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test | 001-147047 | ENG | SVN | COMMITTEE | 2,014 | CASE OF BUBNIK v. SLOVENIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Angelika Nußberger;Vincent A. De Gaetano | 4. The applicant was born in 1973 and lives in Koper. 5. On 17 November 1995 the applicant instituted civil proceedings before the Koper District Court concerning the division of joint property. 6. On 24 September 1997 the Koper District Court rejected the applicant’s claim on procedural grounds. The applicant appealed. 7. On 18 February 1998 the Koper Higher Court partially upheld the appeal of the applicant and remitted the case back to the first instance court. 8. On 14 August 2001 the Koper District court issued a partial judgment. Both parties appealed. 9. On 22 October 2002 the Koper Higher Court dismissed the appeals. 10. On 1 March 2007 the Koper District Court issued a judgment concerning the remainder of the applicant’s claim. The applicant appealed. 11. On 18 November 2008 the Koper Higher Court dismissed the applicant’s appeal concerning the decision on the main issue. The court however annulled the decision on the costs of proceedings and remitted that issue back to the first instance court. 12. On 18 August 2008 the Koper District Court issued a decision on the costs of proceedings. The applicant appealed. 13. On 18 November 2008 the Koper Higher Court dismissed the applicant’s appeal. The decision was served on the applicant’s representative on 10 December 2008. 14. On 29 September 2008 the applicant lodged an application for settlement with the State Attorney’s Office with a view to reaching an agreement on just satisfaction on account of the delays in the civil proceedings. 15. On 26 May 2008 the State Attorney’s Office dismissed the applicant’s claim. 16. On 25 November 2009 the applicant, relying on Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), lodged a claim with the Koper Local Court seeking compensation in the amount of EUR 5,800 for non-pecuniary damage incurred as a result of the length of the civil proceedings. 17. On 25 November 2010 the Koper Local Court dismissed the applicant’s claim. The applicant appealed. 18. On 17 January 2011 the Koper Higher Court upheld the applicant’s appeal and remitted the case back to the first instance court. 19. In the course of proceedings, the State on 5 April 2011 acknowledged the claim of the applicant in the amount of 1,200 EUR. 20. On 16 November 2011 the Koper Local Court gave a judgment. The court found that the applicant’s right to a trial within a reasonable time had been breached and that, in addition to the 1,200 EUR, the State was to pay a further EUR 420 to the applicant for non-pecuniary damages and to reimburse the applicant EUR 275 in respect of costs and expenses incurred in the proceedings. In determining the amount of compensation, the court considered that the applicant had contributed to the duration of the proceedings by amending her claim several times and submitting written observations directly at the hearings which had as a consequence the adjournment of three hearings. Accordingly it deducted 10% from the amount to be awarded. The applicant appealed. 21. On 17 April 2012 the Koper Higher Court partially upheld the applicant’s appeal and modified the decision, ruling that the State was to pay the applicant in total EUR 2,500 as non-pecuniary damages and further EUR 586 in respect of costs and expenses incurred in the proceedings. The higher court also noted the applicant’s contribution to the duration of the proceedings. | 1 |
test | 001-158032 | ENG | GBR | CHAMBER | 2,015 | CASE OF SHER AND OTHERS v. THE UNITED KINGDOM | 1 | Remainder inadmissible (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life) | Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev | 6. At the time of the facts set out below the applicants resided in the United Kingdom on student visas. Their details are set out in the appendix. 7. On 8 April 2009 the applicants were arrested, along with nine others, under the Terrorism Act 2000, as amended (“the 2000 Act”), in various locations in the North West of England. The arrests occurred in the context of Operation Pathway. 8. Mr Sher was arrested at 6.35 p.m. on 8 April under section 41 of the 2000 Act (see paragraph 91 below) on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions. 9. At around 10 p.m. a review of Mr Sher’s detention was carried out by a senior police officer. Mr Sher made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning. 10. At 7.40 a.m. on 9 April a notice (“TACT 5 form”) was served on the applicant’s solicitor, Mr Yousaf. The notice set out, inter alia, the following: “You are hereby informed that ... | 0 |
test | 001-178950 | ENG | TUR | COMMITTEE | 2,017 | CASE OF ÖZSOY AND YILDIRIM v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal) | Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens | 5. The applicants were born in 1987 and 1986 respectively and live in Ankara. 6. The applicants were cadets in military schools. Based on classified investigation reports, they were expelled from their schools. None of the applicants had access to these classified reports. They all filed actions against the Ministry of Defence with the Supreme Military Administrative Court to have annulment of the impugned decisions. 7. Relying on the classified investigation reports, the Supreme Military Administrative Court rejected the applicants’ requests and their subsequent requests for rectification on different dates shown in detail in the attached list. | 1 |
test | 001-177677 | ENG | ROU | CHAMBER | 2,017 | CASE OF ALEXANDRU ENACHE v. ROMANIA | 3 | Preliminary objections dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-3-a) Ratione materiae;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No 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;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) | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque | 6. The applicant was born in 1973 and lives in Bucharest. He is a lawyer. 7. In a judgment of 25 May 2011, the Bucharest Court of First Instance sentenced him to seven years’ imprisonment for embezzlement and forgery. On 1 December 2011 he was imprisoned in the police station’s detention facility in Bucharest (Centrul de reţinere şi arestare preventivă nr. 2 – secţia 4 Poliţie), where he started serving his sentence. The judgment of the Court of First Instance was upheld by a final judgment of the Bucharest Court of Appeal of 25 November 2011, which was finalised on 25 May 2012. 8. The applicant lodged two applications for a stay of execution of sentence under Article 453 § 1 b) and c) of the former Code of Criminal Procedure (“the CCP”) (see paragraph 22 below). He submitted that he was married and had a child who was only a few months old, born on 19 May 2011, whom he wanted to look after, and that his family were experiencing financial and social difficulties on account of his detention. 9. In a judgment of 27 March 2012, the Bucharest Court of First Instance dismissed his first application on the grounds that a stay of execution of sentence provided for by Article 453 § 1 b) of the CCP for convicted mothers up to their child’s first birthday had to be interpreted strictly and that the applicant could not seek application of that provision by analogy. It also found that the financial and family difficulties referred to by the applicant did not fall within the category of special circumstances required by Article 453 § 1 c) of the CCP to allow a deferral of sentence, especially as they had existed prior to his placement in detention. 10. On appeal by the applicant, the Bucharest County Court upheld the judgment of the Court of First Instance in a judgment of 7 May 2012. 11. In a judgment of 13 June 2012, the Bucharest Court of First Instance dismissed the second application lodged by the applicant under Article 453 § 1 c) of the CCP on the grounds that the statutory conditions were not satisfied. In particular, the court found that enforcement of the sentence did not endanger the applicant’s personal or family situation. In a judgment of 17 July 2012, the Bucharest County Court dismissed an appeal by the applicant against that judgment. 