 | CASE OF A.A. AND OTHERS v. SWEDEN | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Somalia) | André Potocki;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 6. The applicants were born in 1964, 1990, 1994 and 1997 respectively and live in Gothenburg. 7. They entered Sweden on 1 June 2009, when they were respectively forty-five, nineteen, fifteen and twelve years old, and applied for asylum and residence permits the following day. 8. The first and second applicants were heard by the Migration Board (Migrationsverket) on 5 and 16 June and 26 August 2009. A language test was carried out by an analyst, who had been born and raised in Mogadishu and came to Sweden in 2003. After the initial interview, legal counsel was appointed to represent the applicants. 9. The first applicant submitted, among other things, that they were members of the Sheikal clan and that the family had lived together in a village called Hosingo in southern Somalia since 1999. The first applicant had a university degree from Saudi Arabia. On 16 June 2009, he explained to the Board that he had not visited Saudi Arabia since 1999. On 26 August 2009 he was confronted with the fact that his passport had been stamped on two occations, in 2000 and 2005 in Djibouti, situated northwest of Somalia, whereupon he explained that he had travelled via Djibouti to Saudi Arabia and that those trips must have been after 1999. Once he had visited his brother’s daughter in Saudi Arabia. He did not recall the other visit. There were also stamps in his passport up to 2005 from Lowyacado, Borama and Berbera, in Somaliland, but the first applicant maintained that he and his family had remained in Hosingo throughout that period. 10. Al Shabaab took over Hosingo when the Ethiopian army withdrew in the middle of 2008. On 5 June 2009, the first applicant explained to the Board that he had participated in a demonstration to protest against Al Shabaab taking over their village, and that therefore he was on their list of persons to kill. On 16 June 2009 he explained that the elders of the village decided that they would try to negotiate with Al Shabaab. The negotiation ended in disagreement and the spiritual leader of the village was killed immediately after the meeting by two masked men. The first applicant was listed as a person to be killed and shortly thereafter two armed and masked men came to his house and asked for him. On 26 August 2009 he explained that the leader of the village had been killed six days after the meeting with Al Shabaab. The applicants would not be able to move elsewhere in Somalia since their clan was not domiciled anywhere else in the country and Al Shabaab was present everywhere. 11. The second applicant stated initially that her mother and husband remained in Hosingo. Later she explained that her husband had left the village. She did not know where he was. She still had six siblings left in Hosingo, plus some uncles and cousins. In 2006 the family had problems with Al Shabaab, which burned down their house. The second applicant had burn scars on her upper body from that incident. In 2008 one of the village leaders was killed and her father and husband had to flee. She was afraid of being raped by Al Shabaab upon return. 12. On 11 September 2009 the Migration Board rejected the applicants’ request for asylum. It noted at the outset that it was difficult for Somali citizens to prove their identity since there was no authority that could issue passports or other acceptable identity documents. Accordingly, the applicants’ stories were decisive for determining their origin. The Board found that the first applicant had provided detailed information about Hosingo village, situated in southern Somalia. However, his pronunciation of some words was typical of that in northern Somalia. In addition he had stamps in his passport, dated 2000 to 2005, from airports in Somaliland. There were no entry or departure stamps from trips to or from southern Somalia. Finally, he had provided contradictory statements about the crucial event in 2008, notably whether the leader was killed immediately or six days after the negotiation with Al Shabaab, and why he was being sought by them, and he had been vague about the situation in south and central Somalia. The language analysis of the second applicant indicated that she originated from Somaliland. Moreover, she had not been able to give any detailed information about the village or her clan, which could be verified. In conclusion, the Migration Board did not find it credible that the applicants had been living in Hosingo until their departure from Somalia. It found it much more likely that the applicants’ most recent home had been in northern Somalia. 13. The applicants appealed against the decision to the Migration Court (Migrationsdomstolen), before which an oral hearing was held on 12 May 2010. The Migration Court refused to hear two witnesses on the applicants’ behalf, who allegedly could have certified that they were from Hosingo. However, their written testimony was allowed. 14. By a judgment of 2 June 2010 the Migration Court upheld the Migration Board’s decision. The Migration Court did not question that the first applicant originated from Hosingo in southern Somalia. Like the Migration Board, however, it found that the language analysis of the first and the second applicants, and their various explanations, did not support their contention that they had had their latest domicile in southern Somalia or that they should be considered refugees or otherwise in need of protection. 15. On 3 September 2010 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. Hence the deportation order became enforceable. 16. In autumn 2010 the applicants claimed that there were impediments to the enforcement of their deportation orders. On 19 October 2010 the Migration Board decided not to reconsider the case, finding that the applicants had failed to present new circumstances which could justify reconsideration of the case. 17. At the beginning of 2011, the applicants again requested a reexamination of their cases, which was refused by the Migration Board on 31 March 2011. The applicants appealed against this decision to the Migration Court, which rejected the appeal on 6 May 2011. 18. On 16 January 2012 the third applicant claimed that there were impediments to the enforcement of his deportation order. On 9 February 2012 the Migration Board decided not to reconsider the case, finding that no new circumstances justifying reconsideration had been presented. 19. Likewise, in March 2012 the first and the fourth applicants claimed that there were impediments to the enforcement of the deportation orders against them, claims which were rejected by the Migration Board on 29 March 2012. | 0 |
test | 001-179433 | ENG | ROU | COMMITTEE | 2,017 | CASE OF ANCA AND OTHERS v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 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 | 001-150672 | ENG | TUR | COMMITTEE | 2,015 | CASE OF ATILGAN AND OTHERS v. TURKEY | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro | 4. The applicants, whose names appear in the appendix hereto, are Turkish nationals who live in Istanbul. They are the owners, executive directors, editors-in-chief, editors and members of the technical staff of nine publications which were issued on daily, weekly, biweekly or bimonthly basis: Haftalık Yorum, Politik Yorum, Ülkede Yorum, Yeni Demokratik Toplum, Yeni Demokratik Yaşam, Yeni Demokratik Ulus, Azadiya Welat, Demokratik Ulus, and Özgür Mezopotamya. They are represented before the Court by Mr Ö. Kılıç and Ms A. Taşdemir, lawyers practising in Istanbul. 5. On various dates between 23 June 2010 and 15 February 2012, the Istanbul Assize Courts decided to suspend the publication and distribution of the abovementioned nine newspapers for periods ranging from fifteen days to one month under section 6 (5) of the Prevention of Terrorism Act (Law no. 3713), on the ground that the newspapers had published propaganda in favour of various illegal organisations. All copies of the relevant issues were seized. The applicants raised objections to the suspension orders but these objections were dismissed shortly afterwards by the Istanbul, Assize Courts. Neither the applicants nor their representatives were permitted to participate in any of the proceedings held before the Assize Courts. 6. The details of the proceedings may be found in the appended table. | 1 |
test | 001-174112 | ENG | AUT | COMMITTEE | 2,017 | CASE OF LEITNER v. AUSTRIA | 4 | Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) | Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1961 and lives in Blumau. 6. The applicant and his former partner, S.O., have two children, born out of wedlock in 2002 and 2004 respectively. S.O. always had sole custody of the children as the parents never agreed to have joint custody. The applicant and S.O. never cohabited on a permanent basis. The children lived with their mother during the week. At weekends, the whole family usually stayed at the applicant’s house. 7. In April 2008 S.O. and the applicant separated and the children remained with their mother. 8. On 27 June 2008 the applicant lodged an application with the Vienna Inner City District Court (Bezirksgericht Innere Stadt; hereinafter, “the District Court”) to transfer sole custody to him, or to grant him joint custody together with S.O. Furthermore he applied for an interim measure concerning his visiting rights, as he had not seen his children since 20 April 2008. 9. On 8 October 2008 the parents agreed that the applicant would be able to see his children every second Monday from 2.30 pm or 3 pm until 6 pm and every second Saturday from 10 am until 6 pm. 10. On the same day the applicant applied for an extension of his visiting rights to the whole weekend. 11. After five visits from the applicant in October and November 2008, S.O. unilaterally stopped further visits, claiming that these had a negative influence on the children. Between November 2008 and Easter 2009, on his own initiative, the applicant secretly went to see his children at their school and kindergarten a few times. 12. The Vienna Juvenile Court Assistance Office (Jugendgerichtshilfe) submitted its statement on 10 March 2009 and recommended maintaining sole custody for the mother and visiting rights for the applicant according to the agreement the parents had concluded on 8 October 2008. 13. On 6 April 2009 the District Court decided to grant the applicant visiting rights on every second Saturday from 8 am until 7 pm. It dismissed the applicant’s application for sole custody. 14. In its reasoning the court held that the children were well cared for by their mother. According to Article 176 of the Civil Code (Allgemeines Bürgerliches Gesetzbuch) as in force at the relevant time, a transfer of custody was only possible if the children’s best interest was at risk. In the present case the court found no such risk and the applicant actually had not claimed such a risk. The court further held that the visiting rights were decided in accordance with the parents’ mutual agreement. 15. The applicant appealed on 14 April 2009 and argued in essence that he was discriminated against, compared to the mother. Also, he complained that the court had not decided on the question of whether the parents could be awarded joint custody. 16. According to the applicant’s submissions, his visiting rights were resumed on 24 April 2009 in the amount determined by the District Court (see paragraph 13 above). 17. On 28 July 2009 the Vienna Regional Court (Landesgericht) dismissed the applicant’s appeal as unfounded. It confirmed the reasoning of the District Court and held that there was no indication of a risk to the children’s best interest if the mother maintained sole custody. It further held that there was no provision in law ordering a preference for granting one of the parents sole custody. The court also found that the parents had not mutually agreed on joint custody, therefore no further issues arose in this connection. 18. The applicant lodged an extraordinary appeal with the Supreme Court (Oberster Gerichtshof) on 10 November 2009, again claiming that he was discriminated against compared to the mother and that the decision of the lower instances violated his rights under Article 8 of the Convention. 19. On 1 September 2010 the Supreme Court rejected the applicant’s extraordinary appeal for lack of an important issue of law. 20. After the amendment of the Civil Code (see paragraph 22 below), the applicant on 5 February 2013 again applied for joint custody, or sole custody in the alternative. Shortly after, S.O. moved with the children to the south of Austria, about 400 kilometers from Vienna. The applicant’s requests for sole or shared custody were finally dismissed by the Supreme Court on 7 May 2014. | 1 |
test | 001-166738 | ENG | RUS | CHAMBER | 2,016 | CASE OF VLASOV AND BENYASH v. RUSSIA | 3 | Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 2 of Protocol No. 4 - Freedom to leave a country);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The first applicant, Mr Aleksey Yuryevich Vlasov, was born in 1957 and lives in Moscow. 7. On 6 October 2008 Mr Vlasov applied to the Federal Migration Service for a travel passport which would allow him to go abroad. 8. On 27 October 2008 the Golovinskiy District Court of Moscow convicted him of smuggling and sentenced him as follows: “... the penalty in the form of three years’ imprisonment is not to be enforced and is to be considered conditional with a three years’ probationary period. To require Mr Alexey Vlasov to report twice a month during the probationary period to the authority in charge of execution of conditional sentences, and to inform [that authority] of any change of residence ...” 9. On 11 November 2008 his application for a travel passport was refused by reference to the fact that he had been given a suspended threeyear sentence whose period of suspension had not yet expired. 10. The applicant Mr Vlasov applied for judicial review of the refusal. 11. On 3 June 2009 the Butyrskiy District Court of Moscow upheld the refusal as lawful, finding as follows: “The argument by Mr Vlasov to the effect that the Golovinskiy District Court’s judgment of 27 October 2008 contained an exhaustive list of restrictions during the probation period which did not include a restriction on leaving Russia and which was not, in the claimant’s view, subject to expansive interpretation by State officials, does not contradict section 15(4) of the Entry and Exit Procedures Act which provides for a restriction on the right to leave for abroad in cases of both actual custodial and suspended sentences. A person who is given a suspended sentence is a convicted offender serving a sentence, and may be relieved from punishment only after the period of suspension has expired. Mr Vlasov’s period of suspension expires on 14 January 2012 and after its expiry Mr Vlasov’s criminal conviction will be spent in accordance with Article 86 of the Criminal Code. Until that time Mr Vlasov is an offender serving a sentence, which is a ground for restricting his right to leave for abroad.” 12. On 18 August 2009 the Moscow City Court rejected an appeal against the District Court’s judgment. It held: “The arguments that Mr Vlasov was subjected to restrictions that go beyond those imposed by his conviction and that he was compelled to serve the sentence within the Russian Federation, whereas he needed to take care of his business interests and perform his duties abroad, are not grounds for setting aside the correct judgment [of the first-instance court].” 13. The second applicant, Mr Mikhail Mikhaylovich Benyash, was born in 1977 and lives in Sochi. 14. On 31 August 2011 the Tsentralnyy District Court of Sochi convicted Mr Benyash of extortion and sentenced him to three years’ imprisonment, suspended for three years. He was released in the courtroom. On 12 October 2011 the Krasnodar Regional Court upheld the conviction on appeal. 15. On 5 December 2011 the Federal Migration Service refused Mr Benyash’s application for a travel passport, noting that he had been arrested on 1 September 2010 and that, according to the available information, the criminal proceedings against him were still pending. 16. The applicant Mr Benyash applied for judicial review of the refusal. 17. On 28 June 2012 the Tsentralnyy District Court of Sochi upheld the refusal as lawful: “...for the time being the conviction of 31 August 2011 is not yet spent, Mr Benyash is a convicted offender, and, accordingly, the refusal [of travel documents] does not violate his rights”. 18. On 29 November 2012 the Krasnodar Regional Court rejected the appeal, endorsing the reasoning of the District Court. 19. On 11 April 2013 the Regional Court refused him leave to appeal to the cassation instance. | 1 |
test | 001-163451 | ENG | NLD | CHAMBER | 2,016 | CASE OF R.B.A.B. AND OTHERS v. THE NETHERLANDS | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Sudan) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The applicants are a married couple, Mrs R.B.A.B. and Mr H.S., their two daughters, X and Y, and their son Z. The children were born in 1991, 1993 and 1996, respectively. The applicants have been in the Netherlands since 2001. 6. On 28 April 2001 the applicants entered the Netherlands, where the first and second applicants filed separate asylum applications, and Mrs R.B.A.B. also filed applications on behalf of the other three applicants (the children, who were all minors). The immigration authorities conducted interviews with the first and second applicants on 8 May 2001 (eerste gehoor) and 9 August 2001 (nader gehoor). An additional interview (aanvullend gehoor) was conducted with the second applicant on 2 November 2001. 7. The first and second applicants stated that they had previously lived in Dilling in Sudan’s South Kordofan province and that they had fled Sudan after Mr H.S. had attracted the attention of the Sudanese authorities on account of his activities for the opposition movement M. 8. On 7 December 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie, the “Deputy Minister”) notified the first and second applicants of her intention (voornemen) to reject their asylum requests. In the light of various contradictions in the statements given by the first and second applicants, their inability to answer basic questions about the respective tribes they claimed to belong to, and the second applicant’s inability to provide simple topographic details of the city and the surroundings of the place where he claimed he had grown up and/or to provide any details about the M. opposition movement (goal, members, structure, leader) for which he claimed to have been active, the Deputy Minister concluded that no credence could be attached to the applicants’ asylum statement. 9. In two separate decisions of 17 January 2002, after the applicants’ lawyer had filed written comments (zienswijze) concerning the intended refusals, the Deputy Minister rejected the first and second applicants’ asylum requests, finding that the written comments had not dispelled her doubts concerning the credibility of their asylum statement. 10. The first and second applicants’ appeal against this decision were declared inadmissible on procedural grounds by the Regional Court (rechtbank) of The Hague sitting in Zwolle in a joint ruling, the first and second applicants having failed to submit the requisite grounds for their appeals, even though they had been given extra time to remedy this shortcoming. The applicants’ objection (verzet) was dismissed on 10 September 2002 by the Regional Court. No further appeal lies against this ruling. 11. On 12 April 2003 the first and second applicants – and Mrs R.B.A.B. also on behalf of the other applicants – filed a second asylum request, which was based on essentially the same grounds as their initial request. They submitted various documents in support of their declaration. On 13 April 2003, the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) notified the first and second applicants of her intention to reject their fresh asylum request, holding that their repeat requests were not based on newly emerged facts or altered circumstances as required by section 4:6 of the General Administrative Law Act (Algemene Wet Bestuursrecht). The new documents submitted by the first and second applicants only served to increase the already existing doubts as to the credibility of their asylum statement. In two separate decisions of 14 April 2003, having received the applicants’ written comments on the intended decision, the Minister rejected the applicants’ second asylum request on the grounds given in his notice of intention. The first and second applicants did not lodge an appeal against this decision before the Regional Court of The Hague even though it would have been possible to do so. 12. On 14 June 2005 the first and second applicants, and Mrs R.B.A.B. also on behalf of the other applicants, filed a third asylum request based on the claim that, if they were to be sent back to Sudan, their daughters X and Y would be subjected to female genital mutilation (“FGM”), contrary to Article 3 of the Convention, due to tribal and social pressure. In interviews with the immigration authorities held on 16 June 2005, the first and second applicants stated that they opposed FGM but would be unable to protect their daughters against it. They further submitted a document issued by the Sudanese Embassy in the Netherlands on 26 April 2005 stating that the applicants “are all Sudanese citizens although they do not possess the requisite documents to enable them to obtain a Sudanese laissez-passer”. 13. On 17 June 2005, the Minister for Immigration and Integration notified the first and second applicants separately of her intention to reject their third asylum request. The Minister doubted the sincerity of the applicants’ purported fear that their daughter would be subjected to FGM because they had not raised this argument in their previous asylum requests. The Minister also took into consideration the order amending the Aliens Act 2000 Implementation Guidelines 2004/36 (Wijzigingsbesluit Vreemdelingencirculaire 2000, “WBV 2004/36”), which was based on an official report on Sudan drawn up by the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) on 3 February 2004 (DPV/AM823666), according to which women who had had the benefit of a higher education (namely a university or higher professional level education) and who were living in the larger cities in Sudan did not experience any social stigma for not subjecting their daughters to FGM, whereas women in the rural areas who had received little or no schooling had little choice but to subject their daughters to this practice. As the first and second applicants had still not substantiated their personal identities or given a credible statement concerning their place of residence in Sudan, the Minister considered that they had not established that they did not belong to the group of more highly educated people able to reject the practice of female circumcision. The Minister also considered that the second applicant constituted a danger to public order, having accepted a negotiated penalty (transactieaanbod) in order to settle out of court a criminal charge for shoplifting. 14. On 20 June 2005 the applicants filed their written comments concerning the intended refusal of their third asylum request. They argued that the Minister had failed to present a proper reasoning for her finding that it had not been demonstrated that the first applicant did not belong to the group of highly educated women who would be able to resist the social pressure to circumcise their daughters, especially as the first applicant had stated in her first request for asylum that she had only had a primary school level education. The first applicant therefore offered to take an IQ test to prove her level of education. 15. In two separate decisions of 20 June 2005 the Minister rejected the first and second applicants’ asylum request on the grounds detailed in her notice of intention. The Minister added that it was not for her to examine the first applicant’s level of education through an IQ test but rather for the applicants to prove their identities and background in their asylum application. 16. In a joint ruling given on 12 June 2005 the provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague sitting in Zwolle granted the first and second applicants’ appeals, quashed the impugned decisions and remitted the case to the Minister for a fresh decision. The provisional-measures judge held: “The judge notes that it is no longer in dispute that the petitioners are Sudanese nationals. Nor is it in dispute that both daughters of the petitioners, currently 14 and 11 years old, have not been circumcised. According to the policy guidelines set out in C1/4.3.3 Vc 2000, a girl can – if return would entail a real risk of genital mutilation – qualify for an asylum-based residence permit ... The following conditions apply: there exists a risk of genital mutilation; the authorities of the country of origin are unwilling or unable to provide protection to persons exposed to an imminent risk of genital mutilation; and no internal relocation possibility is deemed to exist in the country of origin. According to chapter A8 Vc 2000 “Country-specific part, the asylum policy in respect of Sudan” under 5.5 Vc, genital mutilation is widespread in Sudan. Although there is a Health Act forbidding genital mutilation, the Sudanese authorities hardly ensure compliance with that act. The parental freedom of choice (as the court understands, whether or not to have their daughters circumcised) is connected to the cultural attitudes of the family and surroundings. Women with a higher education in larger towns will generally not have their daughters circumcised. This will generally not give rise to problems from their social environment. The term ‘women with a higher education’ is to be understood to mean women who have had an academic or higher vocational education. According to the official report of 3 February 2004, women with a low level of education living in rural areas have little choice. According to the same chapter it cannot be deduced from the official report whether it is possible to avoid circumcision by settling elsewhere in Sudan, meaning that for the assessment of the question whether there is an internal relocation alternative, each individual’s declaration is of decisive importance. The defendant’s refusal to grant the requested residence permit is based to a large extent on the fact that the identity and origin of, in particular, [the first applicant] has not been demonstrated, but also because in the proceedings concerning the first asylum request, it was found that statements lacking credence had been given. For that reason, it is not possible to assess whether the conditions set out in the policy guidelines are met. The refusal thus reasoned cannot be upheld. The policy guidelines are aimed at protecting girls and women against circumcision, an act which according to the policy is to be seen as a violation of Article 3 [of the Convention]. ... The assertion that [the first applicant] based her first asylum request on an asylum statement subsequently found to be implausible is correct. However, it is unclear what the relevance of that conclusion is in the context of the present [asylum] application, which is concerned with the protection of the daughters and not of [the parents].” 17. On 19 July 2005 the Minister filed a further appeal against this judgment with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State. 18. On 25 August 2005, the Administrative Jurisdiction Division granted the Minister’s further appeal, quashed the judgment of the Regional Court and rejected the first and second applicants’ appeal against the Minister’s decision of 20 June 2005. It considered that, pursuant to section 31 § 1 of the Aliens Act 2000 (Vreemdelingenwet 2000), it was for the applicants to demonstrate as plausible those facts and circumstances which could lead to the conclusion that they were eligible for admission pursuant to the policy in force, and not for the Minister to demonstrate the opposite. As not only the applicants’ statements about their identity and origin but also their asylum statement had been found to lack credibility in a decision of 17 January 2002 which had obtained the force of res iudicata, the Minister could reasonably have found that the applicants had not made out a persuasive case to show that they complied with the conditions for admission under the policy concerned, that the authorities could not provide them with protection, and that there was no internal relocation alternative for them. No further appeal lay against this ruling. 19. The third applicant, Ms X., gave birth to a daughter on 11 June 2011 and to a son on 15 March 2013. On 1 September 2015 Ms X. was granted a Netherlands residence permit for the purpose of remaining with her partner. On 15 September 2015 she informed the Court that she did not wish to maintain the application in so far as it concerned her. 20. In the meantime, on 7 November 2012, the Minister for Immigration, Integration and Asylum Policy (Minister voor Vreemdelingenzaken en Integratie) rejected a request for a residence permit filed by the fourth applicant, Ms Y., who had come of age in the meantime. On the same day Ms Y. filed an objection (bezwaar) against this refusal and, on 30 November 2015, she attended a hearing on that objection before an official commission during which she stated that in 2012, as a volunteer for two non-governmental organisations, she had disseminated information about FGM, for which purpose she had attended a training course. 21. On 29 December 2015 the Minister rejected the fourth applicant’s objection. In so far as the fourth applicant would allegedly be exposed to the risk of being subjected to circumcision in Sudan, the Minister noted that her parents opposed this practice and therefore found it likely that they would not force Ms Y. to be circumcised. As regards pressure from the social environment, the Minister noted that Ms Y had still not submitted any documents substantiating her identity or alleged Dilling origin. In this situation, the Minister found that it was not necessary to address the question of whether internal relocation would be a possibility. No further information about these proceedings has been submitted. 22. On 11 April 2013 the fifth applicant, Mr Z., applied for a residence permit under the Transitional Regulation on Children Residing Long-Term in the Netherlands (overgangsregeling langdurig in Nederland verblijvende kinderen), which provided that minors without a residence permit who had been residing in the Netherlands for over five years could obtain a residence permit if they met certain criteria. These criteria included that the minor in question must have applied for asylum at least five years before reaching the age of 18 and must not have evaded monitoring by the Netherlands authorities for more than three months. The close family members of such minors could also qualify for accompanying family-member residence permits for close relatives (that is to say parents and siblings). The fifth applicant also sought accompanying family-member residence permits for his parents, his sisters Y. and X., and for the latter’s two children, who are minors. 23. On 30 July 2013 this request was rejected by the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie), who held that the applicants had not been in touch with the designated immigration authorities for over three months. On 1 September 2015, after remittal of the case by the Administrative Jurisdiction Division on 22 July 2015, the petitioners’ objection was again rejected by the Deputy Minister. No further information about these proceedings has been submitted. 24. In a letter of 24 September 2014, the Deputy Minister informed the Mayor of Amsterdam that he would not avail himself of his discretionary powers to admit the applicants to the Netherlands. The applicants’ objection was declared inadmissible by the Deputy Minister, who held that the content of the letter of 24 September 2014 was not a decision within the meaning of section 1:3 of the General Administrative Law Act which could be challenged in administrative appeal proceedings. Although the applicants’ appeal against this decision was granted on 1 September 2015 by the Regional Court of The Hague sitting in Amsterdam, it nevertheless held that the legal effects of the impugned decision were to remain intact. No further information about these proceedings has been submitted. | 0 |
test | 001-180486 | ENG | BGR | CHAMBER | 2,018 | CASE OF HADZHIEVA v. BULGARIA | 1 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Rousseva;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 7. The applicant was born in 1988 and lives in Varna. 8. As is apparent from the documents in the file, the applicant moved from Turkmenistan to Bulgaria in late 2001 together with her parents. In the summer of 2002 she obtained temporary residency status. Before the move, the applicant’s father had been the deputy chair of the Central Bank of Turkmenistan and later a member of a political movement which was critical of the domestic political regime. It appears that, because of her father’s political activity, members of her family were subjected to persecution in Turkmenistan and that in 2006 the applicant’s aunt was tortured and murdered in prison. 9. The applicant started studying at a secondary school with an intensive foreign languages curriculum in the autumn of 2002. Her father opened his own construction business in Bulgaria. 10. On 22 October 2002 the Turkmen authorities charged both of the applicant’s parents with aggravated embezzlement of public funds amounting to 40,000,000 United States dollars, allegedly committed between 25 July 2002 and 3 September 2002. The Turkmen prosecutor ordered their detention in relation to those charges and filed a request for their extradition with the Bulgarian authorities. 11. The following circumstances are undisputed between the parties. 12. On 4 December 2002 the applicant, aged fourteen at the time, was alone at home. At around 11 a.m. about ten police officers arrived at the family apartment. On entering the apartment the officers informed the applicant that they had come to arrest her parents. She called her parents on the telephone. It appears from the documents before the domestic courts that at that time, the parents were out shopping accompanied by their legal representative, who returned home with them. This took some time because of heavy traffic. In the meantime the officers prohibited the applicant from moving around the apartment and interrogated her in the absence of a social worker and a psychologist, despite having seen her identity document, which indicated her age. 13. The applicant’s parents were arrested as soon as they arrived home. The record of a court hearing in the domestic proceedings for damages (see paragraphs 27-41 below) indicates that the parents’ legal representative was present during the arrest. The lawyer stated that the police officers had not allowed the parents to collect personal belongings from the flat but that, as far as he could recall, they had allowed the applicant to hand them some personal items from the flat. He did not know where the police officers had taken the applicant’s parents but said that he thought that they had been taken to the Regional Investigation Office. In any event, he had visited them the following day but could not remember exactly where. The legal representative also stated that during the next few days his task had been to circulate between the two different prisons where the applicant’s parents were detained in order to organise their defence. He stated that he could not describe the state of the applicant at the time of the arrest, his task having been to defend her parents. He did not know what had happened to the applicant and had not seen her after her parents’ arrest. 14. An order for the applicant’s parents’ detention for twenty-four hours was issued by the police on 4 December 2002 and they were placed in police custody for that period. Upon their application for judicial review of that detention order, the Varna Regional Court set it aside the following day, finding it flawed as it did not indicate any legal grounds for the detention. Immediately upon their release from police custody the applicant’s parents were served with a prosecutor’s order for their detention for seventy-two hours in connection with the extradition request (see paragraph 10 above). They were detained on the spot. 15. On 6 December 2002, at two separate hearings, the Varna Regional Court extended their detention for a period of thirty days. The applicant’s father was taken to Varna Prison and her mother to Sliven Prison. 16. During and after the court hearings on 6 December 2002 the applicant’s parents were represented by the same lawyer who had been present during their arrest and was a friend and neighbour of the family. 17. The parties dispute what took place at the hearing when the judge enquired about the care measures in place in relation to the applicant. According to the latter, when her mother was asked by the judge through an interpreter whether there was anyone who could take care of her child, her mother replied by shaking her head. In Bulgaria nodding one’s head signifies “no” and shaking it means “yes”. According to the applicant, the judge, having interpreted the mother’s response as “yes”, noted in the record of the hearing: “The child has someone to take care of her”. 18. The Government, in contrast, pointed to the record of the hearing, which indicated that the applicant’s mother had replied that there was someone who could take care of her child. In their view, this was evidence of the mother’s reply. In addition, they cited an excerpt of the court’s record where the applicant’s mother had addressed the court in the following terms: “I am very surprised as I have worked as an associate professor, with a doctorate in science, for ten years, and for some reason, they want to accuse me of something that happened out there, and I’ve been living here for a whole year. We came here so that my children could study in Varna, in a democratic country, because Turkmenistan is a dictatorship; a fascist regime has begun. There is someone to take care of my child.” According to the court record of the hearing, the mother’s statement had been preceded by an intervention by the prosecutor, who had indicated that it was necessary to comply with the requirements of Article 152 § 6 of the Code of Criminal Procedure, so that if the family had no relatives or friends to care for the child, the municipality had to be informed with a view to placing her in a child-care centre, kindergarten or boarding facility (интернат). 19. On an appeal by the applicant’s parents, the Varna Court of Appeal lifted the detention orders in two separate decisions on 17 December 2002. The applicant’s parents were released on bail and returned home to the applicant the same day. 20. The request for their extradition to Turkmenistan was ultimately refused on 22 May 2003 by the Varna Regional Court. During those proceedings they were represented by the same lawyer. The refusal became final on 30 May 2003 as it had not been appealed against. The court found that the criminal proceedings against the applicants’ parents were connected to the father’s political activities and that the extradition request had been made with the aim of persecuting and punishing him for his political beliefs. 21. It is alleged that the applicant’s parents were arrested so rapidly that they did not manage to leave any money for her, or to give her any instructions as to whom to turn to or how to go about caring for herself. The officers did not tell the applicant for how long they were taking her parents away, where they would be taken or for what reason. According to the applicant, they indicated that they would either lock her parents in prison or deport them to Turkmenistan. Both prospects caused the applicant anguish as she had heard that prisons were horrible both in Turkmenistan and in Bulgaria. She also feared that her parents might be subject to the same treatment in Bulgaria that members of her family had endured in Turkmenistan. 22. According to the applicant, no one took care of her after her parents’ arrest. She only found 15 levs (about 7 euros (EUR)) in the apartment, which she used for bus tickets to go to school and for food. The money ran out fast and during the last days of her parents’ absence she did not have anything to eat. She suffered insomnia and, when she could sleep, had nightmares. Before her parents’ arrest, her mother had been the one to wake her up in the morning. 23. She permanently dreaded being herself sent back to Turkmenistan, where her relatives were in prison and her grandparents had been made homeless for having opposed the regime. 24. She alleged that she had gone several times to the police’s office for foreigners, looking for her parents. She had also tried to telephone people in Turkmenistan to ask for help. Both steps proved unsuccessful. 25. The applicant had to ask people in the street how to reach her school as, before the arrest, her father had always taken her there. At some stage during her parents’ detention a stray dog bit the applicant on the leg. She did not know what to do or how to seek help. Her mother took her to hospital on 18 December 2002, the day after she was released from detention, fearing that the wound might have become infected. 26. The Government alleged that it had not been proven that the applicant had been left alone, without an adult carer, during the period in question. The Government stressed that the applicant’s parents had been represented throughout by the same legal representative, who was, moreover, a neighbour and friend. When questioned in the context of the domestic proceedings in the applicant’s case about the exchanges in court on 6 December 2002, the lawyer indicated that he had no recollection of them (see paragraph 35 below). 27. On 7 March 2006 the applicant, with her parents’ agreement, brought proceedings for damages under section 45 of the Contracts and Obligations Act before the Varna Regional Court. She directed her claim against the Varna regional office of the Ministry of the Interior, the Prosecution Service, the Ministry of Justice and the Supreme Judicial Council, and sought to establish the responsibility of the authorities that had left her unattended during her parents’ detention in December 2002, in breach of the Child Protection Act. 28. In a decision of 27 March 2006 the court invited her to specify the grounds of her claim and to indicate the specific actions, the particular respondent and the type of damage caused to her. She specified that she was seeking compensation for non-pecuniary damage stemming from the authorities’ failure to organise support and care for her during her parents’ detention. 29. On 10 April 2006 the court reclassified her claim under section 49 of the Contracts and Obligations Act. It further invited her to specify the names of the officials against whom she had directed her claim, and to show that she had paid the court fees of about EUR 10,000, corresponding to 4% of the total amount of damages sought. The applicant lowered the value of her claim on 9 May 2006, paid the corresponding court fees in the amount of about EUR 6,135 and submitted additional proof to the court. 30. On 15 May 2006 the Varna Regional Court terminated the proceedings as it found that the applicant had failed to correct the irregularities in her claim as directed by the court on 10 April 2006. 31. The applicant appealed on 12 May 2006 to the Varna Court of Appeal, submitting that the respondents were the legal entities specified in her legal claim of 7 March 2006 as amended, given that they had been represented by different individuals at different points in time. The appellate court upheld the lower court’s decision on 4 October 2006. 32. The applicant lodged an appeal on points of law, submitting that her claim was directed against the different institutions as legal persons, as she could not know the names of the individual officials who had failed to provide her with care. She also described her condition after her parents’ detention. On 14 February 2007 the Supreme Court of Cassation quashed the lower court’s decision, finding that it had wrongly instructed the applicant to specify individual respondents. It remitted the case to the first-instance court, the Varna Regional Court, for a fresh examination. 33. On 25 October 2007 the applicant further specified her claim before the Varna Regional Court, in particular describing her circumstances in the immediate aftermath of her parents’ arrest and the continuing psychological trauma which she had suffered as a result. She submitted that during the hearing on 6 December 2002 on the extension of her parents’ detention, the judge had wrongly interpreted her mother’s response to the question posed regarding her care. 34. A psychiatric and psychological report was prepared in the context of the court proceedings in 2008. The report established that the applicant was depressed and at times aggressive. This was attributed to the shock she had experienced in relation to her parents’ detention and the ensuing uncertainty. She showed signs of accumulated tension, fear, worries, disappointment and anger towards the officials who had abandoned her to her own devices following her parents’ arrest. She had no interest in her daily life or in the future and had become withdrawn as a result of her loss of confidence in the justice system. Two additional medical expert reports were prepared in 2008. They found that the applicant was suffering from post-traumatic stress disorder, which was probably the result of what she had gone through after her parents’ arrest. The doctors stated in court that no improvement was likely in her case and that her condition was expected to become chronic. Another medical report ordered by the court in 2009 confirmed that the applicant was suffering from post-traumatic stress disorder and that, while she had been a healthy and energetic child prior to her parents’ arrest, she had experienced frequent bouts of depression thereafter and had succumbed to overwhelming feelings of self-pity, insecurity and futility of effort and engagement. 35. The applicant’s parents’ lawyer, who had attended the hearings relating to their detention in 2002, testified on 22 February 2008 that he did not know what had happened to the applicant during her parents’ arrest; nor could he remember anything about the circumstances relating to the question and answer in court on 6 December 2002 concerning her care. On 24 October 2008, during the same proceedings, the applicant’s teacher testified that she could not remember the applicant being absent from or having gone hungry at school. The girl had not complained to her about anything at the time. 36. The Varna Regional Court rejected the applicant’s claim on 27 July 2009, finding that it had not been proven that she had been left alone while her parents had been detained in December 2002. The court also held that, in the three days following the court hearing on 6 December 2002, the applicant’s mother had not sought to have the record of the hearing rectified, even though it was legally possible to do so. 37. Furthermore, the court held that on 6 December 2002 the Varna Regional Court had accepted that the mother had replied in the affirmative to the judge’s question regarding whether there had been anyone to care for the applicant. That question had been transmitted to the applicant’s mother with the assistance of an interpreter. Consequently, the court concluded that it had not been incumbent on the criminal justice system to act in any other way in order to protect the applicant. 38. The court further accepted fully the conclusions of the psychological reports on the applicant’s state of chronic post-traumatic stress disorder after the December 2002 events. However, it found that the only evidence supporting the applicant’s claim that she had been left alone in December 2002 was her parents’ testimony and that there were no other pieces of evidence in support of this assertion. Given that the mother had stated during the hearing on her detention that someone had been taking care of the child, the conditions set out in Article 152 of the Code of Criminal Procedure had not been met and, therefore, the institutions involved in the criminal proceedings had not been obliged to pursue steps towards taking the applicant into care. 39. The applicant appealed to the Varna Court of Appeal. She again challenged the findings of the lower court about her mother’s reply during the court hearing on 6 December 2002. She also submitted that her mother had not been in a position to see the record of the hearing, given that she had been taken back immediately to the remand prison. She further asserted that the authorities had been under an obligation to verify at the time of the arrest on 4 December 2002 and immediately afterwards whether care had been available to her, and that in any event they should not have waited two days to enquire about her situation for the first time during the court hearing. She submitted that her current state of health was the direct result of the shock and stress she had endured in connection with the arrest and the lack of provision of care. She paid about EUR 3,000 in court fees. 40. The appellate court confirmed the lower court’s decision on 10 December 2010. It found that, even if the applicant had been left alone after the arrest, responsibility for that could not be attributed to the police, the prosecuting authorities or the court, given that her mother had stated that there had been someone to take care of her. In addition, the post-traumatic stress disorder from which it had been established that she suffered could have been the result of additional factors not directly related to her parents’ arrest. 41. The Supreme Court of Cassation rejected an appeal on points of law by the applicant in a final decision of 18 January 2012, finding no grounds for allowing the appeal to be pursued. 42. The applicant was granted humanitarian status on 10 March 2004 and refugee status on 15 September 2007. | 1 |
test | 001-178361 | ENG | RUS | CHAMBER | 2,017 | CASE OF K.I. v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Tajikistan);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) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 7. The applicant was born in 1980. He arrived in Russia in 2003. He travelled to Tajikistan on a number of occasions to visit his parents for short periods of time. 8. On 3 May 2011 the applicant was charged in absentia in Tajikistan with participating in an extremist religious movement, the Islamic Movement of Uzbekistan, and an international search and arrest warrant was issued in his name. On 6 May 2011 the Tajik authorities ordered his pre-trial detention. 9. On 3 November 2013 the applicant was arrested in Moscow and detained. On 4 November 2013 the Meshchanskiy District Court of Moscow (“the District Court”) ordered his detention pending extradition. 10. On 4 December 2013 the Tajik prosecution authorities requested the applicant’s extradition on the basis of the above charges. The request included assurances regarding his proper treatment, which were formulated in standard terms. 11. On 12 December 2013 the District Court extended the applicant’s detention until 3 May 2014. 12. An appeal by the applicant of 16 December 2013 was dismissed by the Moscow City Court (“the City Court”) on 3 February 2014. 13. On 29 April 2014 the District Court again extended the applicant’s detention until 3 August 2014. 14. An appeal by the applicant of 5 May 2014 was dismissed by the City Court on 23 July 2014. 15. On 9 October 2014 the applicant’s extradition was refused by the Deputy Prosecutor General of the Russian Federation, owing to the absence of culpable actions under Russian criminal law. 16. On 13 October 2014 the applicant was released from detention. 17. On 13 October 2014, immediately after his release, the applicant was rearrested for violating migration regulations. 18. On 14 October 2014 the District Court found the applicant guilty of violating migration regulations, fined him and ordered his administrative removal. Allegations by the applicant regarding a real risk of ill-treatment were dismissed, and he was detained pending expulsion. The District Court assessing the risks stated that “[t]he claims of the representative ... are of a speculative nature and not confirmed by the case materials” 19. The above judgment was upheld on appeal by the City Court on 24 October 2014. Claims by the applicant under Article 3 of the Convention were dismissed with reference to the District Court’s assessment of the case, which took into consideration “...the nature of the administrative offence, the character of the accused [who was criminally convicted in Russia]... 20. According to the latest submissions of his representative in 2015, the applicant was still in detention. 21. On 18 December 2013 the applicant lodged a request for refugee status, referring to persecution in Tajikistan and a real risk of ill-treatment. 22. On 15 September 2014 his request was refused by a final administrative decision of the migration authorities. The applicant challenged that decision in the courts, referring, inter alia, to the risk of illtreatment. 23. On 12 November 2015 his appeals were dismissed by a final decision of the City Court. | 1 |
test | 001-145112 | ENG | ROU | ADMISSIBILITY | 2,014 | SHYTI v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Blenis Shyti, is an Albanian national, who was born in 1983 and is currently detained in Poarta Albă Prison. He was represented before the Court by Ms A. Grigorescu, a lawyer practising in Bucharest. The Romanian Government (“the Government”) were represented by their Agent, Ms I. Cambrea, of the Ministry of Foreign Affairs. The Albanian Government, who had been informed of their right to intervene in the proceedings, under Article 36 § 1 of the Convention, gave no indication that they wished to do so. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In December 2004 the applicant was placed in pre-trial detention on suspicion of aggravated theft, robbery, aggravated murder, human trafficking and unlawful possession of firearms. 4. On 5 April 2005 the applicant was indicted together with three other persons for human trafficking and unlawful possession of firearms. No information has been provided to the Court concerning the outcome of these proceedings before the courts. 5. On 6 June 2005 the applicant was indicted together with N.Ş., a Romanian citizen, for the crimes of aggravated theft and the robbery and aggravated murder of three persons, including an eight-year old girl. 6. In September 2005 the applicant’s trial started before the Constanţa County Court. 7. By a decision of the prison administration, issued on 29 July 2005 following an attempt to escape, the applicant was classified as “dangerous prisoner”. Between 13 October 2005 and 21 December 2010 this decision had been revised and maintained by the prison administration on twenty-three occasions, based on reasons such as the initial evasion attempt, the severity of the crimes for which the applicant was prosecuted and the fact that he had been also indicted for unlawful possession of firearms. 8. On 12 June 2008 the Constanţa County Court convicted both the applicant and N.Ş. for aggravated theft, aggravated homicide and robbery and sentenced them to life imprisonment. The court held that the applicant together with N.Ş. broke into the house of a family they were acquainted with, in order to rob and murder them. They strangled the woman and stabbed the man ten times and then buried their bodies in the woods. They also killed their eight-year old daughter by strangling her and then buried her while she was still alive. This judgment became final on 24 November 2009 when the High Court of Cassation and Justice rejected the appeals on points of law (recurs) submitted by the applicant and N.Ş. 9. According to the applicant he had to wear handcuffs during the public hearings throughout the entire criminal trial. 10. In a letter addressed to the Romanian Government’s Agent before the Court on 2 November 2011, the president of the Constanţa County Court submitted that, following verification of the entire file concerning the applicant starting from the confirmation of his pre-trial detention on 16 December 2004 and until the delivery of the final judgment on 24 November 2009, the use of handcuffs was discussed on the occasion of five hearings as follows: – at the hearing of 3 March 2006 the applicant’s representative requested the court to allow that the applicant’s handcuffs were taken off since they interfered with his freedom of expression. The court rejected this request based on the applicant’s classification as dangerous prisoner by the prison authorities; – at the hearing of 12 April 2006 the applicant’s representative renewed the request which was allowed by the court; – at the hearing of 15 December 2006 the request was again renewed and allowed by the court; – at the hearing of 23 November 2007 the applicant’s representative asked for the recusal of the trial judge alleging that he had submitted the applicant to ill-treatment by keeping him handcuffed during thirty-five hearings. This request was rejected as the reason invoked was not amongst the reasons provided by law for challenging the impartiality of a judge. The applicant was advised that a complaint of ill-treatment should be addressed to the competent authorities; – at the hearing of 14 April 2008 the applicant’s representative again requested that the applicant’s handcuffs were taken off. The request was allowed by the court. 11. An overview of the relevant provisions in force at the relevant time concerning the use of handcuffs during detention, including pending trial, is presented in Costiniu v. Romania ((dec.), no. 22016/10, §§ 14-17, 19 February 2013). | 0 |
test | 001-159921 | ENG | RUS | CHAMBER | 2,016 | CASE OF KHAYLETDINOV v. RUSSIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment;Positive obligations) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1953 and is serving his sentence in correctional colony no. 2 in the Astrakhan Region. 6. On 9 May 2012 the applicant was arrested on suspicion of murder committed during a fight with the victim. Two days later the Kirovskiy District Court of Astrakhan authorised his remand in custody, having noted the gravity of the charges, his previous convictions, including for violent crimes, his failure to “get on the road to improvement”, the absence of an “official” source of income, and his lack of dependants. 7. That decision was upheld on appeal by the Astrakhan Regional Court, which fully endorsed the District Court’s reasoning. In addition, the Regional Court took into account that the applicant was suffering from the human immunodeficiency virus (HIV) but stated that there was no medical evidence that he could not continue being detained in the conditions of a temporary detention facility. 8. Another extension of the applicant’s detention followed on 9 July 2012, when the District Court accepted the investigator’s arguments that he was likely to re-offend, abscond and interfere with the investigation. The District Court linked those risks to the gravity of the charges against the applicant, his having received “negative characteristics” at his place of residence, as well as his having already been “the subject of criminal prosecution”. At the same time the court examined medical evidence produced by the applicant in support of his claim that the fact that he was suffering from an advanced stage of HIV precluded his detention. The District Court dismissed the claim, stressing that the applicant regularly received medication prescribed by a prison doctor and that his detention in the temporary detention facility did not pose a risk to his health. 9. The District Court issued further orders extending the applicant’s pretrial detention on 2 August, 6 September and 7 November 2012. Each time, it relied on the gravity of the charges and the risk flowing of the applicant absconding, interfering with the course of justice and reoffending. Neither detention order mentioned that the applicant had a criminal record. The applicant’s arguments about the progress of his HIV infection and the rapid deterioration of his health did not convince the District Court. The order of 7 November 2012 extended the applicant’s detention until 9 December 2012. It was upheld on appeal by the Astrakhan Regional Court on 14 November 2012, with reference to the gravity of the charges and the applicant’s “personality”. The relevant part of the decision reads as follows: “On 11 May 2012 ... the Kirovskiy District Court of Astrakhan ordered [the applicant’s] detention. Subsequently, the detention was lawfully extended. ... In extending the detention for up to seven months, the court reasonably took into account that [the applicant] was charged with a particularly serious criminal offence and that, in view of hiswas liable to reoffend or destroy the evidence. The court also correctly held that the case was particularly complex, due to the large number of investigatory activities and complex expert examinations to be conducted. The court also took into account the applicant’s lengthy treatment in the prison hospital. The court correctly concluded that there were no grounds for changing the measure of restraint.” The Regional Court did not address the applicant’s arguments, raised in his statement of appeal, that the investigating authorities significantly delayed a number of procedural actions, including the expert examination scheduled as early as June 2012 and not yet performed. 10. The District Court further extended the applicant’s pre-trial detention on 8 December 2012, summarily referring to his “personality” and “socially dangerous conduct”. The court also pointed out that some unspecified expert examinations had been conducted, which had “objectively influenced the length of the investigation”. 11. On 30 December 2012 the applicant’s pre-trial detention was again extended on the grounds of the gravity of the charges and the continued risk of his absconding and interfering with the course of justice. The court used similar wording as in the previous detention orders. 12. On 16 March 2013 the applicant was served with the final version of the bill of indictment. The bill indicated that the applicant had no criminal record. 13. On 6 August 2013 the District Court convicted the applicant of murder. The court found that he had killed the victim in the course of an altercation caused by the victim’s insults. The District Court sentenced the applicant to seven years of imprisonment, having taken into account the following mitigating circumstances: the applicant had no criminal record, was “positively characterised”, had surrendered himself to the police, had confessed to the killing and felt deep remorse, and the victim had behaved provocatively having initiated the conflict with the applicant. 14. In January 2004 the applicant was diagnosed with stage 4A HIV. He was taken under the supervision of specialists of the Astrakhan Regional Centre for Protection from AIDS (hereinafter “the AIDS Centre”). 15. Medical certificates provided by the applicant show that he had started receiving antiretroviral therapy on 22 March 2011 with very positive results. The viral load had significantly decreased and the applicant’s immune status had improved. A CD4 cell-count test carried out on 17 February 2012 showed that the level of CD4 cells was 489 cells/mm3. 16. On 11 May 2012 the applicant was placed in detention facility no. 1. On the same date he was examined by a doctor, who recorded no complaints and diagnosed him with a stomach ulcer in remission. 17. On 26 June 2012 doctors from the AIDS Centre recorded a deterioration in the applicant’s condition. They recommended continuation of the antiretroviral therapy and an in-patient examination. 18. Between 12 July and 12 September 2012 the applicant underwent a check-up in the prison hospital of correctional colony no. 2 (“the hospital”). He was diagnosed with chronic pancreatitis, chronic gastroduodenitis, iron deficiency anaemia, fungal esophagitis, urolithiasis, and hepatic haemangioma. 19. It appears that on 16 July 2012 an immunological test was performed. It showed that the level of CD4 cells was 649 cells/mm3. 20. Since August 2012 the doctors have again recorded a deterioration in the applicant’s condition and an increase in his viral load. They linked the deterioration to prior interruptions in the antiretroviral therapy. It is not clear from the documents submitted by the applicant when and why those interruptions occurred. 21. On 20 September 2012 a doctor from the AIDS Centre diagnosed the applicant with stage 4A HIV and fungal esophagitis, and recommended that antiretroviral therapy be continued. 22. On 26 September 2012, on a recommendation of the medical staff of the AIDS Centre, the applicant was again admitted to the hospital. He underwent treatment for HIV and fungal esophagitis. On 8 October 2012 he returned to the detention facility. 23. Throughout his detention the applicant was prescribed a special diet. 24. According to a typed copy of the applicant’s medical file provided by the Government, on admission to detention facility no. 1 the applicant was examined by a doctor whom he informed that he was suffering from HIV. 25. On 16 May 2012 medical staff from the AIDS Centre were allowed to see the applicant. The doctors noted that he was suffering from stage 4A HIV and recommended that his antiretroviral therapy be continued. On the same date the applicant received one month’s dose of antiretroviral drugs (Reyataz and Combivir). 26. The applicant continued being monitored by the medical staff of the AIDS-Centre, who examined him again on 26 June 2012. Following their recommendations, and in response to the applicant’s complaint of fatigue and pain in the epigastrium (upper abdomen), on 12 July 2012 he was transferred to the hospital for an in-depth examination. On the same date it was noted in his medical file that he was receiving antiretroviral drugs. The entries dated 2 and 6 August 2012 indicated that he had been taking those drugs. 27. While at the hospital, the applicant was monitored by an infectious diseases specialist, who examined him on twenty-four occasions. The applicant also underwent an ultrasound examination and a fibrogastroduodenoscopy. On 27 August 2012 he was examined by an urologist and a gastroenterologist in a civil hospital. He was also observed by an otolaryngologist and a neurologist. The final diagnosis was: HIV infection aggravated by secondary illnesses, chronic pancreatitis, chronic gastroduodenitis, iron deficiency anaemia, oesophageal candidiasis, hepatic hemangioma, chronic prostatitis, chronic cholecystitis, fungal esophagitis, and a duodenal bulb ulcer. The applicant received treatment for those illnesses. 28. On 12 September 2012, having found that the applicant’s condition had improved, the hospital discharged him. 29. On 20 September 2012 a doctor from the AIDS Centre examined the applicant at the detention facility. The doctor noted that the applicant was taking the antiretroviral drugs with strict adherence, and recommended virological and immunological testing, as well as another ultrasound examination and a fibrogastroduodenoscopy. 30. On 26 September 2012 the applicant was admitted to the hospital for additional tests. On 8 October he was transferred back to the detention facility. 31. On 18 October 2012 the applicant complained of fatigue, coughing and headaches. A doctor diagnosed chronic bronchitis and prescribed him anti-candidiasis and cough medication, as well as vitamins. 32. On 4 November 2012 an entry made in the applicant’s medical file indicated that the “last” immunological test had shown the level of CD4 cells at 513 cells/mm3. 33. On 13 November 2012 the applicant complained to a doctor of heaviness in his abdomen, dizziness and heartburn. The doctor noted that those were the effects of his not complying with the special diet and prescribed medication for his ulcer and gastroduodenitis. 34. On 27 November 2012 the applicant was examined in response to his complaints of fatigue, pain in the abdomen, and pyrosis. The doctor noted that the applicant had been receiving antiretroviral therapy and recommended his transfer to hospital for an examination and another diagnosis. 35. On the applicant’s admission to the hospital on 3 December 2012, his complaints of fatigue, heartburn and stomach aches were recorded. On the same date it was again noted that he was receiving antiretroviral drugs. At the hospital he was seen by an infections specialist several times a week, examined by a neurologist and an otolaryngologist, and underwent a fibrogastroduodenoscopy. In addition to his previously recorded illnesses, the applicant was diagnosed with a prostate adenoma. He received treatment for his non-communicable diseases, and was prescribed the same antiretroviral drugs as before. 36. On 18 January 2013 the applicant was dismissed from the hospital “in a satisfactory condition”, with the proviso that he had to be actively supervised by the detention facility medical personnel. On the same date he was examined by a doctor at the detention facility. The doctor noted that the applicant needed “dynamic supervision” and prescribed medication for his pancreatitis and stomach ulcer. 37. On 23 January 2013, in response to the applicant’s complaint of back pains, he was prescribed anti-inflammatory drugs. 38. On 12 February 2013 the applicant complained to a psychiatrist of sleeping problems and irritability, and was prescribed antidepressants. 39. On 20 March 2013 a doctor from the AIDS Centre paid the applicant a visit. Following the doctor’s recommendation, the applicant was yet again admitted to hospital. On arrival he complained of poor appetite, fatigue, heartburn, pains in his chest and stomach ache. He was then seen by an infectious diseases specialist, an ophthalmologist, an otolaryngologist, a cardiologist and a neurologist. They concluded that there was no change in his diagnosis and prescribed him treatment for the non-communicable infections. On 3 April 2013 it was noted that the applicant was regularly taking antiretroviral drugs. A week later, despite the lack of significant improvement in his condition, he was discharged from the hospital since he had to appear at a court hearing. 40. On 19 June 2013 the applicant was re-admitted to the hospital. Under the supervision of the infectious diseases specialist he received treatment for cholecystitis and gastroduodenitis. He was also examined by a neurologist, an otolaryngologist and an ophthalmologist, and was diagnosed with cerebrovascular disease. An entry in the record of 19 June 2013 showed that the applicant had enough drugs to last until 23 June 2013. The entry dated 25 June 2013 mentioned that he had not complied with the special diet prescribed to him. On 9 July 2013 the applicant was discharged in “satisfactory condition”, having been provided with antiretroviral drugs until 23 July 2013. 41. On the applicant’s admission to correctional colony no. 2 on 24 October 2013, he was examined by prison doctors, who noted that he was receiving antiretroviral therapy. 42. On 20 November 2013, in response to the applicant’s complaints of pain in the abdomen, he was examined by a prison doctor. A fibrogastroduodenoscopy was carried out on 22 November 2013, and he was prescribed medication for gastroduodenitis. 43. On 10 December 2013 the applicant was examined by an infectious diseases specialist from the AIDS Centre. The doctor observed the applicant’s complaints of pain in the oesophagus and the chest, and noted that he was receiving antiretroviral drugs, namely Reyataz and Combivir. The doctor recommended that the applicant continue with the therapy and undergo an immunological test. He also suggested that he be subjected to an in-patient examination. The applicant refused to be admitted to the hospital. 44. On 12 and 16 November 2012 the applicant’s lawyer wrote to the administration of detention facility no. 1, drawing their attention to the applicant’s state of health and asking for his examination by a medical expert. On 13 November 2012 the facility director informed the lawyer that there was no evidence that the applicant was suffering from an illness preventing detention and that, accordingly, there were no grounds for a medical expert examination. 45. On 4 February 2013 the applicant’s lawyer reiterated his request. 46. On 10 December 2012 the applicant’s lawyer requested the investigator in charge of the applicant’s criminal case to order a medical examination of the applicant. On 13 December 2012 the request was refused. However, on 4 February 2014 that decision was revoked, and the applicant’s medical expert examination was authorised. 47. On 17 January 2013 the applicant’s lawyer complained to the Kirovskiy District Court of Astrakhan of the correctional colony administration’s inaction and asked the court to authorise the applicant’s medical examination. On 1 April 2013 the court dismissed the complaint and refused the examination request. | 1 |
test | 001-169481 | ENG | DNK | CHAMBER | 2,016 | CASE OF JENSEN v. DENMARK | 3 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani | 5. The applicant was born in 1957 and lives in Skørping. 6. By an indictment of 25 October 2007 the applicant, jointly with three coaccused, was charged with violation of intellectual property rights under section 299 b of the Penal Code of a particularly aggravated nature, comprising professionally organised production, importation and sales, in which the defendants had cooperated on marketing substantial quantities of counterfeit goods in the form of designer knives, lamps and similar products. 7. From the beginning of 2006 the applicant was represented by lawyer A, and as from 21 August 2009, the applicant was represented by lawyer B. 8. By letters of 1 and 9 September 2009 A submitted his claim for legal costs to the City Court for work performed from 2006 until 2009. By decision of 24 September 2009 the City Court granted A fees in the amount of DKK 183,862.50 (approximately EUR 24,700) plus VAT and reimbursement of costs in the amount of DKK 2,060 which was provisionally to be paid by the Treasury. It appears that the transcript of the court records was sent to counsel A and the prosecutor in accordance with usual practice. Neither the applicant nor B was informed of this decision. 9. The case was heard before the City Court (Retten i Viborg) over 15 days between 24 September and 4 December 2009. 10. By a judgment of 4 December 2009, the City Court convicted the applicant and the three co-accused. The applicant was convicted on two out of fifteen counts and given a six months’ suspended sentence, and 120 hours of community service due to his good personal circumstances and the fact that his role had been a minor one. In addition the proceeds, estimated at 40,000 Danish Kroner (DKK), were confiscated, as were various copies of designer goods, such as lamps and cutlery. The applicant and B were present when the judgment was passed. The operative part of the judgment, including the matter of payment of legal costs, was read aloud when the judgment was passed. 11. A few days later lawyer B received a transcript of the judgment, which in the operative part relating to legal fees stated: “Each of the accused is to pay the legal costs relating to them, including the fee to counsel appointed to them.” 12. The applicant did not appeal against the judgment to the High Court, nor did the public prosecution. 13. According to a court record of 5 January 2010, the City Court approved the costs to be paid to B in the amount of DKK 247,200 (approximately EUR 33,200) plus VAT and reimbursement of other costs amounting to DKK 32,423. It was stated that the amount was to be paid by the applicant. 14. On 17 January 2010, on behalf of the applicant, B appealed against the decision. He did not contest the amount granted, but claimed that it should be paid entirely or partly by the Treasury. In support thereof, and with reference to section 1008, section 2, of the Administration of Justice Act, he submitted that the applicant had only played a minor role in the criminal case; that an extensive part of the production of evidence did not relate to him; that he had been acquitted of one count; and that the total fee was of a significant amount. 15. On 25 January 2010, the applicant received an invoice from the police, dated 19 January 2010, requesting him to pay legal costs in the amount of DKK 573,311 (approximately EUR 77,000) including A’s and B’s fees. This was the moment when the applicant became aware for the first time of the fees that had been granted to A. 16. On 26 January 2010, on behalf of the applicant, B extended his appeal of 17 January 2010 also to include the payment of costs to A, which in the applicant’s view should be paid entirely or partly by the Treasury. He also requested that the City Court send him the court records of the decision to grant fees to A. 17. On 8 February 2010 the City Court submitted a letter to B, with which was enclosed a copy of the judgment of 4 December 2009, which on 5 February 2010 had been rectified on page 90 in the operative part as follows: “The accused are to pay the legal costs, so that each of them pays the legal costs relating to them, including the fees for their appointed counsel.” 18. The court records of 24 September 2009 and A’s letters of 1 and 9 September 2009 were also enclosed with the letter. 19. By letter of 11 February 2010, B informed the High Court of Western Denmark that the applicant withdrew his appeal as regards the fees to be paid to B. Moreover, he requested permission to submit further observations as regards the fee that the applicant had been ordered to pay to A. 20. In a supplementary pleading of 4 March 2010, B maintained that A’s fees should be paid by the Treasury. He pointed out that the fees payable to A and B totalled DKK 573,311 and that therefore the payment duty would be manifestly disproportionate to the applicant’s responsibility and circumstances. Referring to section 1008, subsection 4, of the Administration of Justice Act, he thus requested that the payment duty be reduced. In his view, the time-limit for appealing against the decisions on the fees to be paid to A should, at the earliest, run from 25 January 2010, the date on which the applicant received the invoice from the police and thus became aware for the first time of the fees that had been granted to A. 21. By decision of 10 March 2010 the High Court dismissed the appeal as being lodged out of time. More specifically, it stated: “The interlocutory appeal does not concern the amount of the fee granted to the applicant’s two defence lawyers; it only concerns the City Court’s decision that the applicant must pay the legal costs relating to him, including the fee to his appointed counsel. This decision was integrated in the judgment of 4 December 2009 and the applicant, who was present when the judgment was passed, was informed of the decision during that hearing. Accordingly, the time-limit must be calculated from 4 December 2009, pursuant to section 969 of the Administration Act, even if the applicant only later learned how much the legal costs, including the fees for the defence counsel, amounted to. Thus, the time-limit had expired when the interlocutory appeal was lodged on 17 January 2010.” 22. Leave to appeal to the Supreme Court was refused by the Appeals Permission Board on 18 June 2010. | 0 |
test | 001-173363 | ENG | GEO | ADMISSIBILITY | 2,017 | BURDIASHVILI AND OTHERS v. GEORGIA | 4 | Inadmissible | Egidijus Kūris;Ganna Yudkivska;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. A list of the applicants is set out in the appendix. They are all Georgian nationals, represented by Ms Natia Katsitadze and Mr Philip Leach, lawyers practising in Tbilisi and London. 2. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The Soviet Political Repression Act of 11 December 1997 (“the Act of 11 December 1997”) provided that Georgian nationals who had suffered various forms of political persecution on the territory of the former Soviet Union between February 1921 and 28 October 1990, as well as their first-generation heirs, could claim compensation for non-pecuniary damage. In particular, section 9 of the Act read as follows: “A person who has been recognised as a victim of political repression on account of having been subjected to deprivation of liberty, resettlement, exile, forceful placement in a special place of residence or a psychiatric hospital, or who died as a result of such repression, or this victim’s first-generation heir, shall receive monetary compensation, the amount and procedures for payment of which shall be established by law.” 5. Despite the general undertaking contained in section 9 in fine of the Act of 11 December 1997, the Georgian State did not enact legislation defining the amount and procedures for payment of the relevant compensation. 6. In its judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze, the Court found a violation of Article 1 of Protocol No. 1 on account of the respondent State’s failure to undertake the necessary measures to ensure the effective exercise of the applicants’ right to receive monetary compensation for non-pecuniary damage under section 9 of the Act of 11 December 1997 (see Klaus and Yuri Kiladze v. Georgia, no. 7975/06, §§ 68 and 74-77, 2 February 2010). 7. Applying Article 46 of the Convention, the Court stated that, since the finding of a violation under Article 1 of Protocol No. 1 concerned a large number of people and reflected a structural problem, it was urgent to undertake the necessary legislative, administrative and budgetary measures at the domestic level in order that victims of Soviet political repression, who were targeted by section 9 of the Act of 11 December 1997, could effectively benefit from the right to receive compensation under that section (see Klaus and Yuri Kiladze, cited above, §§ 84 and 85). Applying Article 41 of the Convention, the Court also held that if the necessary measures (legislative and other) were still lacking six months after the date on which the judgment became final, the respondent State would have to pay each of the two applicants, in accordance with Article 44 § 2 of the Convention, 4,000 euros (EUR) in respect of non-pecuniary damage (ibid., § 90). 8. As the necessary general measures were not implemented by the respondent State within the above-mentioned time-limit of six months, each of the two applicants in that case duly received EUR 4,000 from the respondent State, as indicated by the Court. 9. For the purposes of implementing the general measures indicated by the Court under Article 46 of the Convention in its judgment of 2 February 2010, in March-April 2011 the Parliament of Georgia introduced draft amendments to the Act of 11 December 1997 and the Code of Administrative Procedure. 10. On 14 April 2011 the Government submitted the above-mentioned draft amendments to the Committee of Ministers of the Council of Europe (see paragraphs 25 and 26 below). 11. On 19 April 2011 the amendments were adopted, with certain modifications, by the Parliament of Georgia. They entered into force on 18 May 2011 (hereinafter “the Amendments of 19 April 2011”). 12. Thus, under the new Article 21 §§ 26-29 of the Code of Administrative Procedure, victims of Soviet political repression or their first-generation heirs had until 1 January 2014 to lodge applications with the Tbilisi City Court for monetary compensation under section 9 of the Act of 11 December 1997. The new provisions of the Code also provided for various additional procedures for the lodging of such applications, their examination by the Tbilisi City Court and subsequent appellate proceedings before the Tbilisi Court of Appeal, the latter acting as the final level of jurisdiction in such matters. 13. As to the amount(s) of compensation payable under section 9 of the Act of 11 December 1997, they were not fixed by any of the abovementioned legislative amendments. Instead, a new subsection (4) was added to section 9 of the Act, stating that the relevant domestic court had the competence to determine an appropriate amount of compensation in each case, having regard to the particular factual circumstances: Section 9(4) “The amount of compensation shall be determined by the court on the basis of the gravity of the form of coercion in question ... [deprivation of liberty, resettlement, exile, forceful placement in a special place of residence or a psychiatric hospital or death], as well as the age and health of the repressed person or his/her first-generation heir, and other objective factors.” 14. As confirmed by the official statistics issued by the Tbilisi City Court on 16 September 2011, within five months of the entry into force of the above-mentioned legislative amendments, more than 3,000 applications for monetary compensation under section 9 of the Act of 11 December 1997 were lodged with the City Court, out of which seventy-three cases were decided. The compensation awards in the cases examined varied from 100 to 500 Georgian Laris ((GEL) – EUR 46 and EUR 230 respectively), the maximum amount having been awarded only to the first-generation heirs of victims of repression who had been executed by the Soviet State. 15. All four applicants (see the appendix below) are first-generation heirs of victims of Soviet political repression. In July 2011, after the entry into force of the Amendments of 19 April 2011 (see paragraphs 914 above), they lodged applications with the Tbilisi City Court for monetary compensation under section 9 of the Act of 11 December 1997. 16. Thus, the first applicant requested GEL 15,000 (EUR 7,000). She referred, amongst other circumstances, to her age (she was seventy-two years old), poor state of health and, most importantly, to the fact that her father had been recognised, by a court decision of 11 May 1998, as a victim of Soviet repression on account of his arbitrary conviction by a Soviet military tribunal for proffering anti-Soviet statements and his consequent execution by a firing squad in October 1942. 17. As to the second, third and fourth applicants, who are siblings, they jointly requested GEL 25,000 (EUR 11,820). The applicants submitted that their father had been recognised as a victim of political repression in 1997 on account of his arbitrary conviction in 1951 by a Soviet military tribunal for high treason; their father had first been sentenced to twenty-five years’ imprisonment but had been pardoned and released from detention in 1955. 18. On 17 August and 19 September 2011 the Tbilisi City Court, in the context of two separate and unrelated sets of proceedings, allowed the applicants’ claims in part. On 1 and 15 November 2011 the Tbilisi Court of Appeal upheld those decisions on appeal. The first applicant was granted compensation of GEL 400 (EUR 190), whilst the second, third and fourth applicants were jointly awarded the sum of GEL 290 (EUR 137). 19. The reasons given by the domestic courts in their decisions were similar in both sets of proceedings. Thus, at first instance, the Tbilisi City Court, taking into account the relevant domestic provisions as well as the Court’s judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), noted that the amount of compensation payable under section 9 of the Act of 11 December 1997 had not been fixed by law but, on the contrary, had been left to be determined by the relevant court on the basis of the particular circumstances of each individual case. On the other hand, since it was impossible to assess all the suffering, injustice and harm caused by the various drastic forms of Soviet political repression, any such amount of compensation could only be, by its very nature, symbolic. No monetary compensation could ever serve as sufficient non-pecuniary relief. More important in this regard was the fact that the Georgian State had acknowledged the historical injustice as such. The court added that the respondent State had fully complied with the Court’s judgment of 2 February of 2010 by introducing legislative amendments aimed at filling “the legislative vacuum” which had been criticised by the Court. 20. As to the appellate proceedings, the Tbilisi Court of Appeal, in reply to the applicants’ argument that the domestic awards were derisory and disproportionate in comparison with the sums awarded by the Court in its judgment in the case of Klaus and Yuri Kiladze (cited above, § 90), stated that the domestic courts retained a broad discretionary power to determine amounts of compensation. The appellate court pointed out that the Court itself had acknowledged that the respondent State should remain free to choose, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court (ibid. § 88); the Court had not indicated to the respondent State any specific amount of compensation to be paid under section 9 of the Act of 11 December 1997. The appellate court also stated that, although the amount of compensation should not be less than the minimum wage in Georgia (some EUR 74), the State’s budgetary capacities and the overall number of victims of Soviet political repression (several thousands of people) should also be taken into account when determining the award. 21. For the purposes of further implementation of the general measures indicated by the Court in its judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), a second wave of legislative measures was initiated by the respondent State on 31 October 2014. Notably, on the latter date Parliament made a number of significant amendments to the Act of 11 December 1997 and the Code of Administrative Procedure, which came into force on 1 January 2015 (hereinafter “the Amendments of 31 October 2014”). 22. In particular, the amended section 9(4) of the Act of 11 December 1997 determined the range of compensation payable to victims of Soviet political repression. Thus, the minimum amount payable under the law was fixed at GEL 1,000 (EUR 454), whilst the maximum amount within the range was set at GEL 2,000 (EUR 908). The provision further specified that the exact amount payable as compensation should be determined by a domestic court within the above-mentioned range in the light of the particular circumstances of each case, such as the gravity or the type of persecution in question, the age and health of the claimant – the victim of Soviet political repression or of his or her first-generation heir – and other relevant factors. 23. Furthermore, in order to assist those victims of Soviet political repression whose claims had already been decided under the preceding version of section 9(4) of the Act of 11 December 1997, the Amendments of 31 October 2014 provided that the legislation would have retroactive effect. In particular, they stated that those victims of Soviet political repression, or their first-generation heirs, who had already been awarded compensation by the Tbilisi City Court in amounts falling below the minimum threshold set by the new section 9(4) of the Act (compare paragraphs 13 and 22 above) were entitled to re-apply to a court for a fresh assessment of the particular circumstances of their case, determination of the amount of compensation payable under the amended section 9(4) and, if applicable, payment of the difference between the new amount thus determined and the previous award. 24. The Amendments of 31 October 2014 further re-worded Article 21 § 26 of the Code of Administrative Procedure to state that together with the Tbilisi City Court, which maintained jurisdiction to hear claims from victims of Soviet political repression or their first-generation heirs residing in the east of Georgia, the Kutaisi City Court was vested with jurisdiction to hear claims emanating from claimants residing in the west of the country. 25. During their 1108th meeting held on 10 March 2011, in the context of their supervision of the execution of the Court judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above), the Committee of Ministers adopted a decision, which reads as follows: “The Deputies, 1. took note with satisfaction that the just satisfaction as well as the default interest due have been paid to the applicants; 2. took note with interest of the preliminary action plan which has been submitted by the Georgian authorities according to which a draft law has been prepared which will be submitted to the Parliament in March 2011; 3. invited the Georgian authorities to submit to them a consolidated action plan for their 1115th meeting (June 2011).” 26. During their 1115th meeting held on 8 June 2011, the Committee of Ministers adopted another decision on the matter, which reads as follows: “The Deputies, 1. took note, with satisfaction, of the action plan submitted by the Georgian authorities according to which in April two draft laws were being discussed before Parliament with implementation by the Tbilisi court expected to begin in May 2011: the first amending the [Act of 11 December 1997], in order to provide for compensation for victims; the second one amending the Code of Administrative Proceedings in order to organise the practical modalities of granting such compensation; 2. also took note with satisfaction of the subsequent information (adoption on 19/04/2011 of the amendment to [Act of 11 December 1997] and publication in the Official Journal of 18 May 2011) showing that the action plan is being implemented within the foreseen timeframe; 3. decided therefore to transfer this case for examination under the standard supervision procedure.” 27. Lastly, during their 1222nd meeting held on 12 March 2015, the Committee of Ministers adopted a Resolution (CM/ResDH(2015)41) on the closure of supervision of the execution of the Court’s judgment of 2 February 2010 in the case of Klaus and Yuri Kiladze (cited above). The relevant parts of the Resolution read as follows: “Having regard to the final judgment transmitted by the Court to the Committee in this case and to the violation established; ... Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation; Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment including the information provided regarding the payment of the just satisfaction awarded by the Court ...; Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted, Declares that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and Decides to close the examination thereof.” | 0 |
test | 001-158352 | ENG | POL | CHAMBER | 2,015 | CASE OF CHYŁA v. POLAND | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev | 5. The applicant was born in 1956 and lives in Lublin. 6. The parties gave partly different descriptions of certain factual elements of the case concerning the “dangerous detainee” regime (see paragraphs 42-45 below). The remaining facts were not in dispute. 7. The applicant has a history of criminal convictions. For several years he was sought by the law-enforcement authorities pursuant to a “wanted” notice. 8. On 6 May 2005 an international search warrant was issued against the applicant on the reasonable suspicion that he had committed, as a member of an organised criminal group, several counts of robbery, extortion, uttering threats, causing bodily harm and placing an explosive with intent to damage property. Earlier, on 4 May 2005 the Lublin District Court had also ordered that the applicant be remanded in custody for a period of fourteen days. 9. On 24 November 2005 the applicant was arrested by the Italian police. 10. On 21 December 2006 the applicant was handed over to the Polish authorities. 11. On 28 December 2006 the Lublin District Court (Sąd Rejonowy) remanded him in custody, relying on the reasonable suspicion that he had committed, as a member of an organised criminal group, several counts of robbery, extortion, uttering threats, causing bodily harm and placing an explosive with intent to damage property. It attached importance to the serious nature of those offences and the likelihood of a heavy prison sentence being imposed on the applicant. The court also considered that keeping the applicant in detention was necessary in order to secure the proper conduct of the proceedings, given the risk that he might abscond. With regard to the latter possibility, the court relied on the fact that he did not have a permanent place of residence in Poland and that he had already been hiding from the police. Finally, the court emphasised that the applicant was a member of an organised criminal group and that certain other members of that group were still at large, which increased the risk that the detainee, if released, might obstruct the proceedings. 12. The applicant’s appeal against the detention order, like his further appeals against decisions extending his detention and all of his subsequent, numerous applications for release and appeals against refusals to release him, were unsuccessful. 13. On 19 March 2007 the Lublin District Prosecutor lodged a bill of indictment with the Lublin District Court. The applicant was charged with several counts of robbery, extortion, uttering threats, causing bodily harm and placing an explosive with intent to damage property. The bill of indictment comprised numerous charges against five defendants. 14. During the court proceedings the authorities further extended the applicant’s pre-trial detention on 14 September 2007 (to 20 December 2007) and 17 December 2007 (to 20 March 2008). The courts repeated the grounds previously given for the applicant’s continued detention. They also found no grounds warranting the applicant’s release from detention as provided for by Article 259 of the Criminal Code. 15. On 7 March 2008 the Lublin District Court convicted the applicant as charged and sentenced him to nine years’ imprisonment and a fine. 16. The applicant appealed. He was kept in detention pending his appeal. 17. On 30 January 2009 the Lublin Regional Court (Sąd Okręgowy) heard the applicant’s appeal. It quashed the first-instance judgment and remitted the case. The court also extended the applicant’s pre-trial detention to 30 April 2009, repeating the grounds previously given. 18. On 27 February 2009 the case file regarding the applicant’s case was transmitted to the Lublin District Court for re-trial. 19. On 7 April 2009 the Lublin District Court requested the Prosecutor to complete the bill of indictment. However, on 25 June 2009 the Lublin Regional Court quashed that decision, remitted the case to the District Court and ordered it to proceed with the trial. 20. On 30 April 2009 the Lublin District Court further extended the applicant’s detention to 30 July 2009, repeating the grounds previously given. 21. On 9 July 2009 the Lublin District Court extended the applicant’s pre-trial detention to 30 October 2009. The applicant lodged an interlocutory appeal against this decision. On 23 July 2009 the Lublin Regional Court quashed the District Court’s decision, finding that it had been taken by a judge who should have been excluded ex lege from deciding in the applicant’s case. 22. On 24 July 2009 the Lublin District Court, in a different composition, again extended the applicant’s pre-trial detention to 30 October 2009. The court further extended the applicant’s detention on 27 October 2009 (to 30 January 2010), 22 January 2010 (to 30 April 2010), 21 April 2010 (to 31 July 2010), 16 July 2010 (to 31 October 2010), 28 October 2010 (to 31 January 2011), 12 January 2011 (to 30 April 2011) and 28 April 2011 (to 31 July 2011). On each occasion the court repeated the grounds previously given and found no grounds warranting the applicant’s release from detention as provided for by Article 259 of the Criminal Code. In addition, the court observed that while it appeared from medical reports that the applicant was suffering from various health problems, treatment could be provided within the penitentiary facility. 23. In its decision of 19 November 2009 dismissing the applicant’s appeal against the decision of 27 October 2009 extending the applicant’s detention, the Lublin Regional Court addressed the applicant’s argument that his detention had exceeded the reasonable time requirement referred to in Article 5 § 3 of the Convention. The court cited the relevant provisions of the Convention and held that taking into consideration the complexity of the case and the fact that the applicant had been charged with numerous and various offences committed in cooperation with other persons the detention, although considerably long, had not exceeded the “reasonable time” within the meaning of the Convention. The court also considered that “detention was indispensable because, other, less severe preventive measures would not properly secure their aim”. 24. In the meantime, on 16 November 2009 the Lublin District Court examined the applicant’s request for release and dismissed it. The court relied on the same grounds as previously albeit it additionally observed that the applicant had no permanent place of residence in Poland that he had been previously convicted and once, when he had been granted home leave during his sentence, he went into hiding abroad. In Poland he used a fake passport. The court considered that in these circumstances and taking into account that the applicant still had an outstanding sentence to be served in Poland, there was a reasonable fear that he might abscond or go into hiding. The court concluded that other preventive measure, not involving deprivation of the applicant’s liberty, would not secure the proper conduct of the proceedings. 25. On 5 May 2011 the Lublin District Court convicted the applicant. The applicant appealed. 26. On 28 February 2012 the Lublin Regional Court again quashed the first-instance judgment and remitted the case. 27. Since 17 December 2010 the applicant has been serving a prison sentence imposed on him in another set of criminal proceedings. 28. On 4 May 2011 the applicant lodged a complaint with the Lublin Regional Court under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to an investigation conducted or supervised by a prosecutor and to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). He claimed that the proceedings had commenced in 2005 and were still pending. He sought an acknowledgement that the proceedings had been lengthy and just-satisfaction in the amount of PLN 10,000. 29. On 26 May 2011 the Lublin Regional Court dismissed the applicant’s complaint. The court did not accept the applicant’s view that the proceedings had lasted since 2005. It examined only the course of the proceedings after 27 February 2009, stating that the applicant’s complaint could only refer to the current stage of the proceedings, i.e. after the Lublin Regional Court had remitted the case to the Lublin District Court and had duly transmitted the case file. As regards the period after 27 February 2009 it considered that the proceedings before the trial court had been conducted with the requisite speed, especially given the complexity of the case. In particular, the court observed that the hearings had been held frequently and at regular intervals and that only a few had been adjourned for reasons not imputable to the trial court. It further observed that at the request of the applicant, on 24 May 2010 four witnesses who had their permanent place of residence in Italy were summoned to be heard at the hearing on 9 July 2010. The four summons were returned with notes “addressee unknown”. On 9 July 2010 the applicant indicated a Polish address of one of these four witnesses. The court adjourned the hearing until 25 August 2010 and summoned the witnesses again. On 25 August the court heard one witness; the remaining three failed to appear. On the same day the applicant requested the court to hear another witness who had been deprived of his liberty in the United Kingdom. The court granted the request and decided that the witness in question be heard through the consular office. The court also observed that there had been objective difficulties in appointing expert witnesses of several specialities and that some of the expert reports obtained were incomplete and had to be returned for rectification. 