12. The applicant was detained in a number of different prisons, including the Bucharest police detention facility (from 1 to 13 December 2011), BucharestRahova Prison (from 13 to 19 December 2011, 21 December 2011 to 9 January 2012 and 17 January 2012 to 30 January 2013), Mărgineni Prison (from 9 to 17 January 2012) and Giurgiu Prison (from 30 January to 25 February 2013 and from 11 March to 26 September 2013). 13. With regard to the Bucharest police detention facility, the applicant stated that he had been detained there with three other detainees, in cell no. 1, which he said measured 1.80 x 2 sq. m. He said that the cell had only one window, measuring 30 x 40 sq. cm, which had two rows of bars across it and therefore did not let natural light in. He added that the toilets were dirty and separated from the rest of the cell only by a curtain. Lastly, he stated that running water was available only two hours per day. 14. With regard to BucharestRahova Prison, the applicant said that he had been detained in cell no. 209 with eight other detainees. He said that the cell measured 3.20 x 5.80 sq. m and had only one window, measuring 1 x 1.20 sq. m, with bars and a grille and thus no natural light. He added that the cell had been damp and had an unpleasant smell. 15. With regard to Mărgineni Prison, he stated that he had been detained there with twenty-four other detainees in a 2 x 6. sq. m. cell and that there had been no running water. 16. Regarding Giurgiu Prison, he said that he had been detained in an overcrowded cell. He alleged, among other things, that hot water had only rarely been available and that the mattress and bed linen had been dirty. He also complained of the presence of cockroaches, rats and bed bugs. 17. The Government stated that in the Bucharest police detention facility the applicant had been held in a 10.68 sq. m cell containing four bunk beds, a television, natural light and toilets measuring 2.5 sq. m. 18. At Bucharest-Rahova Prison the applicant had been successively detained in seven cells, varying from 19.30 sq. m to 19.58 sq. m in size and containing ten bunk beds. They added that the cells were equipped with toilets, a kitchenette and ventilation and had natural light. 19. At Mărgineni Prison the applicant’s cell had measured 28.35 sq. m and contained twenty-one beds. They specified that it was equipped with toilets, a kitchenette, ventilation and natural light. 20. At Giurgiu Prison the applicant had been detained successively in four cells, varying from 20.35 sq. m to 20.96 sq. m in size and containing space for six detainees. They contained individual beds, a table allowing the inmates to eat their meals together, three bedside tables, a small bench, a television socket and a shoe cupboard. They added that the cells all had toilets measuring 4.03 sq. m, but did not specify whether these were included in the cell area. They stated, lastly, that the cells and the laundry provided to inmates were in good condition. ... | 1 |
test | 001-173619 | ENG | ROU | CHAMBER | 2,017 | CASE OF BĂLȘAN v. ROMANIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1957 and lives in Petroşani. 6. She married N.C. in 1979 and they had four children, born in 1980, 1988, 1992 and 1999. According to the applicant, N.C. was violent towards her and their children on numerous occasions throughout their marriage. In 2007, assaults against the applicant intensified during their divorce proceedings. The divorce was finalised on 6 December 2008. 7. On 24 June and 3 September 2007 the applicant was physically assaulted and threatened by her husband. 8. According to a forensic medical certificate issued on 28 June 2007, the applicant had numerous bruises on her face, arms, back and thorax, which required five to six days of medical care. A second forensic medical certificate, issued on 6 September 2007, stated that the applicant had an excoriation (scratches) on her ear lobe and several bruises on her arm and thighs. It was possible the injuries had been caused on 3 September. They required two to three days of medical care. 9. On 8 September 2007 the applicant was again physically assaulted by her husband. After the arrival of the police, she was taken to hospital by ambulance. She was diagnosed with an open facial trauma and a contusion of the nasal pyramid. According to a forensic medical certificate issued on 13 September 2007, the injuries might have been caused by impact with or on a hard object and required nine to ten days of medical care. 10. In their duty reports for the above dates, the police officers called by the applicant noted that she had been injured in a domestic dispute and that they had informed her that she could lodge formal complaints against N.C. In the report drafted on 24 June 2007, the police officer on duty also mentioned that when he had arrived at the scene of the incident he had found that N.C. had locked the applicant out of their joint residence. 11. On 3 August and 2 October 2007 the applicant lodged complaints with the prosecutor’s office attached to the Petroşani District Court, alleging that she had been physically assaulted by her husband in their home, in the presence of their children, on 24 June, and 3 and 8 September 2007. She attached copies of the medical certificates drawn up after the incidents. 12. On 28 August 2007 the applicant also sent a letter to the Hunedoara County police chief, in which she alleged that she had been the victim of repeated acts of violence by her husband, who often assaulted her in the presence of their children. She mentioned that on several occasions he had locked her out of their home and asked for help from the police in solving these problems. 13. On 11 September 2007 the applicant gave a detailed statement describing the three assaults to the policeman in charge with the investigation. She stated that on 24 June 2007 her husband had come home around noon and had started punching her in the face and head and threatened to kill her. She had managed to flee, but when she had returned an hour later her husband had refused to let her back into the apartment. She also mentioned that he had told the children not to speak about it. 14. In statements dated 12 September 2007, the applicant’s mother and brother told the police that throughout 2007 the applicant had very often come to their house, complaining that N.C. had beaten her, threatened to kill her or that he had locked her out of their apartment. 15. On 15 November 2007 the applicant’s and N.C.’s adult daughters, C.B.A. and C.C.A., told the police that the applicant used to drink and that she became aggressive when she got drunk. They also stated that their father had not hit their mother. C.C.A. mentioned that although she earned her own living, her father had always given her money. Her mother, on the other, had constantly been short of money and had debts to banks. 16. On 19 November 2007 N.C. was questioned by the police. He stated that he had argued with the applicant over their divorce, but had not laid a hand on her. He added that the applicant had not been cleaning the house properly and had a drinking problem. He also stated that “I did not hit her so hard as to cause her injury” and that “she may have fallen in the bathroom”. He alleged that the medical certificates submitted by the applicant had been forged. 17. On 13 and 19 December 2007 the applicant wrote to the head prosecutor of the prosecutor’s office attached to the Petroşani District Court, complaining that N.C., who had moved out of their apartment and had taken two of the children with him, had threatened to kill her when they had accidentally met on the street a week before. She stated that she feared for her life and asked for the proceedings to be speeded up and for protection from N.C. 18. On the same date, the prosecutor’s office attached to the Petroşani District Court decided not to press criminal charges against N.C. and imposed an administrative fine of 200 Romanian lei (RON) (approximately 50 euros (EUR)) on him. The prosecutor held that the applicant had provoked the disputes after drinking alcohol and referred to N.C.’s statements and those of the applicant’s two adult daughters. As regards the alleged threats, it was considered that the applicant had failed to prove her accusations. 