30. On 3 January 2007 the Lublin Remand Centre Penitentiary Commission (Komisja Penitencjarna) classified the applicant as a “dangerous detainee”. It considered that this was necessary in view of the fact that he was charged with numerous offences against human life and health. The commission also referred to the applicant’s serious lack of moral character and the fact that he was a recidivist. Finally, the commission emphasised that the applicant had already escaped twice from custody and had been hiding from the police for several years. 31. Every three months the commission reviewed, and upheld, its decision classifying the applicant as a “dangerous detainee”. The commission underlined that the initial grounds for imposing the special confinement measure were still valid. 32. The applicant appealed to the Lublin Regional Court against the decisions extending his status as a “dangerous detainee”. All his appeals were dismissed. In particular, the court gave decisions on 5 June 2008, 29 January and 10 June 2009. The authorities relied on the grounds set out in the initial decision. They laid particular emphasis on the risk posed by the seriousness of the offences and the fact that the applicant had already escaped previously from custody and had been in hiding for several years. 33. On 17 July 2009 the Head of Lublin Remand Centre ordered that the applicant be placed in solitary confinement for a period of 14 days as a disciplinary punishment, after he had refused to undergo a strip-search. The applicant asked the Head of Lublin Remand Centre to reconsider his decision. The penalty was implemented between 18 July and 1 August 2009. 34. On 24 August 2009 the Head of Lublin Remand Centre upheld his original decision, stating that it had been well-founded in view of the applicant’s refusal to strip and his aggressive behaviour towards the prison guards who were to perform a body search. The applicant appealed. 35. On 23 September 2009 the Lublin Regional Court dismissed the applicant’s appeal, arguing that the impugned decision had been lawful and as such could not be contested before the court. 36. On 17 December 2009 another disciplinary punishment was imposed on the applicant: he was refused permission to receive any food packages. The punishment was imposed on the applicant for allegedly aggressive behaviour prior to a full strip-search (kontrola osobista) on 13 December 2009. 37. As a “dangerous detainee”, the applicant was subjected to a full body search every time he entered or left his cell, which meant that he had to strip naked in front of three prison guards and was required to carry out deep knee-bends at least twice a day. 38. On several occasions the applicant complained about the full stripsearches. In particular, on 19 October 2010 he complained about a stripsearch of 13 October 2010. In reply, the Lublin Regional Inspectorate of Prison Service, after verifying the circumstances of this check, confirmed that it had been carried out in accordance with the relevant procedures. 39. The applicant’s visiting rights were also severely restricted. According to the list of visits submitted by the Government, which was not contested by the applicant, between 22 December 2006 and June 2012 the applicant received visits on 94 occasions. However, between 22 December 2006 and 10 December 2007 the applicant did not receive any visits. On 11 December 2007 he received a visit from his defence lawyer. From 14 April 2008 he was visited by his sisters, initially once a month and subsequently, after August 2008, twice a month. Furthermore, the applicant could leave his cell for one hour of outdoor exercise per day in a 16m² courtyard surrounded by walls. 40. Between 2007 and 2010 the applicant made many requests to the prison authorities, asking them to allow him to take part in training sessions, workshops, courses or other sports activities organised for the other inmates. All those requests were rejected. 41. On 25 November 2010 the dangerous detainee status was lifted. The prison authorities stressed that the applicant’s attitude had improved significantly and that he did not raise any security concerns. 42. In respect of the full strip-search, the applicant submitted that during periods when he had been detained in a cell with another inmate, the strip-search had been carried out in the cell, and consequently had occurred not only in the presence of at least three prison guards, but also in the presence of the other inmate. 43. The Government argued that the strip-searches had been performed in an adequately furnished separate room, which was monitored; the recording could be viewed in a duty room. Any recordings from the surveillance system had been automatically deleted after 7 days. 44. The applicant further maintained that whenever he was outside his cell, including during his appearances at court hearings and medical visits, he had been required to wear the so-called “joined shackles” (kajdany zespolone) on his hands and feet. 45. However, the Government argued that the applicant had been required to wear “joined shackles” only outside the Lublin Remand Centre and that inside the prison he had merely been handcuffed. 46. On 7 June 2009 the applicant asked the prison authorities to allow him to vote in the European Parliament elections, in the polling station set up for that purpose within the confines of the prison. After carrying out a basic body search with a metal detector, the prison guard took the applicant to a separate room and ordered him to strip naked. As the applicant refused to do so, requesting the guard to allow him to vote without undergoing a full strip-search, he was taken back to his cell without being allowed to vote. 47. On 8 June 2009 the applicant complained to the Lublin Regional Court that he had to undergo a strip-search and that consequently he had not been allowed to vote. His complaint was referred to the Head of the Lublin Remand Centre. 48. On 16 July 2009 the Head of the Lublin Remand Centre dismissed the applicant’s complaint. He stated that as a ‘dangerous detainee’ the applicant was subjected to a body search every time he entered or left his cell. Since the applicant had refused to undergo a full strip-search on 7 June 2009 while being taken to the prison polling station, the guards had to take him back to his cell. Later that day the applicant was again asked whether he wished to participate in the elections but he refused, stating that he would not strip naked. 49. On 16 July 2009 the Head of the Lublin Remand Centre confirmed that all detainees who wished to participate in the parliamentary elections on 21 October 2007 had voted. 50. On 21 December 2006 the applicant was sent to the Warsaw Remand Centre. From 3 January 2007 he was detained in the Lublin Remand Centre. He was subsequently detained in the Radom Remand Centre and then again in the Lublin Remand Centre. 51. The applicant suffers from hyperthyroidism, asthma, severe back pain, bilateral epididymal cysts and hypertension. During his detention in the Lublin Remand Centre he received pharmacological treatment. He also underwent a thyroid ultrasound (on 13 May 2008) and a testicular ultrasound. He also consulted specialist doctors. 52. On several occasions he complained about the delay in obtaining appointments with specialists. In reply, he was informed on 5 February 2009 that the waiting time for specialist consultations had been similar to that for the population in general. 53. The applicant submitted that throughout his detention he was held in conditions which fell below the basic levels of hygiene. He also alleged that his cell in Lublin Remand Centre had had no ventilation, had little natural light, poor artificial lighting and was badly furnished. 54. The applicant submitted three envelopes from correspondence received from his sister, bearing an illegible signature and the stamps “censored on 1 July 2010”, “censored on 12 July 2010” and “censored on 6 August 2010” respectively. In respect of the letter censored on 12 July 2010, an authorisation to receive a package containing copies of the court case files and the applicant’s medical records had been issued by the Head of the Penitentiary Department of Lublin Remand Centre and was attached to the envelope. A similar authorisation to receive a copy of the court case files had been issued in respect of the letter censored on 6 August 2010 and was also attached to the envelope. 55. On 6 September 2010 the Lublin District Prosecutor instituted criminal proceedings against the medical and nursing staff of the hospital ward of Lublin Remand Centre, for making false statements and forgery of the applicant’s signature. 56. On 29 April 2011 the Lublin District Prosecutor discontinued the proceedings. | 1 |
test | 001-180661 | ENG | CZE | COMMITTEE | 2,018 | CASE OF ŽIROVNICKÝ v. THE CZECH REPUBLIC | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Aleš Pejchal;Armen Harutyunyan | 4. The applicant was born in 1968 and is serving a prison sentence in Mírov Prison. 5. On 8 April 2004 the applicant initiated civil proceedings for protection of his personality rights (“the main proceedings”) against the Czech Republic in the person of the Ministry of Justice (no. 37 C 51/2004). On 28 March 2008 the Prague Municipal Court (městský soud) dismissed the applicant’s action. The Prague High Court (vrchní soud) dismissed an appeal by the applicant on 20 October 2008 and the Supreme Court (Nejvyšší soud) dismissed an appeal on points of law on 15 April 2010. 6. On 12 June 2007 the applicant claimed compensation under the State Liability Act (Act no. 82/1998) from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings. As the Ministry did not deal with the applicant’s request within the six-month statutory time-limit, he brought a civil action on 18 December 2007 (proceedings no. 17 C 204/2007). 7. On 18 December 2009 the Prague 2 District Court (obvodní soud) acknowledged that there had been delays in the main proceedings and awarded the applicant 30,000 Czech korunas (CZK) (1,140 euros (EUR)) in respect of non-pecuniary damage and dismissed the rest of the claim. 8. On 15 September 2010 the Prague Municipal Court amended the lower court’s judgment by dismissing the whole financial claim, leaving the rest of the judgment intact. It found that the applicant had not suffered any non-pecuniary damage on account of the unreasonable length of the proceedings. 9. On 30 November 2011 the Supreme Court, upon an appeal on points of law by the applicant, quashed the Municipal Court’s judgment and remitted the case to it. On 11 April 2012 the Municipal Court dismissed the applicant’s claim for financial compensation but acknowledged that his right to have his case heard within a reasonable time had been violated in the main proceedings. Given the high number of lawsuits brought by the applicant, the court concluded that the finding of a violation was sufficient redress for the non-pecuniary damage caused to him. The court also saw no need to award him damages on account of the length of the compensation proceedings, as the applicant had requested, considering that they had not been unreasonably long. 10. On 12 August 2013 the Supreme Court dismissed an appeal on points of law by the applicant, stating, inter alia: “The Supreme Court pointed out in its previous cassation judgment in this case that, without providing any further reasons, it cannot be concluded that the fact that a plaintiff has initiated a large number of disputes ... means that the presumption of non-pecuniary damage caused by excessively long proceedings has been rebutted. ... The fact that an injured person has instigated a large number of judicial disputes can have an impact on his approach to a particular set of proceedings; for example, he may fail to respond to the court’s requests on time, pay court fees on time, remedy shortcomings in his submissions on time and such like, thus he may not pay proper attention to the proceedings. Such conduct may show that the subject matter of the proceedings is of lesser importance for the injured person and it may be taken into consideration under the criterion of the injured person’s conduct.... Nonetheless, even if there are no such circumstances on the part of the injured person, it is not possible to wholly ignore the fact that the plaintiff has initiated a large number of judicial disputes. It puts him in a different position as regards the perception of the degree of damage caused by the excessive length of one of the disputes compared to the position of a person participating in only one or only a few judicial proceedings (compare, in similar terms, the European Court of Human Rights inadmissibility decision in the case of Havelka v. the Czech Republic, of 20 September 2011, applications nos. 7332/10, 42666/10 and 61523/10, and the decision of the Supreme Court of 4 June 2013, no. 30 Cdo 1042/2013). As to the appellant’s complaint that the court of appeal should have taken the length of the compensation proceedings themselves into account when determining redress, it must be admitted that the base amount of compensation can indeed be increased if compensation proceedings are themselves excessively long and a plaintiff requests an increase in compensation on those grounds (part VI. of the Supreme Court’s opinion of 13 April 2011, no. Cpjn 206/2010 ...). However, in its judgment of 14 November 2011, no. 30 Cdo 3340/2011, the Supreme Court added that if in the proceedings concerned the procedure under Article 118 §§ 1 and 2 of the Code of Civil Procedure (CCP) has been followed, the application of the possibility to increase compensation is limited by the rules for submitting new facts and modifying the initial action in the proceedings before the court of first instance; the same applies in similar fashion to appeal proceedings (see Article 205a § 1 and Article 2016 § 2 of the CCP). Thus, an injured person has to raise an objection about the length of compensation proceedings pending the effects of concentration in the particular proceedings. In the present case, the appellant raised a claim for compensation for the length of the compensation proceedings only in the course of the proceedings before the appellate court, in a submission of 11 April 2012 (file page 128) ... so it was an inadmissible new claim.” 11. On 24 April 2014 the Constitutional Court (Ústavní soud) dismissed a constitutional complaint (ústavní stížnost) by the applicant. 12. In the meantime, the applicant initiated proceedings for compensation (no. 23 C 149/2012) for non-pecuniary damage for the excessive length of the first set of compensation proceedings (no. 17 C 204/2007). He later began proceedings for compensation for non-pecuniary damage arising from the excessive length of the second set of compensation proceedings too (no. 22 C 204/2015). 13. On 19 September 2003 the applicant brought a civil action against the Czech Republic–Ministry of the Interior before the Prague 7 District Court under the State Liability Act. He claimed compensation for an allegedly illegal search of his house on 6 March 2001. 14. On 4 November 2004 he was asked to remedy shortcomings in his action, which he did on 16 November 2004. 15. On 21 March 2005 the District Court decided the case was not in its jurisdiction and referred it to the Prague 2 District Court. Following an appeal by the applicant, the Prague Municipal Court upheld the jurisdiction decision on 20 December 2005. 16. On 24 January 2007 the District Court appointed a legal representative for the applicant. On 6 June and 20 September 2007 and 4 January 2008 the applicant supplemented his action. 17. On 26 March 2008 the District Court asked the Prague 3 District Court to send it the criminal case file concerning the house search at issue. 18. The District Court dismissed the applicant’s action on 21 December 2009 after a hearing on 16 December 2009. 19. On 26 October 2011 the Prague Municipal Court upheld that decision. 20. On 27 January 2012 the applicant appealed on points of law. On 7 February 2012 he filed a constitutional complaint, which was rejected as premature by the Constitutional Court on 29 May 2012. The Supreme Court dismissed his appeal on points of law on 11 November 2015, referring, inter alia, to a decision by the Court on the same matter, which had found the complaint manifestly ill-founded (see Žirovnický v. the Czech Republic (dec.), no. 7022/06, 5 October 2010). 21. The applicant subsequently renewed his complaint to the Constitutional Court but it was dismissed on 15 March 2016. 22. On 8 June 2007 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings (no. 18 C 84/2006). As the Ministry did not deal with his request within the six-month statutory time-limit, on 9 December 2007 he brought a civil action before the Prague 7 District Court seeking CZK 8,315.84 (EUR 318) in compensation. 23. On 20 January 2012 the District Court dismissed the action, considering that the main proceedings had not been unreasonably long. 24. On 12 December 2012 the Prague Municipal Court upheld the judgment, finding that although the main proceedings had lasted an unreasonably long time the applicant could not be awarded compensation because of the lack of significance of the proceedings for him. According to the court, the applicant had abused his right of access to a court by initiating a very large number of legal disputes against the State. 25. On 18 February 2015 the Supreme Court quashed the judgment and remitted the case to the Municipal Court. It noted that even if the applicant had abused his right of access to a court, unreasonably long proceedings might still cause him damage which had to be compensated for by at least a finding of a violation. 26. On 14 September 2015 the Municipal Court modified the District Court’s judgment by finding a violation of the applicant’s right to have his case heard within a reasonable time in the operative part of the judgment. The court refused to deal with a new complaint by the applicant about the length of the compensation proceedings. 27. On 27 November 2015 the applicant lodged an appeal on points of law, which is apparently still under consideration. 28. In the meantime, the applicant initiated proceedings for compensation (no. 12 C 301/2011) for non-pecuniary damage arising from the excessive length of the initial compensation proceedings and then proceedings for compensation for delays in that second case (no. 22 C 141/2015). 29. On 15 September 2003 the applicant brought an action for damages against the Czech Republic–Ministry of the Interior before the Prague 7 District Court, alleging that he had suffered damage in connection with a “terrorist attack” on his family by police officers on 6 March 2001. 30. On 28 July 2004 the case was referred to the Prague Municipal Court as the court competent to deal with it at the first instance. 31. After several decisions on exemption from court fees, the appointment of a legal representative for the applicant and several attempts by the court to procure the related criminal case files, a hearing was held on 28 March 2008, following which the Municipal Court dismissed the action. 32. On 25 November 2008 the Prague High Court upheld the judgment. The Supreme Court dismissed an appeal on points of law by the applicant on 31 August 2010. 33. On 6 June 2007 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings, no. 34 C 126/2004. As the Ministry did not deal with the applicant’s request within the statutory time-limit, he brought a civil action before the Prague 2 District Court on 13 December 2007, seeking EUR 4,229.64 in compensation. 34. On 18 March 2010 the District Court dismissed his action, acknowledging that the main proceedings had been unreasonably long, but seeing no necessity to award him financial compensation. 35. On 16 December 2010 the Prague Municipal Court quashed the judgment, finding it non-reviewable for lack of reasoning, and remitted the case to the District Court. In a judgment of 21 March 2012, the District Court found a violation of the applicant’s right to have his case heard within a reasonable time in the operative part of the judgment and dismissed the action regarding financial compensation. According to the court, the finding of a violation constituted adequate redress. It found that awarding him financial compensation would be against good moralsapplicant’s conduct in the main proceedings, the conduct of the courts, the importance of the subject matter of the proceedings for the applicant as well as his character, his relation towards the State and society and his lack of respect for the rights of others. 36. On 6 December 2012 the Municipal Court upheld the judgment. 37. On 29 September 2014 the Supreme Court dismissed an appeal on points of law by the applicant. A subsequent constitutional complaint was dismissed as manifestly ill-founded by the Constitutional Court on 19 February 2015. 38. Following a plea of nullity by the applicant, the Municipal Court on 10 April 2015 quashed its judgment of 6 December 2012 on the grounds that the applicant had not been able to attend a hearing at the court. 39. On 19 November 2015 the Municipal Court issued a new judgment, modifying the District Court’s judgment by awarding the applicant CZK 32,400 (EUR 1,200). It found that the length of the compensation proceedings meant that a mere finding of a violation of his rights no longer constituted adequate redress. Having regard to the overall length of the main proceedings, the Municipal Court determined the sum to be awarded to the applicant (CZK 108,000 – EUR 4,000) and then adjusted it with regard to the length of the compensation proceedings (+20%), procedural difficulties in the main proceedings (-30%) and the importance of what had been at stake for him (-40%). 40. It appears that the compensation proceedings are still ongoing. 41. The applicant instituted a further two sets of proceedings related to the compensation claim: one to seek compensation for non-pecuniary damage for delays in the initial compensation proceedings (no. 23 C 163/2012) and one for compensation for the excessive length of that second set of compensation proceedings (no. 29 C 215/2015). 42. On 15 October 2004 the applicant brought an administrative action against the Ministry of Justice before the Prague Municipal Court, seeking the annulment of Ministry of Justice Decree no. 345/1999 on the rules for imprisonment (vyhláška Ministerstva spravedlnosti, kterou se vydává řád výkonu trestu odnětí svobody) and the internal rules of Plzeň Prison. 43. On 11 March 2005 the Municipal Court rejected his action for lack of competence. 44. Following a cassation complaint (kasační stížnost) by the applicant, the Supreme Administrative Court (Nejvyšší správní soud) quashed the judgment on 20 September 2006 and remitted the case to the Municipal Court. It found that the applicant’s action should have been dismissed (zamítnuta) rather than rejected (odmítnuta). 45. After several decisions on the appointment of a legal representative for the applicant in 2007, the Municipal Court dismissed the action on 30 September 2008. 46. On 5 March 2009 the Supreme Administrative Court dismissed a cassation complaint by the applicant. 47. On 10 October 2007 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings (no. 5 Ca 176/2004, later no. 5 Ca 329/2006). As the Ministry did not deal with the applicant’s request within the statutory time-limit, he brought a civil action before the Prague 2 District Court on 10 April 2008, seeking EUR 3,487.77 in compensation. 48. On 11 May 2009 the District Court dismissed the action, considering that the overall length of the proceedings at issue had not been unreasonable despite one particular delay, particularly because the applicant had in fact known the result of the proceedings after the Supreme Administrative Court’s first judgment of September 2006. 49. On 17 February 2010 the Municipal Court upheld the judgment, holding that a finding of a violation of the applicant’s rights would be sufficient compensation for the one delay in the main proceedings. 50. On 22 November 2011 the Supreme Court quashed the judgment and remitted the case to the Municipal Court, stating that the finding of a violation should have been set out in the operative part of the judgment. 51. In a judgment of 18 April 2012 the Municipal Court found a violation of the applicant’s right to have his case heard without unnecessary delays in the operative part of the judgment. It found that the length of the main proceedings had been unreasonable, given that the case had not been complex. However, it found that the finding of a violation would provide adequate redress, given the lack of importance of what was at stake for the applicant and the fact that he must have known the result of the proceedings as soon as the Supreme Administrative Court had issued its first judgment. The court considered the finding of a violation to be adequate redress, even taking into account the length of the compensation proceedings themselves. 52. On 29 November 2012 the Supreme Court dismissed an appeal on points of law by the applicant. On 29 May 2013 the Constitutional Court dismissed a constitutional complaint as manifestly ill-founded. 53. In the meantime, the applicant initiated proceedings (no. 15 C 244/2012) for compensation for non-pecuniary damage arising from the excessive length of the initial compensation proceedings. He later made a claim for compensation for non-pecuniary damage from the excessive length of the latter compensation proceedings too (no. 17 C 146/2015). 54. On 12 October 2004 the applicant brought an administrative action against the Prison Service (vězeňská služba) and the Ministry of Justice, challenging decisions on a disciplinary penalty (a reprimand) that had been imposed on him and the failure of the Ministry of Justice to decide on a complaint by him about a violation of regulations by Prison Service staff. 55. After exempting the applicant from court fees, appointing a lawyer to represent him and seeking necessary clarification of the action, on 19 October 2006 the Prague Municipal Court found the action in respect of the disciplinary decisions inadmissible, severing the part of the action concerning the Ministry of Justice’s alleged failure to act. 56. On 10 May 2007 the Municipal Court dismissed the latter part of the action, finding that the Ministry had not been obliged to deal with the applicant’s complaint in administrative proceedings. 57. On 31 January 2008 the Supreme Administrative Court dismissed a cassation complaint by the applicant. On 21 May 2009 the Constitutional Court dismissed a constitutional complaint as manifestly ill-founded. 58. On 30 October 2007 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings (no. 10 Ca 10/2005). As the Ministry did not deal with the applicant’s request within the statutory time-limit, he brought a civil action before the Prague 2 District Court on 6 May 2008, seeking EUR 3,412.69 in compensation. 59. On 11 May 2009 the District Court dismissed the action, finding that the main proceedings had not been unreasonably long. 60. On 6 January 2010 the Prague Municipal Court quashed the judgment and remitted the case to the District Court since it had failed to also consider proceedings no. 10 Ca 400/2006. 61. On 14 June 2010 the District Court again dismissed the action, finding that the main proceedings, nos. 10 Ca 10/2005 and 10 Ca 400/2006, had not been unreasonably long. 62. On 19 January 2011 the Municipal Court upheld the judgment. Although, contrary to the District Court, it considered that the main proceeding had been unreasonably long, it held that finding a violation was sufficient redress. 63. On 30 January 2013 the Supreme Court quashed the judgment and remitted the case to the Municipal Court. The latter court on 17 June 2013 modified the District Court’s judgment by setting out a violation of the applicant’s right to have his case heard within a reasonable time in the operative part of the judgment. It did not find that the length of the compensation proceedings had been unreasonable. 64. The applicant lodged an appeal on points of law, which is apparently still ongoing. 65. In the meantime, the applicant initiated two other cases for compensation for non-pecuniary damage from delayed proceedings: one related to delays in the initial compensation proceedings (no. 15 C 139/2012) and one related to delays in that further compensation proceedings (no. 14 C 154/2015). 66. On 13 December 2007 the applicant sent a request for compensation of CZK 300,000 (EUR 11,430) under the State Liability Act to the Ministry of the Interior. He stated that he had suffered non-pecuniary damage as a result of irregular official conduct by police officers who, on 27 June 2007, had taken a DNA sample by way of a cheek swab, without authority to do so and under the threat of force. 67. On 7 January 2008 the Ministry rejected the request. On 31 January 2008 the applicant brought an action for damages against the Ministry of the Interior before the Prague 7 District Court. 68. On 4 December 2008 the District Court rejected the action as time-barred. Following an appeal by the applicant, on 5 August 2009 the Prague Municipal Court quashed the judgment and remitted the case to the District Court, finding an erroneous assessment of the statutory limitation period. 69. On 23 March 2010 the District Court delivered a new judgment, dismissing the action for compensation. It admitted that there had been irregularities in the actions of the police officers when taking the applicant’s DNA samples, but found that he had not suffered any damage. 70. On 27 October 2010 the Municipal Court upheld the judgment, although with different reasoning. It considered that the finding of a violation was adequate redress for the damage caused to the applicant. 71. On 28 February 2013 the Supreme Court quashed the judgment and remitted the case to the Municipal Court. It stated that the Municipal Court “should not overlook” the Supreme Court’s case-law regarding the statutory limitation of a claim. Consequently, on 20 November 2013 the Municipal Court delivered a new judgment, dismissing the applicant’s action as time-barred. 72. The applicant lodged an appeal on points of law. On 13 November 2014 the Supreme Court discontinued proceedings on that appeal as the applicant’s lawyer had failed to submit it properly within the statutory time-limit. 73. On 19 October 2015 the Constitutional Court rejected a constitutional complaint by the applicant on the grounds that he was not represented by a lawyer. It also observed that the applicant did not want to pursue the complaint. 74. On 23 December 2011 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings no. 10 C 49/2008. 75. On 10 May 2012 the Ministry rejected the applicant’s claim, finding no delays in the main proceedings and considering their overall length as reasonable. On 30 May 2012 the applicant brought a civil action against the Ministry, seeking EUR 4,549.14 in compensation. 76. After several attempts by the court to procure the relevant case file (no. 10 C 49/2008), a hearing was held on 22 September 2015. The District Court dismissed the action on the same day, finding that the length of the main proceedings had been reasonable. 77. According to the Government, the applicant filed an appeal on 6 November 2015, which is apparently still ongoing. 78. In the meantime, the applicant initiated proceedings for compensation for non-pecuniary damage arising from the excessive length of the initial compensation proceedings (no. 19 C 149/2015). 79. On 7 November 2006 the applicant brought an action for protection of his personality rights against a newspaper publisher and the Czech Republic–Ministry of Justice. 80. After an amendment of the action and several decisions on exempting the applicant from court fees, on 8 December 2008 the Prague Municipal Court discontinued the proceedings against the Czech Republic. 81. On 24 March 2009 the Municipal Court dismissed the action. 82. On 10 November 2009 the Prague High Court modified the judgment, awarding the applicant CZK 100,000 (EUR 3,920). 83. On 22 December 2011 the Supreme Court quashed the judgment and remitted the case to the High Court, which upheld the Municipal Court’s judgment on 15 May 2012. 84. On 6 August 2012 the applicant lodged an appeal on points of law, which is apparently still under consideration. 85. On 30 August 2012 the applicant lodged a plea of nullity against the High Court’s judgment, asserting that he had not been able to attend a hearing. Apparently, those proceedings are still ongoing. 86. On 14 February 2012 the applicant claimed compensation under the State Liability Act from the Ministry of Justice for non-pecuniary damage arising from the excessive length of the main proceedings. 87. On 20 August 2012 the Ministry rejected the applicant’s claim, finding no delays in the main proceedings. On 23 August 2012 the applicant brought a civil action against the Ministry, seeking EUR 5,774.37 in compensation. 88. On 18 January 2013 the Prague 2 District Court awarded the applicant CZK 54,250 (EUR 2,120) and dismissed the rest of the action. It considered that the main proceedings had been unreasonably long, taking into consideration that they had concerned the applicant’s personality rights. 89. On 1 October 2013 the Prague Municipal Court modified the judgment by finding a violation of the applicant’s right to have his case heard within a reasonable time but dismissing his claim for financial compensation. Having regard to the fact that the applicant had brought a number of actions, overloading the court system in the Czech Republic by such actions, the court concluded that the finding of a violation constituted adequate redress for non-pecuniary damage. 90. On 20 August 2014 the Supreme Court dismissed an appeal by the applicant on points of law. It emphasised that if a plaintiff initiated a large number of legal cases then the strength of his feelings towards the damage caused by the unreasonable length of one of those sets of proceedings was different to someone who had participated in only one or a few sets of proceedings. 91. The Constitutional Court dismissed a constitutional complaint by the applicant as manifestly ill-founded on 18 December 2014. | 1 |
test | 001-184705 | ENG | POL | COMMITTEE | 2,018 | CASE OF ZAGALSKI v. POLAND | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Aleš Pejchal;Armen Harutyunyan | 4. The applicant was born in 1982 and lives in Warsaw. 5. On 29 November 2012 the Warsaw-Wola District Court (Sąd Rejonowy) ordered the applicant’s detention on remand on suspicion of drug dealing, as well as facilitating and benefiting from prostitution, committed in an organised criminal group. The domestic court relied on a strong likelihood that the applicant had committed the offences in question, on the fact that he faced a severe penalty and that he was suspected of acting with accomplices. The likelihood that the applicant had committed the offences in question was established, in particular, on the basis of the testimony of a key prosecution witness (the so-called “crown witness”). 6. On 8 January 2013 the Warsaw Regional Court (Sąd Okręgowy) dismissed the applicant’s appeal against this decision. It stressed that the sole fact that the applicant faced a severe penalty and had been suspected of committing offences in an organised criminal group justified a suspicion that, if released, the applicant would try to obstruct the proceedings by influencing witnesses or his accomplices. 7. The applicant’s detention on remand was extended by the Warsaw Regional Court on 21 February, 27 May and 8 August 2013. In these decisions, the court repeated the reasons originally relied on. In its decision of 21 February 2013, the Warsaw Regional Court further noted that the case against the applicant was complex, and indicated a number of steps that still had to be taken in order to terminate the investigation. The court noted that not all of those steps required the applicant’s detention and urged the prosecutor to accelerate the proceedings. 8. The applicant appealed against all these decisions, without success. 9. On 21 November 2013 the Warsaw Court of Appeal (Sąd Apelacyjny) ordered a further extension of the applicant’s detention on remand. It relied on the same grounds as previously given for his detention. The applicant appealed. The decision was upheld on appeal on 12 December 2013. 10. The bill of indictment against the applicant was lodged with the Warsaw Regional Court on 30 December 2013. The applicant was charged with ten offences committed in an organised criminal group and – in the case of some of the offences – as a re-offender. The charges included facilitating prostitution by renting an apartment to prostitutes and collecting money from them, and a number of counts of drug possession and distribution. The bill of indictment concerned altogether seventeen accused, charged with 150 offences. Later, the number of accused in the proceedings dropped to fourteen. The prosecutor requested that the court hear over 90 witnesses, including five “crown witnesses”. 11. Subsequently, the applicant’s detention pending trial was extended by the Warsaw Regional Court’s decisions of 10 January and 7 May 2014 and by the Warsaw Court of Appeal’s decisions of 30 December 2014, 28 April, 27 August and 26 November 2015, and of 25 February and 25 May 2016. The domestic courts continued to rely on the same grounds for detention as in their previous decisions. They also stressed the complexity of the case and the links between the co-accused within an organised criminal group which, according to the domestic courts, justified a suspicion that, if released, they would attempt to obstruct the proper course of the proceedings. 12. The appeals by the applicant against decisions extending his detention and all his applications for release were unsuccessful. 13. On 9 May 2016 the trial court ordered the applicant’s release on bail for 80,000 Polish zlotys (PLN) (approximately 20,000 euros (EUR)). The applicant appealed against this decision, contesting the amount of bail as excessive. On 25 May 2016 the Warsaw Court of Appeal upheld the decision. It underlined that the amount of bail had to take into consideration not only the financial situation of the applicant, but also the gravity of the charges against him. The court also stated that it had taken into consideration the fact that the applicant had abused his procedural rights in order to obstruct and delay the proceedings. It indicated that the amount in question had to be such that the prospect of its loss would constitute a genuine deterrent against any illegal activities which, until that moment, had been prevented by the applicant’s detention. 14. On 30 May 2016 the Warsaw Regional Court again ordered the applicant’s release on bail of PLN 80,000. It also imposed a prohibition on leaving the country. The applicant paid the security required by the court and was released on 31 May 2016. 15. The case against the applicant and his co-accused appears to be pending before the Warsaw Regional Court (no. XII K 1/14). The material includes 188 volumes. | 1 |
test | 001-146549 | ENG | RUS | ADMISSIBILITY | 2,014 | UTSMIYEVA AND OTHERS v. RUSSIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 1. The applicants, Ms Raisa Utsmiyeva, Ms Luiza Utsmiyeva and Ms Khabira Guniyeva, are Russian nationals who were born in 1938, 1971 and 1935 respectively and live in Grozny. They were represented before the Court by lawyers of the NGO Materi Chechni. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants are close relatives of Mr Isa (also spelt Issa) Utsmiyev, who was born in 1960, Ms Larisa Ansarova, who was born in 1959 and Ms Anzhela (also known as Aset) Ansarova, who was born in 1981. Mr Isa Utsmiyev and Ms Larisa Ansarova are married, and Ms Anzhela Ansarova is their daughter. The first applicant is the mother of Mr Isa Utsmiyev and the second applicant is his sister. The third applicant is the mother of Ms Larisa Ansarova. 4. At the material time, Mr Isa Utsmiyev lived with his wife and daughter in a block of flats in Kosiora Street in Grozny. He used to work at a local police station, but became unemployed shortly before the events. 5. According to the applicants, at around midnight on 10 June 1996 an APC accompanied by a convoy of military vehicles arrived in Kosiora Street, Grozny. A large number of masked servicemen in camouflage uniforms armed with machine guns got out of the vehicles, cordoned off the area and broke into the family’s flat. The servicemen spoke unaccented Russian. They took Mr Isa Utsmiyev and his wife and daughter outside, put them in the APC and drove away. 6. The applicants have not seen their three relatives since 10 June 1996. 7. The applicants did not witness the abduction; their account is based on their relatives’ and neighbours’ recollection of the events. 8. The Government did not contest the facts as presented by the applicants, but at the same time pointed out that there was no unequivocal evidence confirming the alleged involvement of State servicemen in the incident. 9. On an unspecified date in June or July 1996 the applicants complained of their relatives’ abduction to the Leninskiy district department of the interior (ROVD) in Grozny. On 18 July 1996 it opened a search file (no. 94/96) in respect of Mr Isa Utsmiyev. It is unclear whether files were also opened in respect of Ms Larisa Ansarova and Ms Anzhela Ansarova. 10. It is also unclear whether any criminal investigation into the abduction was initiated between 1996 and 2001. According to the applicants, owing to the overall instability in the region at the material time, an investigation was opened at some point in 1999, but then the criminal case file was lost in unknown circumstances. 11. Following a complaint by the first applicant, on 11 February 2001 the Grozny town prosecutor’s office opened a criminal case (no. 11041) to investigate the abduction. 12. On 26 February 2001 the first applicant was questioned and granted victim status in the criminal case. She stated that on an unspecified date she had learnt from Mr Isa Utsmiyev’s neighbours that on 10 July 1996 four armed men had taken away her son, his wife and their daughter. His wife Ms Larisa Ansarova had been in a dispute with a criminal gang leader, “Malysh”, whose gang had carried out criminal activities in the area and who had promised to take revenge on her. Three days after that conflict the family had been abducted. According to the applicants, at some point later “Malysh” had been killed as a result of a blood feud. 13. On 11 April 2001 the investigation was suspended. 14. On 5 July 2002 the investigation was resumed and on 22 July 2002 the first applicant was questioned again. She reiterated her previous statement. 15. On 5 September 2002 the investigation was suspended. The applicants were informed thereof. 16. Between September 2002 and May 2010 the applicants did not contact the authorities. 17. On 24 May 2010 the third applicant complained to the Chechnya Parliament of her relatives’ abduction. On 27 May 2010 her complaint was forwarded to the Chechnya Investigations Committee. 18. On 22 October 2010 the first applicant complained to the Leninskiy District Court in Grozny, requesting that the investigation be resumed and carried out effectively. 19. On 28 October 2010 the investigation was resumed and several witnesses were questioned; no new information was obtained. 20. On 28 November 2010 the investigation was suspended again. The applicants were informed thereof. 21. On 22 December 2010 the Leninskiy District Court in Grozny rejected the applicants’ complaint of 22 October 2010, stating that the investigation had been resumed on 28 October 2010. 22. The investigation is still pending. | 0 |