19. The prosecutor concluded that, although N.C. had committed the crime of bodily harm, his actions had not created any danger to society, because he had been provoked by the victim, had no previous criminal record and was a retired person (pensionar). 20. The applicant’s complaint against that decision was rejected as illfounded on 25 March 2008 by the superior prosecutor. 21. On 21 April 2008 the applicant lodged a complaint against the prosecutors’ decisions of 19 December 2007 and 25 March 2008 with the Petroşani District Court, asking that N.C. be charged with bodily harm, be convicted and ordered to pay non-pecuniary damages for the suffering she had endured. She alleged that the administrative fine, which N.C. had refused to pay, had not had a deterrent effect on him as he had continued to assault her after the prosecutor’s decision of 19 December 2007. She also asked the court to impose criminal sanctions on him and requested permission to submit a recording of a conversation with N.C. in order to prove that she had been assaulted and threatened by him in September 2007. In the last paragraph of her submission, the applicant stated that she feared for her life and asked the court to “punish [N.C.] as provided for by law ... to forbid him from entering the apartment ... and to forbid him from coming near [her] ...”. 22. At the second hearing before the Petrosani District Court, the applicant applied to be given a court-appointed lawyer because she did not have the financial means to hire one. The court dismissed the application, holding that the subject matter of the case did not require representation by a lawyer. 23. By an interlocutory judgment of 23 June 2008, the Petrosani District Court decided to partially quash the prosecutor’s decision of 19 December 2007 in respect of the crime of bodily harm and the penalty imposed for it and to examine that part of the case on the merits. The prosecutor’s findings in respect of the threats were upheld. The recording was not admitted as evidence because the court considered that it had no relevance to the case. 24. The applicant and N.C. gave statements before the court. N.C. explained that on 8 September 2007 the applicant had been drunk and had threatened him with a knife. In order to defend himself, he had pushed her but he denied having ever hit the applicant. 25. On 10 February 2009 the court heard a statement from the applicant’s daughter, C.B.A., who testified as follows: “My father used to hit my mother [the applicant] and us, the children, many times. He used to do it when he had not come home at night and my mother asked him where he had been. Then he would get angry and hit her. The main reason he got angry was lack of money ... Even after July 2007, when I moved out of my parents’ apartment, my mother continued to be hit by my father; I saw some of these incidents personally. Before 2007, my mother used to drink alcohol, but it was within normal limits, and in 2007 she stopped drinking. I retract the statement I gave during the criminal proceedings because I gave it after threats from my father.” 26. On 17 February 2009 the Petroşani District Court decided to acquit N.C. of the crime of bodily harm. The court considered that C.B.A.’s statement could not be taken into consideration, without mentioning any reasons for that decision. The court concluded as follows: “The injured party [the applicant] has not proved her allegations that on 24.06.2007, 3.09.2007 and 8.09.2007 ... she was physically assaulted by the defendant. The court considers, also in view of the evidence collected during the criminal investigation, that such assaults by the defendant took place principally because of the injured party’s alcohol consumption and because she was not taking adequate care of her four children. The defendant’s acts are not so dangerous to society as to be considered crimes and he shall therefore be acquitted of the three counts of bodily harm and shall pay an administrative fine of RON 500.” 27. The court further dismissed the applicant’s claims for damages as ill-founded, without giving reasons. No mention was made in the judgment of the applicant’s request for protective measures made in her complaint of 21 April 2008 (see paragraph 21 above). 28. The applicant lodged an appeal on points of law (recurs) against that judgment. She alleged, among other arguments, that N.C. was a violent person who continued to assault her, even after being punished with an administrative fine by the prosecutor on 19 December 2007. 29. On 12 May 2009 the Hunedoara County Court dismissed as illfounded the applicant’s appeal on points of law and upheld the decision of 17 February 2009. The court held that the acts of violence committed by N.C. had been provoked by the applicant and had therefore not reached the level of severity required for them to fall within the scope of the crime of bodily harm. For the same reason, an award for damages was not justified. 30. Between 19 February and 21 April 2008 the applicant made five complaints to the Petroşani police concerning new incidents of assault or threats by N.C. to which she attached medical reports. 31. In the meantime, on 27 March 2008, the applicant asked the Hunedoara County police to apply the measures provided by law in order to stop the constant assaults she was being subjected to by N.C. She stressed that she felt that her life was in danger. A similar request was sent by the applicant to the police on 11 April 2008. 32. On 29 September 2008 the prosecutor’s office attached to the Petroşani District Court decided not to press charges against N.C. for the five incidents described by the applicant. He was however punished with an administrative fine of RON 100 (approximately EUR 25). 33. The applicant’s letter of 27 March 2008, requesting the police to take the necessary measures in order to stop the constant assaults against her, was not taken into consideration. The prosecutor found that it could not be considered a formal complaint because, unlike the other complaints, it did not refer to a specific assault. 34. The applicant did not lodge any further complaints against the above-mentioned decision. | 1 |
test | 001-150999 | ENG | BGR | CHAMBER | 2,015 | CASE OF PENCHEVI v. BULGARIA | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | George Nicolaou;Guido Raimondi;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Pavlina Panova;Zdravka Kalaydjieva | 6. The applicants were born in 1979 and 2006 respectively and live in Würzburg, Germany. 7. In 2009 the two applicants and V.P., the first applicant’s husband and the second applicant’s father, travelled to Germany, to take up a nine-month paid traineeship in State institutions which the first applicant had been granted there. 8. On 27 February 2010 the father went to Bulgaria with the second applicant. He refused to return the child to Germany on 20 March 2010, despite the child’s having a ticket for that date and contrary to what had been agreed with the mother. 9. As a result, the first applicant interrupted her training and returned to Bulgaria on 25 March 2010 where she joined V.P. and their child. 10. The first applicant brought judicial proceedings seeking protection against V.P. The proceedings were suspended on an unspecified date, following a joint request by the first applicant and V.P. The proceedings were later resumed after the first applicant claimed that the abuse continued. 11. The Ruse District Court issued, on 28 April 2011, a protection order in favour of the two applicants, prohibiting V.P. from approaching them for the next six months. The court established that, during the period between 25 March 2010 and 31 March 2010, V.P. had subjected the two applicants to psychological abuse. In particular, he had repeatedly insulted the mother in front of the child, had called her a bad mother, had not allowed the two of them to have contact unsupervised by him and, for that purpose, had locked the bathroom and bedroom doors in the apartment at night. The court also found that V.P. had made the first applicant sleep on the floor, had driven at a high speed with the child on the front seat of the car, had held the child over the balcony banister pressing the child’s carotid (neck) artery and had threatened the first applicant that he would “rip [her] open from top to bottom and serve the corresponding jail time”. 12. As a result of the restraining order V.P. did not have contact with the child between 12 May 2011 and 26 November 2011. 13. On 31 March 2010 the two applicants left the family home and the first applicant has exercised actual custody over the second applicant ever since. The first applicant was initially granted a scholarship to study for a master’s degree in Germany during the academic year 2010/2011. The father did not give his consent to the child’s travel to Germany. As a result, the second applicant lived with his maternal grand-parents from the autumn of 2010 onwards. 14. In order to spend as much time as possible with her child, the first applicant traveled frequently between Germany and Bulgaria. She submitted that between March 2010 and October 2012 she spent around half her time in Bulgaria with her child. This negatively affected her studies: because she was often absent from classes in order to visit her child, she needed longer overall time to complete her master’s programme, namely two years instead of one year. She was awarded another scholarship for a doctorate degree in Germany, starting in the academic year 2012/2013. 15. On 9 April 2010, the first applicant filed a claim for divorce. 16. On 8 October 2010 the district court pronounced the divorce of the first applicant and her husband as being due to V.P.’s fault, and granted the exercise of parental rights to the first applicant. The father’s contact rights were determined with a view to the child’s possible residence in Germany and were as follows: one week every three months and twenty consecutive days in the summer before the second applicant started school, and half of every school holiday after that. 17. Following an appeal by V.P., the regional court upheld the lower court’s findings. The Supreme Court of Cassation dismissed his subsequent cassation appeal as inadmissible. The judgment declaring the divorce final became enforceable on 28 February 2012. 18. In parallel with the divorce proceedings, on 29 April 2010 the first applicant brought proceedings before the district court under Article 123 § 2 of the Family Code (see paragraph 26 below). She sought to obtain a court decision dispensing with the father’s consent to the child’s travel outside the country. More specifically, she requested permission freely to leave the country with her son for a period of one year as of the date of entry into force of the court judgment. 19. Several court hearings were held. The applicant informed the court about her intended studies in Germany for the academic year 2010/2011, the fact that she had been granted a scholarship, that she had the financial means to take care of her son and that he had adapted well to the social environment in Germany. She did not specifically invoke a provision under the Convention; instead, she expressed her wish to live with and care for her child while she was pursuing her studies in Germany. However, it appears that she did not formally limit in writing her request for permission to travel with her child to Germany or to any other country. 20. The district court granted the first applicant’s request on 31 August 2010. It found in particular that there was no reason to suspect that she would permanently leave the country with the second applicant. It also held that the father’s access rights had been determined in a preliminary court decision (определение) of 3 August 2010 and, if the first applicant were to obstruct them, V.P. could bring separate proceedings in that connection. 21. After an appeal by V.P. the regional court upheld that judgment on 7 January 2011. The court observed that the second applicant’s right to freedom of movement was protected under the United Nations Convention on the Rights of the Child, the Constitution of Republic of Bulgaria and the Bulgarian Identity Documents Act (see paragraphs 25, 28 and 32 below). The right to freedom of movement could only be limited in exceptional situations, namely in order to protect national security, public order, public health and morals or the rights and freedoms of others. None of those exceptions had been established or even claimed in the applicants’ case. The court observed that the first applicant offered good material conditions to the child in Germany, that the child had adapted well during his stay there before March 2010, that the first applicant was going to specialise in European law in the Wurtzburg University and that the second applicant enjoyed considerable care and attention from his mother. The court also held that V.P.’s arguments about his access rights were unrelated to the present proceedings; those arguments had to do with the enforcement of a future court decision in which the exercise of the parental rights in respect of the second applicant were to be definitively determined. The court concluded that it was in the interest of the second applicant to have a passport issued and to travel with the first applicant abroad. 22. Upon a cassation appeal by V.P., the Supreme Court of Cassation refused the first applicant’s request in a final judgment of 26 June 2012. The court relied on its well established and binding case-law according to which permission for a child’s unlimited travel abroad with one parent only could not be granted because, as a matter of principle, that could never be in the best interest of the child. The reasons were more specifically that there was a risk that the requesting parent could take the child to countries which were in a state of war or in which there was a high risk of natural calamities, and thus endanger the child’s well-being while depriving the State of the possibility to ensure his or her protection. Such permission could be granted, when that was in the interest of the child, in respect of concrete destinations and for a limited period of time. Finally, the court rejected the first applicant’s request that the court define of its own motion concrete boundaries within which travel could be permitted, stating that it was bound by the formulation presented in the applicant’s request. 23. On 9 July 2012 the first applicant brought a new request for permission of the second applicant’s travel with his mother to Germany and the other European Union countries for a period of three years without the father’s consent. This time she brought her claim under Article 127a of the Family Code 2009, which provision was adopted in the meantime and which governs specifically the question of minors’ travel abroad and the issuing of identity documents for that purpose (see paragraph 26 below). She pointed out that she had consistently facilitated V.P.’s access to the child in accordance with his contact rights determined in the divorce proceedings. She submitted that, because she could not take the second applicant with her to Germany while she was pursuing her studies there, both her child and she were deprived of personal contact with each other. She claimed this negatively affected their family life as she was practically deprived of the possibility to raise her child while the exercise of parental rights had been granted to her. She submitted that her doctoral studies in Germany, which were to last three years as of the fall of 2012, would give her the flexibility necessary for her taking care of her child, given that she could do most of her work from home. Finally, she pointed out that the second applicant continuously asked to be with his mother at all times as he is very attached to her. 24. In a decision of 6 December 2012, the Ruse District Court allowed the second applicant’s travel to Germany and within the European Union, for the period of three years, accompanied by his mother. The decision was not appealed against and became enforceable on 29 December 2012. | 1 |