test | 001-141200 | ENG | HRV | CHAMBER | 2,014 | CASE OF LUČIĆ v. CROATIA | 4 | 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) | Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1970 and lives in Zagreb. 6. On 3 May 1999, at around 8.00 p.m., J.N. lodged a criminal complaint with the Zagreb Police Department (Policijska uprava Zagrebačka – “the police”) alleging that during the previous night the applicant had raped her. He had offered to drive her home from bar A., where she worked, but had then driven into the nearby woods and raped her in his car. She had then asked him to drive her to a night-club, “S.”, where he had dropped her off and left. 7. The applicant was arrested on the same evening and J.N. identified him as her rapist. 8. During the night of 4 May 1999 J.N. was examined by a doctor who found no injuries on her body or genitals. The applicant was also taken to a doctor and the doctor found abrasions on his right upper arm and elbow and his right knee. 9. On 4 May 1999 the applicant was questioned by an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu). He admitted to having had sexual intercourse with J.N. in his car but argued that it had been consensual. He contended that the abrasions on his right arm and leg were the result of friction during the intercourse. After the questioning the applicant was released. 10. On 31 May and 17 June 1999 J.N.’s lawyer asked the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) to request the investigating judge to have the applicant detained on the grounds that he had been trying to contact J.N., threatening her in order to make her withdraw her criminal complaint. She also argued that J.N. had sought psychiatric help and submitted medical reports in that connection. 11. On 18 June 1999 the Zagreb County State Attorney’s Office asked the investigating judge of the Zagreb County Court to open an investigation in respect of the applicant on charges of rape and to order his detention on the basis of the information submitted by J.N. 12. The investigating judge opened the investigation on 6 July 1999 but refused to order the applicant’s detention on the grounds that there was no reliable evidence suggesting that he might influence the witness or reoffend. 13. On 9 July 1999 J.N., in the presence of her lawyer, gave oral evidence at a hearing before the investigating judge. The applicant and his defence lawyer were not informed of the hearing and were not present during the questioning. 14. During the questioning, J.N. reiterated her previous allegation that the applicant had raped her. 15. On 13 July 1999 the Zagreb County State Attorney’s Office lodged an appeal with a three-judge panel of the Zagreb County Court against the investigating judge’s decision refusing the request for the applicant’s detention. 16. The three-judge panel granted the application and on 16 July 1999 ordered the investigating judge to re-examine the request for detention. 17. On 27 August 1999 the investigating judge again dismissed the request for the applicant’s detention on the grounds that there were no relevant reasons for his remand in custody. The Zagreb County State Attorney’s Office appealed, but on 2 September 1999 a three-judge panel upheld that decision. 18. In the course of the investigation the investigating judge heard several witnesses and commissioned medical reports. 19. On 24 September 1999 S.S., a colleague of J.N., testified before the investigating judge that she had been working with J.N. in bar A. on the day in issue and that when J.N. had wanted to go home, S.S. had asked the applicant to give her a lift. The next day, J.N. had told her that she had been raped by the applicant. S.S. had also seen the applicant later, and he had denied the rape accusation, stating that J.N. had had sex with him voluntarily. S.S. also stressed that she knew the applicant well and she had never heard of him attacking girls or doing anything of that kind. 20. An expert medical report of 10 November 1999 found that the reports on J.N.’s gynaecological and psychiatric examination showed no objective evidence of any injuries. 21. On 14 February 2000 the investigating judge heard evidence from K.N., who stated that on the night in issue he had been working as a musician in the night-club “S.” when J.N. had come in. She had bought a drink for the musicians and then he had taken her home. There had been nothing unusual about her; she had appeared normal and had not made any mention of rape. 22. Another witness, J.M., was questioned on 28 March 2000. She stated that on the morning after the event J.N. had come to a bar where she worked and told her that she had been raped the evening before. She had been very distressed and frightened. J.M. had told her to report the rape to a policeman who had been in a nearby bar. 23. A forensic report of 23 November 2000 found biological traces from J.N. on the applicant’s underwear. 24. An expert medical report of 7 February 2001 found that the abrasions on the applicant’s right upper arm could have resulted from finger nail scratches, while the injuries on his elbow and right knee could have been the result of a fall or friction. 25. On 19 February 2001 the Zagreb County State Attorney’s Office indicted the applicant in the Zagreb County Court on charges of rape. 26. At a hearing on 19 March 2003 the applicant pleaded not guilty. J.N., although properly summoned, failed to appear. 27. On 29 April 2003 the Zagreb County Court instructed the police to take J.N. to the hearing, scheduled for 2 June 2003. 28. On 27 May 2003 J.N., through her lawyer, informed the Zagreb County Court that she was living abroad and asked that the hearing be postponed until September 2003 when she would be in Croatia. The Zagreb County Court agreed to her request and scheduled a hearing for 22 September 2003. 29. At the hearing on 22 September 2003 J.N., although properly summoned, again failed to appear. Her lawyer, present at the hearing, informed the trial court that meanwhile she had not had any contact with J.N. 30. On 1 October 2003 the Zagreb County Court again ordered the police to take J.N. to a hearing scheduled for 4 November 2003. 31. However, that hearing was again adjourned because the police were unable to locate J.N. The only information available was that she had been living in Spain for the last four years. 32. On 19 December 2003 J.N.’s lawyer informed the trial court that she was no longer representing J.N. 33. On 19 March 2004 the Zagreb County Court requested the police to establish J.N.’s exact address, and the police informed it that the only information available was that she was living in Spain. 34. After several adjourned hearings, on 24 May 2005 a hearing was held at which the applicant pleaded not guilty. The Deputy State Attorney asked the trial court to admit in evidence the written record of J.N.’s oral statement given to the investigating judge. The defence opposed that request, arguing that given the gravity of charges against the applicant it was necessary to question J.N. at the hearing. The defence also stressed that she was a Croatian citizen and that her whereabouts in Spain could be established through the relevant police records and the appropriate diplomatic channels. 35. On 19 July 2005 the police informed the Zagreb County Court that from an interview with J.N.’s mother they had learned that J.N. was living in Madrid, Spain, and that she would be in Croatia for only a couple of days during the summer. 36. At a hearing on 20 October 2005 the trial court heard evidence from the witness K.N., who reiterated his statement given to the investigating judge (see paragraph 21 above). The Deputy State Attorney again requested the trial court to admit in evidence the record of J.N.’s oral statement to the investigating judge. The defence insisted that she should be questioned and provided an address in the Netherlands where she allegedly resided. 37. On 21 October 2005 the Zagreb County Court requested that J.N. be summoned to a hearing by means of international legal assistance in criminal matters through the authorities in the Netherlands. 38. On 24 February 2006 the Zagreb County Court was informed that the authorities in the Netherlands had not been able to serve the court summons on J.N. 39. At a hearing on 10 April 2006 the trial court heard evidence from the witness S.S., who reiterated her previous statement (see paragraph 19 above). The Deputy State Attorney requested that the record of J.N.’s oral evidence to the investigating judge, as well as the records of the statements of the witness J.M., who had never appeared before the trial court, and the witness K.N., be admitted in evidence without their questioning at the hearing. The defence agreed with regard to admitting the written statements of the other witnesses but insisted on that J.N. should be questioned at the hearing. The trial court agreed to the prosecution’s request and admitted the written record of J.N.’s oral evidence given before the investigating judge as evidence. 40. On the same day, the Zagreb County Court found the applicant guilty on the charges of rape and sentenced him to one year’s imprisonment. 41. On 7 June 2006 the applicant lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) against the first-instance judgment, complaining that the Zagreb County Court had failed to secure the presence and examination of J.N. at the trial. 42. On 13 December 2007 the Supreme Court quashed the first-instance judgment and ordered a retrial. The Supreme Court found that the Zagreb County Court had failed to take all reasonable steps to secure the presence of J.N. at the trial even though her evidence was decisive for the case. 43. During the retrial, on 27 February 2008 the Zagreb County Court requested that J.N.’s whereabouts in Spain be established through contacting the Spanish national authorities by means of international legal assistance in criminal matters. 44. On 21 April 2008 the police informed the Zagreb County Court that they had obtained J.N.’s address in Spain from her parents, and the trial court summoned J.N. from that address. 45. On 25 September 2008 the Zagreb County Court received information from the Spanish authorities in respect of J.N.’s exact address and telephone number in Spain. 46. A hearing scheduled for 29 October 2008 was adjourned because J.N. failed to appear. There was, at the time, no information on whether she had received the court summons. 47. Another hearing was held on 18 December 2008 at which the trial court found that J.N. had been properly summoned both to that hearing and to the hearing of 29 October 2008. 48. At the hearing the applicant pleaded not guilty to the charges of rape and the trial court again questioned the witness K.N., who reiterated his previous statements. The Deputy State Attorney asked for all the witness statements to be admitted in evidence without the questioning of the witnesses. The defence agreed to this save for the evidence of J.N., insisting that she should be cross-examined at the trial and pointing out that the defence had been denied the opportunity to question her when she had given her statement to the investigating judge. The trial court accepted the Deputy State Attorney’s proposal and admitted the written record of J.N.’s oral statement to the investigating judge as evidence. However, it adjourned the hearing in order to question another witness on behalf of the defence, I.P. 49. At a hearing held on 21 January 2009 the Zagreb County Court noted that I.P. had died and concluded the trial. On the same day it found the applicant guilty of the charges of rape and sentenced him to one year’s imprisonment. The trial court relied on the statement given by J.N. and held that it had been corroborated with other evidence. In particular, it noted: “It follows from the statements given by witnesses S.S. and [J.M.], and the evidence provided by the forensic expert and other medical evidence concerning the victim, that the relevant (so-called control) facts, important for the assessment of contradictory statements of the accused and the victim, support the statement given by the victim.” 50. On 16 February 2009 the applicant lodged an appeal with the Supreme Court complaining that the first-instance court had failed to take all reasonable steps to secure the presence of J.N. at the trial and that her evidence had been crucial for his case. 51. On 5 May 2009 the Supreme Court dismissed the applicant’s appeal and upheld the first-instance judgment. The relevant part of the Supreme Court’s judgment reads: “As can be seen from the case file, after the investigation had been opened on 15 June 1999 ... the victim J.N. was questioned as a witness on 9 July 1999 ... The accused had been legally represented ever since 4 May 1999 ... and the defence counsel did not ask to be present during the questioning of this witness, within the meaning of Article 198 § 4 of the Code of Criminal Procedure, nor did any circumstances at the time suggest that she might be absent from the hearing. Following the investigation, and after the accused had been indicted [in the Zagreb County Court], the victim’s representative informed the court that ‘... the victim is at the moment working abroad and therefore she is unable to appear at the trial, so she has asked if the hearing can be adjourned until September 2003, when she will be in Croatia ...’ ... The victim failed to appear at the hearing of 22 September 2003, although she had been properly summoned ... After that, on 24 November 2003, the Sesvete Police Station informed the court that the they had learned from the victim’s father that she ‘[had] been living in Spain for about four years and he [didn’t] know when she [would] return.’ ... On 1 July 2004 the court was again informed that she ‘... work[ed] in Spain’ ... Following the Sesvete Police Station’s further investigations into J.N.’s whereabouts, on 15 July 2005 the court was informed that she lived in Madrid, Spain, ‘with her husband’ ... However, after her exact address in Spain had been established, as this court had requested in its earlier decision, the court summoned the victim twice to a hearing ... Although she was properly summoned, she failed to appear and did not give any reason for her absence. Thus, the victim J.N. was questioned during the investigation as required by law, after which it appears she did not want to appear at the hearing, although she did not give reasons for her absence. Since she lived abroad the trial court had no way of securing her presence at the hearing and therefore it rightly decided, under Article 331 § 1(1) of the Code of Criminal Procedure, to read out the written record of her oral statement.” 52. On 21 July 2009 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), reiterating his previous complaints. 53. On 7 July 2010 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded, endorsing the reasoning of the lower courts. The decision of the Constitutional Court was served on the applicant’s representative on 19 July 2010. | 1 |
test | 001-169476 | ENG | RUS | CHAMBER | 2,016 | CASE OF DUMIKYAN v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);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) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1970 in Armenia. Until his arrest in 2008 he lived in Kurgan, Russia. On 20 September 2012 the Sverdlovsk Region office of the Federal Migration Service ordered his deportation to Armenia. It seems that the deportation order was executed on 11 October 2012. 6. On 3 August 2008 the applicant, while under the influence of alcohol, took a car without the owner’s consent and crashed into a tree. As a result of this accident he sustained multiple injuries, including a thighbone fracture, a dislocated hip and facial wounds. 7. The applicant was taken by ambulance to Kurgan Town Hospital where he was admitted to an intensive care unit. He was connected to a medical ventilator and subjected to emergency anti-shock treatment. The doctors sutured his wounds. A metal pin for skeletal traction was inserted through the heel bone of his broken leg and the applicant was placed in a special metal frame with weights attached to his injured leg. 8. Several days later his condition improved and he was transferred to a trauma department, where he remained bedridden in a skeletal traction frame. Osteosynthesis surgery was to be performed in due course. 9. On 6 August 2008 the police opened a criminal case into car theft. 10. It appears that during the investigation the authorities learned that the applicant was wanted by the authorities of the Republic of Belarus for a murder allegedly committed in 2003 in Minsk. 11. A police investigator asked the attending doctor whether the applicant could be discharged from hospital and transferred to a detention facility. 12. On an unspecified date the doctor informed the investigator that the applicant was in need of inpatient treatment on account of multiple injuries, including facial injuries, a dislocated hip and a thighbone fracture. Citing the seriousness of his condition the doctor noted that the applicant could not be transported to a court or police station. The doctor stated that police detention centres and remand prisons in Kurgan were unable to ensure the appropriate medical care to the applicant. 13. On 8 August 2008 the investigator reported the content of the above letter to his superior. 14. Four days later, upon a request from an investigator, a medical expert commenced an examination of the applicant to assess the seriousness of his injuries. Without informing the hospital administration and without having received the results of the expert examination, the police arrested the applicant and took him to remand prison no. IZ-45/1 in Kurgan. It does not seem that any special arrangements for the applicant’s transport were made. 15. It was noted in the expert report completed on 3 September 2008 that the applicant’s injuries were of “medium” seriousness. 16. On 13 August 2008 the Kurgan Town Court, at the request of the Kurgan prosecutor and in the absence of the applicant, ordered his detention pending the receipt of an extradition request from the Belarusian authorities. That ruling was based on Article 466 of the Code of Criminal Procedure of Russia (“the CCrP”) and Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (“the Minsk Convention”). 17. On 21 August 2008 the Kurgan Regional Court quashed the order of 13 August 2008 in view of the applicant’s absence from the hearing before the Town Court. The Regional Court remitted the issue for fresh consideration. 18. A week later, this time after hearing evidence from the applicant, the Town Court, on the basis of the same legal provisions, ordered his detention until receipt of the extradition request from the Republic of Belarus. 19. On 4 September 2008 the Regional Court upheld the applicant’s detention on appeal. 20. According to the applicant, only on 14 October 2008 did the Prosecutor General’s Office inform the competent Belarusian authorities of the applicant’s arrest. 21. The General Prosecutor of the Republic of Belarus requested the applicant’s extradition. 22. On 25 August 2009 the Russian Prosecutor General’s Office ordered the applicant’s extradition to stand trial in Belarus. 23. According to the applicant, in March 2010 he was extradited to the Republic of Belarus. 24. On 23 March 2010 the Belarusian authorities closed the criminal case due to the absence of corpus delicti in the applicant’s actions. He was then returned to Russia. 25. In the meantime, on 29 August 2008, in the context of the criminal investigation into car theft, the Kurgan Town Court ordered the applicant not to leave Kurgan. 26. On 23 September 2008 the Town Court changed the measure of restraint to detention pending investigation. The decision was based on the seriousness of the charges, the fact that the applicant had been on the run and had no permanent residence in Russia. The Regional Court upheld that detention order on appeal. 27. On 22 November 2008 the Town Court extended the applicant’s detention until 5 December 2008, citing the seriousness of the charges and the lack of a permanent residence in Russia. 28. On 4 December 2008 and 4 January 2009 the Town Court again extended the applicant’s detention until 5 and 30 January 2009, respectively. In addition to the previously employed arguments, the detention orders were held to be justified by the necessity to complete the investigation. The latest detention order was upheld on appeal by the Regional Court on 15 January 2009. 29. On 27 March 2009 the Kurgan Town Court convicted the applicant of car theft and sentenced him to four years’ imprisonment in a correctional colony. 30. On 26 May 2009 the Regional Court upheld the conviction and sentence, but amended the type of the detention facility where the applicant was to serve his sentence to a settlement colony. 31. It is clear from entries made by civilian doctors in the applicant’s medical history on 12 August 2008, the day of his arrest, that he was in satisfactory health; his body temperature, which had fluctuated for several days, was 37.7˚C; the pain syndrome was decreasing; his stitches were dry; and no signs of inflammation were present. The metal pin remained in his leg. In the discharge summary drafted on account of the applicant’s arrest, “continued medical treatment” and crutches were prescribed. The attending doctor explicitly noted that the patient had been taken from the hospital without the consent of the chief doctor. 32. On admission to the remand prison the applicant was examined by a feldsher (medical assistant), who recorded the visible bodily injuries. No medical tests were performed and no treatment was prescribed. The applicant was not provided with any mobility aid devices, such as a wheelchair, crutches or a walking stick. 33. It was not disputed by the parties that the next day the applicant had been placed in a cell designed to accommodate a maximum of four inmates. The cell measured 15.4 sq. m. On 13 August and between 15 and 19 August 2008 the applicant had to share that cell with seven other inmates, with each inmate thus having no more than 1.9 sq. m of floor space. Several inmates, including the applicant, had no places to sleep. 34. According to the applicant, in the remand prison he experienced a leg pain, nausea and loss of consciousness. 35. Medical entries show that the applicant was seen by a prison doctor for the first time on 18 August 2008, in response to his complaints of pain, nausea and vertigo. After a visual examination, the doctor ordered the transfer of the applicant to Regional Anti-Tuberculosis Prison Hospital no. OF-73/1 in Kurgan (“the prison hospital”) “for treatment and skeletal traction”. The transfer was performed the next day. 36. In the prison hospital several medical tests were performed. Owing to technical problems the applicant could not undergo an X-ray examination of his legs ordered by a doctor. He was seen by a surgeon and a neurologist. 37. The surgeon, having considered the time that had passed from the termination of the skeletal traction, removed the metal pin from the applicant’s leg. A walking stick was prescribed. 38. The neurologist diagnosed the applicant with vegetative-vascular dystonia and prescribed a month-long drug regimen. 39. The applicant was discharged from hospital on 27 August 2008 in a “satisfactory condition”. 40. The medical documents in the Court’s possession cover the period up to 21 May 2009. They show that at that time the applicant was seen by the prison doctor on account of his chronic peptic and liver conditions. It does not appear that he underwent any medical examination or treatment related to the leg condition. 41. As to the conditions of the applicant’s detention during that period, the Government submitted that the applicant had been transferred between several cells of the remand prison, some of which were overcrowded. In particular, between 30 September and 8 October 2008, between 26 January and 19 March, 24 March and 10 April, 11 April and 2 June 2009 the applicant was afforded less than 2.7 sq. m of floor space, and occasionally less than 2 sq. m. According to the applicant, the cells were poorly ventilated, had non-partitioned toilets and were infested with bugs, mice and lice. 42. On 2 June 2009, the applicant was sent to serve his sentence in a settlement colony. He was released on 22 September 2012, after having served his sentence in full. 43. According to him, he continued to walk with a limp after the release, because the broken leg had knitted in a wrong position. | 1 |
test | 001-166930 | ENG | RUS | CHAMBER | 2,016 | CASE OF PISKUNOV 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) (Substantive aspect) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 7. The applicant was born in 1955. He is currently being detained in Krasnoyarsk. 8. On 10 December 2010 the applicant was arrested on suspicion of incitement to murder. On the same day the Tsentralniy District Court of Krasnoyarsk authorised his pre-trial detention. 9. Subsequently the applicant’s detention was extended on a number of occasions in the course of the investigation and trial in view of the gravity of the charges against him and the risks of his absconding, seeking to influence witnesses and reoffending. 10. On 5 May 2012 the District Court found the applicant guilty of the charges and sentenced him to five years’ imprisonment in a correctional colony. On 4 September 2012 the Krasnoyarsk Regional Court upheld the conviction, but decreased the sentence by two months. 11. During the admission process at remand prison no. IZ-24/1 in Krasnoyarsk the applicant told the medical staff that he had hypertension. The diagnosis was confirmed by a prison doctor, who prescribed him hypotensive medication and regular monitoring of his blood pressure. 12. In April 2011 the applicant was admitted to Prison Tuberculosis Hospital no. 1 in Krasnoyarsk (“the prison hospital”) for two weeks of inpatient treatment for his hypertension. A chest X-ray showed that he had a mild case of pneumonia and he was also diagnosed with another chronic condition. In the hospital the applicant received the full range of treatments for his conditions. 13. In June 2011 the applicant had a hypertensive crisis. Several weeks later his lawyer complained to the prison authorities of inadequate medical care. 14. A medical examination in August 2012 showed that the applicant had recovered from pneumonia and that there were positive developments with his hypertension. 15. In 2012 and 2013 the applicant was moved between various detention facilities and had routine medical checkups. 16. In April 2013 he was sent to a minimum security settlement colony. The applicant and other inmates performed repairs to a nearby children’s health camp. The applicant complained only of fatigue and headache to medical staff during that period. 17. According to the applicant, in May 2013 he started experiencing pain in the chest, pelvic area and testicles. His ability to walk was hindered by severe pain. He took painkillers sent by his relatives. The detention authorities ignored his complaints and on several occasions confiscated the painkillers. 18. In written submissions, Mr Kh., Ms K. and Ms B., detainees who worked with the applicant in the children’s camp from May 2013, confirmed the above statements. They submitted that the applicant had been seriously ill, had been barely able to walk and had often complained about severe pain. No proper medical examination or treatment had been arranged despite the applicant’s requests for inpatient treatment. Inmates had injected the applicant with painkillers supplied by his relatives. 19. On 2 September 2013 the applicant asked the head of the detention facility to authorise a medical examination and treatment outside the facility owing to a serious spine and leg condition that had worried him since May 2013. He stated that over the previous three months he had received pain relief medication provided by his relatives, but that his condition had not got better. 20. Following the applicant’s complaint, he was sent to a civilian clinic in Krasnoyarsk for a magnetic resonance imaging scan (MRI). An examination carried out on 22 January 2014, two days after his admission, revealed a prostate tumour and affection of the bone. A consultation by an oncologist was prescribed. 21. On the next day the applicant complained about the quality of his treatment to the Federal Service for the Execution of Services in Krasnoyarsk. The complaint was forwarded to the applicant’s ward but was dismissed as ill-founded on 10 February 2014. 22. On 14 February 2014 the applicant was taken to the Regional Cancer Hospital in Krasnoyarsk, where he was diagnosed with prostate cancer with metastasis to the pelvic bone. According to his medical records, he suffered mild to intense pain. 23. Six days later a medical panel certified the applicant as having a second-degree disability. 24. Between 21 March and 3 April 2014 the applicant was examined and treated in the prison hospital. While tests performed in the hospital did not disclose any cancer, hospital officials acted on the diagnosis of 22 January 2014 and prescribed drug treatment for prostate cancer. 25. On 15 May 2014 the applicant was examined by an oncologist, who recorded his cancer treatment and ordered tests. 26. In August 2014 the applicant spent two weeks in the prison hospital. 27. The following month he was seen by doctors and was prescribed further treatment for cancer. The medical staff apparently complied fully with that prescription. 28. On 19 September 2014 a medical panel concluded that the applicant’s state of health warranted his early release on medical grounds. Ten days later the Sosnovborsk Town Court of the Krasnoyarsk Region dismissed an application for early release, finding that the applicant was receiving the required treatment in detention. On 23 December 2014 the Regional Court quashed the decision on procedural grounds and remitted the case for fresh consideration. The parties did not inform the Court of the outcome of those proceedings. However, given the further developments, it appears that the applicant remained in detention. 29. On 9 April 2015 the applicant was certified as having a first-degree disability. 30. In May 2015 he was admitted to the prison hospital for a medical examination and treatment. There are no details regarding his subsequent treatment. 31. The applicant was detained in the remand prison between 10 December 2010 and 25 May 2015, save for short periods in the prison hospital. The applicant complained of the poor conditions of his detention, including overcrowding. The Government disagreed. | 1 |
test | 001-181175 | ENG | UKR | COMMITTEE | 2,018 | CASE OF LITVINYUK v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Reasonable time) | André Potocki;Mārtiņš Mits | 4. The applicant was born in 1955 and lives in Simferopol. She is a single mother and has a son who at the time of the accident in question was eight years old. 5. On 24 July 1995 the applicant was knocked down by a trolley bus. She suffered an open craniocerebral injury and contusion of the brain. As a result, the applicant received the status of a disabled person with the lowest degree of disability (третя група інвалідності). 6. In January 1996 the applicant instituted proceedings in the Tsentralnyy District Court against the Simferopol Trolley Bus Company, claiming compensation for pecuniary and non-pecuniary damage to her health caused by the accident. In particular, as pecuniary damage the applicant claimed compensation for medicines, additional nutrition, treatment in a sanatorium, transport expenses, and compensation for loss of earnings. 7. On 25 February 2003 the applicant lodged an application with the Court (Litvinyuk v. Ukraine, no. 9724/03) complaining, inter alia, under Article 6 § 1 of the Convention about the lengthy examination of her case by the domestic courts. 8. On 1 February 2007, while the proceedings were still pending before the national courts, the Court delivered a judgment on the applicant’s first application (no. 9724/03), finding that the length of the proceedings in her case had been excessive. The Court took into consideration the period after 11 September 1997, when the Convention had come into force in respect of Ukraine. The length of the proceedings within the Court’s competence was nine years and twenty two days. 9. The Court, in particular, noted the following: “47. As for the issues that were at stake for the applicant, the Court notes that following the traffic accident the applicant was seriously injured and received a disability degree. Given that the applicant was a single mother and had a child to raise, the compensations for loss of earnings and for expenses sustained as a result of a poor state of her health were of undeniable importance for the applicant. The Court therefore considers that what was at stake for the applicant called for an expeditious decision on her claims.” 10. On 27 March 2007 the Simferopolskiy District Court found against the applicant. On 24 December 2007 the Court of Appeal of the Autonomous Republic of Crimea quashed this decision and remitted the case to a first-instance court for fresh examination. On 23 April 2008 the Supreme Court of Ukraine upheld the decision of the court of appeal. 11. On 13 May 2009 the Simferopolskiy District Court partly found for the applicant. On 29 July 2009 the Court of Appeal of the Autonomous Republic of Crimea quashed this decision and remitted the case to a first-instance court for fresh examination. On 15 October 2009 the Supreme Court of Ukraine upheld the decision of the court of appeal. 12. On 10 November 2009 the Simferopolskiy District Court left the applicant’s case without consideration because she had failed to appear in court without giving plausible reasons on 28 October 2009 and 10 November 2009. The applicant lodged an appeal against this decision stating that she had not been aware about the above-mentioned hearings. On 27 January 2010 the Court of Appeal of the Autonomous Republic of Crimea rejected the applicant’s appeal. The court noted that the applicant had been duly notified about the date of the hearings. On 5 October 2011 the Supreme Court of Ukraine upheld the decisions of the lower courts. A further attempt by the applicant to have the above decisions reviewed in the light of newly discovered circumstances was to no avail. | 1 |
test | 001-150316 | ENG | RUS | CHAMBER | 2,015 | CASE OF ZELENIN v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 5. The applicant was born in 1975 and lives in Krasnoyarsk. 6. On 5 February 2006 Mr V.N. informed the local office of the Federal Drug Control Service (“DCS”) that he had purchased heroin from the applicant. The DCS officers then decided to organise a covert operation of the test purchase of the drug. 7. At about 3 p.m. on 6 February 2006 the DCS officers arrived at the applicant’s block of flats and rang at the door of a flat located next to that of the applicant in which two sisters, Ms E.N. and Ms T.N, resided. The DCS officers asked the two women to ring at the applicant’s door so that he would open it unaware of the DCS officers’ presence. Ms E.N. and Ms T.N. refused to cooperate. 8. The DCS officers then waited on the stairway for the applicant to leave the flat. At some point the applicant stepped out of his flat. 9. According to the applicant, three DCS officers forcibly dragged him out of the flat, pushed him to the floor and beat him on the stairway. According to the Government, the applicant showed active resistance by beating and kicking the DCS officers. They had to resort to physical force in order to overcome his resistance, and handcuffed the applicant. 10. Ms E.N. and Ms T.N. observed through the open door that three men were beating and kicking the applicant. 11. According to the Government, the applicant voluntarily allowed a visual inspection of his flat. According to the applicant, he was forced to make a written statement agreeing to the inspection. It is common ground between the parties that the DCS officers then proceeded to carry out the inspection in the presence of two attesting witnesses and discovered syringes with traces of heroin and pieces of aluminium foil. 12. The officers took the handcuffs off the applicant so that he could sign an inspection report. At some point the applicant rose to his feet suddenly and ran at a cupboard with glass doors, ramming it with his head. The cupboard fell on the applicant. 13. The applicant was then brought to the DCS premises. At about 1.50 a.m. on 7 February 2006 he was formally detained as a suspect in a temporary detention cell. 14. Two of the DCS officers presented their hierarchical superior with reports dated 6 February 2006 on the use of physical force in the course of the applicant’s arrest, claiming that the force had been used legitimately to overcome the violent resistance offered by the applicant. 15. On 7 February 2006 the applicant was brought to a trauma centre and then to hospital. He was diagnosed with a closed cerebral injury. 16. On the same day the Kirovskiy District Court of Krasnoyarsk authorised the applicant’s detention. 17. On 9 February 2006 the applicant was transferred to a remand prison. On arrival he was examined by a doctor and diagnosed with a closed cerebral injury as well as injuries to his face and head. 18. On 15 February 2006 the applicant complained to the Kirovskiy district prosecutor’s office of Krasnoyarsk (“the district prosecutor’s office) about the alleged ill-treatment. 19. On 2 March 2006, having conducted a pre-investigation inquiry, the district prosecutor’s office refused to institute criminal proceedings against the DCS officers who had allegedly beaten the applicant on 6 February 2006. They referred to statements made by the DCS officers and one of the attesting witnesses who had been present during the inspection in the flat and concluded that the applicant had resisted lawful arrest and that the use of force and handcuffing had thus been lawful and justified in the circumstances. The district prosecutor’s office also established that the applicant had thrown himself against the cupboard, which had collapsed on the applicant causing him injuries. 20. On 15 November 2006 the Leninskiy District Court of Krasnoyarsk convicted the applicant of drug-related crimes and sentenced him to six years’ imprisonment. The applicant admitted the unlawful procurement and possession of heroin but pleaded not guilty to the charges of supplying the drug to others, inter alia on 5 and 6 February 2006. 21. Between March 2006 and February 2007 the pre-investigation inquiry into the allegation of ill-treatment was resumed on six occasions as the decisions refusing to open a criminal investigation were quashed by either the district prosecutor’s office or the Krasnoyarsk regional prosecutor’s office. 22. On 2 February 2007 the district prosecutor’s office issued another decision refusing to open a criminal investigation. 23. On 13 February 2007 the Krasnoyarsk regional prosecutor’s office quashed the decision of 2 February 2007 on the grounds that the applicant’s neighbours, the N. sisters, had consistently alleged that the applicant had been beaten by the officers; another neighbour had not been questioned at all; and the forensic expert report had not been completed. 24. On 13 February 2007 the Krasnoyarsk Regional Court upheld the conviction of 15 November 2006 on appeal. 25. On 20 February 2007 the district prosecutor’s office ordered a forensic expert examination of the applicant in order to establish the origin of the injuries that he had sustained on 7 February 2006. 26. On 26 February 2007 a forensic expert drew up a report based on medical certificates and X-rays dated February 2006 and the explanations given by the applicant on 22 February 2007. According to the report, the initial diagnosis of a closed cerebral injury had not been confirmed and the bruises could have “resulted either from a beating with a hard blunt object(s) or from falling and hitting the said object(s)”. 27. On 1 March 2007 the district prosecutor’s office again refused to open a criminal investigation into the alleged ill-treatment. They argued, in particular, that the statements by Ms E.N. and Ms T.N. could not be regarded as reliable evidence owing to the fact that “according to the information received, both the N. sisters [were] prostitutes and acquaintances of Mr Zelenin, with whom they [maintained] a friendly relationship, and thus [were] interested in the outcome of Mr Zelenin’s arrest”. They concluded that the DCS officers had used legitimate force to effect the applicant’s arrest. 28. On 28 May 2007 the Kirovskiy District Court of Krasnoyarsk upheld the above decision on judicial review. On 6 September 2007 the Krasnoyarsk Regional Court upheld the first-instance decision. 29. On 26 October 2007 the Investigative Department of the Investigative Committee of the Prosecutor’s Office of Russia for the Krasnoyarsk Region (“the regional investigative committee”) quashed the decision of 1 March 2007. 30. On 15 November 2007 the Investigative Unit of the Investigative Department of the Investigative Committee of the Prosecutor’s Office of Russia for the Kirovskiy District of Krasnoyarsk (“the district investigative committee”) again refused to open a criminal case. Again it was argued that the statements by Ms E.N. and Ms T.N. were to be disregarded since “according to the information received, both the N. sisters [were] prostitutes and acquaintances of Mr Zelenin, with whom they [maintained] a friendly relationship, and thus [were] interested in the outcome of Mr Zelenin’s arrest”. 31. On 30 January 2008 the Kirovskiy District Court of Krasnoyarsk upheld the decision of 15 November 2007 on judicial review. On 5 June 2008 the Krasnoyarsk Regional Court upheld the first-instance ruling. 32. On 23 March 2009 the applicant was released on probation. | 1 |
test | 001-168373 | ENG | ROU | COMMITTEE | 2,016 | CASE OF MUREŞAN v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque | 5. The applicant was born in 1959 and is currently detained in Baia Mare Prison. 6. On 10 January 2002 an investigation was opened against the applicant for embezzlement, forgery and abuse of his official position as Minister for Agriculture. The criminal investigation ended on 19 December 2003 with the applicant’s indictment together with three other co-accused. 7. On 27 April 2011 the applicant was convicted of the above-mentioned crimes by the High Court of Cassation and Justice and sentenced to seven years’ imprisonment. 8. On 28 May 2012 the applicant’s appeal against the above-mentioned judgment was rejected with final effect by a five-judge panel of the High Court of Cassation and Justice. The full text of the judgment became available to the applicant on 1 November 2012. 9. The applicant started serving his sentence in Gherla Prison on 31 May 2012. On 2 April 2013 he was transferred to Baia Mare Prison where he is currently serving his sentence. On admission to prison, the applicant was already suffering from type II diabetes, which was being treated with insulin, hypertension, ischaemic heart disease, biliary lithiasis and lumbar discopathy. 10. According to the report drawn up on the applicant’s arrival in Gherla Prison on 31 May 2012 the applicant was allowed to take with him to his cell, among other items, one glucometer with forty-one test strips and needles as well as several drugs. 11. During his ten-month stay in Gherla Prison the applicant was taken to the medical ward eighteen times. He was given a special diet for diabetics and was allowed to work. He was taken to diabetes specialists outside the prison system on several occasions where he was prescribed a special diet, medication and constant self-monitoring of his glycaemia level. According to the applicant’s medical chart in Gherla Prison his glycaemia levels were measured two, three or four times per day at the prison’s infirmary. Copies of the same medical chart also show that the applicant regularly received medication from the prison infirmary. On 9 October 2012 his signature confirmed the receipt of thirteen drugs including vitamin C and omega 3. 12. Forensic medical examinations conducted in September and December 2012 concluded that the applicant’s diseases could be treated within the prison system. 13. In Baia Mare Prison the applicant was examined at the prison’s infirmary twenty-four times between April 2013 and September 2014. In addition, he was taken for specialist diabetes and nutrition examinations at the Baia Mare County Hospital nine times between 24 May 2013 and 2 October 2014. 14. According to the Government’s submissions and copies of the applicant’s medical chart, throughout his detention in Baia Mare Prison the applicant was given, as needed and according to doctors’ prescriptions, insulin and drugs for his hypertension as well as neurotrophic, gastric protective, hypercholesterol and other drugs. 15. According to the information provided by the National Administration of Prisons the applicant made no complaints concerning his medical treatment. On 10 August 2012 the applicant’s lawyer was informed that the complaint against the applicant’s placement in the closed prison regime had been rejected. On 5 September 2013 the applicant’s lawyer was informed by the Baia Mare Prison administration that the applicant could not be compensated for the work he had performed in detention with permission to leave the prison. 16. The applicant alleged that he had been transported in conditions which had not allowed him to take his insulin. In addition, the food provided during transport had not been adapted to his diabetes. The vehicles in which he had been transported lacked air conditioning and other prisoners had been smoking during the trips. 17. From the Government’s submissions it appears that the applicant was transferred sixteen times between detention facilities, to the hospital or to the courts, in special vehicles (Iveco, Mercedes or Raba vans) which were well-maintained and met the legal comfort requirements. They were fitted with windows, lights, heating and sunroofs. Some of them also had air-conditioning. The number of detainees transported never exceeded the number of available seats. Detainees were provided with food and water during transfers, and were allowed bathroom breaks. Smoking was strictly prohibited in the vehicles. 18. According to the information provided by the National Administration of Prisons, the applicant was allowed to take with him his personal glycaemia kit and medication and was therefore able to measure his glycaemia. Moreover, during long drives a number of breaks were taken allowing the applicant to administer his treatment. As regards the food received during transport, the applicant was provided with a diabetic menu as follows: during transport to and from Gherla Prison the applicant received 100 grams of biscuits, 100 grams of cheese, one egg and 500 grams of bread; during transport to and from Baia Mare Prison the applicant received 320 grams of unsalted cheese, two eggs, 300 grams of processed poultry meat, 260 grams of semi-white bread and 250 grams of apples. Copies of the prison menus were submitted in support of these assertions. 19. According to the prison visits record the applicant often received food packages which included sweets, fruits and vegetables as well as bottles of juice, all of which he was allowed to take with him during transport. 20. The Government submitted that the prison authorities had received no complaints or requests from the applicant in connection with the conditions of transport. | 1 |
test | 001-172665 | ENG | SMR | CHAMBER | 2,017 | CASE OF PODESCHI v. SAN MARINO | 3 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment);No violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention) | Aleš Pejchal;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano | 5. The applicant was born in 1956 and lives in San Marino. He is a politician. 6. The applicant was the subject of an investigation related to two sets of criminal proceedings (nos. 769/12 and 184/14) which were eventually joined, in connection with the crimes of, inter alia, conspiracy and various acts of money laundering. 7. By a decision of 25 October 2012, relying on Articles 4 and 5 of Law no. 93 of 2008, the inquiring judge ordered that investigation file no. 769/12 be classified because that the existing representation of facts required further investigative steps, including urgent measures which could be prejudiced if the documents were not kept secret. 8. By a decision of 23 June 2014 the Commissario della Legge, in his capacity as inquiring judge, described over twenty-five pages the circumstances resulting from the investigations and informed the applicant (along with other suspects) of the charges against him. The charges were, (i) conspiracy (in connection with crimes related to money laundering) under Article 287 of the Criminal Code; (ii) various instances of money laundering in participation with others (Articles 50, 73 and 199 bis of the Criminal Code) for the movement of money through the San Marino Foundation For the Promotion of the Economy and Finances; and (iii) various instances of money laundering in participation with others for the movement of money between B. (a Swiss company) and C. (a company based in San Marino). 9. It appeared from the investigations that the applicant (and others) had illegally acquired large sums of money which they had transferred into certain named accounts, sometimes in cash or by cheque and sometimes through fictitious intermediary companies, in order to hide the money’s criminal origins. The sums were then withdrawn and distributed to other entities, all traceable to the applicant. Furthermore, in order to hide the illicit origins of the money, other sums were transferred, hidden and replaced through other named companies, only to eventually be transferred to the applicant (and others) personally. The inquiring judge noted that those instances formed the basis of the second and third charge of money laundering. In particular, the factual circumstances, inter alia, suggested that there existed a criminal organisation made up of politicians, civil servants, entrepreneurs and bankers. The applicant appeared to have had a key role as a politician who had served in various posts and in the inquiring judge’s view he was particularly well placed to accumulate money which he then concealed behind various companies located in San Marino and abroad. 10. According to the inquiring judge the San Marino Foundation for the Promotion of the Economy and Finances (hereinafter “the Foundation”), which could be traced back to the applicant and was run by a person the applicant trusted, had been created specifically to further the aims of the criminal organisation. More than eleven million euros had been deposited but no trace of it could be found in the accounts. Discretion in the exercise of decision-making by political powers, as well as bureaucracy, gave the opportunity to “investors” to pay millions of euros in bribes to the Foundation in order for it to allow, for example, construction in areas identified by local plans as zones where development was forbidden. The investors knew the money would eventually get to the applicant, who was in a position to influence the approval of such projects, which could only come about by bending the rules. The inquiring judge observed that further investigations were necessary to understand the reasons behind a transfer into the Foundation of three million euros by a certain A.S., one million of which reached the applicant in cash. 11. The inquiring judge ordered that the applicant be arrested and detained on remand (misura cautelare personale) owing to a risk of his reoffending and tampering with evidence. The judge noted the substantial flow of money managed by the applicant, which was not compatible with his income. In view of the various evidentiary elements he concluded that it could be held with reasonable certainty that the financial transfers had been made in connection with the relations the applicant had with the co-accused, as a result of and during the time he had been a State representative. The evidence suggested that he had the ability to organise and benefit from adequate support to facilitate a further dispersion of funds, as a result of a mutual covering up with other associates, by means of the direct or indirect acquisition of the management of economic activities and of positions in public office in order to obtain unjust profit and advantage. The seriousness of the applicant’s particular conduct indicated his specific role in the organised criminal group. In addition, the speed with which certain transfers of millions of euros had taken place demonstrated the network of mutual assistance from which the applicant and the criminal organisation benefited and continued to benefit within the institutional and economic system in San Marino. According to the inquiring judge, the danger presented by the applicant had not diminished simply because he had quit public office. Indeed, in 2013 the applicant had sold an apartment, which had already been subject to leasing and payment for which had been made (accreditati) from Foundation funds, which showed that his contacts with the relevant entities remained in place. Furthermore, the inquiring judge considered that the systematic concealment of funds through fictitious payment descriptions (causali fittizie), the use of frontmen (prestanome) and of shell companies (societa schermo) rendered the risk of tampering with evidence a real one. According to the inquiring judge, that risk persisted, given the evidence existing both in San Marino and abroad, because of the wide support network. That meant that less restrictive measures could not be considered as appropriate when trying to make sure that the applicant (and his coaccused) did not commit further acts of money laundering. 12. On the same day at 2.50 pm the applicant was taken to prison and placed in detention. 13. The applicant was informed on 24 June 2014 that he would appear for questioning before the inquiring judge on 25 June 2014 at 4 pm and that he could meet his legal representatives on the latter date at 3 pm. 14. On 24 June 2014, after requesting access to the relevant files, the applicant’s legal representatives learnt that file no. 769/12 was partially classified and thus partially subject to non-disclosure. File no. 184/14 was entirely classified and could not be disclosed at all. The applicant noted that the index showed that the classified documents in file no. 769/12 which had been removed included (i) the initial notification by the Agency for Financial Information (hereinafter “the AIF”); (ii) a note by the same agency and explanatory documents; and (iii) pages 7-54 of Annex A to the AIF’s initial notification. 15. Following a decision of the same day, the above-mentioned unclassified material in connection with file no. 769/12 was submitted to the applicant’s representatives on the morning of the day of questioning. According to the applicant the information provided did not give sufficient grounds to substantiate the need for his detention. 16. On 25 June 2014 during questioning before the inquiring judge (interrogatorio di garanzia) the applicant availed himself of his right to remain silent. He complained of not being able to examine the investigative material, the short length of time he had been able to consult with his lawyer and of the delay in appearing before the judge. 17. On the same day the applicant, inter alia, challenged his detention and complained that the term provided by law (six months which can be extended by another three months) for maintaining the secrecy of the investigation had expired because investigation file no. 769/12 had been classified on 25 October 2012. He asked the court to release him or to, at least, order a less restrictive measure and to declassify the relevant documentation. 18. On 26 June 2014 the inquiring judge rejected the applicant’s requests. He considered that the fact that the applicant had not been allowed to consult some of the material related to the investigation before the end of the period of secrecy had not breached his rights. The expiry of the terms of Article 4 of Law no. 93/2008 (see relevant domestic law at paragraph 75 below) could also not result in the nullity of an order for detention on remand which had been duly justified and reasoned on the basis of the object of the proceedings pending against the applicant. Further, the relevant requirements and reasons justifying keeping him in detention remained, in particular the risk that the illegally acquired assets would be dispersed. 19. As to the applicant’s inability to access all the relevant material, the judge noted that the decision ordering his detention had contained all the relevant information justifying the lawfulness of and the need for such detention. The need for secrecy served the interests of justice and had to be balanced against the applicant’s interests. However, the applicant had been informed of the reasons for his detention in a way which enabled him to challenge it through the available means. Furthermore, access to further material was possible through other procedures that were available. 20. On 27 June 2014 the applicant reiterated his above-mentioned complaints and requests by means of an appeal (reclamo) under Article 56 of the Code of Criminal Procedure. He relied on various Articles of the Convention, and inter alia asked the court to take its decision solely on the basis of the documents which had been made available to him as the accused. 21. By an interim decision of the Judge of Criminal Appeals (Giudice delle Appellazioni Penali) of 30 June 2014, notified to the applicant’s representatives on 1 July 2014, the court upheld the applicant’s complaints in part. 22. It upheld the complaint about the non-disclosure of the documents, the content of which had served to justify his detention on remand given that the time-limit for classification of the file had expired. In connection with both files, in the text of its judgment the court considered that the applicant must be allowed access to such documents with the limited aim of allowing the applicant to be fully aware of the evidence already collected, especially that as a result of which the inquiring magistrate had ordered the applicant’s arrest and detention. The operative part of the judgment did not refer to any limitations. The court set a five-day time-limit from that date for the submission of observations. 23. As to the applicant’s ancillary complaint of a lack of relevant requirements for his detention, namely a reasonable suspicion against him (insussistenza dei presupposti e delle condizioni richieste per l’applicazione della misura), the court considered that the earlier decision had explained the relevant facts which had shown the applicant’s involvement in the crimes at issue. It also noted that a criminal origin for the sums at issue could be presumed owing to the methods used for their transfer. The latter was sufficient fumus delicti to justify the detention order, which was to be kept in place. It dismissed the remainder of the applicant’s complaints and upheld the findings of the first-instance court. 24. Following the Judge of Criminal Appeal’s decision, on 1 July 2014 the inquiring judge ordered the release to the applicant’s legal representatives of certain specified documents and evidence collected in connection with files nos. 184/14 and 769/12. According to the applicant, on the same day, upon a request made by him to the court registry, he learnt that despite the appeal judge’s order the relevant files had remained classified (file no. 184/14 had been partially declassified before the appeal judge’s decision). According to the applicant none of the publicly available content in file no. 184/14 could in any way demonstrate the crime of conspiracy under Article 287, with which he had been charged. The Government submitted that it had been the legal representatives who had failed to find the relevant documents in the case file. 25. On 6 July 2014 the applicant submitted observations by the timelimit set by the Judge of Criminal Appeals in connection with the above claims. In particular, he reiterated his complaints under Articles 5 and 6 of the Convention in so far as he had not had full disclosure of the documents and evidence collected despite the court’s order of 30 June 2014 (see paragraph 22 above) and argued that there was no reasonable basis to justify his detention on remand. 26. By a decision of 18 July 2014, notified to the applicant’s legal representatives on 22 July 2014, the Judge of Criminal Appeals upheld the order of 30 June 2014 and dismissed any further claims. He found that no new elements had emerged since the interim decision of 30 June 2014. It further noted that the order of 30 June 2014 had not ordered a total declassification but solely the disclosure of documents related to the continued detention, referring to the words with “the limited aim of” “ancorche al limitato fine”. It considered that such secrecy could be justified for the purpose of the proper administration of justice and the effectiveness of the investigation, and was subject to the inquiring judge’s discretion which the court of appeal did not want to interfere with - without prejudice to a further appeal against such decision before the third instance judge. 27. On 23 July 2014 the applicant appealed to the Third Instance Judge in Criminal Matters (Terza Istanza Penale) (hereinafter “the third-instance judge”), focusing on the inability to access various documents and the lack of a justification for his detention based on a lack of the relevant requirements. He also complained of procedural irregularities. 28. After a hearing, where oral and written submissions were made by the applicant and the Attorney General, the third-instance judge on 8 September 2014 dismissed the applicant’s complaints. The judge also upheld the lawfulness of the orders of 23 and 30 June 2014 and the lawfulness of the inquiry and the detention order. The court noted that its competence at third instance concerning detention on remand extended to confirming the existence of reasonable suspicion and other factors making detention necessary. Thus, it was for the judge to examine the stage of the investigation, as well as the correctness of the facts established and the lawfulness of the procedural steps undertaken, and the persistence of the charges against the accused, falling short of making any findings on the criminal responsibility of the accused. 29. As to the non-disclosure of some of the material, it noted that while under San Marino law an accused was granted the right to access and copy all the material in the investigation file and imposed on the judge a duty to inform the accused of the factual and legal circumstances surrounding the charges against him, the same procedural law also limited those rights for the sake of the proper administration of justice, while bearing in mind the procedural safeguards emanating from the right to a fair trial. Even the caselaw of the European Court of Human Rights provided for exceptions to the rule of disclosure. In the present case the secrecy imposed on certain of the documents, although not all of them had been necessary in view of a search for the truth and to avoid any risk of tampering with evidence. 30. It further noted that the applicant had had access to a lawyer before his questioning and that the order of 23 June 2014 had been detailed and had clearly identified the elements justifying the detention. It could thus not be said that the applicant had not been aware of the reasons for his arrest, the charges, or the nature and content of the evidence adduced. Indeed, more information than that strictly required had been communicated to the applicant and the judicial communication at issue had been exemplary, both in respect of the quantity and the clarity of the information provided. 31. In relation to the requirements justifying the applicant’s detention, the third-instance judge examined the matter in connection with each of the charges and noted that the appeal court had adequately replied to the applicant’s complaints. Referring extensively to the report of the inquiring judge, the third-instance judge found that it was necessary to keep the applicant in detention. 32. In the third-instance judge’s view, the factual evidence and relevant legal considerations indicated that the applicant could reasonably be considered as guilty of the charges against him. Furthermore, it was necessary to ensure the effectiveness of further investigations by avoiding any risk of tampering with evidence. 33. In the meantime, on an unspecified date the applicant lodged an application for the release of hard copies or electronic versions of documents which had been saved on equipment seized from him, or the possibility to make copies of them. 34. By a decision of 17 July 2014 the inquiring judge dismissed that application in part. The court noted that the investigation file had not yet included a detailed list of its contents. In any event such a request could only be accepted if it was specific enough to locate the documents referred to. It ordered that a list of the file’s contents be made and that the applicant have access to documents he could specify in terms of their form, content, date and origin. 35. On 15 July 2014 the applicant had also applied for access to information held by the court concerning P.W.S. (San Marino’s ambassador to Montenegro) which he considered relevant to disprove the alleged fictitious nature of the operations linked to Company B. and thus that there had been money laundering in that connection. 36. By a decision of 25 July 2014, the inquiring judge dismissed that application on the grounds that the reasons put forward by the applicant to access the documents were not deemed convincing by the court. According to the inquiring judge such a request could be accepted, at the relevant time, if it was made in connection with specific facts that were subject to debate, that had not yet been established, and which were pertinent to the ongoing investigation. 37. According to the applicant a further request to examine witnesses remained unheeded. 38. On 15 September 2014 the applicant asked the inquiring judge to revoke the detention order or impose a less strict measure. 39. On 18 September 2014 the inquiring judge dismissed the application. He considered that the original detention order and its continuation were reasoned in fact and in law. The basis for such a detention order did not need to be any more detailed, particularly given the continued risk of tampering with evidence if the applicant was put on a less strict regime. Contrary to the applicant’s assertions, the existence of this risk remained. The inquiring judge considered that the results of the investigation as well as the behaviour of the applicant, both during the interviews and while in detention, confirmed that view. He noted that the applicant’s co-accused had tried to make contact with other people, namely, a private doctor, on the pretext of being ill, even though state doctors had not found any signs of illness. Furthermore, both of the accused had attempted to involve relatives in interfering with and altering documents. The inquiring judge referred to the applicant’s ability to create ad hoc documents which looked real, with the intention of having them admitted as evidence. He also highlighted the applicant’s participation in the manipulation of the truth and the artificial reconstruction of facts and the dissimulation of the real functions of the accused. According to the inquiring judge, such factors meant that the court could not exclude that there would be attempts to tamper with evidence. Indeed, such tampering would be a repeat of the acts with which the applicant had been charged, which included manipulating the truth and the artificial reconstruction of economic and commercial dealings to hide their real aims. 40. The applicant appealed. He requested release from detention or at least the application of a less restrictive measure. He further asked the court to annul the decision appealed against, and if not, he asked the court to exhibit the evidence in connection with the facts and circumstances on which the decision of 18 September 2014 (to keep him in detention) had been based. 41. By a decision of 13 October 2014, the Judge of Criminal Appeals upheld the applicant’s appeal in part. It ordered that the two investigations files be declassified in part, as to allow the applicant to have access to the files and evidence collected in the further investigations on which the inquiring judge had based his decision to dismiss the applicant’s bail application in favour of keeping him on remand. The court ordered the disclosure of the material and set a five-day time-limit from that date for the submission of observations. It further considered that the first-instance court had been correct in maintaining the detention order on the basis of the behaviour of the coaccused. It was evident that the co-accused’s mistrust of state doctors was a pretext to consult her private doctors, which had been part of a predetermined plan agreed on between the two co-accused. That had been shown through recordings of their conversation (intercepted by a third party) over walkie-talkies provided to them by a policeman (M.) to enable them to agree on the same line of defence and to tamper with evidence. Similarly, the first-instance court’s finding on the attempt to involve third parties in tampering with evidence had been based on the fact that the applicant had transferred property into his daughter’s name and the apparent complicity of M. (against whom proceedings had been instituted) who owed allegiance to the applicant in exchange for favours he had received. Such matters would be better explained once the documents had been declassified, as ordered above. The fact that the applicant had been able to plan the above-mentioned acts while in detention showed that his intention and possibility to tamper with evidence would be greater if he was released. 42. In consequence, by a decision of the inquiring judge of 16 October filed in the relevant registry on 20 October 2014, further documents were released. 43. After viewing them, the applicant considered that the copious documentation that had been made available to him (accounts of companies traceable to him and a series of bank transfers) only concerned the charges against him and not the alleged behaviour which had led the inquiring judge to decide to dismiss his application for bail. On 24 October 2014 the applicant therefore lodged a new appeal, arguing that despite the court’s order he had again not had access to the relevant documentation to challenge his detention as the declassified information did not include any evidence to substantiate the alleged behaviour that had led to his application for release to be denied, namely the alleged falsification of documents, the alleged collusion with family members, the alleged simulation of his coaccused’s illness, and most importantly the alleged walkietalkie conversations. Moreover, despite the relevant time-limits having expired both files remained classified, and the applicant could not have knowledge of the further evidence collected and whether it supported suspicions against him, or the contrary. 44. By a decision of 6 November 2014 the Judge of Criminal Appeals upheld the detention order, considering that evidence had already been presented to support the decision to keep the applicant in detention. Dismissing the applicant’s arguments, the court found that it was therefore not necessary to repeat the earlier factual basis for the order or to give new reasons, as requested by the applicant, because the previous reasons were still valid, as also confirmed at various levels of jurisdiction. Furthermore, in so far as the applicant had claimed that the decision of 18 September 2014 had been based on elements (concerning his behaviour) that had not been found in the file, the court noted that a judge could ex officio take factors into consideration which had occurred after the issuance of the detention order. Indeed, in the present case, to make sure that there were no reasons to warrant a change in the applicant’s pre-trial conditions, the judge had used information which, although having come to his knowledge by other means, was also found in the public domain (in the press and in publicly available judicial documents concerning the proceedings against M.). He further noted that the requirements of adversarial proceedings at the pre-trial stage, such as the non-disclosure and publication of documents, were different from those in a trial since pre-trial proceedings required a level of secrecy that enabled further investigations if necessary, including international assistance. While equality of arms had to be respected in connection with the debate concerning the measure imposed, the applicant could not obtain the declassification of documents by reiterating the same arguments. That was all the more so when the detention order had to a large extent been based on the fact that there was a risk of tampering with evidence. The applicant’s request had to be seen in the light of the need to preserve the evidence as well as the proper administration of justice. The necessity to maintain the classification of certain information was all the more important when that information concerned crimes for which charges had not yet been brought. It followed that the applicant’s detention could not be revoked nor could further information be declassified. The court also noted that in 2009 Article 5 of law no. 93/2008 had been amended to include a suspension of the time-limit in the case of requests for letters rogatory. In the case at hand requests for judicial assistance had been made, thus in view of the applicable suspension the time-limits had not yet expired. 45. On 4 March 2015 the applicant asked to be released on the basis that the testimony of a certain P. had been retracted in the proceedings against M. It had been P. who had previously stated that he had seen M. give the applicant a walkie-talkie to communicate with his co-accused. He argued that this meant that the evidence of the alleged misbehaviour on which the prolongation of his detention had been based no longer existed. 46. On 6 March 2015 the inquiring judge dismissed the application. He held that there had been various grounds for the applicant’s detention, not just the attempts to communicate with others inside and outside the prison. The matters that had been brought to light could not alter the grounds listed and explained in detail in previous decisions. 47. On 16 March 2015 the applicant challenged that decision, arguing that if the decision to keep him in detention had been based on testimony given in proceedings against M., then such a decision had to be altered once that testimony had been withdrawn. 48. By a decision of 20 March 2015 the Judge of Criminal Appeals dismissed the applicant’s appeal. The court noted that the detention order of 23 June 2014 had stated that the reasons for considering detention necessary had been the fear of the applicant’s reoffending and tampering with evidence, which had been justified by the role played by the applicant in the organisation and by the complex and effective network he could benefit from. The order of 18 September 2014, apart from relying on the evidence in the proceedings against M., had been based on other, more significant and relevant reasons. The impugned decision of 6 March 2015 had stated that the reasons to deny his application “also” included his attempts to communicate with others. The decision of 13 October 2014 had also stated that the measure had been justified by much more important reasons. Lastly, the decision of 6 November 2014 had also referred to other grounds for his detention. It followed that none of the decisions in question had been based solely on the supposed collaboration of M. Thus, the retraction of P.’s testimony did not render nugatory the fear of the applicant’s tampering with evidence, based on the fact that there had been various, more relevant considerations given in the previous decisions on the matter, and reiterated in a decision of 9 March 2015 (below). 49. By a decision of 9 March 2015, by which time further charges of money laundering had been brought against the applicant, the inquiring judge prolonged the applicant’s detention. He noted that the proceedings were based on the results of the investigation by the anti-fraud unit and on the analysis of financial operations by the applicant and other people involved in politics (directly or through the use of a plurality of individuals and legal persons). Added to those factors were other elements collected through investigations of suspicious financial operations, as well as witness testimony resulting from questioning and the large amount of documents that had been seized. The investigation as a whole concentrated on the overlap between political and economic activity and criminal activity. Referring to various evidentiary conclusions the court considered that in relation to the further charges of money laundering against the applicant, the evidentiary scenario was robust and exhaustive. It amply demonstrated that the applicant (with others) had participated in the transfer and concealment of funds generated from crimes committed in San Marino or elsewhere. 50. The risk of reoffending could be presumed given the ease with which huge amounts of money had already been transferred, and the strong support network of which both co-accused could benefit. That meant that less severe measures would not prevent the applicant and his co-accused from re-establishing contact with other people who had facilitated the illegal acts. The fear of flight was all the more realistic given the weakening link between the applicant and San Marino following the incident in question. It was therefore feared that the applicant would seek refuge in jurisdictions with which San Marino had no extradition treaties. It had already been established that one of the foreign accomplices (P.W.S.) had made use of a diplomatic passport to avoid precautionary measures issued against him. 51. Moreover, video surveillance images showed that the accused had received favourable treatment while in detention, with the director of the prison providing him with company, support and information, and even arranging meetings between the co-accused. That further went to show the status the accused continued to benefit from, which indicated the impossibility of envisaging more lenient measures. 52. The seriousness of the elements on which the suspicion against the applicant was based (quadro indiziario), the facts and the means by which the crimes had taken place, as well as the dense network of personal relations, the involvement of family members, professionals, State representatives and government personnel who were still in service, led to the conclusion that there was a real risk that evidence, namely documentary evidence, would be tampered with and that pressure would be put on people who had knowledge of the events at issue. Moreover, the accused could still continue to hide the illicit origins of funds through the very complex and ingenious methods already applied. 53. On 11 and 12 March 2015 the applicant had access to further documentation, concerning particularly letters rogatory, witness statements and interviews. 54. The applicant appealed against the decision of the inquiring judge of 9 March 2015. 55. By a decision of 23 April 2015 filed in the relevant registry on 29 April 2015 the Judge of Criminal Appeals upheld the first-instance decision. The judge noted that San Marino law did not impose a time-limit on the duration of pre-trial detention, and considered that the subsequent charges against the applicant had been brought as a result of further investigations. They had shown further money transfers between clearly identified people (including the applicant), as well as the origin of the funds and were connected to the facts behind the first set of accusations. In so far as the applicant had claimed that there had been no proof of conspiracy or of the illicit origin of the funds, and thus that there had been no substantiation of the charge of money laundering, the court held that the original decision of 23 June 2014 had highlighted the existence of a general agreement with permanent effects (constituting the pactum sceleris) between representatives of the State and the business world, as well as the details of its aims and functionalities. It further noted that final judgments confirming that a crime had generated certain funds were not needed to establish money laundering, but that it was enough to have a number of factual elements indicating the supposed crime which generated those funds. In other words the burden of proof to be satisfied was one where the illicit origin of the funds emerged from a logical and coherent interpretation of the evidence. The first-instance decision, based on the transfer of huge amounts of money, through the creation of ad hoc offshore companies and the dispersion of such sums in parcelled and undetectable amounts had therefore been reasonable. 56. The appeal judge considered that house arrest would not be appropriate given the seriousness of the crimes at issue, the enormous sums laundered, as well as the conduct of the accused during the interrogation and detention period. He noted that the reasons for the applicant’s detention on remand, namely his contacts with other accused persons and the networks he had access to which could facilitate further money laundering and the dispersal of funds, remained relevant. 57. He dismissed a further application by the applicant for the declassification of the case files on the basis that the only things still classified related to the letters rogatory, which were still ongoing, and other material which was still subject to ongoing investigations. 58. Following a further request by the applicant, by a decision of 4 May 2015 the inquiring judge released further documentation in light of the fact that the needs of the investigation had diminished. The secrecy regime was however maintained, in part, in connection with certain documents concerning both proceedings at issue as well as other documents and evidence yet to be collected following this decision. 59. By a decree of 11 May 2015 the applicant was issued with an indictment. 60. On 14 May 2015 the inquiring judge revoked the decision of 23 June 2014 to keep him in detention in relation to the charges in the indictment of 11 May 2015 as the investigation related to those charges had been concluded. However, he was kept in detention based on a decision of 9 March 2015 in relation to two recently added charges that were still under investigation. 61. On 28 May 2015 the applicant lodged a challenge to the constitutional legitimacy of the decision of 23 April 2015 by the Judge of Criminal Appeals and the decision of the Commissario of 9 March 2015 in connection with his defence rights at the trial. 62. By an interlocutory decision of 2 July 2015, the third-instance judge suspended the order for the applicant’s detention on remand and ordered that he be put under house arrest until a decision on the merits of the constitutional challenge had been issued. In the judge’s view such a decision was necessary in order to respect the rights of the defence, particularly the principle of equality of arms, which was to prevail during the trial. He ordered the inquiring judge to set bail and other relevant conditions, as well as the penalties in the event of a breach of such conditions. 63. On 3 July 2015 the inquiring judge ordered the applicant to be put under house arrest under the following conditions: the applicant could not leave his house, have visits from or communicate with anyone (including by telephone) except for family members living in the house, descendants and ascendants (as well as their spouses or partners), siblings and legal counsel. Medical visits were allowed subject to notification. The applicant was ordered not to communicate with his co-accused (Mrs B.) and had to submit his travel documents to the authorities, in line with a travel ban which was being imposed concurrently. 64. By a judgment of 15 October 2015 the third-instance judge confirmed the validity of the decisions of 23 April 2015 filed in the relevant registry on 29 April 2015 by the Judge of Criminal Appeals and the decision of the inquiring judge of 9 March 2015. It reiterated its previous findings as to the various and detailed evidence which had been presented and concluded that the same applied in respect of the last two charges against the applicant, which had been the basis for the impugned decision of 9 March 2015. It noted that there existed a huge amount of data, some of which was convincing evidence (dati probanti), some highly indicative (fortemente indizianti), and some merely illustrative yet useful, which together formed an adequate framework of relevant and sufficient evidence on which to base precautionary measures. It followed that the decision to place the applicant in pre-trial detention had at the time been appropriate in view of the material available. It also confirmed its interlocutory decree of 2 July 2015 that detention should cease and that the applicant be put under house arrest for the purposes of ensuring his defence rights in all the proceedings against him, without prejudice to any decision by the inquiring judge on an eventual release. 65. By an order of 16 October 2015, the inquiring judge revoked the order for the applicant’s house arrest and imposed a travel ban on him, considering that that measure would suffice. It further maintained the classified status of certain acts in the interests of the investigation and the ongoing international judicial assistance. 66. The applicant was detained from 23 June 2014 in the San Marino prison known as the Carcere dei Cappucini. 67. According to the applicant, from 8 August 2014 he was detained under a regime in which he was kept isolated for twenty-two hours a day. The applicant alleged that he had not had access to other parts of the prison which would have allowed him to have some form of activity and that he could only shower once a week. Furthermore, for certain periods he had had no access to sanitary facilities and had had to relieve himself in his cell in a container. 68. The applicant stated that the conditions at the detention facility were inhumane and referred to the reports of the Committee for the Prevention of Torture (“the CPT”) of 2005 on the matter. He noted in particular that the CPT had since 1992 reiterated the need to refurbish and upgrade the facility but that virtually no steps had been taken to that effect. 69. On 30 June 2014 the applicant filed a complaint about his conditions of detention with the CPT. | 0 |
test | 001-148603 | ENG | SVK | ADMISSIBILITY | 2,014 | STRAKA AND OTHERS v. SLOVAKIA | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applications were lodged by 256 individual Slovak nationals, whose particulars appear in the Appendix (“the applicants”). They were represented by Mr P. Chrašč, a lawyer practising in Bratislava. The applications were also lodged by the civic association Right to Housing (Právo na bývanie – “the applicant association”), whose registered office is in Bratislava and of whom the applicants are members. The applicant association was represented by Mr K. Straka, its President. 2. The facts of the cases, as submitted by the applicants and the applicant association, may be summarised as follows. 3. Between 1945 and 2002 public authorities allotted flats to the applicants or their predecessors in accordance with the law then in force. Following the developments described below, their rights of use were transformed into tenancies and the houses in which the flats were located were restored to their original owners or denationalised. The applications concern the public authorities’ actions in connection with the denationalisation of the housing fund in Slovakia, the dismantling of rent control and the impact this has had on the individual applicants. The following facts are relevant. 4. Prior to the fall of the communist regime in 1989, the housing system in Czechoslovakia was part of a planned State-run economy. Citizens in cities and towns lived mostly in flats owned by the State or “legal persons”, such as State-owned companies. The construction of flats and their use and allocation were managed, financed and controlled by public authorities through a centralised management structure. 5. Others lived in flats which had been built by housing cooperatives of which they were members. Cooperative housing was also funded primarily from public sources. Under the relevant legislation, direct and nonrefundable government grants represented more than 60% of the total costs of construction. 6. Mostly in rural areas, inhabitants built their own family homes which were in their “personal” ownership. Their construction was also subsidised and promoted by the State by various means. 7. Persons living in flats owned by the State were holders of a right of use (osobné užívanie) under the Civil Code. They were entitled to use their flats for an indefinite period. Members of the same household as a person having a right of use were entitled to continue living in the flat after the latter’s death. Holders of a right of use were allowed to participate in the decision-making processes regarding alterations and reconstruction of the houses in which they lived. Exchanges of flats between holders of a right of use were permissible and frequent. They were subjected to approval by the owner, which was generally only a formality. The amount payable for the use of flats was regulated in accordance with the central wage policy. It did not reflect the costs of construction and maintenance. Users could be evicted only in exceptional circumstances, for example if they had failed to pay the sum due for three consecutive months or had committed a serious breach of the law in their use of a flat. 8. In the former Czechoslovakia, to which Slovakia has been one of the successor States as of 1 January 1993, housing reforms started in 1990 in the context of (i) measures aimed at redressing certain wrongs that had been committed under the communist regime and (ii) the country’s transition towards a market-oriented economy. It involved the restitution of houses to former owners, the denationalisation of State-owned housing stock and later the gradual deregulation of rent. 9. New laws allowed for the restitution of property which had been taken away from owners under the communist regime. A number of dwelling houses, especially in towns, were returned to the original owners or their successors. The restitution of dwelling houses as such did not formally affect the legal position of those who had a right of use of individual flats. 10. In 1991 the process of “large-scale privatisation” was started. It consisted of the denationalisation of State-owned enterprises. In some cases, new owners divided the property of the company of which part, including the company’s housing stock, was transferred to third parties. In such cases, the users’ position was similar to that described in the preceding section. In 1999 a law was passed prohibiting the transfer of company-owned flats to persons other than their actual tenants. 11. The main objective of the housing reforms after 1989 was the introduction of private ownership of housing stock. The reforms were primarily related to housing in flats. 12. With effect from 1 January 1992 the Civil Code was amended so that rights of use in respect of flats were cancelled and replaced by tenancies. Rents remained regulated. In the event of death of a tenant of a flat rented by spouses, the survivor is entitled to become the sole tenant. In other cases, tenancies are transferrable to a deceased tenant’s children, grandchildren, siblings or sons or daughters-in-law, if they can prove they shared the same household at the time of death and do not have their own flat. The same right may be enjoyed by other persons who took care of the deceased tenant’s household or were dependent on him or her for at least three years prior to his or her death, and who do not have their own flat. 13. The relevant provisions of the Civil Code restrict a landlord’s ability to terminate a tenancy to a limited number of cases, such as where the latter needs the flat for their own or their next of kin’s purposes, or where the tenant did not need the flat or failed to comply with his or her obligations. Termination of a tenancy by a landlord must be approved by a court, and in most cases tenants may only have to vacate the flat once they have been provided with substitute accommodation. 14. Law no. 42/1992 provided for the transformation of cooperatives in the context of the country’s transition towards a market-oriented economy. Members of housing cooperatives were entitled to have ownership of the flats in which they lived transferred to them. They only had to pay the outstanding part of the State loan which had been provided in respect of the dwelling. In practice, tenants acquired ownership of cooperative flats either at a nominal price or, where the State loan had already been repaid, at no additional cost. 15. The Ownership of Flats and Non-Dwelling Premises Act 1993 (Law no. 182/1993) was enacted with effect from 1 September 1993. It allowed tenants in publicly-owned dwelling houses to buy their flats on favourable terms. The basis for calculating the price was the statistical value of a dwelling as defined in the period of the centrally planned economy. Tenants had a number of further advantages and benefits. As a result, they obtained ownership of flats at a nominal price which was only a fraction of their actual market value. The applicants indicated that one of the reasons for the large-scale denationalisation of public housing stock was so that the majority of the population could be compensated in a situation where the denationalisation of a substantial part of State property, such as companies, had resulted in it being transferred to a limited number of persons. 16. Subsequent amendments to Law no. 182/1993 extended its scope to cover flats the ownership of which had been transferred to a number of legal persons, such as consumption, agricultural and production cooperatives and companies. In its findings in case PL. ÚS 26/00, the Constitutional Court dismissed a challenge by the Prosecutor General to some of the amendments. It held, among other things, that the denationalisation of housing stock, in addition to being part of the economic transformation process, aimed at eliminating discrimination against residents of flats as compared to owners of individual houses who had acquired them with the help of public resources. 17. The large-scale denationalisation of housing stock in Slovakia, especially in big towns, resulted in almost all flats being transferred to private ownership. The rental sector nearly ceased to exist, with rental flats remaining mostly in restored and privatised houses. 18. From 1992 a number of instruments of subordinate legislation were issued providing for a gradual increase in regulated rent. 19. On 25 September 2008 the Ministry of Finance issued Measure no. 02/R/2008. It allowed the rent-control scheme to continue to apply after 31 December 2011 where (i) tenants or persons sharing their household did not own or co-own, on 1 October 2008, a comparable flat or inhabitable real property in the same municipality or within 50 kilometres of its boundaries; (ii) the landlord and the tenant did not reach a different agreement on the rent before 1 January 2012; and (iii) the tenants concerned submitted a registration form to the Ministry of Construction and Regional Development before 31 December 2008. 20. Documents of that Ministry indicate that, by 20 January 2009 registration forms had been submitted by tenants in respect of 923 flats where rent control was applied. 2,311 persons lived in those flats. The documents indicate that it was envisaged that substitute accommodation would be made available to those concerned by the reforms where this was justified by their social situation. 76.5% of the tenants thus registered lived in flats located in Bratislava. 21. On the basis of that data, the authorities estimated that the rent-control scheme concerned approximately 1,000 flats, that is to say 0.24% of rented flats in houses that existed in 1991 and 0.06% of the inhabited housing facilities which were available in Slovakia in 2001. 22. On 15 September 2011 the Termination and Settlement of Tenancy (Certain Flats) Act came into force. It was enacted with a view to eliminating rent restrictions concerning individual owners (see “Relevant domestic law and practice” below). 23. In application no. 11809/12, 135 of the 201 individual applicants had received notice of termination of their tenancies by 23 January 2013. By that date the applicants’ claim for substitute accommodation had been granted in thirty-six cases and refused in eight. 24. In application no. 35284/13, fifty-one individual applicants had received notice by the time their applications had been lodged on 21 May 2013. With the exception of four, the applicants in that case considered that they met the criteria of persons in “material need” of housing within the meaning of Law no. 260/2011. 25. Details of the relevant domestic law and practice are set out in the case of Bittó and Others v. Slovakia (no. 30255/09, §§ 32-70, 28 January 2014). In addition, the following information is relevant. 26. The Termination and Settlement of Tenancy (Certain Flats) Act 2011 (Law no. 260/2011), as amended, applies in particular to flats used by individuals whose rent has been regulated. It entitled landlords, until 31 December 2012, to give notice of termination of a tenancy which was to take effect after twelve months. Tenants who are entitled to substitute accommodation or whose corresponding claim has not yet been determined do not have to vacate their flats until a municipality has provided substitute housing to them. Law no. 260/2011 further entitles landlords to increase rent by 20% once a year from 2012 to 2015 (sections 1 to 4). 27. Pursuant to section 5(1) to (3), tenants who received notice under the above provisions are entitled to substitute accommodation subject to them (i) submitting a claim in compliance with the provisions of Law no. 260/2011 and (ii) being in “material need” of housing, namely where they or persons sharing their household do not own an appropriate flat within the boundaries of the same municipality or district and where it is justified by their financial situation. Subsections (4) to (6) of section 5 define the substitute accommodation to be made available, namely rental flats in the same municipality comprising of one room for a single tenant, two rooms for two to three tenants, three rooms for four to five tenants, and four rooms for six or more individuals. 28. Persons applying for substitute accommodation must submit a declaration of their property and indicate its overall value (section 6). Applications must also indicate the particulars of the tenants and persons living with them, including their date of birth, family status, identity card number and address. They must also comprise the claimants’ consent to the data contained therein being processed and published in conformity with the Personal Data Protection Act (section 8). 29. A municipality’s decision on a request for substitute accommodation is reviewable by the courts (section 9(6)). 30. Under section 9(8), municipalities keep lists of persons applying for substitute accommodation. The lists are public and to be made accessible on public noticeboards and, where available, websites of the municipalities. 31. Section 12 obliges municipalities to provide successful claimants with substitute accommodation by 31 December 2016, or else they must pay the flat owners the difference between the free market rent and regulated rent. 32. Law no. 261/2011 governs the funding of flats in which substitute accommodation is to be provided. 33. Section 11 defines the size of such flats and how they should be equipped. Their surface area may not exceed 45 square metres in singleroom flats and 90 square metres in four-room flats. Standards are set as regards heating, personal hygiene facilities and kitchen equipment. 34. The aim of the Act has been, among other things, to protect individuals against an unjustified interference with their private life in the processing of their personal data (section 1(a)). It sets out in detail the requirements for personal data to be obtained and processed with or without the consent of the person concerned, and its storage and destruction. Those intending to publish personal data must not interfere in an unjustified manner with the personal rights and privacy of those concerned (section 12(5)). 35. The Act further entitles those concerned to obtain information as regards the storage and processing of their personal data, and request redress where appropriate. If they consider the relevant legal provisions to have been disregarded, they are entitled to apply to the Personal Data Protection Office, which may order any shortcomings found to be remedied and sanction those liable. Its decisions in that regard are reviewable by the courts. 36. The website of the Bratislava municipality contains, among other things, lists of persons whose claims for a rental flat, within the meaning of Law no. 260/2011, have been granted by a final decision. Separate lists are kept according to the number of rooms to which claimants are entitled. They indicate the first name, surname and address of those concerned. 37. The website further contains guidelines explaining the procedure under Law no. 260/2011 and forms which persons claiming substitute accommodation are required to complete. These comprise a claim form setting out the particulars of the claimant and persons living with him or her, information about the flat to be vacated and an indication whether the claimant and/or persons living with him or her have their own flat elsewhere. 38. Claim forms are to be accompanied by a declaration of property pursuant to section 6 of Law no. 260/2011. The claimant and persons concerned have to provide full details of their immovable property and its value. They are further required to declare any movable property exceeding 20,000 euros in value. 39. In addition, those concerned have to confirm in writing that they voluntarily consent to the above data being processed, in accordance with the Data Protection Act, by the municipality concerned, for the purposes of and to the extent that it is necessary for the decision on their claim for substitute accommodation, the granting of such accommodation and verification of the information submitted. The validity of the consent is expressly limited to the duration of the examination of the claim or, as the case may be, conclusion of a tenancy agreement in respect of a substitute flat. 40. The Bratislava municipality also publishes on its website lists of persons to whom municipal flats have been allocated outside the procedure set out in Law no. 260/2011. They contain the first name and surname of persons to whom a municipal flat has been rented and its size. The accompanying comment indicates that the information has been made public with a view to increasing the control and involvement of the public in municipal life. 41. Lists of persons whose claims for a rental flat within the meaning of Law no. 260/2011 have been granted, similar to those described in paragraph 36 above, are published on the websites of other municipalities, for example Trenčín, Žilina and Banská Bystrica. 42. Information about relevant international documents and comparative law in respect of housing policies is set out in the case of Berger-Krall and Others v. Slovenia (no. 14717/04, §§ 87-92 and 112-16, 12 June 2014). 43. On 9 November 2010 the Court of Justice of the European Union (Grand Chamber) delivered a judgment in joined cases C-92/09 and C93/09 (Volker und Markus Schecke GbR and Hartmut Eifert v. Land Hessen), which concerned the protection of natural persons with regard to the processing of personal data. It held that, by requiring publication of the names of all natural persons who were beneficiaries of aid from agricultural funds and the exact amounts received by them, the Council of the European Union and the European Commission had “exceeded the limits which compliance with the principle of proportionality impose[d]”. | 0 |