test | 001-161738 | ENG | GBR | CHAMBER | 2,016 | CASE OF SETON v. THE UNITED KINGDOM | 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 - Obtain attendance of witnesses) | Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano | 3. The present case concerns the applicant’s trial and conviction before a judge and jury at the Central Criminal Court for the murder of a Mr Jon Bartlett. A co-defendant, Mr Lee Osborne, was tried and acquitted of assisting an offender. 4. The facts of the case may be summarised as follows. 5. Mr Bartlett was shot dead at about 7.40 pm on 31 March 2006. According to witnesses the gunman was wearing a baseball cap and drove off in a silver Vauxhall Vectra. In the early hours of 1 April 2006 a silver Vauxhall Vectra was set alight a short distance from the scene of the shooting. 6. Shortly after the murder the applicant fled to the Netherlands. He was subsequently extradited from the Netherlands to the United Kingdom to stand trial for Mr Bartlett’s murder. 7. On 1 April 2008 the applicant formally served a Defence Statement in which he alleged that Mr Bartlett had been murdered by Mr Pearman, a man who had previously been convicted of serious drug and firearms offences and who was at that time serving a prison sentence for murder. 8. The applicant’s case was that he had been involved in a drug deal with Mr Pearman and Mr Bartlett. On the morning of 31 March 2006 Mr Pearman and Mr Bartlett had asked him to provide a car so they could collect a shipment of drugs. Later that day he purchased the Vectra in the presence of Mr Osborne and Mr Pearman, but Mr Pearman had driven off in it. 9. The applicant met Mr Pearman again at 7.30 p.m. to give him his share of money for the drugs. Mr Pearman was driving the Vectra. The applicant left the meeting with Mr Osborne, who was driving a white van. 10. After this meeting the applicant went to his parents’ home. During the night he went to a petrol station and while he was there he called a friend whose mother lived near the road where the burning Vectra was discovered. 11. On 4 July 2008 the police interviewed Mr Pearman about the applicant’s allegations. He answered “no comment” to the questions asked. That evening he telephoned his son and told him he had never heard of the applicant and knew nothing of the murder. On 17 July 2008 he telephoned his wife and again denied any involvement in the murder. Both of these conversations were recorded as Mr Pearman, a category A prisoner, would have known. 12. The applicant’s trial for the murder of Mr Bartlett started on 11 August 2008. At the trial it was accepted by the applicant that the real issue for the jury was whether he or Mr Pearman was the murderer. Mr Pearman was asked to make a statement or give evidence at the trial but refused to do so. This was made known to the court through a statement from an officer at the prison where he was being detained. 13. To disprove the applicant’s defence the prosecution sought to adduce the recordings of Mr Pearman’s telephone calls pursuant to section 114(1)(d) of the Criminal Justice Act 2003 (see paragraph 40 below). The defence objected to their admission in evidence but the judge ruled that they should be admitted. In his ruling, the judge stated that Mr Pearman had indicated, in the clearest terms, that he was not prepared to make a statement to the police or give evidence at the trial. 14. In determining whether the recordings should be admitted, the judge considered the matters listed in section 114(2) of the Criminal Justice Act 2003 (see paragraph 40 below). 15. First, he stated that he was satisfied the evidence had extremely strong probative value as Mr Pearman “appeared to be expressing genuine outrage at being implicated in a murder in which he was in no way involved”. 16. Secondly, he indicated that Mr Pearman could not be called because he refused to give evidence, but noted that all the enquiries carried out by the police to date had confirmed his lack of involvement in the killing. 17. Thirdly, he said that he was satisfied the evidence in question was “extremely important”. 18. Fourthly, the judge referred to the submissions of counsel for the applicant and for his co-defendant, who submitted that Mr Pearman would have known that his calls were being recorded by the prison authorities, and argued that his statements were self-serving. The judge said that these were all valid comments which the jury should consider in assessing the weight to be attached to Mr Pearman’s denials, but were not, in his view, grounds for excluding evidence. 19. Fifthly, he pointed out that as the conversations were taped the evidence was clearly reliable. 20. Sixthly, the trial judge said that the defence had already crossexamined the officer in the case as to Mr Pearman’s previous convictions and the details of the murder for which he was serving his sentence of life imprisonment. Moreover, he had already noted that the jury should consider the fact that Mr Pearman’s comments were self-serving and that he would have known that his telephone conversations were being recorded. 21. Finally, he said that he did not consider that there would be any real prejudice to the applicant from the tapes being played. 22. At trial, in addition to playing the tapes, the prosecution led evidence that the applicant and victim were known to each other and were both involved in drug dealing on a substantial scale. Items connected to drug dealing were recovered from Mr Bartlett’s home, one of which was a list of debts. The applicant’s name appeared on this list and he was shown as owing the victim GBP 24,000. 23. The prosecution also relied on the applicant’s previous arrest when he was found to be in possession of a firearm. In his evidence the applicant admitted that when arrested on that occasion he had been dealing in drugs, but denied possession of the firearm. 24. Mr Bartlett’s mobile telephone records were also introduced to show that he had been in contact with the applicant on the day of the murder. The last telephone call between them was recorded at 7.22 p.m., shortly before the murder. There had also been significant telephone contact between the applicant and Mr Bartlett in the ten days prior to the murder. 25. The seller of the silver Vectra gave evidence that on the afternoon of the murder he had been contacted by the applicant, who had arranged to meet at his house at 6 p.m. The seller’s mother testified that one of the two men who collected the car was named John and was wearing a baseball cap. The men came for the car in a white van that had been hired by the father of Mr Osborne that day from AVA, a hire company, and passed to Mr Osborne at 6 p.m. that evening. The van had distinctive orange writing on the side. 26. Witnesses also saw a white van in the vicinity of the shooting at the relevant time. The van had orange writing on the side, and was similar, if not identical, to the van that had been hired from AVA on the same date. 27. Mobile telephone cell site evidence was led by the prosecution with the intention of showing that the applicant’s mobile telephone was in the vicinity of the murder at the relevant time, although it was switched off between 7.28 p.m. and 7.50 p.m. Cell site evidence also demonstrated that the applicant and his co-accused were in the vicinity of the road where the Vectra was found between 8.01 p.m. and 8.17 p.m. 28. Residents of the streets near the shooting gave evidence. One stated that she had heard two bangs and a man running to a car and driving off very quickly. Another, Ms Rita Willott, gave a description of the gunman as being between twenty and thirty years’ old, of average build and height and wearing a baseball cap. She saw a car matching the Vectra’s description leaving the scene. Ms Willott’s evidence was not challenged and was read to the jury. A third eye-witness, a ten-year old boy, also gave evidence that the gunman had been in his mid-thirties and had been wearing a baseball cap. A fourth eye-witness, Mr Gordon Raggett, also gave a description matching the applicant. A fifth witness, Ms Kate Botwright, gave evidence that she had seen both the car and the van near the shooting. The driver of the car was in his late teens or early twenties, had short brown hair and wore a baseball cap. Several other witnesses gave descriptions to the effect that the man driving the Vectra was white and was wearing a baseball cap. 29. CCTV footage from a petrol station showed the applicant arriving in the white AVA van, wearing a baseball cap and making telephone calls to an associate at 1.47 a.m. The number dialled by the applicant was in the vicinity of the cell site covering the road where the Vectra was found and the inference sought by the prosecution was that the applicant was in discussions about the destruction of the car. 30. A police superintendent also gave evidence of the enquiries into Mr Pearman. The police had found no connection between Mr Pearman and either Mr Bartlett or the applicant (there was, for instance, no reference to Mr Pearman in Mr Bartlett’s telephones) and it was the superintendent’s conclusion that there was absolutely no evidence that he had been involved in Mr Bartlett’s murder. 31. A photograph of Mr Pearman was also adduced in evidence. The prosecution’s case was that Mr Pearman, a man in his fifties, did not match the description of the gunman given by the eye-witnesses. 32. Mr Pearman’s previous convictions for drug offences, firearm offences, and murder committed on 2 May 2006 were also adduced. 33. On Mr Pearman’s telephone calls, the trial judge directed the jury as follows: “It is for you to decide what weight, if any, you attach to this evidence; but it does have certain limitations which I must draw to your attention: (a) you had not had the opportunity of seeing and hearing the witnesses in the witness box and sometimes when you do see and hear a witness you get a much clearer idea of whether his evidence is honest and accurate; (b) their evidence has not been tested under crossexamination and you have not had the opportunity of seeing how their evidence survived this form of challenge; (c) in the case of Pearman these were self-serving statements, that is he was saying he was not involved in the murder of Jon Bartlett. In addition calls made by high risk category A prisoners, such as Pearman, from prison would be known by him to be recorded and he was speaking in those calls to members of his own family.” 34. On Mr Pearman’s previous convictions, the trial judge directed the jury: “You have heard this evidence because it may help you to resolve two issues in the case, namely: (a) whether the convictions show that on 31st May 2006 he had a tendency to be a drug dealer, carry a firearm and commit murder, and whether this makes it more likely that he was the gunman in this case; and (b) whether he was being truthful and reliable in denying his involvement in the present case in his telephone calls to his son and wife. A person of bad character may be less likely to tell the truth, but it does not follow that he is incapable of doing so. You may use the evidence of his bad character for the particular purposes I have just indicated, if you find it helpful to do so. It is for you to decide the extent to which the evidence of bad character helps you, if at all. The prosecution submit that the only reason Seton chose to name Pearman as the murderer in his defence statement on 1st April 2008 was because he knew he had an extremely bad character for drugs offences, firearm offences and murder, and therefore was an ideal person for him to blame for the murder in this case. The defendant Seton says he named him because he believed Pearman killed Jon Bartlett.” 35. In the course of their deliberations, the jury asked and were allowed to hear the tapes of Mr Pearman’s telephone calls again. On 26 August 2008, by a majority, the jury convicted the applicant of murder. He was sentenced to life imprisonment with a minimum term of thirty years. He appealed against conviction to the Court of Appeal. 36. The application for leave to appeal was initially considered and rejected by a single judge in February 2009. The application was renewed before the full court on 14 November 2009 and leave to appeal was granted. In doing so, the court found it to be arguable that the trial judge did not make sufficient investigations with regard to the production of Mr Pearman. The court also observed: “It seems to us that it is a long standing principle that unless there are compelling reasons to the contrary, the best available evidence should be put before the jury. In this instance, rather than the jury hearing from Mr Pearman himself, they heard the recording of his two conversations. It is also of note that shortly after the jury had retired they asked if they might hear the recordings again and, after some discussion, the recordings were played to them. It is perhaps pertinent to observe that had Pearman himself given evidence, what would have happened if there had been a request by the jury to be reminded of his evidence is that the judge would have summarised it to them from his notebook. Playing the recordings a second time to the jury, that, submits Miss Wass [counsel for the applicant], is something that elevates the importance of the hearsay evidence there contained. There is no doubt that the recordings were important evidence in the context of the case as a whole (at least so far as we are thus persuaded) and we have come to the conclusion that permission to appeal should be granted on all grounds advanced and the hearing will proceed in due course accordingly.” 37. On 4 March 2010 the full court heard the case and dismissed the appeal, reserving its judgment. The judgment was delivered on 12 March 2010. In relation to the tapes of Mr Pearman’s telephone calls, the court observed: “It is contended on behalf of the Appellant [the present applicant] that the tapes of the calls should not have been admitted without calling, or trying to call, Pearman to give evidence. ... The difficulty with this submission is the judge’s finding of fact that Pearman would not give evidence. It is true that he could have been compelled to come to Court. However, on the basis of the judge’s finding, the grounds for which have not been impugned, that would have been a fruitless exercise. Moreover, he would have had to be warned of the right to exercise the privilege against self-incrimination. The prospect of any sensible evidence being given by him was, on any realistic view, nil. All that the defence could have obtained was the advantage of having him brought up before the jury, who would presumably have seen his obduracy. The judge considered this evidence to be important and to have strong probative value. We do not know whether the jury shared this view. The defence were able to say, as they did, that the statements were self-serving, made by a serious criminal who knew that they were being recorded. What is central to this appeal is that the judge addressed the matters required to be addressed by section 114(2) [of the Criminal Justice Act 2003]. The allegation against Pearman had been made late, and given that on the Appellant’s case he had known of Pearman’s responsibility for the murder within days of its being committed, it is to be inferred that it was deliberately made late so as to make it more difficult for the Crown to investigate it. As it was, because of the lateness of the allegation, the telephone records for telephones used in the murder for which Pearman had been convicted only went back to 23 April 2006. In Z this Court said: ‘25. The Court of Appeal will not readily interfere with a trial judge’s decision to admit evidence under section 114(1)(d) [of the Criminal Justice Act 2003]. It will do so, in general, only if his decision is marred by legal error, or by a failure to take relevant matters into account or it is such that the judge could not sensibly have made.’ The judge’s decision was not marred by legal error; he took all relevant matters into account; and the decision to admit the recordings in evidence was not one that no judge could sensibly have made. ... For these reasons, we reject this ground of appeal.” 38. The Court of Appeal then added: “The safety of the conviction However, we would in any event have upheld the safety of the conviction. The evidence against the Appellant may have been circumstantial, but it was overwhelming. In summary: (i) The only evidence of Pearman’s involvement was that of the Appellant. (ii) Seton and Bartlett were involved in drugs together; there was evidence that Seton was in debt to Bartlett and that Bartlett was pressing for payment. Seton had a motive to kill Bartlett. (iii) There was no good reason for the allegation of Pearman’s involvement to have been made so late. (iv) It is difficult to see why the Appellant fled the country if he was innocent. (v) The police uncovered no evidence of any link between Pearman and either the Appellant or Bartlett, despite exhaustive enquiries. Miss Wass contends that those enquiries were imperfect. The fact remains that there was no such evidence. (vi) The Appellant himself accepted that he made no direct calls to Pearman; contact was, he said, made via Bartlett. If all three were involved in a drugs deal, it is curious indeed that the Appellant did not have Pearman’s telephone number and could not and did not telephone him direct. (vii) There was no evidence of Bartlett’s telephones having been used to telephone any telephone number associated with Pearman. (viii) Pearman was born in 1952. He was 54 at the date of Bartlett’s murder. The evidence of Rita Willott (described by the judge as an extremely important witness) was not challenged and was read at the trial. She said that the man who fired the gun was aged between 20 and 30, of average build and height, and he was wearing a baseball cap. Jack Doyle, a boy aged 10, said that the gunman was wearing a baseball cap and was in his mid-30s. Gordon Raggett described the gunman as white, in his 20s, athletic and about 5 feet 10 inches, of slim build. All these descriptions fitted the Appellant and not Pearman. Against these, one witness described the gunman as not appearing to be young. Miss Wass suggested that the evidence of the age of the gunman should be discounted because of the uncertainties of ascribing an age to a man wearing a baseball cap. However, the weight of the evidence points clearly to a young man such as the Appellant rather than Pearman. If the Appellant seriously wished to challenge Miss Willott’s evidence, she should have been required to give evidence orally and should have been cross examined. (ix) Similarly, Kate Botwright described the driver of the Vectra car, seen by her together with the AVA van, as in his late teens or early 20s, with short brown hair and wearing a baseball cap. Her account of what she saw was inconsistent with the Appellant’s. (x) The evidence relating to the purchase of the Vectra and the hire of the AVA van on the day of the murder supports the prosecution case. (xi) The cell phone evidence showed Seton to be in the vicinity of the murder when it was committed; the timing of his last telephone connection with Bartlett, just before the murder, and the switching off of his telephone at the time of the murder, and his call to a telephone in the vicinity of the location where the Vectra was set on fire, all powerfully supported his guilt. (xii) Lastly, evidence was given that on a previous occasion Seton had had a connection with a firearm. Thus, quite apart from the evidence of Pearman’s telephone calls, we had no doubt as to the safety of the conviction of the Appellant.” 39. On 6 March 2010 the applicant was informed that the Court of Appeal had refused to certify questions of general public importance for the consideration of the Supreme Court. | 0 |
test | 001-177414 | ENG | RUS | COMMITTEE | 2,017 | CASE OF CHERNOVA AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - 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 | 001-167797 | ENG | MDA | CHAMBER | 2,016 | CASE OF OTGON v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani | 5. The applicant was born in 1963 and lives in Călărași. 6. On 26 October 2005 the applicant and her daughter drank water from taps in their apartment and shortly thereafter they felt unwell. On 29 October 2005 the applicant’s daughter, who was twelve at the time, was admitted to hospital with a diagnosis of “serious acute dysentery”. The applicant was admitted to hospital with the same diagnosis on 31 October 2005. She was released from hospital on 13 November 2005, a day later than her daughter. 7. The applicant lodged a court action against the local utilities provider (“the provider”), a State-owned company, claiming 100,000 Moldovan lei (“MDL”, approximately 6,700 euros (EUR) at the time) in compensation for the harm caused to her health and for the related inconveniences, including subsequent investigations and disinfection. 8. On 1 March 2006 the Călăraşi District Court found in her favour. It found that various sanitary, medical and technical reports had established that in the vicinity of the applicant’s apartment block the sewage pipe was situated above the drinking water pipe and was leaking. The water pipe had cracked on 26 October 2005 and sewage water had infiltrated the drinking water pipe. The court also established that the pipes had been used since 1977 and that their expected lifespan was fifteen years. A total of five people, all of whom had drunk water from taps connected to the same water pipe, had been admitted to hospital with the same diagnosis at approximately the same time as the applicant. Taking into consideration such elements as the amount of physical and mental suffering caused to the applicant and her daughter, the court awarded her MDL 10,000 (approximately EUR 648 at the time). 9. The parties appealed. On 26 April 2006 the Chişinău Court of Appeal rejected the applicant’s appeal and partly accepted the provider’s appeal. It reduced the award to MDL 5,000 (EUR 310) because it found exaggerated “both the sum claimed by [the applicant] and that awarded to [her]”. 10. The parties appealed. On 25 October 2006 the Supreme Court of Justice upheld the judgment of 26 April 2006. It found that the lower court had taken into consideration the nature and seriousness of the mental suffering caused to the applicant, as well as the degree of guilt of the defendant. That judgment was final. | 1 |