test | 001-150298 | ENG | HRV | CHAMBER | 2,015 | CASE OF DRAGOJEVIĆ v. CROATIA | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage) | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1982 and lives in Vela Luka. 6. He worked as a sailor on an ocean carrier for a shipping company headquartered in Croatia. 7. In 2007 the police and the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: “the OSCOC”) investigated allegations of possible drug trafficking between Latin America and Europe via ocean carriers, involving several persons from Croatia. 8. On 23 March 2007, on the basis of a police report, the OSCOC requested an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) to authorise the use of secret surveillance measures to tap the applicant’s telephone and covertly monitor him. 9. The investigating judge granted the request and on the same day issued an order for the use of secret surveillance measures. Its statement of reasons reads as follows: “On 23 March 2007 the OSCOC lodged a request, no. ..., for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of Ante Dragojević. The request refers to the [police] report of 2 March 2007, concerning the use of secret surveillance measures in respect of M.R., M.V., B.Ž. and I.B., alleging probable cause to believe that [Ante Dragojević] is also involved in the commission of the offence proscribed by Article 173 §§ 2 and 3 of the Criminal Code. The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means and the use of these measures in respect of Ante Dragojević is also necessary for satisfactory completion of the investigation, given that there are sufficient grounds for suspecting that he has also been involved in the commission of the offence in issue. It is therefore appropriate to temporarily limit the constitutional rights and decide as above.” 10. In the course of the further investigation the OSCOC learnt that the applicant had been using another telephone number. On 25 May 2007 it asked the investigating judge to extend the use of secret surveillance measures to tap that number. 11. On the same day the investigating judge granted that request and issued an order, which contains the following statement of reasons: “Based on an order of this court under the above number, the secret surveillance measures provided for in Article 180 § 1 (1) and (3) of the Code of Criminal Procedure are being conducted in respect of several persons for the offence proscribed under Article 173 §§ 2 and 3 of the Criminal Code. On 25 May 2007 the OSCOC lodged a request for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of D.Š., and the secret surveillance measure under [Article 180 § 1] (1) of the above-cited provision in respect of Ante Dragojević, who was using the telephone number ... This measure was also requested in respect of another unidentified person who was using the number ... since the results of the previous use of secret surveillance measures showed that they had made contact in order to commit the offence in issue. The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means, so it is necessary to temporarily limit the constitutional rights and order the measures noted in the operative part of this order under points I and II. The OSCOC also asked that certain measures be terminated because they had not produced any result, and a decision was made accordingly as noted under point V of this order.” 12. On 2 July 2007 the OSCOC requested that the use of secret surveillance measures be extended for a further three months. 13. The investigating judge granted the request and on the same day issued an order based on the following statement of reasons: “Based on an order of this court under the above number, the secret surveillance measures provided for in Article 180 § 1 (1) and (3) of the Code of Criminal Procedure are being conducted in respect of several persons for an offence proscribed under Article 173 §§ 2 and 3 of the Criminal Code. On 2 July 2007 the OSCOC lodged a request for an extension of the use of secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of M.R., B.Ž. and Ante Dragojević on grounds of suspected conspiracy in drug trafficking between Latin America and Croatia. It appears, given their constant contacts, that the offence could be committed within a period of three months so it was proposed that the use of measures be extended for that period. The investigating judge considers that the request is well-founded because the investigation cannot be carried out by other means and given the circumstances of the offence it is necessary to extend the use of [secret surveillance] measures in order to achieve satisfactory completion of the investigation and obtaining of evidence. It is therefore decided accordingly as noted in the operative part of this order.” 14. On 6 August 2007 the OSCOC requested the investigating judge to discontinue the use of secret surveillance measures in respect of the applicant on the grounds that the results of the investigation did not justify further secret surveillance. 15. The investigating judge granted the request and ordered the discontinuation of secret surveillance on 7 August 2007. 16. On 17 September 2007 the OSCOC made a new request for secret surveillance in respect of the applicant. 17. On the same day the investigating judge issued a secret surveillance order with the following statement of reasons: “By orders under the above number secret surveillance was ordered in respect of Ante Dragojević (on 23 March 2007 and discontinued on 7 August 2007), and in respect of ... On 17 September 2007 the OSCOC lodged a request for secret surveillance measures under Article 180 § 1 (1) and (3) of the Code of Criminal Procedure in respect of Ante Dragojević, B.Ž. and M.M. for a period of two months in connection with offences proscribed under Article 173 §§ 2 and 3 of the Criminal Code, and for the discontinuation of secret surveillance in respect of N.I and an unidentified person. In their request [the OSCOC] submits that the investigation shows that there is a possibility that these individuals could contact each other again and that they could contact N.I., who travelled to Latin America and is expected to stay there for ten months. [The OSCOC] therefore considers that by resuming the use of secret surveillance relevant information for the further investigation could be obtained. On the other hand, there has been no communication on the telephone numbers of N.I. and the unidentified person so [the OSCOC] proposes that the secret surveillance in that respect be discontinued. The investigating judge finds in the case in issue that it is necessary to temporarily limit the constitutional rights of the above-mentioned individuals since investigation by another means would not be possible. It has therefore been decided as noted under points I and II, while at the same time [certain] measures have been discontinued as noted under points III and IV of this order.” 18. After further preliminary investigation, on 16 January 2009 the applicant was arrested and detained on suspicion of drug trafficking. 19. The following day the Dubrovnik Police Department (Policijska uprava Dubrovačko-neretvanska) lodged a criminal complaint with the Dubrovnik County State Attorney’s Office (Županijsko državno odvjetništvo u Dubrovniku; hereinafter: the “State Attorney’s Office”) against the applicant and another person on charges of drug trafficking. 20. On the same day the applicant was questioned by an investigating judge of the Dubrovnik County Court (Županijski sud u Dubrovniku). He stressed that it was true that he worked on an ocean carrier between Latin America and Europe but denied that he had anything to do with any drug trafficking. 21. After the questioning the investigating judge opened an investigation in respect of the applicant and several other persons on suspicion of drug trafficking. The investigating judge also remanded the applicant in custody. 22. During the investigation the investigating judge questioned several witnesses and obtained the relevant results and analyses of the use of secret surveillance measures, as well as evidence obtained following a number of searches conducted during the investigation. Throughout the proceedings the applicant was remanded in custody. 23. After the completion of the investigation, on 10 March 2009 the State Attorney’s Office indicted the applicant and two other persons in the Dubrovnik County Court on charges of drug trafficking. The applicant was also indicted on charges of money laundering. 24. On 11 March 2009 a three-judge panel of the Dubrovnik County Court presided over by judge Z.Č. extended the applicant’s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision in respect of the applicant reads: “This panel considers that the pre-trial detention under Article 102 § 1 (4) of the Code of Criminal Procedure in respect of the accused Dragojević and V. should be extended because the type and quantity of drugs which are the subject of the indictment, and the manner of commission [of the offence], indicate particularly grave circumstances of the offence for which the pre-trial detention should be extended” 25. On 13 March 2009 the applicant’s defence lawyer asked the Dubrovnik County Court for access to and a copy of the audio recordings obtained by the use of secret surveillance measures. 26. The request for access to the recordings was granted on 16 March 2009. 27. On 16 March 2009 the applicant challenged the decision on his pre-trial detention before the Supreme Court (Vrhovni sud Republike Hrvatske). 28. On 18 March 2009 the applicant also lodged an objection against the indictment, arguing, inter alia, that the results of the secret surveillance measures did not suggest that he had been involved in the offence. 29. On 30 March 2009 the Supreme Court allowed the applicant’s appeal against the detention order of 11 March 2009 (see paragraphs 24 and 27 above) on the grounds that the first-instance court had failed to state any reasons why the applicant’s detention should be extended under Article 102 § 1 (3) of the Code of Criminal Procedure (risk of reoffending). Without releasing the applicant, it therefore ordered that the matter be re-examined. 30. The Dubrovnik County Court complied with that order and on 6 April 2009 a three-judge panel of that court, presided over by Judge Z.Č., extended the applicant’s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges). The relevant part of the decision reads: “The fact that the defendant Ante Dragojević is a reoffender, who has been sentenced by a final judgment of the Split Municipal Court no. KML-160/02 of 10 July 2003, a final judgment of the Korčula Municipal Court no. K-33/05 of 25 May 2006, and a final judgment of the Korčula Municipal Court no. K-68/07 of 10 December 2007, suggests that his previous behaviour has not been in compliance with the law and that there is therefore a risk that, if at large, he might reoffend. Accordingly, this court considers that his detention should be extended under Article 102 § 1 (3) of the Code of Criminal Procedure. Furthermore, this panel considers that the detention of Ante Dragojević should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure since the type and quantity of the drug which is the subject matter of the charges and the manner of execution [of the offence] suggest that the circumstances of the offence were particularly serious and thus warrant his further detention. To be specific, cocaine is a hard drug and forty kilos of it is not an insignificant amount. Such a quantity could be distributed in a number of single doses and thus endanger the health of a number of people, particularly young people. Having regard also to the international character of the offence, and the recorded EUR 80,000 from the proceeds of the crime which surpasses the usual circumstances associated with such offences, and the criminal resolve and engagement necessary to commit the offence charged, [the court considers] that the detention should be extended under Article 102 § 1 (4) of the Code of Criminal Procedure.” 31. On 27 April 2009 a three-judge panel of the Dubrovnik County Court dismissed the applicant’s objection against the indictment as ill-founded (see paragraph 28 above) on the grounds that there was sufficient suspicion to warrant sending the case for trial. 32. The applicant’s pre-trial detention was further extended by a three-judge panel of the Dubrovnik County Court, presided over by Judge Z.Č. on 5 June 2009, which reiterated the same reasons as in its previous decision. 33. Meanwhile, Judge Z.Č., who had presided over the panels extending the applicant’s pre-trial detention (see paragraphs 24, 30 and 32 above), assumed responsibility for the applicant’s case as president of the trial bench of the Dubrovnik County Court. 34. At hearings held on 16 and 17 June 2009 the applicant pleaded not guilty and the trial bench heard evidence from several witnesses. 35. The applicant also applied to have the results of the secret surveillance measures excluded from the case file as unlawfully obtained evidence on the grounds that the orders for their use had not been sufficiently reasoned and had thus been contrary to Articles 180a, 181 and 182 of the Code of Criminal Procedure (see paragraph 55 below). 36. In a short oral explanation and ruling out the possibility of appeal against his decision, the president of the trial bench dismissed the applicant’s request as ill-founded. The trial bench then examined the evidence obtained by secret surveillance. It also decided to obtain further evidence proposed by the prosecution and the applicant, and adjourned the hearing. 37. On 4 August 2009 a three-judge panel of the Dubrovnik County Court, composed of judges P.M., E.Č. and M.V., extended the applicant’s pre-trial detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) reiterating the reasons stated in the previous decisions on his detention. 38. On 25 August 2009 Judge Z.Č., referring to the Court’s case-law and the case-law of the Constitutional Court (Ustavni sud Republike Hrvatske), asked to withdraw from the case as president of the trial bench on the grounds that his previous involvement in the case, as president of the panels which had extended the applicant’s pre-trial detention, could raise doubts about his impartiality. 39. Following Judge Z.Č.’s request, on 26 August 2009 the President of the Dubrovnik County Court asked the Supreme Court to transfer the trial to another court since all the judges of the Criminal Division of the Dubrovnik County Court had already taken part in the applicant’s case. 40. On 9 September 2009 the Supreme Court dismissed that request on the grounds that there were no reasons to doubt the impartiality of the Dubrovnik County Court judges. It held that the mere fact that a judge had presided over the panels extending the applicant’s detention could not raise any issue of his impartiality since the questions to be decided when the detention was extended differed from those which the judge had to decide when examining the case on the merits. There were also no reasons to doubt the impartiality of Judge Z.Č. within the meaning of Article 36 § 2 of the Code of Criminal Procedure (see paragraph 55 below). 41. The applicant’s detention was further extended on 1 October 2009 by a three-judge panel in which Judge Z.Č. sat as a member of the panel, relying on Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges) and reiterating the reasons from the previous decisions on detention. 42. At a hearing on 26 November 2009 the trial bench questioned several witnesses and the defence again sought to have the evidence obtained by secret surveillance excluded from the case file as unlawfully obtained evidence. Ruling out the possibility of appeal, the president of the trial bench dismissed the request as ill-founded. The trial bench thus examined the evidence obtained by the use of secret surveillance measures. 43. On 3 December 2009 a three-judge panel of the Dubrovnik County Court, composed of judges P.M., S.V. and M.V., extended the applicant’s detention under Article 102 § 1 (3) and (4) of the Code of Criminal Procedure (risk of reoffending and gravity of charges), reiterating the reasons stated in the previous decisions. 44. At a hearing on 17 December 2009 the applicant pleaded not guilty and denied all the charges against him. The parties gave their closing statements and the trial bench concluded the hearing. 45. On 18 December 2009 the Dubrovnik County Court found the applicant guilty on charges of drug trafficking and money laundering and sentenced him to nine years’ imprisonment. The judgment was based on an analysis of the applicant’s defence and the statements of his co-accused, as well as on the statements of witnesses, evidence obtained through numerous searches and seizures and the use of secret surveillance measures. 46. As to the refusal to exclude the latter evidence from the case file, the Dubrovnik County Court noted: “The court found that the defence of the accused Ante Dragojević was unconvincing, contradictory and aimed at avoiding his criminal responsibility .... The court examined the audio recordings (CD) of the conversations between the accused and witnesses I.Ž. and M.R. after it had found that the recordings had been made pursuant to the orders of the investigating judge of the Zagreb County Court no. Kir-Us-14/07 authorising the telephone tapping. These were the reasons why the court dismissed the request made during the proceedings that these recordings be excluded from the case file as unlawfully obtained evidence. [Moreover] the court considered them to be lawful and acceptable evidence obtained pursuant to valid court decisions. This court also refused the request by the defence to examine the case files of the Rijeka County Court no. Kir-Us-1/09 and the Zagreb County Court no. Kir-Us-14/07 [concerning the use of secret surveillance], because it considered those requests irrelevant and obsolete for the same reasons referred to in the decisions concerning the requests for exclusion of the secret surveillance recordings from the case file. As to the request that the secret surveillance orders be excluded from the case file as unlawfully obtained evidence on the grounds that they did not contain an assessment of the likelihood that the accused themselves or jointly with other persons had committed one of the offences proscribed under Article 181 of the Code of Criminal Procedure, and that they did not contain an assessment of whether the investigation could be conducted by other means, this court considers that this is not correct because the orders were sufficient and well-reasoned and eventually resulted in an indictment being lodged [against the accused]. In any event, as to the request by the defence that the secret surveillance orders be excluded from the case file as unlawfully obtained evidence, it should be noted that these are not evidence but court decisions so they cannot be excluded from the case file as unlawfully obtained evidence. And as regards the evidence obtained on the basis of these orders, this court considers that there was no breach of the Code of Criminal Procedure and therefore it does not consider them to be fruit of the poisonous tree but lawfully obtained evidence.” 47. On 27 January and 3 February 2010 the applicant lodged an appeal against the first-instance judgment with the Supreme Court. He argued, inter alia, that the secret surveillance orders had not been properly drafted as required under the Code of Criminal Procedure given that they had not given a proper assessment of the likelihood that the offences in issue had been committed, or of the circumstances indicating that the investigation could not be conducted by other means. In his view, this had led to his unlawful surveillance and therefore any evidence thus obtained could not be used in the criminal proceedings against him. He challenged, further, the basis of the first-instance court’s reasoning in its judgment, namely, the evidence obtained through secret surveillance. The applicant also requested the Supreme Court to quash the first-instance judgment and order that a retrial be held before a differently composed trial bench. 48. The Supreme Court dismissed the applicant’s appeal as ill-founded and upheld the first-instance judgment on 23 September 2010. It held that all relevant facts had been sufficiently and correctly established, that the applicant had had every opportunity to participate effectively in the proceedings and that the first-instance court had given sufficient reasons for its decisions. As to the alleged unlawfulness of the applicant’s secret surveillance, the Supreme Court noted: “As regards the secret surveillance orders, contrary to what is alleged in the appeal, these impugned orders contain sufficient reasons as to probable cause to believe that the offence under Article 173 § 2 of the Criminal Code was committed, as well as to the fact that the investigation into this offence could not be conducted by other means and that [such investigation] would be extremely difficult, which is evident from the fact that the investigating judge did not refuse to issue the orders. In fact he issued the orders as required under Article 182 § 2 of the Code of Criminal Procedure. It follows that the appellant’s allegation that the impugned orders of the investigating judge do not contain sufficient reasons, is erroneous and that they are therefore not unlawfully obtained evidence within the meaning of Article 9 § 2 of the Code of Criminal Procedure.” 49. The applicant subsequently lodged a constitutional complaint with the Constitutional Court on 21 October 2010 arguing, inter alia, that the trial bench had lacked impartiality because of the previous involvement of Judge Z.Č. in the case; that his secret surveillance had been unlawful on account of the failure of the investigating judge to issue an order in the manner required under the relevant law; and that the use of the evidence thus obtained for his conviction had rendered the entire proceedings unfair. 50. On 25 May 2011 the Constitutional Court dismissed the applicant’s constitutional complaint as ill-founded. It endorsed the reasoning of the Supreme Court with regard to the use of secret surveillance measures and the use of evidence thus obtained in the proceedings. As regards the lack of impartiality of the trial bench, the Constitutional Court observed: “In the case in issue, the mere fact that the president of the trial bench had on three previous occasions ... sat on a panel which extended the appellant’s pre-trial detention cannot in itself be a reason for disqualifying the judge from deciding the merits of the case. There is a significant difference between the decision on detention and the decision on the guilt of the appellant. When ruling on an extension of detention, a member of a panel of judges decides only the legal issues on which the application of the procedural law concerning the so-called causae arresti (Article 102 of the Code of Criminal Procedure) depends. Accordingly, he or she does not assess all the legal and factual aspects of the charges. The charges will be assessed in the first-instance proceedings. However, the appellant has not advanced any reasons why Judge Z.Č.’s participation in the panel [of judges] which had extended his detention could be considered to have led him to form a previous conviction as to his guilt.” 51. The decision of the Constitutional Court was served on the applicant’s representative on 13 June 2011. | 1 |
test | 001-172811 | ENG | RUS | ADMISSIBILITY | 2,017 | SAMOYLENKO AND OTHERS v. RUSSIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 1. A list of the applicants is set out in the Appendix. 2. The Russian Government (“the Government”) are represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Between 1986 and 1987 the applicants took part in the clean-up operation at the Chernobyl nuclear disaster site. They were subsequently registered disabled and became entitled to various social benefits and compensation paid on a regular basis. 5. Considering these benefits insufficient, the applicants together with 482 other people, most of them represented by Ms A., sued the Russian Ministry of Finance for additional compensation corresponding to non-pecuniary damage suffered as a result of their participation in the operation. 6. On different dates in February and April 2011 the Nalchik Town Court of Kabardino-Balkaria (“the Town Court”), presided over by Judge Be., allowed their claims in part and awarded each claimant, including the applicants, compensation ranging between 1,200,000 Russian roubles (RUB) and RUB 1,800,000 for non-pecuniary damage. 7. No appeals were lodged against these judgments within the statutory ten-day time-limit. 8. On 26 October 2011 Mr Samoylenko (no. 58068/13), Mr Chechenov (no. 58078/13) and Mr Ovcharov (no. 58429/13) received the amounts awarded by the Town Court. 9. On 21 December 2011 Mr Kuchmezov (no. 58078/13) received his payment. 10. On 6 and 7 June 2011 respectively the Town Court, again presided over by Judge Be., rejected a request by the defendant authority to have the time-limits for appeal extended (“extension request”) on the ground that it had not given a valid reason for its failure to comply with the statutory timelimits. The decision indicated that the defendant authority had been represented at the hearing by Ms B., an employee of the regional department of the State Treasury. 11. On 23 October 2012 the defendant authority lodged an appeal against the decision issued in 2011 by which the Town Court refused to extend the time-limits for appealing against the main judgments. It was accompanied by an extension request. 12. On 15 and 16 November 2012 respectively the Town Court, presided over by Judge Be., granted the defendant authority’s extension request. 13. Mr Chechenov appealed. 14. On 27 December 2012 the regional Supreme Court dismissed his appeal on the grounds that the domestic courts had failed to serve the defendant authority with the main judgments. Moreover, it noted that it was apparent from the transcript of the hearing of 6 June 2011 that the Town Court had neither verified whether Ms B. had been duly appointed to represent the Ministry of Finance nor ascertained her identity. 15. On 28 February 2013 the regional Supreme Court quashed the decisions adopted by the Town Court on 6 and 7 June 2011 and granted the defendant authority’s extension request on the ground that it had had a valid reason for missing the statutory time-limit for appeal. 16. On the same day the regional Supreme Court quashed the main judgments delivered by the Town Court in the applicants’ favour on the grounds that they had been based on a retrospective application of the law. The applicants were ordered to repay the sums received under the judgments. 17. The applicants, all assisted by their lawyers, lodged a supervisory review application. There is no indication that they requested the enforcement proceedings to be suspended pending the examination of their supervisory review application. 18. According to the applicants, they were visited by bailiffs who sought the reimbursement of the sums received under the quashed judgments. 19. On 11 July and 29 August 2013 the Presidium of the regional Supreme Court partially quashed the appeal judgments as regards the applicants’ obligation to reimburse the sums paid. 20. On an unspecified date at the end of 2012 the President of the Supreme Court of Kabardino-Balkaria lodged a request with the Judicial Qualifications Board of Kabardino-Balkaria, seeking to have disciplinary measures taken against Judge Be. for serious procedural violations during the examination of civil claims for compensation by clean-up workers at the Chernobyl nuclear disaster site. In particular, she had accepted for examination claims failing to comply with the admissibility criteria, had failed to publish her judgments on the court’s website within a reasonable time, had allowed representatives without proper forms of authority to take part in the proceedings, and had failed to properly inform the parties of the decisions taken. 21. On 7 December 2012 the Judicial Qualifications Board found Judge Be. responsible for the serious procedural violations and ordered her removal from office. 22. On 25 October 2013 the North Caucasus investigative committee initiated a criminal investigation against Judge Be. under Article 305 § 2 of the Criminal Code (pronouncement of a deliberately unlawful judgment). 23. On 4 March 2013 the North Caucasus investigative committee opened criminal case no. 70/17-13 against Ms A., the applicants’ representative in the domestic proceedings, under Article 159 of the Criminal Code (fraud). Ms D., the clerk of the Town Court was also prosecuted. 24. According to the Government, in June 2015 both of them decided to plead guilty. 25. On 10 October 2014 Mr Kuchmezov, the head of the regional organisation Chernobyl Union, was arrested on suspicion of fraud. 26. It was established in the course of the investigation that on 22 December 2011 and 26 June 2012 he had withdrawn money from two other former Chernobyl workers’ bank accounts. However, he had not informed them of the exact amounts awarded by the court and had given them only a part of their compensation. 27. Article 112 of the Russian Code of Civil Procedure (“the CCvP”) provides that a court may extend a time-limit for a procedural action, such as lodging an appeal, if it finds that a party has a valid reason for missing it. 28. Under Article 338 of the CCvP, in force before 1 January 2012, an appeal in a civil case could be lodged within ten days of delivery of the firstinstance judgment in its final form. Since 1 January 2012 the timelimit for lodging an appeal has been one month (Article 321 of the CCvP). 29. Article 1109 § 3 of the CCvP stipulates that where a decision to award compensation for damage to health is quashed on appeal or by way of supervisory review, and that decision has been taken in the absence of bad faith and miscalculation on the part of the recipient, the compensation itself cannot be claimed back. 30. Section 39 (2) (1) of the Enforcement Act provides that enforcement proceedings may be suspended by the domestic court if the judgment on the basis of which a writ of execution was issued is amenable to review. Section 45(6) of the same Act provides that no coercive measures may be taken if enforcement proceedings have been stayed. | 0 |
test | 001-159957 | ENG | PRT | COMMITTEE | 2,016 | CASE OF ESCALDA FERREIRA v. PORTUGAL | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time) | Paulo Pinto De Albuquerque | 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 19 January 2005 bank C. brought enforcement proceedings against the applicant before the Setúbal Court seeking the payment of a debt of 106,278.60 euros (EUR) plus EUR 23,122.72 in interest. 6. On 8 October 2007 a writ of execution was issued against the applicant concerning an apartment he had mortgaged to the bank (penhora do apartamento). On an unspecified date a judicial enforcement officer (agente de execução) was appointed by the Setúbal Court as depositary (fiel depositário), thus being in charge of the apartment and responsible for the course of the enforcement proceedings through the sale of the applicant’s apartment, pursuant to the Code of Civil Procedure. 7. On 29 September 2009 the applicant lodged a complaint with the Setúbal Court regarding the judicial enforcement officer’s inactivity in the proceedings. 8. On 15 February 2012 the applicant lodged a complaint with the Commission for the Efficiency of Executions (Comissão para a Eficácia das Execuções) complaining about the judicial enforcement officer’s professional conduct which was preventing the sale of the applicant’s apartment. On 18 June 2012 the Commission acknowledged the receipt of the applicant’s complaint and in July 2012 informed him that they would start disciplinary proceedings against the judicial enforcement officer. 9. On 3 October 2012 following the applicant’s complaint of 29 September 2009, the Setúbal Court adopted a decision removing the judicial enforcement officer from his post on the grounds of professional negligence and appointed a new one. 10. According to the last information received by the Court on 8 July 2014 the proceedings are still pending at first instance. | 1 |
test | 001-144619 | ENG | LTU | CHAMBER | 2,014 | CASE OF ALBERGAS AND ARLAUSKAS v. LITHUANIA | 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;Egidijus Kūris;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens | 5. The first applicant was born in 1949 and lives in Vilnius. The second applicant was born in 1955 and according to the most recently available data, also lives in Vilnius. 6. In 1994 the Vilnius City municipality assigned a plot of land measuring 0.08 hectares to the first applicant for the construction of an individual house. At the same time similar plots were assigned to other private persons. In accordance with the provisions of the domestic law in force and because of his status as a deportee’s family member, the first applicant was entitled to acquire the plot of land. 7. On 5 September 1995 the first applicant and the Vilnius Region Administration signed a contract by which he purchased the plot of land from the State. He paid 422 Lithuanian litai (LTL; approximately 122 euros (EUR)) and 423 “single-use investment vouchers” (investiciniai čekiai). 8. Subsequently, the first applicant registered the plot of land in his name in the land registry. 9. In 10 April 1997 the first applicant sold the plot for LTL 6,000 (about EUR 1,740) to the second applicant, who then registered the plot of land in his own name. 10. On an unspecified date the second applicant brought a claim before the courts against a private person, R.A., alleging that his right to peaceful enjoyment of his possession had been breached. The second applicant claimed that he had been unable to use his land because R.A., who lived next to the plot of land, had unlawfully put a fence around it. 11. R.A. lodged a counterclaim against both applicants, requesting the annulment of the land sale contracts of 1995 and 1997 (see paragraphs 7 and 9 above), together with the decisions of the authorities. R.A. claimed restoration in natura of her ownership rights to the disputed plot of land, as it was part of her father’s land which had been nationalised by the Soviet authorities. R.A. had requested the restoration of her property rights in 1991, and in 1999 her rights had been restored in natura, but only to a part of her father’s plot of land. 12. The courts at two instances granted the second applicant’s claim and dismissed R.A.’s counterclaim, noting that under the Law on the Procedure and Conditions of the Restoration of the Rights of Ownership to the Existing Real Property (įstatymas “Dėl piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atstatymo tvarkos ir sąlygų”; hereinafter “Law on Restitution I”) in 1994, R.A. had been entitled to restitution in natura of not more than 0.2 hectares of land. The local authorities had taken this circumstance into consideration when assigning the plot of land to the first applicant. The fact that under the new Law on the Restoration of the Rights of Ownership of Citizens to the Existing Real Property (Piliečių nuosavybės teisių į išlikusį nekilnojamąjį turtą atkūrimo įstatymas; hereinafter “Law on Restitution II”) in force after 1 July 1997 R.A. was entitled to restoration in natura of up to 1 hectare of land was not considered as meaning that the decisions adopted by the local authorities in 1994-95 were automatically invalid. 13. R.A. appealed against those court decisions to the cassation court. By a final decision of 27 November 2002 the Supreme Court overturned the decisions of the lower courts. By applying the principle of priority for former owners’ rights that had been developed in the civil case P. Roževičienė v. Panevėžio miesto valdyba and others, no. 3K-3-384/1999, the Supreme Court concluded that the local authorities in 1994-95 had not been allowed to sell plots of land to third persons before ownership rights had been restored. The court also indicated that the applicants had acted in “bad faith” (nesąžiningai) when purchasing the disputed plot of land; however, the court decision did not substantiate the first applicant’s “bad faith”. As concerns the second applicant’s “bad faith”, the Supreme Court assumed that he had known about the third persons’ rights to the land. 14. By the above-mentioned decision of the Supreme Court the contracts of 1995 and 1997, together with the decision of 1994 to assign the disputed plot, were annulled and the plot was returned to the State. The first applicant had to return LTL 6,000 to the second applicant, the amount which he had received from the latter for the plot. The State had to return LTL 422 to the first applicant; none of the “single-use investment vouchers” were returned to him, as they no longer had any pecuniary value at the time of the Supreme Court’s decision. 15. Alleging that they had incurred a loss following the decision of the Supreme Court, the applicants applied to the National Land Service (Nacionalinė žemės tarnyba) in 2004 with requests to be assigned a new plot of land of the same size and value. Their requests were dismissed. 16. The applicants applied to the administrative courts. They argued that they had acquired the plot of land in good faith. The applicants had been deprived of the property by a decision of the Supreme Court, and the sums that had been awarded had not adequately compensated for the damage sustained. In particular, the first applicant alleged that the court had not awarded the full value of the property, given that part of the price had been paid in “single-use investment vouchers”. To compensate for their loss, the applicants asked to be assigned a new plot of land. 17. On 1 October 2004 the Vilnius Regional Administrative Court dismissed the claim. On 19 January 2005 the Supreme Administrative Court upheld that decision. The courts noted that the provisions of the domestic law under which the first applicant had been assigned the plot of land were no longer in force. As concerned the second applicant, he was not eligible under the domestic law to be assigned a plot of land either. 18. On 15 August 2005 the first applicant complied with the Supreme Court’s decision of 27 November 2002 and paid the second applicant LTL 6,000. 19. The applicants subsequently applied to the civil courts with a claim for damages against the Vilnius City municipality. 20. On 29 September 2005 the Vilnius City First District Court dismissed the applicants’ claim having reiterated that the applicants had purchased the plot of land in “bad faith”. It appears that the applicants did not appeal against that decision. | 1 |
test | 001-142673 | ENG | LVA | CHAMBER | 2,014 | CASE OF L.H. v. LATVIA | 2 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award | George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano | 5. The applicant was born in 1975 and lives in the Cēsis District (Latvia). 6. On 16 June 1997 the applicant gave birth in the Cēsis District Central Hospital (a municipal enterprise, hereinafter “the Cēsis hospital”). Caesarean section was used, with the applicant’s consent, because uterine rupture had occurred during labour. 7. In the course of that surgery the surgeon performed tubal ligation (surgical contraception) without the applicant’s consent. 8. On 4 February 2005, after her attempt to achieve an out-of-court settlement with the hospital had failed, the applicant initiated civil proceedings against the hospital, seeking to recover damages for the unauthorised tubal ligation. In December of 2006 her claim was upheld and she was awarded compensation in the amount of 10,000 Latvian lati for the unlawful sterilisation. 9. On 19 February 2004 the director of the Cēsis hospital wrote to the Inspectorate of Quality Control for Medical Care and Fitness for Work (hereinafter “the MADEKKI”), requesting it to “evaluate the treatment received by [the applicant] during childbirth in accordance with the legislation in force in 1997”. The MADEKKI initiated an administrative procedure on the following day. The administrative inquiry concerned the applicant’s health care and in particular the gynaecological and childbirth assistance she had been provided from 1996 to 2003. In the process of that inquiry the MADEKKI requested and received medical files from three different medical institutions, containing detailed information about the applicant’s health over that period. 10. In April 2004 M.Z., a MADEKKI staff member, telephoned the applicant and informed her of the on-going inquiry. M.Z. invited the applicant to comment on the case, which she declined to do, referring the MADEKKI to her legal representative, Ms Olsena, instead. During the conversation M.Z. allegedly admonished the applicant for wanting to sue the hospital for damages, and told her that she herself was to blame for her sterilisation. 11. On 7 May 2004 Ms Olsena asked the MADEKKI for information on the legal grounds for, and the factual circumstances of, the inquiry. 12. On 14 May 2004 the MADEKKI issued a report concerning the medical treatment given to the applicant during childbirth in 1997. The report contained medical details about the applicant of a particularly private and sensitive character. It concluded that no laws had been violated during the applicant’s antenatal care or during childbirth. A summary of the findings of the report was sent to the director of the Cēsis hospital on 21 May 2004. 13. On 18 May 2004 the MADEKKI answered Ms Olsena’s questions concerning the administrative inquiry, setting out its opinion on the legal basis for it and providing information on the steps that had been taken in the course of the inquiry. 14. The applicant’s representative lodged a claim with the Administrative District Court, alleging that the MADEKKI had initiated the inquiry unlawfully, since in essence its purpose had been to help the Cēsis hospital to gather evidence for the impending litigation, which was outside the MADEKKI’s remit. It was also alleged that the MADEKKI had acted unlawfully in requesting and receiving information about the applicant’s health, as it had violated the applicant’s right to respect for her private life. That right had been further violated when the MADEKKI unlawfully transferred the applicant’s data to the Cēsis hospital. Lastly, the court was requested to annul an administrative act – the MADEKKI’s report – since its findings were erroneous. Compensation in the amount of 500 Latvian lati was requested in respect of non-pecuniary damage. 15. On 12 May 2005 the Administrative District Court adopted a judgment by which it terminated the proceedings with regard to the request to annul the MADEKKI report, as in the court’s opinion the report did not create any specific rights or obligations for the applicant and thus could not be considered an administrative act, and dismissed the remainder of the application as ill-founded. 16. Counsel for the applicant appealed and on 16 June 2006 the Administrative Regional Court adopted a judgment by which it upheld in full the first-instance court’s judgment and endorsed that court’s reasoning, essentially equating the activities of the MADEKKI with the provision of health care, which, according to domestic law, was a legitimate reason for gathering personal data. 17. On 8 February 2007 the Senate of the Supreme Court dismissed an appeal on points of law lodged by the applicant, in which reference was made, inter alia, to Article 8 of the Convention and to the cases of Z v. Finland (25 February 1997, Reports of Judgments and Decisions 1997I) and M.S. v. Sweden (27 August 1997, Reports of Judgments and Decisions 1997IV). 18. The Senate agreed with the lower courts that the MADEKKI report could not be considered an administrative act. It further considered that this report was not an action of a public authority (faktiskā rīcība) and thus was not amenable to review in administrative courts. 19. It thus remained for the Senate to address the applicant’s claims that the MADEKKI’s actions in preparing the report had been unlawful. In this regard the Senate considered that the Medical Treatment Law gave the MADEKKI the right to examine the quality of medical care provided in medical institutions not only upon receiving a corresponding complaint from a patient but also when a request for such examination had been submitted by a medical institution, which had an obligation to protect the interests of the society so that, should any irregularities be found by the MADEKKI, they might be eliminated and their recurrence with respect to other patients avoided in the future. 20. The Senate agreed with the applicant that the processing of sensitive data concerning her constituted an interference with her rights guaranteed by, inter alia, Article 8 of the Convention. The Senate then went on to summarise the findings of the Strasbourg Court in the two cases invoked by the applicant, emphasising in particular that the Convention left to the States a wide margin of appreciation in balancing the confidentiality of medical data and the necessity to preserve patients’ confidence in the medical profession and in the health services in general. 21. The Senate further held that both the Medical Treatment Law and the Personal Data Protection Law contained exceptions that permitted the MADEKKI to collect and process the otherwise confidential medical data. The former listed such exceptions explicitly (see paragraph 30 below), while the latter allowed processing of medical data for the purposes of medical treatment or the provision or administration of heath care services (see paragraph 28 below) or if processing of personal data was necessary for a system administrator to carry out his legal duties (see paragraph 29 below). The Senate continued as follows: “according to [the law] the MADEKKI has a duty to control the quality of medical care. In order to carry out such control, the MADEKKI requires information about the patient and his care”. 22. The Senate concluded as follows: “Taking into account the aforementioned, the [Senate] finds that restrictions to a person’s private life connected to gathering and processing of sensitive personal data are provided for by law. When regulating this question, the legislator has already assessed the aim and proportionality of such restrictions, as well as has provided for safeguards against unjustified disclosure of the above-mentioned data. Consequently [the applicant’s] argument that the Regional Court ought to have assessed the aim and proportionality of the restriction is unfounded. Additionally the [Senate] considers that the Regional Court has correctly interpreted and applied the above-mentioned legal provisions and has come to the correct conclusion that the MADEKKI, in order to carry out the control of the quality of medical care, which it is competent to do, had a right to receive and process [the applicant’s] sensitive data without asking for her consent and that the MADEKKI has acted within its sphere of competence and in accordance with the provisions of the law concerning the processing of sensitive personal data. The MADEKKI used the information it had collected about [the applicant] in order to carry out its functions, namely, to control the quality of the medical care provided to [the applicant], while to the Cēsis hospital it only handed over its conclusions concerning the legality of the doctors’ actions, which did not contain [the applicant’s] sensitive data.” 23. For these reasons the Senate decided to uphold the lower courts’ decisions. 24. Section 10 of the Medical Treatment Law (Ārstniecības likums) at the relevant time provided that the MADEKKI was the institution responsible for monitoring the quality of medical care provided in medical institutions. 25. The MADEKKI’s work at the relevant time was governed in more detail by its statute (nolikums), which had been approved by the Cabinet of Ministers. The statute provided that the MADEKKI was a government institution, whose main functions were to inspect and monitor the professional quality of health care in medical institutions irrespective of their ownership status (paragraph 1). Paragraph 3 of the statute listed the principal functions of the MADEKKI, such as to examine complaints in order to protect the rights of patients (paragraph 3.3), to oversee and issue reports concerning the professional quality of medical care in the event of complaints (paragraph 3.4), to issue reports on the quality of medical care in medical institutions (paragraph 3.6) and the like. 26. According to its statute the MADEKKI had a right to carry out scheduled (“plānveida”) checks on the quality of medical care as well as to carry out the required checks in response to complaints and requests (paragraph 4.1). Paragraph 4.2 authorised the MADEKKI “to request from private individuals and officials documents and information concerning questions within its field of competence”. If the MADEKKI found that laws had been broken in the course of providing health care, it was authorised to apply administrative fines and issue warnings, as well as to give appropriate recommendations to doctors and administrators of medical institutions. 27. Lastly, section 72 of the MADEKKI statute provided that its staff had to maintain confidentiality with regard to any information obtained in the performance of their professional duties. 28. The Personal Data Protection Law (Fizisko personu datu aizsardzības likums) provides, in section 11, that the processing (which is defined as any activities with personal data, including collecting, registering, using, and so on) of sensitive personal data (including information about a person’s health) is permitted only after having received written consent from the data subject. Without such consent personal data may be processed only in a limited number of situations, including “if ... necessary for the purposes of medical treatment [or] the provision or administration of heath care services” (section 11(5)). 29. Section 7 of the Personal Data Protection Law provided more generally that processing of personal data was allowed only if that law did not provide otherwise and if at least one of the other conditions was present. One of the additional conditions was that the processing of the data was necessary for a system administrator to carry out his legal duties (section 7(3)). A “system administrator” for the purposes of this Law was “a natural or legal person who determines the aims of a data processing system and the means of processing [of the data]”. | 1 |
test | 001-164414 | ENG | POL | CHAMBER | 2,016 | CASE OF JANUSZ WOJCIECHOWSKI v. POLAND | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1950 and lives in Warsaw. 6. The applicant was detained from 15 June 2007 until 21 January 2009 after a conviction. It appears that he was at first committed to a semiopen facility, Dobrowo Remand Centre, and following his reclassification as a habitual offender, to a closed-type facility, Koszalin Remand Centre. 7. The following findings were made by the domestic courts in the course of the civil proceedings described below (see paragraphs 2433 below). Neither the applicant nor the Government contested them. 8. For 309 days of his total period of detention in Koszalin Remand Centre, the applicant was held in cells which did not conform with the statutory minimum size of 3 sq. m per person. More particularly, the applicant had between 1.9 to 2.6 sq. m of personal floor space in his cells. 9. Initially, the toilet facilities in Koszalin Remand Centre were not separated from the living area of the cells in question. In 2008 or 2009, however, construction work started and the toilets were gradually enclosed by concrete walls with a door. 10. All of the applicant’s cells were well-lit, ventilated and, when necessary, heated. They were equipped with enough bunk beds for each detainee to have a separate place to sleep, as well as a table, stools and cupboards. 11. In 2009 the Koszalin Remand Centre’s day-room was turned into cells. However, detainees continued to have access to a library and various forms of leisure and cultural activities. 12. It appears that in Koszalin Remand Centre the applicant had one hour of outdoor exercise per day. Initially, the applicant had one hot shower per week. From 18 October 2007 that number was increased to five per month. 13. The applicant was assigned a top bed. He submitted that that was contrary to medical recommendations because he had health problems (see paragraphs 17-20 below). He did not submit any documents to that effect. 14. The applicant submitted that for the whole of 2008 he had not been able to attend Sunday Mass at the remand centre. 15. As established by the domestic courts (see paragraphs 24-33 below), at the material time, three Catholic services had been organised on Sundays and one on religious holidays. Prisoners wishing to attend had to sign up with their supervisors (wychowawca). Subsequently, a list of persons approved for a particular Mass had been prepared by remand centre staff, with the help of a special computer program. The system had been designed to select prisoners on a rotation basis, according to their classification groups and in a way so as not to mix prisoners classed as dangerous detainees with those who did not require any special security measures. At times, however, individual prisoners were rejected because they did not belong to the group authorised to attend Mass on a particular day. 16. The remand centre register showed that the applicant had been authorised to attend Sunday Mass four times, twice in September and twice in November 2008. 17. The domestic courts established that three years before his detention the applicant had been admitted to hospital because of inflammation of the testicles, prostatic hyperplasia, pneumonia and an unspecified skin condition, for which he had received treatment similar to that usually prescribed for dermatitis (zapalenie skóry). 18. During his detention in Koszalin Remand Centre, the applicant often made appointments with the in-house doctor because of colds, back ache and prostate problems. On 15 November 2007 a drug called Prostamol was prescribed for the applicant, in compliance with his wish. Another medicine which the applicant had previously taken for his prostate condition, Doxar, was not in the remand centre’s stock. A generic medicine was offered to the applicant instead. Eventually, Doxar was sent to the prison by the applicant’s relatives. 19. The applicant also received treatment for a scalp condition, tinea versicolor (łupież pstry). In addition to that treatment, from 18 October 2007 onwards, he was entitled to an additional monthly shower. On 20 June 2008 the applicant was examined by a dermatologist and his skin condition was diagnosed as seborrhoeic dermatitis (łojotokowe zapalenie skóry), a chronic inflammatory scalp disorder. Consequently, the applicant’s treatment was changed slightly. It was also established that the first symptoms of that disorder had appeared prior to the applicant’s detention, in 2004. An expert in dermatology, appointed by the domestic court, excluded the possibility that the applicant had developed the illness because of contact with an allegedly dirty and mouldy mattress. The expert also concluded that the applicant had received the treatment which was usually prescribed in such cases by dermatologists. In the 18 months following diagnosis of the illness, the applicant was seen by a doctor on thirty occasions. Subsequently, throughout 2008, he made twelve medical appointments. 20. In 2008 the applicant also obtained dentures. 21. In 2007 and 2009 the applicant lodged a number of complaints with the Ombudsman, the Ministry of Justice and the relevant penitentiary court, informing them of the allegedly deplorable conditions of his detention, his inadequate medical care and of unreasonable restrictions on the practice of his religion during his detention in Koszalin Remand Centre. 22. On an unspecified date the Central Inspectorate of the Prison Service (Centralny Inspektorat Służby Więziennej) informed the applicant that his complaints had been considered ill-founded. It was established that the applicant had received adequate medical care. In particular, the remand centre had administered Prostamol and the other drug, Doxar, had been obtained with the authorities’ permission from the applicant’s relatives. The remand facility in Dobrowo had not registered any overcrowding. The applicant’s cells had been adequately furnished and there had been place for each detainee at the cell’s communal table. 23. In letters of 11 May and 15 June 2009, the authorities informed the applicant that he had had unrestricted access to religious services in Koszalin Remand Centre, in accordance with the special schedule. Moreover, the applicant’s placement in overcrowded cells had been in compliance with the law, namely Article 248 of the Code of the Execution of Criminal Sentences. 24. The applicant, who was represented by a lawyer, also brought a civil action for infringement of his personal rights on account of overcrowding, inadequate medical care and unreasonable restrictions on the practice of his religion in Koszalin Remand Centre by means of attendance of Sunday Mass. He claimed 50,000 Polish zlotys (PLN) (approximately 12,000 euros (EUR)) in compensation. The domestic courts examined the claim under Articles 23, 24, 417 and 448 of the Civil Code (Kodeks Cywilny). 25. On 14 December 2010 the Koszalin District Court (Sąd Rejonowy) held that the applicant’s placement in overcrowded cells for a period of 309 days during his detention constituted degrading and inhuman treatment within the meaning of domestic law and the Convention. 26. The rest of the applicant’s complaints were considered ill-founded. 27. The evidence which was obtained by the civil court, inter alia, the applicant’s medical history, witness testimony and the report of an expert in dermatology, had disproved the applicant’s allegations that he had contracted his skin condition in the remand centre because his mattress had been dirty and damp and that his illness had been inadequately treated. 28. The domestic court considered that in view of the fact that the applicant had been authorised to attend Sunday Mass a total of four times in September and November 2008 and in the light of the testimony of the prison chaplain that the applicant had been free to request attendance in Sunday Mass, it could not be said that his access to religious services had been unreasonably restricted. It was also noted that detainees had been free to make individual appointments with the remand centre’s priest. The applicant had not wished to do so at the material time. 29. Lastly, the applicant’s submission that he had obtained a doctor’s recommendation to have a bottom bunk had not been supported by any documents. 30. In view of the above, the Koszalin District Court awarded the applicant PLN 5,000 (approximately EUR 1,200) in non-pecuniary compensation on account of the suffering caused by his detention in overcrowded cells. The domestic court also ordered the applicant to pay PLN 1,200 (EUR 300) towards the costs of the proceedings. 31. The applicant submitted a hand-written appeal against the above-mentioned judgment, dated 24 January 2011. The document does not bear any stamps but is accompanied by an official note, confirming that on 24 January 2011 the applicant wished to send his appeal to the Koszalin District Court from Żytkowice Prison. 32. On 5 April 2011 the Koszalin Regional Court (Sąd Okręgowy) dismissed an appeal brought by the respondent and, apparently, the applicant’s appeal. The first-instance judgment was upheld. 33. An appeal by the applicant against the judgment of the appellate court was rejected as no such appeal was available under the applicable law. | 1 |
test | 001-182861 | ENG | MLT | CHAMBER | 2,018 | CASE OF UNIFAUN THEATRE PRODUCTIONS LIMITED AND OTHERS v. MALTA | 4 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The first applicant, Unifaun Theatre Productions Limited, is a limited liability company which produces theatrical performances in Maltese theatres. The second and third applicants are the two directors of the company. The fourth applicant is the artistic director of the theatrical production known as “Stitching”, a play written by the Scottish playwright Anthony Neilson, originally published in 2002 in the United Kingdom by the publishing house Metheun Drama. The fifth as well as the third applicants are two actors engaged to perform in the mentioned production (as Stu and Abby, the main characters). 6. In October 2008, the first applicant, via the second applicant, decided to produce the play Stitching for the theatre audiences in Malta, and proceeded to obtain the necessary performance licence from the author and his agent. The relevant authorisation was granted to the first applicant by the author and agent of the production following the payment of a fee. 7. On 23 December 2008 the first applicant lodged an application with the Board for Film and Stage Classification (“the Board”), in order for a rating certificate to be issued in terms of the Stage Regulations (see Relevant domestic law). The relevant fee was paid and a clean copy of the script submitted. 8. At the same time, the first applicant entered into a reservation agreement with a theatre for eight dates between 13 February and 1 March 2009 and hired the third, fourth and fifth applicants in connection with the services for such play. 9. On 20 January 2009 the Board issued a certificate (no. 0000043), which was received by the applicants on an unspecified date, stating that the play had been examined by its chairperson (T.F.) and that it was decided that it was “Banned – Banned and disallowed”. No reasons were provided for the decision. Before this Court the Government submitted a further classification certificate with the same conclusion, also dated 20 January 2009, which stated that the classifier was T.F., as well as C.X., A.M. and D.M. (the latter names added by means of an asterisk). The applicants submitted that they had never received the certificate submitted by the Government. The Government explained that the latter certificate was an internal document. 10. On 23 January 2009 the first applicant, via the second applicant, sent an email, followed by a telephone call, to the chairperson of the Board enquiring about the decision. No reasons were provided by the chairperson. 11. On 25 January 2009 the first applicant, via its legal counsel, sent a letter to the chairperson requesting a reconsideration of the decision in terms of Regulation 47 (1) of the Stage Regulations. 12. By means of a letter of 29 January 2009 the Board informed the first applicant, via the latter’s legal counsel, that the original decision was reconfirmed. The letter contained no reasons and did not list the names of the persons who had been involved in the review. 13. On 31 January 2009 another letter was sent to the first applicant by the chairperson. It enclosed a document dated 30 January 2009 addressed “to whom it may concern”, which had been deposited with the Commissioner of Police, containing the reasons why the production was banned, namely: “1. Blasphemy against the State Religion – pages 10 and 17 2. Obscene contempt for the victims of Auschwitz – page 29 3. An encyclopaedic review of dangerous sexual perversions leading to sexual servitude – pages 33, 34 and several others 4. Abby’s eulogy to the child murderers Fred and Rosemary West – page 35 5. Reference to the abduction, sexual assault and murder of children – page 36 In conclusion, the play is a sinister tapestry of violence and perversion where the sum of the parts is greater than the whole. The Board feels that in this case the envelope has been pushed beyond the limits of public decency.” 14. On 2 February 2009 the applicants filed a judicial protest against the chairperson, in her personal capacity and as Chairperson of the Board, the Commissioner of Police and the Attorney General claiming that the actions of the Board were illegal in so far as they constituted a violation of Article 39 of the Maltese Constitution and Article 10 of the Convention. They considered the defendants responsible for any damage suffered. 15. By 14 February 2009 (the day following what had to be the first performance date), no reply was received to the mentioned judicial protest. In consequence, the applicants called a press conference explaining the situation, noting that they were adhering to the law but that they were determined to perform the play at some stage. 16. In the evening of the same day, the applicants and their legal counsel were summoned for questioning at the Police Headquarters. The applicants were sternly warned by a police inspector that they would face immediate arrest if they attempted to stage the play. 17. Rehearsals for the production carried on unabated. According to the applicants around two hundred persons watched the rehearsals and none of them found the play objectionable. 18. The Board’s decision was not revoked and an invitation to the Chairperson to attend a rehearsal (as members of the Board sometimes did in connection with other performances) remained unanswered. 19. On 3 March 2009 the applicants instituted constitutional redress proceedings complaining that they had suffered a breach of Article 10 of the Convention. They also claimed damage and redress. Complaining under Article 6 they claimed that they did not have a fair hearing before the Board for Film and Stage Classification in so far as they had no hearing and no possibility to make submissions, nor were any reasons for the decision ever communicated to them. They also relied on the relevant provisions of the Maltese Constitution. 20. By a decree of 20 October 2009 the court rejected a request for the production to be shown behind closed doors to the court and the defendants. 21. During these proceedings the court heard several witnesses which it classified as (i) those who acted in the play and had thus read the script and performed it in rehearsals, (ii) persons who watched the rehearsals but did not read the script and (iii) the defendants who read the script but did not watch the rehearsal. 22. The court heard the applicants, four witnesses (who had watched the rehearsals) produced by the applicants, namely, P.M. a consultant psychiatrist, J.S. an educator, child psychologist and actress, K.D. a tourism marketing executive and actor, a priest who was a former film classifier for the Archdiocese of Malta, as well as the author of the play. The latter testified that the play had been performed uninterruptedly in all parts of the world and extensively in Europe, during which time it had collected a number of awards. 23. The author described the play as follows: “A couple called Stewart and Abby, a very normal couple but however a couple who find themselves in relationship difficulties, there have been betrayals, they’re wondering whether to continue with their relationship. Abby discovers that she is pregnant by Stewart and so a large part of the play is concerned with them discussing whether or not to have the child. Ultimately they decide to have the child but they decide to do so in order to save their relationship, one might say for somewhat impure motives, they feel that having this child will keep them together. However their relationship continues to disintegrate and at one point during a fight they are having between themselves when their attention is diverted elsewhere, the child is involved in an accident and then dies. Obviously this is a huge trauma for them and they are driven apart. They come back together again sometime later, maybe a year later and meet and for them their relationship is not quite finished and they come back together in their grief because they are the only other people who understand the depths of their grief. When they come together they can only do so in a perverted fashion, where Abby actually poses as a prostitute. She wants to make their sexual relationship a matter of commerce in order to distance herself from the emotions. What then ensues is a very violent and dark relationship, a kind of a punishment of themselves, confessions of their guilt. Eventually Abby is tipped into clinical mental illness and performs an act of self-mutilation which she believes will restore her to a virginal state, and that is what finally blows apart their relationship. In a final coda Stewart meets Abby sometime later when she has obviously received treatment for her mental illness and has in fact converted to Christianity and both of them decide to go their separate ways.” 24. He further testified as follows: “(Concerning pornographic references) I would not for instance have used real pornographic pictures. I felt that that would be needlessly offensive for people however another director might chose to do so. ... (Concerning women in Auschwitz walking towards death) it should not be an unfamiliar concept that in their grief that couple confess to thoughts, to feelings that they feel guilty about. The play to some extent is about life and about death. When he talks about masturbating and using as his material pictures of women from Auschwitz, this is something that occurs when he is a small child, this occurs when he is a very young child. He says that it is the first time that he masturbated which would imply that it is reasonably early. At that time of life a young man is completely concerned with procreation, with the creation of life and he understands nothing of death, of mortality. So in fact that is what actually that phrase is about, the fact that he is confessing, he is saying I knew nothing about death, I did not look at the atrocity of life, I saw only the nudity. So it’s actually nothing to do with Auschwitz, it’s to do with sexual urges and it’s to do with him, you know small children don’t understand Auschwitz. (In reply to a court’s question concerning the swearing/blasphemy (daagħa)) well that’s not a concept that ever crossed my mind. I’m not a religious person. (Domestic court’s question - Does the script allow the director to put aside certain references to things that could be described by people as hard? Will the text lose by the director leaving it out? ) I dare say that a director could remove one or two swear words but that would all have to be taken on the case by case basis, but largely speaking I would say they would suffer yes because there is a reason why every line is in every one of my plays. There’s a reason for it and I’m happy to stand here and justify them all day. (Domestic court’s question - As far as Stitching is concerned an omission by the director could affect the whole performance?) Yes absolutely.” 25. P.M., a consultant psychiatrist, stated that in his opinion the play was a love story which unfortunately turned very badly. He explained that following the death of their son through their own negligence, the main characters had a relationship based on various fantasies, until the female character became mentally ill. It was a sad story, with however a redeeming feature, in that the two finally manage to get back a balance in their life. He testified that there was nothing pornographic in the story and the bad language was in the context of the emotions being felt by the couple. 26. J.S., a child psychologist, stated that in her opinion the play concerned a tragedy of a couple going through a crisis, which reached its peak when their son had died in an accident. She explained that the couple tried to connect in ways which were not necessarily conventional. She considered that it was a sensitive play that called for a mature audience. In reply to a court’s question concerning a specific part of the text, J.S. replied that she was not shocked because she could not dissociate her female gender from her being a psychologist. 27. The priest (who saw the rehearsal but did not read the script) considered that he would have classified it for wise adults (bil-għaqal). He explained that when a person was suffering she or he “may lose it” and enter into areas which decent people may object to. However, in his view that was the human reality. When one was ready to study illnesses and the suffering of people who were going through pain one must be democratic and tolerant and give society the chance to understand those not living normally. 28. K.D. (who saw the rehearsal but did not read the script) testified that most of the dialogue was between two people who had certain hang-ups and inter personal problems, and who in a quest to get closer, nearly started a competition between them as to who was the more outrageous. Nevertheless, in his view, at some point one could tell that they were flirting with each other despite them being outrageous. 29. The third applicant who was performing as Abby stated that she did not find the play offensive in any way, noting that the emotions were very real and that she felt that it was a love story. She also testified that no pornography was used as props. 30. The applicants also submitted that the script could be purchased and read by any person in Malta, without hindrance. 31. The defendants produced the witness testimony of the members of the Board and other individuals, as explained below. 32. Another priest (who read the script but did not see the play) felt that the script was offensive in various parts and dehumanising. He was annoyed by the blasphemous words and the reference to the Moors murderer, and very annoyed at the reference to the Holocaust. Further, he considered that the woman was being put forward as an object, and while it was possible that it was her choice, he thought she was totally subordinate to the man. 33. T.M. (a member of the Board who only read the script) had no doubt that it would have been better had they watched the theatrical production. He, however, explained that there were instances, such as the one in the present case, where the script was so objectionable, that he did not feel the need to watch it, since the two elements which he objected to (the words concerning Auschwitz and the passage about Fred and Rose Mary West) would always remain objectionable, no matter the way in which they were presented, be it a tragedy or a comedy. They would nonetheless remain offensive to certain sectors of Maltese society or indeed society anywhere. While shock was a legitimate theatrical weapon and may be used repeatedly, one could not offend other people’s sensibilities. Both in the case of the holocaust and that of child murders, humanity was at stake, and the relevant passages offended the sense of decency one individual should have towards another. 34. D.M. (a psychologist and member of the Board) found the script barely credible in so far as it was unlikely that a person would go through so many situations one after the other. While perversions did exist, this couple was being put forward as a normal couple. In his view a normal couple, a couple who went through a normal life experience such as the death of a child, would not react like the characters in the play, who for example, reenacted a killing which had greatly marked England. Further the scene concerning Auschwitz desecrated the memory of the persons who suffered. 35. Another witness, a retired Chief Justice and professor of law (who only read the script), examined the play from the point of view of public morals. He considered that certain parts of the play were disgusting, such as that describing Auschwitz, and the blasphemous words. He explained that the word “fuck” combined with the word “God” was unacceptable because it offended public morals, not only that of Catholics, but that of half the world. Thus, in his view those parts had to be deleted from the play. The parts concerning sex and sexual perversions, such as the part where the male figure wanted to pay the female figure to allow him to do certain things, disgusted him, but he considered that certain people could accept that. 36. J.C., the member of the board who confirmed on appeal that the play should be banned considered that, apart from other concerns mentioned by other members of the board, it was not justifiable for a couple to do certain things in public just because they were going through a bad patch. It was not acceptable that a woman had to give her vagina to a man to show him she loved him. In his view, if one were to make the appropriate deletions to the script, there would be nearly nothing left, and he could not find anything positive about it. 37. The Chairperson of the Board testified that there were entire scenes which she considered went against morality and were an affront and atrocious attack on human rights and the dignity of the individual. She was shocked and very annoyed by what she considered to be unadulterated pornography where the woman was becoming the man’s absolute slave. She considered that the play in its entirety, and not one scene here and there, was objectionable and offensive. The fact that the play ended with the couple possibly deciding to have a baby, did not suffice to hold that the play had a positive message, given the preceding eighty (sic) pages. 38. In an eighty-two-page judgment of 28 June 2010, the Civil Court (First Hall) in its constitutional competence rejected the applicants’ claims. 39. The court considered that the second applicant had no further interest than that of the director of the company, thus it sufficed that the company was an applicant, and he, thus, had no victim status in his own capacity. Nevertheless, the artistic directors as well as the actors were victims of the alleged violation, as persons who were giving life to a script by means of their artistic representation - a theatrical performance which was a form of expression for the purposes of Article 10. 40. It rejected the Government’s objection as to non-exhaustion of ordinary remedies since the applicants’ complaints concerned mainly issues of a constitutional and conventional nature, and thus were best dealt with by the courts of constitutional jurisdiction. For the purposes of the present case, the applicants were complaining of a human rights violation, and therefore an action for judicial review could not be an effective remedy in so far as it could not award the relevant damage, and could not order that the performance go ahead irrespective of the ban. 41. As to the merits, the court made extensive reference to the Court’s case-law, in particular Handyside v. the United Kingdom (7 December 1976, Series A no. 24), Otto-Preminger-Institut v. Austria (20 September 1994, Series A no. 295A) and Wingrove v. the United Kingdom (25 November 1996, Reports of Judgments and Decisions 1996V) as well as prominent authors in the field of human rights. It considered that the decision of the Board to ban the play had been correct and in accordance with the law and established guidelines. The court, having read the entire script, could not tie the plot which the author wanted to transmit with the means employed to do so. In the court’s view the author did not need to make use of such perversions in order to show the troubled reality of the characters. 42. It considered that the Board was correct to conclude that the play in its entirety was offensive to Maltese society. Indeed the specific scenes referred to, as well as other parts of the play, were an affront to the dignity of the individual, which was an integral part of the civil and moral fabric (tessut) of the country. Even in a pluralistic and democratic society, such as the Maltese one, human dignity could not be trampled on, even if the aim was “presumably” a genuine one. As problematic as the relationship of the couple might have been, one could not make extensive use of vulgar, obscene and blasphemous language to highlight perversions, vilify (ikasbar) the right to life and the right to freedom from inhuman and degrading treatment, and vilify the respect towards a woman’s dignity. It was not acceptable to publicise uncivil behaviour, which broke the law, debased the suffering of women during the holocaust, portrayed women as the object of sexual satisfaction, as well as ridiculed family life and the responsibilities parents have towards their children. A democratic society, while being tolerant, could not permit its values to be turned on their head in the name of freedom of expression. In the court’s view, the stitching of a vagina as an act of sexual pleasure, bestiality, the depravity arising from the thought of a woman eating another woman’s excrement, the pleasure obtained in raping children, the murder of children and sexual intercourse with parents of violated and murdered children, were unacceptable even in a democratic society. The court noted that under Maltese law, blasphemy was a contravention, and a person could not be immune from punishment simply because he or she was acting on stage. The Shoah, the court went on, “was a historical fact where innocent victims underwent unprecedented suffering. Instead of treating this sensitive and delicate subject...with due respect to the dignity of the victims, the character Stu shows only sexual depravity...the author permits the demeaning and humiliation of that tragedy totally out of context and for no other reason than for perversions. No matter how the text of the play is looked at, it runs aground on the reef of the inalienable dignity of the human person, and the court understands that this was the underlying reason for the Board’s decision.” 43. The court rejected their complaint under Article 6 on the basis that the proper procedure had been undertaken, the applicants had been free to put forward their views in their request for reconsideration, which was carried out by another person [not present at first-instance] and no bias had been shown. 44. The applicants appealed the first-instance judgment only in so far as it concerned the merits of their complaints, and asked the Constitutional Court to confirm the judgment in so far as it related to the second applicant’s victim status. By a judgment of 29 November 2012, the Constitutional Court confirmed the first-instance judgment and ordered the applicants to pay all costs. 45. The Constitutional Court noted that the first-court had chosen to exercise its jurisdiction and rejected the defendants’ objection of nonexhaustion of ordinary remedies, which in the absence of an appeal on the matter had become final. Nevertheless, it noted that the applicants had not instituted judicial review proceedings of the administrative action in question (the Board’s decision); thus they were not complaining that the Board’s decision was based on improper motives or irrelevant considerations. Moreover, the ordinary court,’s decision ut sic, and people’s opinions on the play were irrelevant given that the applicants considered the decision to be reasonable. 46. As to the constitutional and conventional complaint raised by the applicants, the Constitutional Court held that the existence of the Board did not breach any of the applicants’ rights, and indeed the applicants had not impugned the law establishing the Board. It further considered that freedom of expression had limits and that it was accompanied by duties and responsibilities. Both the Convention and the Constitution provided for inter alia the protection of morals and the reputation and rights of others, and the Maltese Constitution also included public decency, in the relevant provision. 47. The Constitutional Court, having read the script, shared the firstinstance court’s view about various scenes of the play. It considered that such scenes all throughout the play affected the morality and decency of the entire production, and it was within the Board’s competence to assess that in line with the Regulations. The Constitutional Court had no doubt that there were phrases which constituted disparaging and insolent remarks towards more than one belief, towards women and towards the suffering of the Jews in the Second World War. 48. Referring to the Court’s case-law, in particular, OttoPremingerInstitut v. Austria (§ 47) it recalled that those who chose to exercise the freedom to manifest their religion, “must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to their faith. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to the holders of those beliefs and doctrines.” 49. In its view the limits of decency had been breached due to the blasphemy which was an offence under Maltese law and to the vilification of the dignity of a people, of a woman, of children, and of the human being, as well as the extreme glorification of sexual perversion. These instances were so strong that they affected the play in its entirety and prevailed over any genuine aim presumably intended by the play. The court emphasized that the production despised the dignity of the individual, in particular sectors, such as women and children, whether because of their nationality or religion, and opined that even though the main characters were acting in this way because of tension, pressure and depression, such contempt could not be justified as art. In the court’s view while art was a wide concept covering any type of manifestation of expression, it could not include language which was obscene and despised the trauma of a genocide, and which, in itself, was against the laws of the country. For a strong moral message to be portrayed it was possible to cause discomfort and annoy other persons, but not to the extent of insulting them because of their beliefs, their people, or simply because they were a woman or a child. 50. Recalling that it was the duty of the State to protect the morality of the country, the Constitutional Court considered that the Board had fulfilled its duty. What was morally correct depended on the State and the relevant religion, and could not be determined universally. Thus, the fact that the production was performed elsewhere did not mean that it had to also be produced in Malta, particularly in the light of the laws in force in each country. This was precisely why states had latitude in applying certain restrictions on freedom of expression. 51. It further noted that under the laws in force, the Board could ban the play, as opposed to classifying it for a mature audience. In any event it considered that adults, who could chose to watch the play in such a case, would also be deserving of protection, and thus limitations could also be necessary in such cases. It highlighted the states’ duty to preserve the sensitivities of the silent citizen (as opposed to the vociferous ones, who inundated media forums) and considered that no remedy after the performance could heal any harm already done to society. Thus, in the Constitutional Court’s view the Board’s decision was correct, was not capricious or exaggerated, and it corresponded to the need to protect public morality in Maltese society and the rights of others. 52. The Constitutional Court concluded that it was not necessary to watch the play as the script was enough. In the absence of an Article 14 complaint, it was also unnecessary to compare the performance to other performances which had been allowed by the Board. The applicants having refused to make any changes to the text, despite its invitation to do so, the Constitutional Court confirmed that it would remain banned and that there was no breach of Article 10. 53. In connection with their Article 6 complaint, the Constitutional Court held that the applicants did not institute judicial review proceedings and in any event there had been no breach of their rights. Furthermore, in their view there had been no determination of any civil right. | 1 |
test | 001-152444 | ENG | BIH | ADMISSIBILITY | 2,015 | RALJEVIĆ v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | 1. The applicant, Ms Jasna Raljević, is a citizen of Bosnia and Herzegovina, who was born in 1943 and lives in Mostar. She was represented before the Court by Ms M. Škoro, a lawyer practising in Mostar. 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. In 1949 the applicant and her parents moved in a flat in Mostar owned by E.R.’s father. In 1963 the applicant’s parents were given the occupancy right on that flat. 5. In 1998, following her mother’s death, the occupancy right was transferred to the applicant in accordance with the Housing Act 1974 (see paragraph 24 below). 6. On 12 November 2003 E.R., who inherited the flat after his father’s death, initiated proceedings before the Ministry of Spatial Planning and Construction of the Herzegovina-Neretva Canton (Ministarstvo građenja i prostornog uređenja Hercegovačko-Neretvanskog Kantona; “the Cantonal Ministry”) for the applicant’s eviction and offered her a replacement flat in the same building (“the replacement flat”). The claim was based on section 56 of the Housing Act 1974 which authorised owners of privately owned flats allocated to occupancy right holders to seek their eviction under the condition that they provide them with a suitable replacement flat (see paragraph 24 below). 7. On 4 April 2005 the Cantonal Ministry ordered the applicant to vacate the flat in question. It further ordered E.R. to let her into the replacement flat. 8. On 9 September 2005 the Federal Ministry of Spatial Planning and Environment (Federalno ministarstvo prostornog uređenja i okoliša; “the Federal Ministry”), quashed the decision of 4 April 2005 and remitted the case for a re-hearing. 9. On 4 January 2006 the Cantonal Ministry rejected E.R.’s request. It held that in case of eviction, the applicant would lose her occupancy right on the flat in question, whereas she would not be able to acquire the same right on the replacement flat since from 6 December 2000 it was no longer possible to acquire occupancy rights (see paragraph 25 below). 10. On 19 September 2006 and 17 December 2007, respectively, the Federal Ministry and the Mostar Cantonal Court (“the Cantonal Court”) upheld the decision of 4 January 2006. 11. On 27 January 2010 the Supreme Court of the Federation of Bosnia and Herzegovina (“the Supreme Court”) rejected E.R.’s request for extraordinary judicial review. 12. On 25 February 2008 E.R. lodged a constitutional appeal. 13. The applicant had been invited to submit her third-party comments in the proceedings before the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). However, that court explicitly stated that its examination was limited to E.R.’s appeal. 14. On 25 September 2010 the Constitutional Court held that E.R.’s request for eviction was based on relevant domestic law (section 56 of the Housing Act 1974; see paragraph 24 below) and that in rejecting it the administrative bodies and the Cantonal Court violated his right to the peaceful enjoyment of possessions under Article 1 of Protocol No. 1 to the Convention. It quashed the Cantonal Court’s judgment of 17 December 2007 (see paragraph 10 above) and remitted the case for a re-hearing (having been given upon an extraordinary remedy, the Supreme Court’s judgment of 27 January 2010 was not examined in these proceedings). 15. On 20 December 2010, in the re-hearing proceedings, the Cantonal Court quashed the administrative decisions of 4 January 2006 and 19 September 2006 (see paragraphs 9 and 10 above) in line with the Constitutional Court’s decision. 16. On 16 May 2011 the Cantonal Ministry accepted E.R.’s request and ordered the applicant to vacate the flat in question within fifteen days from the date of notification of that decision. Furthermore, it ordered E.R. to enable the applicant to use the replacement flat. 17. On 11 July 2011 and 9 March 2012, respectively, the Federal Ministry and the Cantonal Court upheld the decision of 16 May 2011. 18. On 14 March 2013 the Supreme Court rejected the applicant’s request for extraordinary judicial review of the Cantonal Court’s judgment of 9 March 2012. 19. On 11 September 2012 an eviction order was issued. The eviction was scheduled for 17 October 2012 at 12 p.m. and was to be carried out with police assistance in view of the fact that the applicant had not left the flat on her own motion within the prescribed time-limit. 20. On 21 November 2012 and 4 October 2013 the eviction order was upheld by the Federal Ministry and the Cantonal Court, respectively. 21. After one rescheduling at the applicant’s request, the eviction took place on 19 November 2012 when the Cantonal Ministry’s commission, in the presence of police officers, E.R.’s representative, the applicant’s representative and the representative of the competent social work centre, made a list of the applicant’s personal belongings, transferred them to the replacement flat and sealed it. The keys to the flat were given to E.R. 22. On 22 November 2012, 17 January, 11 February, 28 February and 1 April 2013 the Cantonal Ministry invited the applicant’s representative to collect the keys to the replacement flat. It would appear that until now she has failed to do so. 23. The applicant is currently staying with her relatives in Sarajevo. 24. In the former Socialist Federal Republic of Yugoslavia nearly all flats were under the regime of “social ownership”. They were generally built by socially-owned enterprises or other public bodies for allocation to their employees, who became “occupancy right holders”. The matter has been regulated by the Housing Act 1974 (Zakon o stambenim odnosima, Official Gazette of the Socialist Republic of Bosnia and Herzegovina nos. 13/74, 23/76, 34/83, 14/84, 12/87 and 36/89; Official Gazette of the Republic of Bosnia and Herzegovina no. 2/93, Official Gazette of the Federation of Bosnia and Herzegovina nos. 11/98, 38/98, 12/99 and 19/99; Official Gazette of the Republika Srpska nos. 19/93, 22/93, 12/99 and 31/99) which is still in force in Bosnia and Herzegovina. An occupancy right, once allocated, entitled the occupancy right holder to permanent, lifelong use of the flat against the payment of a nominal fee. When occupancy right holders died, their rights were transferred, as a matter of right, to their surviving spouses or registered members of their family households who were also using the flat (sections 19 and 21 of the Housing Act 1974). Until the entry into force of the Housing Act 1974, occupancy right could also be awarded in respect of privately owned flats. Those flats were also allocated by public bodies. With the Housing Act 1974 it was no longer possible to award occupancy right in respect of flats in private ownership. However, the pre-existing occupancy rights in respect of such flats were preserved (section 2(2) of this Act). Section 56 of this Act, on the other hand, authorised owners of such flats to seek eviction of the occupancy right holders under the condition that they provide them with another suitable flat. 25. On 6 December 2000 all occupancy rights ceased to exist (section 46(1) of the Privatisation of Flats Act 1997; Zakon o prodaji stanova na kojima postoji stanarsko pravo, Official Gazette of the Federation of Bosnia and Herzegovina nos. 27/97, 11/98, 22/99, 27/99, 7/00, 32/01, 61/01, 15/02, 54/04, 36/06, 51/07, 72/08 and 23/09). The occupancy right holders on socially-owned flats were entitled to purchase their flats under that Act. If they did not purchase the flats, they became tenants. However, the occupancy right holders on privately owned flats could not purchase their flats (section 47(1) of this Act). It would appear that their situation continued to be regulated by the relevant provisions of the Housing Act 1974 and that they became “protected tenants” (zaštićeni stanari). 26. According to Rule 23 (2) and (3) of the Rules of the Constitutional Court, the court shall transmit the appeal to the other party to the impugned proceedings for comments. Failure to submit such comments shall not affect the course of the proceedings before the Constitutional Court. | 0 |
test | 001-160315 | ENG | ARM | CHAMBER | 2,016 | CASE OF KIRAKOSYAN v. ARMENIA (No. 2) | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano | 5. The applicant was born in 1960 and lives in the village of Karakert, Armenia. 6. The applicant has been a member of an opposition political party, the National Democratic Union, since 1995. Since 1997 he has headed the party’s local offices in the Baghramyan area. 7. In March and April 2004 a series of protest rallies were organised in Yerevan by the opposition parties who voiced their criticism of the alleged irregularities which had taken place during the presidential election of February-March 2003 and challenged the legitimacy of the re-elected President. It appears that the applicant participated in these rallies. He alleged that the authorities retaliated by arresting, harassing and searching opposition supporters. 8. On 10 April 2004 at 5.10 p.m. the applicant was arrested and taken to a police station where an administrative case was initiated against him for disobeying the lawful orders of police officers. 9. On the same date the Armavir Regional Court sentenced the applicant to ten days’ administrative detention. 10. The running of the ten-day administrative sentence was to be calculated from 10 April 2004 at 5.10 p.m. The applicant was taken to a detention facility in the town of Ejmiatsin where he served his sentence. 11. On 20 April 2004 at an unspecified hour, the Armavir Regional Court examined and granted an investigator’s motion, which had apparently been lodged on the same date, seeking to have the applicant’s home searched. The judicial warrant stated: “The investigating authority has found it substantiated that on 27 March 2004 at around 12 noon the residents of the village of Myasnikyan of the Armavir Region [K.K. and B.K.] inflicted violence dangerous for health in the pasture located in the administrative area of Lernagogh village in the Armavir Region on representatives of the authorities performing their official duties, [namely] the head of Lernagogh village [S.M.] and head of staff of the Village Council [A.M.]. According to operative information, [B.K. and K.K.] had a weapon during the incident[. F]or the purpose of hiding the mentioned weapon, they gave it to the resident of Karakert village, member of the Union of Yezidis of the Baghramyan area, [the applicant], who may have hidden the mentioned weapon in one of his homes in Karakert village. On 27 March 2004 the Armavir Regional Prosecutor’s Office instituted criminal proceedings no. 65200604 ... concerning this fact. In view of the fact that the facts of the criminal case provide sufficient grounds to believe that an illegally possessed weapon and ammunition may be found in [the applicant’s] home situated in Karakert village in the Armavir Region, as well as other objects and valuables having significance for the criminal case, the court therefore finds that the motion is well-founded and must be granted.” 12. It was stated in the warrant that it could be contested within 15 days before the Criminal and Military Court of Appeal. 13. The applicant alleged that on that day, several hours before the expiry of his administrative sentence, he was taken from the Ejmiatsin detention facility to the Baghramyan Police Department. From there he was escorted home by at least ten police officers. 14. According to the search record, the search was conducted from 5.10 p.m. to 6.55 p.m. by seven police officers of the Baghramyan Police Department, E.M., B.M., M.G., A.Ge., S.M., G.E. and A.Ga. Two neighbours, G.G. and M.S., were asked by the head of the police team to participate in the search as attesting witnesses. The applicant was asked to surrender the illegal weapon allegedly hidden in his house. The applicant stated that he had no illegal objects at home. As a result of the search, a plastic bag containing a cannabis-like herb was found in the boiler situated in the hallway. The applicant stated that he did not know what it was and who it belonged to. It was mentioned at the end of the record that the applicant had refused to sign the record without providing any reasons. 15. According to the applicant and the statements of the two attesting witnesses which were appended to the application form, the search was conducted in the following manner. Upon his return home, accompanied by police officers, the applicant found his pregnant wife in a critical condition, apparently suffering a miscarriage, and his one-year-old son crying beside her. On seeing him, the applicant’s wife fainted. A doctor was called and a number of female neighbours came to help. At that point the head of the police team informed the applicant that his house was to be searched, briefly showing him the relevant search warrant. The applicant alleged that attesting witnesses G.G. and M.S. were asked to participate only after the search had already begun. It appears that G.G. was a war veteran who had suffered concussion and was seriously disabled, while M.S. was seventyfour years old. The search was conducted by more than ten police officers who also used two specially trained dogs. Having searched the house and not found anything, the police officers started searching the yard and the adjacent buildings. The applicant alleged that during the search of the outside premises, the front door of his house was left open and people, including police officers, were coming and going. Moreover, a group of police officers was standing by the front door while the others continued the search. Having found nothing outside the house, the head of the police team announced that they would again search inside the house, to which attesting witness G.G. objected. Following the additional search the police officers found the above-mentioned plastic bag. The attesting witnesses submitted that their objections were not recorded. Moreover, they were persuaded and bullied by the police officers to sign the search record. 16. The applicant alleged that he was taken back to the police station where the chief of police promised that, if he renounced his political convictions and resigned from the party, no further action would be taken in relation to the cannabis. The applicant refused to make such a deal. 17. The applicant further alleged that he was kept at the police station overnight. There he was given a meal, including a hamburger. About 15 to 20 minutes after having eaten the meal he felt sick, started vomiting and lost consciousness. An ambulance was called and some injections were administered. According to the applicant, his meal had been laced with a drug. 18. On 21 April 2004 criminal proceedings were instituted against the applicant under Article 268 § 2 of the Criminal Code on account of illegal drug possession. On the same date at 11.18 p.m. the applicant was formally arrested. 19. On the same date the investigator decided to subject the applicant to a forensic toxicological examination. The applicant alleged that he did not receive a copy of this decision. He was taken to the Republican Centre for Narcotics where a urine sample was taken. 20. It appears that on the same date, a lawyer was engaged in the case. It further appears that the applicant was questioned and denied the drug possession allegations. 21. On an unspecified date the plastic bag and the herbal substance, weighing approximately 59 grams, were examined by a forensic expert and the substance was found to be cannabis. 22. On 23 April 2004 the applicant was formally charged with illegal drug possession and detained by a court order. 23. On the same date, a toxicological expert opinion was produced, according to which the applicant’s urine sample contained traces indicating cannabis consumption. 24. On the same date the lawyer filed a motion with the Armavir Regional Prosecutor seeking to stop the prosecution on the ground that, inter alia, the search had been conducted with numerous procedural violations. A similar complaint was lodged on 27 April 2004. 25. According to the applicant, on an unspecified date his lawyer requested a further examination of the cannabis and the plastic bag by a forensic expert. This request was rejected. He further alleged that, during the investigation, the police officers put pressure on the two attesting witnesses not to attend confrontations which had apparently been requested by the applicant. 26. On 7 May 2004 the applicant’s lawyer applied to the Armavir Regional Prosecutor, challenging the investigator’s impartiality and complaining in detail about the unlawful manner in which the search had been executed, alleging, inter alia, that the bag containing cannabis had been planted by the police officers conducting the search. 27. On 9 June 2004 the applicant’s lawyer complained to the Armavir Regional Prosecutor that the search warrant had lacked proper grounds and that the search had been conducted with numerous procedural violations. The lawyer argued that the investigator had failed to obtain any evidence when investigating his allegations of irregularities. Such evidence could have been obtained by questioning the applicant’s neighbours and the doctor who had provided first aid to his wife, who had been present during the search, and by holding confrontations between the applicant and the attesting witnesses. 28. On an unspecified date the applicant’s criminal case was brought before the Armavir Regional Court. 29. It appears that, in the proceedings before the Regional Court, the applicant’s lawyer filed a motion seeking to exclude the results of the search as unlawfully obtained evidence. It further appears that the Regional Court did not take any decision on this motion. 30. Attesting witnesses M.S. and G.G. both testified before the trial court. In reply to the questions put by the applicant’s lawyer M.S. stated, inter alia, that he and G.G. were watching the police officers as much as they could while entering and going out of the rooms together with the police officers. When giving his account of the events G.G. stated among other things that he helped one of the police officers to reach the water boiler from which a plastic bag and a plate were taken out. He further stated that both the plastic bag and the plate were covered with dust. However, the plate was dustier compared to the plastic bag. Both M.S. and G.G. stated that they did not remember whether they were informed of their right to have the objections that they might have included in the search record and that the applicant refused to sign it stating that the discovered bag did not belong to him. 31. On 22 June 2004 the Armavir Regional Court found the applicant guilty as charged and sentenced him to one and a half years’ imprisonment. In doing so, the Regional Court relied on, inter alia, the witness testimony of the police officers who had conducted the search, including E.M., A.Gh., M.G., M.M., L.F. and A.Ga., and of the two attesting witnesses, as well as the results of the analysis of the applicant’s urine sample. 32. On 29 June 2004 the applicant’s lawyer lodged an appeal. The lawyer argued, inter alia, that the search of the applicant’s home had been conducted with a number of procedural violations and therefore its results could not be used as evidence. In particular, he claimed that the search warrant was not presented to the applicant to get acquainted with it, no signature was obtained from him in this respect and that his objections were not included into the record of the search. He further argued that the search had been authorised by the court on the basis of fabricated police materials and therefore lacked any valid grounds. He also submitted that, according to the Code of Criminal Procedure, the Regional Court should not have relied on the testimony of the police officers, since they had been summoned and examined solely in connection with the performance of their procedural duties and not in connection with the irregularities alleged by the applicant. Furthermore, the Regional Court had failed to take into account the submissions of the attesting witnesses which confirmed the applicant’s allegations of irregularities. 33. On 10 August 2004 the Criminal and Military Court of Appeal upheld the applicant’s conviction finding, inter alia, that no significant procedural violations had taken place during the investigation of the case. The Court of Appeal relied on the same evidence, except for the testimony of the police officers. 34. No appeal was lodged against this judgment within the ten-day statutory time-limit, so it became final. 35. On 6 September 2004 the applicant was released on parole. 36. On 15 November 2004 an advocate holding a special licence lodged an appeal on points of law on behalf of the applicant against the final judgment of the Court of Appeal. He requested that the judgment of the Court of Appeal be quashed and the case be remitted for further investigation due to the procedural violations taken place during the investigation, including the execution of the search. 37. On 10 December 2004 the Court of Cassation examined the appeal on the merits and decided to dismiss it finding that, inter alia, no significant violations of the procedural law had taken place which required the case being remitted for further investigation. | 0 |
test | 001-147326 | ENG | UKR | CHAMBER | 2,014 | CASE OF VINTMAN v. UKRAINE | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;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);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Non-pecuniary damage - award | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1968 and is currently serving a prison sentence in Sokal Prison no. 47 in the Lviv region. 6. In February 2000 the applicant was detained on suspicion of several counts of robbery and a murder. He claimed that he had been beaten by the police. 7. On 13 September 2000 the Zaporizhzhya Regional Court (“the Zaporizhzhya Court”), sitting as a court of first instance, found the applicant guilty as charged. It sentenced him to life imprisonment for murder and considered that the prison terms for the other crimes were absorbed by the life sentence. The court dismissed the applicant’s allegation of ill-treatment as unsubstantiated. 8. On 21 December 2000 the Supreme Court of Ukraine upheld the judgment. 9. On 30 October 2009 the Supreme Court reviewed the applicant’s case under an extraordinary procedure and commuted his sentence to fifteen years’ imprisonment. It reasoned that life imprisonment had not been listed as a possible penalty in the Criminal Code on the date when the murder for which the applicant had been sentenced had been committed. 10. On 6 December 2001 the applicant was transferred to Vinnytsya Prison no. 1, which had a section for life prisoners, to serve his sentence. That prison is located some 700 kilometres from Zaporizhzhya, where the applicant had been living before his detention and where his mother lived. The train journey from Zaporizhzhya to Vinnytsya takes from twelve to sixteen hours. 11. On numerous occasions the applicant and his mother, Mrs Kapiton, who acted on his behalf as his representative under a power of attorney, asked the State Department of Ukraine for the Enforcement of Sentences (“the Prison Department”) to transfer the applicant to a prison closer to his home to make it easier for her to visit him. They drew attention, in particular, to the long travel time from Zaporizhzhya to Vinnytsya by public transport, which was very burdensome for Mrs Kapiton given her advanced age (born in 1938) and poor health (she had been officially certified “second-degree” (medium) disabled). 12. On 10 June and 15 September 2004 the Prison Department replied to the applicant’s mother that her request had been rejected, since “in accordance with the legislation in force, convicted prisoners must serve their entire sentence in the same prison”. 13. On 29 October 2004 Mrs Kapiton arrived at Vinnytsya Prison to visit the applicant. During the visit she fainted and was provided with medical assistance for low blood pressure. Her meeting with the applicant was not resumed once she had recovered, on the recommendation of a medical professional. 14. On many subsequent occasions Mrs Kapiton continued to contact various authorities on her own and the applicant’s behalf, requesting his transfer to a prison closer to his home to enable her to visit him. She always enclosed with her requests the medical certificate confirming her disability and her doctor’s advice not to travel outside the Zaporizhzhya region. 15. All Mrs Kapiton’s requests were rejected. On numerous occasions (on 2, 12 and 18 November 2004, and on 12 February, 21 and 24 March 2005) the Prison Department repeated its previous reasoning, referring to the legal requirement that prisoners must serve their entire prison term in the same establishment. 16. On 17 March 2006 the Prison Department informed the applicant’s mother that her request could not be granted because no places were available for life prisoners in establishments closer to Zaporizhzhya. 17. On 3 May 2006 the Prison Department wrote to the applicant’s mother again, informing her that the applicant was supposed to serve his entire sentence in the same prison and that, in any event, there were no places available in prisons closer to his home. 18. On 7 August 2006 the Prison Department further notified the applicant that, in accordance with unspecified regulations, persons convicted of aggravated murder were usually detained in prisons located outside the region in which the crime had been committed. 19. On 16 November 2006, 8 August 2007 and 24 March 2009 the Prison Department reiterated, in reply to the repeated requests of the applicant’s mother for his transfer, that “under the legislation in force, convicted prisoners must serve their entire sentence in the same prison”. 20. On 1 December 2009, following a review of the applicant’s sentence (see paragraph 9 above), the Prison Department’s regional commission on prisoner distribution, allocation and transfers examined his case. It decided that he would be held in a maximum-security prison, in ordinary accommodation. Pursuant to that decision, on 10 December 2009 he was transferred to Sokal Prison no. 47 (a maximum-security prison) located in the Lviv region, around 1,000 kilometres from Zaporizhzhya. The train journey from Zaporizhzhya to Lviv takes from nineteen to twenty-three hours. 21. On an unspecified date Mrs Kapiton complained to the Prison Department that that transfer was unfair, as Sokal Prison was even further away from the applicant’s home address. 22. On 17 February 2010 the administrative commission of Sokal Prison examined the applicant’s request that the level of security of his prison regime be reduced from high to medium security. It was noted that, under the Code on the Enforcement of Sentences, a prisoner could be transferred from a high to a medium-security prison if he had already served more than half of his sentence and if he had been manifesting good behaviour as an indication of his willingness to improve. However, the applicant had been disciplined eleven times and was not therefore eligible for such a transfer. Accordingly, his request was rejected. It remained open for him to challenge that decision before the regional commission of the Prison Department. 23. On 17 April 2010 the Prison Department’s regional commission on prisoner distribution, allocation and transfers rejected the applicant’s request for transfer to a prison in the Zaporizhzhya region. As noted in the minutes of its meeting, the applicant had been disciplined twelve times. 24. On 26 April 2010 the Prison Department further informed Mrs Kapiton that its appeal board had rejected the applicant’s request for transfer to a medium-security prison in the Zaporizhzhya region, and that decision would be reviewed only if his conduct improved. 25. The applicant’s mother then requested the applicant’s transfer to a prison in the Donetsk or Lugansk region (neighbouring the Zaporizhzhya region). 26. On 17 November 2010 the Prison Department appeal board rejected her request. As noted in its meeting report, the applicant had been disciplined fifteen times and had received no incentives. 27. The applicant suffers from ingrowing eyelashes of the left eye, which have to be removed periodically. His mother made a general allegation, without providing any factual details, that he had been hit in his left eye following his arrival at Vinnytsya Prison. No further information is available as to the duration and origin of the above-mentioned condition. 28. As regards the medical treatment for the ingrowing eyelashes, the applicant’s submissions to the Court were limited to his mother’s general statement, which she had made on two occasions, in November 2005 and April 2010, that the responsibility for the condition lay with the authorities and that, although the ingrowing eyelashes were regularly removed, the applicant felt pain and discomfort in his left eye. 29. On an unspecified date in 2005 the applicant’s mother complained to the prosecutor’s office that the applicant’s eye problem was connected to his alleged beating by prison guards following his arrival at the prison in 2001. 30. On 5 and 25 April 2005 the Vinnytsya Prosecutor’s Office responded that there was no basis for launching a criminal inquiry into that complaint. In particular, the applicant had not requested a medical examination or assistance on account of any injuries inflicted on him. Furthermore, according to the testimony of other prisoners who had arrived at the prison together with the applicant, they had not experienced or witnessed any beatings. The prosecutor also noted that the applicant’s condition was under constant medical supervision. In particular, he had his ingrowing eyelashes removed by a qualified ophthalmologist on a regular basis. No other health-related complaints had been recorded. 31. According to extracts from the applicant’s medical file provided by the Government, the applicant had had his ingrowing eyelashes removed on 21 January, 26 March, 9 July and 13 December 2004, as well as on 1 August 2005 and 4 January 2008. Furthermore, on 30 June 2010 and 6 April 2012 he had refused medical examinations and treatment. 32. The applicant and his mother, acting on his behalf, complained to the prosecution authorities and the Prison Department about the routine monitoring of his correspondence by the prison administration. 33. The prosecutor’s response was that the applicant’s correspondence was subject to monitoring under the legislation in force; however, there had been no instances of withholding letters or seizing objects which the prisoners were allowed to keep. 34. On 7 July 2003 the Vinnytsya Regional Prison Department wrote to the applicant’s mother, in reply to her complaint regarding, in particular, the interference with his correspondence, that on 11, 16 and 23 April 2003 the prison administration had “withheld some letters written by [the applicant], because their content did not comply with the requirements of the Instruction on Review of Prisoners’ Correspondence”. 35. On 3 October 2006 the Prison Department informed the applicant’s mother that no correspondence had been withheld from the applicant and that since the beginning of the year he had sent fifty-one letters and had received twenty-four recommended letters and thirty-eight standard letters. There had been no complaints from the applicant himself regarding his correspondence. 36. On 14 November 2006 the applicant made a written statement that he had no complaints against the prison administration. 37. On 21 November 2006 the Vinnytsya Regional Prosecutor’s Office wrote to the applicant’s mother informing her that the applicant had sent fifty-six letters, had received seventy-two letters, and that he had had fifteen paid telephone conversations. 38. On 12 May 2008 the applicant made a written statement that he had no complaints concerning the work of the prison official in charge of the monitoring of prisoners’ correspondence. 39. On 19 June 2008 the applicant asked the prison administration to allow him to make a telephone call on 24 June 2008 instead of a short-term private meeting to which he was entitled. According to a hand-written note on the request, apparently added by a prison official, the applicant’s last private meeting had been on 26 December 2007. 40. On 27 July 2009 the applicant asked the prison administration to allow him to make a telephone call on 3 August 2009. As noted on the request, he had last made a telephone call on 3 May 2009. 41. According to the official records, during the period from 16 August 2002 to 30 September 2009 the Vinnytsya prison administration dispatched sixty-nine letters from the applicant. | 1 |
test | 001-178890 | ENG | MKD | CHAMBER | 2,017 | CASE OF "ORTHODOX OHRID ARCHDIOCESE (GREEK-ORTHODOX OHRID ARCHIDIOESE OF THE PEĆ PATRIARCHY)" v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association) read in the light of Article 9 - (Art. 9) Freedom of thought, conscience and religion (Article 9-1 - Freedom of religion);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos | 5. The Ohrid Archdiocese (Охридска Архиепископија), in its original form, existed until 1767, when it was abolished by the Turkish Sultan. As stated by the applicant association, after its abolition the territory over which the Ohrid Archdiocese had jurisdiction, which had included what is now the territory of the respondent State, fell under the jurisdiction of the Ecumenical Patriarchate of Constantinople, which in 1918 issued a canonical release of those territories to the benefit of the Serbian Orthodox Church (SOC). As stated by the Government, in 1943 it was decided that the Ohrid Archdiocese would be restored and continued by an autonomous Macedonian Orthodox Church (MOC). In 1959 the MOC seceded from the SOC, and in 1967 it declared autocephaly. The Head of the Holy Synod of MOC is designated as “Archbishop of Ohrid and Macedonia” (Архиепископ Охридски и Македонски). 6. In negotiations which have been continuing since then, on 17 May 2002 the two churches signed a draft agreement (known as “the Niš agreement”) which provided for ecclesiastical union between them. It further specified that the MOC would renounce its autocephaly and obtain widest autonomy within the SOC under the name “Ohrid Archdiocese”. 7. According to the Government, during the negotiations and the signing of the Niš agreement, there had been strong reaction by the public, which regarded the draft agreement as “a scandalous and indecent act of treason” and, owing to strong pressure by the public, on 25 May 2002 the Holy Synod of the MOC ultimately rejected this agreement. The applicant association disagreed that the rejection of the agreement had resulted solely from the reaction by the public and submitted that “the main pressure came directly from the Macedonian authorities who stood behind the protests”. 8. Mr J. Vraniškovski, a bishop and a member of the Holy Synod of the MOC at the time, was supportive of the Niš agreement. After the Holy Synod of the MOC had rejected that agreement, Mr Vraniškovski accepted a call by the SOC for reunification dated 20 June 2002; on 21 June 2002 he publicly announced that he was prepared for canonical union with the SOC. The Government submitted that that had provoked a public reaction and that there had been street protests in several cities in the respondent State. 9. On 5 July 2002 the Holy Synod of the MOC dismissed Mr Vraniškovski on the ground that, by his unilateral accession to the SOC, he had violated the oath by which he had bound himself to safeguard the Church’s unity and Constitution (see Vraniškoski v. the former Yugoslav Republic of Macedonia (dec.) 39168/03, 22 June 2010). On 23 September 2002 the SOC declared the dismissal of Mr Vraniškovski null and void and appointed him “exarch of the Peć Archbishop and the Patriarch of Serbia for all eparchies of the Ohrid Archdiocese”. 10. On 25 December 2003 the applicant association constituted its own Holy Synod and appointed Mr Vraniškovski as its President. By a letter of 16 January 2004, received by the Commission for religious communities and groups (“the Commission”, Комисија за односи со верските заедници и религиозните групи) on 27 January 2004, Mr Vraniškovski requested an opinion as to whether the applicant association should be registered, given that “in all civilised States a church, which is older than the State is accepted without needing to be registered.” The letter, which remained unanswered, further stated: “... the true Macedonian Orthodox Church is the Orthodox Ohrid Archdiocese. It is a legitimate church, recognised by all churches in the world, so all who want to be Orthodox are welcome, the doors are open. Those who are schismatic should join the schismatic Synod (MOC). The Orthodox Ohrid Archdiocese has nothing against the State registering schisms ... but it is against the State preventing its spiritual and leading operation in the Republic of Macedonia ...” 11. On 6 September 2004 Mr Vraniškovski submitted an application (барање за регистрирање) seeking that the applicant association be registered as a religious group (религиозна група). In support of the application, the applicant association submitted the following documents: (a) a founding decision of 1 September 2004 rendered by its Holy Synod. Under section 1 of that decision, the applicant association was defined “as a voluntary, non-profit association of Christians that were not associated with any other religious community or group”. Its aim was to acquire legal-entity status and to manage its property. The decision specified the temporary place of registration of the applicant association and authorised Mr Vraniškovski to submit an application for registration on behalf of the applicant association; (b) a list of its adherents; and (c) a Charter on the organisation and operation of the applicant (“the Charter”). The latter provided that the applicant “would be autonomous within the canonical jurisdiction of the Peć Patriarchy (the SOC)”; it specified that its temporary place of registration would be in Bitola, in the respondent State, “until it was possible to designate a permanent seat”; and that the applicant association and its structural units were legal entities and could obtain and manage property. It further provided that all legal persons that the applicant association might set up could have bank accounts. 12. On 30 September 2004 the Commission found the application to be incomplete, and requested that the applicant association submit the following further documents: a) a copy of a decision appointing the authorised person to seek registration of the applicant association and b) a copy of the minutes of the constituent assembly. On 18 October 2004 the applicant association submitted the requested documents. 13. On 3 November 2004 the Commission dismissed the application (се одбива барањето за пријавување) for the following reasons: (a) the application was not submitted by an authorised person. The Commission held that it had been submitted by a certain J.N. (Bishop D.) and not by Mr Vraniškovski, who had been authorised to seek registration of the applicant association; (b) the application for registration had been submitted outside the thirtyday time-limit specified in section 11 (1) of the Act on Religious Communities and Religious Groups (“the 1997 Act”, see paragraph 47 below), which had started to run on 25 December 2003, the date on which the applicant association’s Holy Synod had been set up (see paragraph 10 above); (c) relying on the applicant association’s Charter, the Commission established that it would act as an autonomous religious group in canonical union with the Peć Patriarchy (SOC). That the applicant association would operate as part of a foreign orthodox church was, in the Commission’s view, in violation of section 12 of the 1997 Act. The Commission further stated that a religious community could be established only by nationals of the respondent State, and not by a foreign church or State; (d) the applicant association had emerged from an already existing and registered religious community, notably the MOC, whose position and role had been specified in the Constitution. The fact that the applicant association had sought registration under the name “Orthodox Ohrid Archdiocese” had implied that its real intention was to create a parallel orthodox religious group to the MOC, which had been using that name (Orthodox Ohrid Archdiocese) “constitutionally, historically, actually and continuously” (уставно, историски, актуелно и во континуитет) for over eight centuries. That was not in compliance with section 8 (2) of the 1997 Act, under which only one religious community could be registered for one faith group. The Commission referred to a decision of the Constitutional Court which had found that provision compliant with the Constitution. It had ruled that the provision had protected people from being manipulated and same-faith believers from being divided into several religious groups (U.br.223/97 of 28 October 1998, see paragraph 54 below). The Commission also argued that the Preamble to the Constitution of the MOC specified that it was the canonical successor to the Ohrid Archdiocese. This was confirmed on 17 July 1967 when the Ohrid Archdiocese declared autocephaly, which was continued by the MOC. The Commission further held that on 6 August 2004 the MOC had asked the Industrial Property Bureau (“the Bureau”, Завод за заштита на индустриската сопственост) to register the name “Macedonian Orthodox Church-Ohrid Archdiocese” in its trademark register (TM 2004/574). Moreover, on 13 August 2004 the MOC had asked the Commission to prevent registration of several names, including the name “Ohrid Archdiocese”, to which it was entitled for historical, religious and moral reasons; and (e) the Commission held that property-related provisions of the applicant’s Charter were contrary to section 9 of the 1997 Act, according to which a religious group was a voluntary, non-profit association of believers. 14. In its decision of 3 November 2004, the Commission further referred to several international documents and a Declaration that the Parliament of the respondent State adopted in 2004 regarding the MOC (see paragraph 51 below). 15. The applicant association complained against this decision, arguing that: (a) the application for registration had been submitted by Mr Vraniškovski. J.N. had only handed it over to the Commission’s archives; (b) the applicant association had been founded formally on 1 September 2004. On 25 December 2003, the date to which the Commission referred in its decision, the applicant association had only appointed the members of its Holy Synod; (c) the applicant association was a new religious community that had no connection with, let alone stemmed from, the MOC, which, in any event, had not been recognised by any Orthodox Church; (d) the fact that the MOC had sought to have the Bureau add “Ohrid Archdiocese” to its name was irrelevant, since no such name existed in the Commission’s records; (e) the applicant association had denied that it had been set up by a foreign church or a foreign State. That it would operate in canonical union with another church of same religion did not imply that it had been founded contrary to section 9 (2) of the 1997 Act; 16. On 11 January 2005 the Government Appeal Commission (Комисија за решавање во управна постапка во втор степен од областа на внатрешни работи, судството, државната управа, локалната самоуправа и работите од верски карактер) dismissed the appeal, finding no grounds to depart from the established facts and the reasons given by the Commission. 17. The applicant association challenged these decisions before the Supreme Court. In addition to the arguments already raised, it submitted that its name was neither identical with nor similar to the name of any other religious community or group registered by the Commission. 18. On 9 November 2005 the Supreme Court dismissed the applicant’s claim. It held that the applicant association’s name had implied creation of a parallel religious community, rather than a religious group as claimed, given that its name was substantially the same as the name of the MOC. The court referred to the applicant association’s Charter and found that its determination to operate as an autonomous church in canonical union with the Peć Patriarchy was contrary to the fact that the MOC had canonical jurisdiction in the territory of the respondent State. It also held that property-related rules were in violation of section 16 of the 1997 Act. The court accepted the remaining reasoning given by the administrative bodies. That decision was served on the applicant on 15 July 2006. 19. On 15 July 2007 Bishop D. applied to the Constitutional Court, claiming that the refusal of the authorities to register the applicant association violated the freedom of belief and religion specified in Article 110 § 3 of the Constitution. While relying on the decisions of the authorities refusing the applicant association’s registration as “Orthodox Ohrid Archdiocese”, he also notified the court that a fresh application for registration had been submitted under the name “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” (see paragraphs 23-34 below). He stated, inter alia: “... it is obvious that followers of our religious organisation have been deprived of the rights specified in Articles 16 and 19 of the Constitution for seven years ... the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy is a religious organisation which should protect the religious needs of, among others, Serbs and Greeks in the Republic of Macedonia. It is an autonomous church under jurisdiction of the Peć Patriarchy, notably the Serbian Orthodox Church ...” 20. On 9 September 2009 (U.br.184/09) the Constitutional Court rejected the appeal, which, as specified in the decision, concerned “freedom of belief and prohibition of discrimination on religious grounds”. Relying on, inter alia, Articles 9, 16 and 19 of the Constitution (see paragraphs 4244 below), the court found: “The complainant did not claim personal protection from discrimination ... but, he acts as a representative of a group of people with which he is associated ...” 21. It further stated: “The Constitutional Court has no jurisdiction to decide on the rights and interests of citizens in specific cases before administrative and judicial bodies. Neither has it jurisdiction to decide as a hierarchically superior court and examine the lawfulness and constitutionality of decisions adopted by competent administrative bodies ... the complainant refers to the non-registration as an action, but such an action ... stems from an individual decision which this court is not competent to examine ... the registration of ... a religious community or a group does not determine the religious beliefs and internal religious belief of a person, since expression of beliefs is an individual act, the registration procedure does not affect personal religious belief and rituals, and the court has not been presented with any evidence that they have been violated at any point.” 22. The court also held that the appeal had been submitted outside the two-month time-limit specified in the Rules of the Constitutional Court (see paragraph 52 below), calculated since 9 November 2005, the date of the Supreme Court’s decision (see paragraph 18 above). 23. On 20 September 2007 a new Act on the legal status of churches, religious communities and religious groups (“the 2007 Act”) was adopted. It entered into force on 1 May 2008. 24. On 3 and 6 April 2009 the applicant association inspected the register of churches, religious groups and communities (“the court register”) of the Skopje Court of First Instance, which became, by virtue of the 2007 Act, the registration court. From 11 November 2008 onwards the MOC was recorded in the court register as “Macedonian Orthodox Church-Ohrid Archdiocese”. The registration decision stated that in communication with third parties it would use the name “Macedonian Orthodox Church”. 25. According to “the minutes of the constituent assembly” (записник од основачкото собрание) “... at the proposal of His Beatitude (Неговото Блаженство), the Archbishop of Ohrid and Metropolitan of Skopje Mr Jovan (Vraniškovski), the Holy Synod of the Orthodox Ohrid Archdiocese composed of (Bishops J., M., and D., all Macedonian nationals) convened a meeting on 27 April 2009 in order to adopt decisions for setting up and registration of “the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy”. The minutes of the constituent assembly were signed by all three bishops (their personal identity numbers and addresses were provided therein). 26. On the same date a decision setting up the applicant association was adopted. As stated in its introductory part, “at a meeting dated 27 April 2009 the Holy Synod decided to submit a request to the Skopje Court of First Instance for registration of ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’”. It was set up “as a voluntary, non-profit organisation of Christians who are not associated with any other registered religious community, and, in particular, has no connection with (the MOC)”. It further stated: “It is an Orthodox church in full canonical and liturgical union with all recognised Orthodox churches in the world. For this reason, we consider that we should be registered as a church, but if the court considers otherwise, we would accept registration as a religious community or religious group.” 27. The decision further indicated that the applicant association’s temporary place of registration would be in Bitola, in the respondent State. Bishop D. was authorised to submit the application for registration. He was also nominated to act on behalf of the applicant association (застапува) in relations with other legal entities until “... Mr Jovan (Vraniškovski) returned from exile”. 28. The applicant association’s Charter on the status, organisation and operation of the association (“the Charter”) provided that it was “an autonomous church under the canonical jurisdiction of the Peć Patriarchy” (section 2). The Holy Synod was “the highest managerial body” of the applicant (section 6). It was composed of the Archbishop and two eparchy bishops (section 9). The assembly of archbishops (архиепископско собрание) was “the supreme regulatory, administrative, supervisory and executive body concerning internal, financial and religious self-management” (section 12). 29. On 28 April 2009 Bishop D. submitted an application for registration of the “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” as “one of the churches” in the respondent State. The application expressly stated that the applicant association would agree to be registered as a religious community or group if the registration court found this more appropriate. The applicant association further expressed willingness to submit any documents, if need be, in order to avoid its application being refused. It was also stated that a refusal to register a religious group would be unjustified in a democratic society unless it was proven that the teaching of the group was destructive. That had not been the case with the ‘“Greek-Orthodox Ohrid Archdiocese of Peć Patriarchy’ which is two thousand years old”. It further stated that: “... any refusal to register ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’ is an obstacle to the Republic of Macedonia’s future membership of the European Union ... It will not be pleasant, at the present time and place in history, if a judge appears as a persecutor of a church. Any person who does not respect human rights and freedoms regarding association of people on religious grounds, especially if he or she is a judge ... does not differ much from famous persecutors of the Holy Church ... we wrote the above in order to warn that it will be unpleasant if the court does not register ‘the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy’ ...” 30. On 10 July 2009, without reference to the applicant, the registration court sought an explanation from the MOC as to the meaning of the notion of “Peć Patriarchy”. On 21 July 2009 the MOC replied (the reply was reproduced in the decision of the registration court of 28 July 2009, see paragraph 31 below) as follows: ‘“Peć Patriarchy’ forms part of the name of the Serbian Orthodox Church and expresses the historical continuity of the Serbian Orthodox Church as canonical heir of the Peć Patriarchy: in the same way the name ‘Ohrid Archdiocese’ is part of the name of the Macedonian Orthodox Church. The name ‘Ohrid Archdiocese’ is protected by the Macedonian Orthodox Church in the Industrial Property Bureau. The Serbian Orthodox Church, specifically the Peć Patriarchy, has no canonical or any other jurisdiction over the Macedonian Orthodox Church or in the territory of the Republic of Macedonia.” 31. On 28 July 2009 the registration court dismissed the applicant association’s request for registration in the court register (се одбива барањето за упис) for the following reasons: (a) it was founded by the so-called Holy Synod, as a body, which was contrary to section 2 of the 2007 Act (see paragraph 49 below) according to which a decision to establish a religious entity was to be taken by the founding members at a constituent assembly. No such assembly had been held in the applicant’s case; (b) the application for registration concerned an organisation which had not been provided for under the 2007 Act. Its name did not specify whether it was a church, religious community or religious group. On the contrary, it implied that it was a divine organisation, which would operate as an autonomous Archdiocese under the canonical jurisdiction of the Peć Patriarchy. “It did not state that it was a voluntary organisation of physical persons” as required under section 2 of the 2007 Act; (c) the intended name of the applicant association included names or terms that were part of or indicated a relationship with the official names of States or religious communities or canonical territories already registered and under foreign jurisdiction. In this connection it held that the term “Greek” (Грко) was an English translation of “Orthodox Church”. Its use was not in conformity with the 2007 Act (section 10 (3)). The “Orthodox Ohrid Archdiocese” partly covered the generic and historical name of the MOC; it did not differ from the latter’s registered name. That name (Ohrid Archdiocese) has been used by the MOC “constitutionally, historically, actually and continuously” for over 800 years, and only the MOC had the “historical, religious, moral and substantive right” to use it. In this connection the court held that the legal status, name and official insignia of the MOC were safeguarded by the 2007 Act and the Constitution. That the applicant’s intended name implied that it was under the territorial jurisdiction of a foreign church was in contravention of the 2007 Act and other laws. It was so because the MOC had canonical jurisdiction in the territory of the respondent State. It was only formally indicated that the applicant association would operate as an autonomous church. If registration was granted “it would operate in the territory of the respondent State as part of a foreign orthodox church ... it would operate and be managed autonomously within the canonical jurisdiction of the Peć Patriarchy, notably (the SOC) ... which had no canonical or any other jurisdiction over (the MOC) or in the territory of (the respondent State).” That was in violation of Article 1 of the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, Article 18 of the UN Universal Declaration of Human Rights and Article 9 of the Convention; (d) the founding decision had specified only the temporary place of registration of the applicant association, without specifying “a specific seat and address” (точно одредено седиште и адреса), as required under section 13 § 1 (2) of the 2007 Act; and (e) Bishop D. was nominated to act on behalf (застапува) of the applicant association, but not to represent (претставува) it, as required under section 12 § 2 (5) of the 2007 Act. 32. The registration court concluded that the applicant association’s registration would run counter to the 2007 Act. It further stated that: “(such a registration would violate) the freedom of religion ... of all physical persons, which they manifest through already registered religious communities. It would also violate the legitimate legal status of other voluntary associations of persons recorded in the court register ... their management bodies, hierarchy, competencies, titles, religious activities ...” 33. The applicant appealed, arguing (i) that the court had erred when seeking “an expert opinion” about the meaning of “Peć Patriarchy” from the MOC, which was not neutral; (ii) that the registration of the MOC in November 2008 under the name “Macedonian Orthodox Church-Ohrid Archdiocese” had been unlawful. In this connection, the applicant submitted extracts from several media reports published at the time, according to which the competent body of the MOC, at its meeting held on 4 and 5 October 2008, had refused to change the name in its Constitution; (iii) that the MOC had applied to the Bureau for registration of the name “Macedonian Orthodox Church-Ohrid Archdiocese” as a trademark was irrelevant, since the Industrial Property Act concerned goods and services and not religious organisations. In this connection, the applicant argued that, in any event, the Bureau had confirmed that on 6 August 2004 the MOC had requested registration of seventeen trademarks, including the trademark “Macedonian Orthodox Church-Ohrid Archdiocese”. However, the MOC had never paid the registration fee for any of the trademarks for which registration had been sought. Consequently, those names were never registered as trademarks, nor were trademark certificates ever issued; (iv) the applicant association was set up by three founding members who had signed the minutes of the constituent assembly held on 27 April 2009. Consequently, the court had been wrong to hold that the founding decision had been rendered by the applicant association’s Holy Synod, as that body had no legal capacity to act before the applicant association was registered; (v) no reasonable explanation had been given as to why the applicant association’s intended name did not imply that it concerned a religious organisation; (vi) the court’s interpretation that the expression “Greek” was an English translation of “Orthodox Church” was wrong; (vii) the intended name of the applicant association was different from the name of any registered religious organisation, including the name of the MOC to which “Ohrid Archdiocese” had been unlawfully added. In this connection the applicant stated “(it) differs from the MOC, with which we refuse to be associated.” It further submitted that the court had allowed registration of two churches despite the fact that their names were substantially the same, namely “Christian Adventist Church (church of the Adventists of the Seventh Day) in the Republic of Macedonia” and “Christian Adventist Church in Macedonia”. It concluded the discussion under this head by saying that “had the court had difficulty with the intended name, it could have raised that issue in written correspondence and we would have replied. This clearly suggests that the court would refuse to register [the applicant association] under any name”; (viii) the registration court had given unsubstantiated explanations of a theological and historical nature favourable to the MOC; (ix) the applicable legislation did not preclude a religious community from being in canonical union with other churches in the world; (x) the refusal to register the applicant association violated the freedom of religion of the orthodox Greeks and Serbs in the respondent State, as the intended name suggested that it represented those communities; and (xii) lastly, the applicant association reiterated that it was ready to rectify any error the registration court might ask it to. 34. On 4 February 2010 the Skopje Court of Appeal dismissed the applicant association’s appeal, reiterating the reasoning given by the registration court. 35. On an unspecified date thereafter, D.N. (Bishop D.) submitted a constitutional appeal to the Constitutional Court, claiming that the authorities’ refusal to register the applicant as “the Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” had affected his religious rights specified in Articles 16 and 19 of the Constitution and Article 9 of the Convention. In this connection, he claimed that the religious organisation with which he was affiliated had not been allowed registration for many years, and thus had been denied the opportunity to obtain legal-entity status. He stated “I’m prevented from exercising my freedom of religious observance in association with other people on a voluntary basis.” He further argued that without legal-entity status the applicant association was prevented from enjoying certain statutory rights: it could not construct religious temples; its members could not conduct religious ceremonies; it could not instruct religion or create religious schools; and it could not manage its property, nor could it hold bank accounts. Bishop D. invited the court to consider his appeal as submitted on behalf of all members of his religious organisation. Since the Constitutional Court had already rejected a similar appeal lodged on behalf of several people (U.br.182/09, see paragraph 55 below), he consented that his appeal be regarded as being submitted only in his name. He further stated: “I agree, and after having consulted the other members of my religious community, I know that they also agree, that the Constitutional Court orders registration of the Greek Orthodox Ohrid Archdiocese of the Peć Patriarchy under conditions specified by law and we would adjust to any requirements set by the court. If a change in the name is needed, that should be indicated as a condition for our registration and once it is satisfied, (we) should be registered. If another condition should be fulfilled, that should be specified and we will try to accommodate it.” 36. On 15 December 2010 the Constitutional Court rejected the constitutional appeal of D.N. concerning “the freedom of belief and prohibition of discrimination on religious grounds” (U.br.118/10). Referring to the courts’ decisions rejecting the applicant association’s request for registration as “Greek-Orthodox Ohrid Archdiocese of the Peć Patriarchy” and relying on Articles 9, 16 and 19 of the Constitution and Article 9 of the Convention, the court stated: “The court cannot examine the appeal on the merits since the complainant did not comply with the formal statutory requirements before a competent court (for registration of the applicant). The complainant is willing to comply with the statutory requirements for registration, but he has failed to do so in practice and (he) does not prove that the competent court was wrong in its judgment that those requirements had not been complied with ... in such circumstances, this court cannot rule on the request for the protection of human rights and freedoms in relation to specific final decisions of competent bodies. It is so since the person concerned (субјектот) did not take any action in the court proceedings to comply with the statutory requirements, which apply similarly to all citizens. This derives from his request that this court suggest to him what needs to be done for (the applicant association) to be registered, which implies knowledge that there were (certain) flaws which led to non-registration. The complainant was not a priori refused registration of his religious community by a final judicial decision. The refusal he received was for non-compliance with the statutory requirements.” 37. An article published in the daily newspaper Dnevnik on 26 September 2002 quoted the then Chairman of the Commission (see paragraph 10 above), who stated that: “not at any price will Bishop Jovan (Vraniskoski) be allowed to perform religious rituals or to have a seat in an exarchate.” 38. An article published in the daily newspaper Vest on 8 April 2004 quoted the following part of a joint statement by the then President of the respondent State and the Archbishop of the MOC: “The MOC and the Macedonian State are and will remain together. Schismatics and renegades should be marginalised, isolated and rejected. The media attention they receive, irrespective of motives and intentions, affects both the MOC and Macedonian national and State interests.” 39. An article published in the daily newspaper Večer on 23 November 2006 reported on discussions held between the Prime Minister of the respondent State and the Archbishop of the MOC regarding certain provisions of the 2007 Act. Following that discussion, the majority of bishops in the MOC, as stated in the article, had requested that the MOC should not accept any compromise which would prevent it from protecting itself against a parallel church, led by Mr Vraniškovski, being created. 40. An article published in the daily newspaper Večer on 2 June 2009 reported on the alleged discontent of the applicant’s followers about its name as submitted in the second registration proceedings. In this connection the article quoted a letter by Mr Vraniškovski in which he allegedly stated: “The (Holy) Synod was governed by the idea that the name of the religious community in respect of which we seek registration does not betray the essence of our Church. You know well that Greek-Orthodox does not mean Greek (by nationality) of Orthodox faith, but that name refers to all known Christian Orthodox Churches.” 41. The article continued, stating that Mr Vraniškovski had further asserted that the second part of the name was reasonable because the “Ohrid Orthodox Archdiocese” was a part of the Peć Patriarchy. | 1 |
test | 001-177698 | ENG | BGR | CHAMBER | 2,017 | CASE OF LEBOIS v. BULGARIA | 3 | Remainder inadmissible (Article 35-1 - Six-month period);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1986 and lives in Sofia, Bulgaria, where he apparently moved from France in November 2013. 6. At 12.40 a.m. on 24 January 2014 he was arrested in Sofia while breaking into cars with a view to stealing items from them. He was taken to the First District Police Station and placed under police detention. According to the applicant, he was not put in a cell, but handcuffed to a bench in the station’s corridor. 7. According to the applicant, throughout the whole time that he spent in the police station he was not given any food or drink, allowed to go to the toilet, or allowed to use a telephone. He was visited by an ex officio lawyer appointed for him by the authorities. However, the lawyer spoke no French and very little English – a language that the applicant is apparently familiar with – and did not explain to him anything about the procedure in his case. 8. In the late afternoon or the evening of 24 January 2014 the applicant was taken to a hospital for a medical examination, and then, at about 10 p.m. the same day, taken to a pre-trial detention facility in Sofia. 9. It appears that the next day, or one of the following days, the applicant was brought before the Sofia District Court with a view to a decision on whether he should be remanded in detention, and that it was decided that he should remain in custody pending trial. A subsequent request for release apparently made by his counsel in the end of February 2014 was rejected as well. 10. According to the applicant, upon his arrival in the pre-trial detention facility on the evening of 24 January 2014 (see paragraph 8 above), he was given a dirty mattress, pillow and blanket, but no bedlinen. Since he had arrived in the facility after suppertime, he could not eat or drink anything until lunchtime the following day, 25 January 2014. 11. According to the applicant, the cell in which he had been placed had been dirty, cold, poorly ventilated, infested with cockroaches, overcrowded, and with a toilet which was not properly separated from the rest of the cell. 12. According to the applicant, he was not able to maintain his personal hygiene, as he was not provided with toilet paper or other toiletries, and had had no money to purchase them. As a result, it had been impossible for him to go to the shower for two weeks. On the third day of his stay in the facility, he had seen spots erupt on his skin and had asked to be examined by a medical doctor. The doctor had come to see him three days later, and had only examined him from a distance, without entering the cell. On an unspecified date in March 2014, the applicant was given a blood test which revealed that he had a staphylococcus infection. He was given antibiotics for it but was not taken to a hospital. 13. According to the applicant, food had also been so poor and served so unhygienically that he had lost twenty-three kilogrammes during his stay in the detention facility. The space for out-of-cell exercise had also been so small that on many occasions he had chosen not to take his daily exercise. 14. In the detention facility, there was a cardphone which inmates could use to call outside numbers. It was located in the space where they could take their daily one-hour out-of-cell exercise. Since it had to be shared among them, each inmate had about six minutes to use it. As the applicant had had no money on him when arrested, he could not however purchase a phonecard. With the help of a co-detainee who spoke some English, about two weeks after his arrival in the facility he managed to obtain one minute of call time free of charge, and on 5 February 2014 contacted the consulate of France in Sofia. The consulate immediately informed the applicant’s Bulgarian girlfriend, a Bulgarian friend of his and his parents, who resided in France, that he had been arrested and detained, and the consul came to visit him. The same day the applicant’s mother, who lived in France, wired money to the consul so that she could purchase food and clothes for the applicant. The consulate also arranged for a lawyer to represent the applicant in the criminal case against him. 15. With the money that he received via the consulate, the applicant was able to purchase a phonecard. According to him, he had made many requests to that effect in the days after 5 February 2017, which the Government had not provided. The Government insisted that they had made available to the Court all documents in the applicant’s detention file. They submitted a declaration by him dated 24 February 2014 whereby he had asked the detention facility’s head to issue him a phonecard preloaded with 20 Bulgarian levs of credit and, as required under the relevant regulations (see paragraph 30 below), had submitted for approval a list of the persons – his Bulgarian girlfriend, a Bulgarian friend, his lawyer, and his mother and father in France – whom he wished to call. The same day the facility’s head approved the list. The applicant was apparently able to call his mother in France for the first time two days later, on 26 February 2014. 16. According to the applicant, the relevant order (see paragraph 31 below) had provided that detainees could purchase phonecards or recharge them twice a month. The Government did not comment on that point or submit a copy of the order. According to the official form used by the applicant to make his above-mentioned declaration, phonecards could be recharged once a month. The applicant alleged that the facility’s staff had often not complied with the recharging schedule and that on one occasion he had been unable to recharge his phonecard for five weeks. He did not provide further details in that respect, but from the documents submitted by him it appears that between 24 March and 14 April 2014, a period of three weeks, he had not spoken on the telephone to his mother in France. 17. Detainees in the facility could get two visits a month, each lasting up to twenty minutes. According to the Government, the applicant had received such visits on 5, 8 and 9 February and 23 March 2014. However, on one occasion on 22 March 2014 the applicant’s Bulgarian girlfriend, who had come to visit him, was turned away with the explanation that the same day he had been moved to a different wing, detainees in which could be visited on another date according to the schedule of visits. She was apparently able to visit him the next day. It appears that a Bulgarian friend of the applicant who had also come to visit him on 22 March 2014 was likewise turned away. 18. According to the Government, during his stay in the detention facility the applicant had been visited by his lawyer on twelve occasions in February and March 2014, and by consular staff on two occasions. He had also received parcels with food and other items on twenty-one occasions. 19. Throughout his stay in the detention facility, the applicant was able to correspond with his parents in France with letters passed via his lawyer or the staff of the consulate of France in Sofia. 20. On 17 April 2014 the applicant and the prosecution entered into an agreement whereby he pleaded guilty and accepted to serve a sentence of three months’ imprisonment. The same day the Sofia District Court approved the agreement, and the next day, 18 April 2014, the applicant was moved to Sofia Prison. Since his pre-trial detention was taken into account in calculating the amount of time that he had to serve under his sentence of imprisonment, he spent there only six days, until 24 April 2014, when he was released. According to the applicant, conditions in Sofia Prison were nearly identical to, or even worse than, those in the detention facility. 21. The applicant’s parents came from France to Bulgaria to see him on 25 April 2014, the day after his release. It appears that they could not do so earlier because it was not possible for his mother to take leave from work. | 1 |
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