test | 001-181591 | ENG | HRV | GRANDCHAMBER | 2,018 | CASE OF RADOMILJA AND OTHERS v. CROATIA | 1 | Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Possessions) | Angelika Nußberger;Branko Lubarda;Egidijus Kūris;Erik Møse;Ganna Yudkivska;Guido Raimondi;Helen Keller;Iulia Motoc;Julia Laffranque;Linos-Alexandre Sicilianos;Mārtiņš Mits;Nebojša Vučinić;Paul Lemmens;Robert Spano;Síofra O’Leary;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Georges Ravarani;Ksenija Turković;Pere Pastor Vilanova | 10. The applicants live in Stobreč (application no. 37685/10) and Split (application no. 22768/12). Their names and dates of birth are set out in the Appendix. 11. The legislation of the former Yugoslavia, in particular section 29 of the 1980 Basic Property Act (see paragraph 53 below), prohibited the acquisition of ownership of socially owned property by adverse possession (dosjelost). 12. When incorporating the 1980 Basic Property Act into the Croatian legal system on 8 October 1991, Parliament repealed the above-mentioned provision (see paragraph 54 below). 13. Subsequently, the new Property Act of 1996, which entered into force on 1 January 1997, provided in section 388(4) that the period prior to 8 October 1991 was to be included in calculating the time-limit necessary for acquiring ownership by adverse possession of socially owned immovable property (see paragraph 56 below). 14. Following several petitions for an abstract constitutional review (prijedlog za ocjenu ustavnosti) submitted by former owners of properties that had been appropriated under the socialist regime, on 8 July 1999 the Constitutional Court (Ustavni sud Republike Hrvatske) accepted the initiative and decided to institute proceedings to review the constitutionality of section 388(4) of the 1996 Property Act. 15. In a decision of 17 November 1999 the Constitutional Court invalidated with ex nunc effect section 388(4) of the 1996 Property Act. It held that the impugned provision had retroactive effect resulting in adverse consequences for the rights of third parties (primarily those who, under the restitution legislation, were entitled to the restitution of property appropriated during the Communist regime) and was therefore unconstitutional (for the relevant part of the Constitutional Court’s decision see Trgo v. Croatia, no. 35298/04, § 17, 11 June 2009). The Constitutional Court’s decision came into effect on 14 December 1999 when it was published in the Official Gazette. 16. On 19 April 2002 the applicants brought a civil action in the Split Municipal Court (Općinski sud u Splitu) against Split Township (Grad Split – hereinafter “the respondent authority”) seeking a declaration of their ownership of five plots of land and registration in their names in the land register. They submitted that the property at issue, even though it had been recorded in the land register in the name of Stobreč Municipality as the legal predecessor of Split Township, had been in their possession and the possession of their predecessors for more than seventy years. Given that the statutory period for acquiring ownership by adverse possession had elapsed, the applicants claimed to have acquired ownership of the land. Their statement of claim (tužba) read as follows: “Plots of land nos. 866/91 (...), 866/117 (...), 866/136 (...) and 866/175 ... are registered in the name of the Stobreč Municipality. EVIDENCE: Extract from the land register. However, the plaintiffs and their legal predecessors have been holding the above-mentioned immovable property in their possession for more than 70 years, and thereby acquired the ownership of that immovable property. EVIDENCE: Extract from the cadastre, testimony of the witness N.P., parties’ testimonies and other evidence, if needed. (a) [...] (b) Plot no. 866/136 belongs to the plaintiffs Mladen Radomilja and Frane Radomilja in two equal parts; (c) Plot no. 866/175 belongs to the plaintiff Ivan Brčić in its entirety. EVIDENCE: See above For these reasons it is proposed that the court, after having conducted the proceedings, adopt the following Judgment 1. It is [hereby] established that the plaintiffs are the owners and co-owners, respectively, of the [following] immovable property ... and therefore: (a) [...] (b) Plot no. 866/136 Mladen Radomilja and Frane Radomilja in two equal parts; (c) Plot no. 866/175 Ivan Brčić in its entirety 2. The plaintiffs are, on the basis of this judgment, entitled to seek and obtain registration in their name of the right of ownership and co-ownership, respectively, of the immovable property listed in point 1 of this judgment in the land register, as well as concurrent deletion of that right as registered to date in the name of the respondent authority’s legal predecessor, the Stobreč Municipality. 3. The respondent authority shall, if it opposes the action, reimburse the plaintiffs for the costs of these proceedings.” 17. By a judgment of 20 September 2004 the Municipal Court ruled in favour of the applicants. It held that they had proved that they and their predecessors had had continuous and exclusive possession of the land in question since at least 1912 and in good faith. Furthermore, it held that the statutory period for acquiring ownership by adverse possession at the relevant time had been twenty years. Consequently, in the applicants’ case that period had elapsed in 1932. The relevant part of that judgment reads: “In the statement of claim it is submitted ... that the plaintiffs and their predecessors had been in possession of the immovable property [in question] for more than 70 years and that they had thereby acquired ownership of that property by adverse possession. ... The plaintiffs base their claim on ... adverse possession. [E]ven if they do not expressly state it, the facts alleged in their statement of claim suggest that they maintain that the requirements for acquiring ownership by adverse possession had been met before 6 April 1941. This means that it was necessary to establish whether the requirements prescribed by the ... laws and other regulations in force at the time were met. ... In the opinion of this court, because of changed economic and social circumstances, the time-limits for acquiring title to property by adverse possession prescribed by ... laws and other regulations in force on 6 April 1941 do not correspond to the principle of protection of legitimate interests of individuals, long-term possessors in good faith, or to the principle of legal certainty. [The court] therefore considers that the period of 20 years is required and sufficient to acquire ownership of immovable property by adverse possession.” 18. In its appeal the respondent authority emphasised that the applicants could not have become the owners of the property in question because prior to 8 October 1991 it had been prohibited to acquire ownership of socially owned property by adverse possession, and that the lifting of that prohibition had not had retroactive effect (see paragraphs 11-15 above). In their reply the applicants responded that it was undisputed that they had been in exclusive possession of the property since the beginning of the twentieth century and thus for more than thirty years even before 6 April 1941. 19. In a judgment of 17 May 2007 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicants’ action. It held that the Municipal Court had established the facts correctly (continuous and exclusive possession of the land in good faith since 1912) but had erred in its application of the substantive law. It established, firstly, that the land in question had been in social ownership on 8 October 1991 and that under the relevant legislation it had not been possible to acquire ownership of socially owned property by adverse possession before that date unless the statutory requirements for doing so had been met by 6 April 1941 (see paragraphs 48, 53-54, 57 and 59-60 below). However, those requirements had not been met in the applicants’ case. That was so because under Article 1472 of the 1811 Civil Code (which was applicable in Croatia from 1852 until 1980, see paragraphs 47-49 and 51 below) immovable property owned by municipal authorities could be acquired by adverse possession only after forty years. However, having regard to the factual findings of the first-instance court, according to which the applicants and their predecessors had possessed the land at issue since 1912 (see paragraph 17 above), that time-limit had not expired before 6 April 1941. The relevant part of that judgment reads: “In calculating the time-limit for acquiring by adverse possession immovable property socially owned on 8 October 1991, the period ... before 8 October 1991 is not to be taken into account because before that date section 29 of the Act on Basic Ownership Relations Act expressly prohibited acquiring ownership of socially owned property by adverse possession. Even though [that] provision was repealed by section 3 of the Act on the Incorporation of the Basic Ownership Relations Act, it is because of that prior express statutory prohibition that the time elapsed before that date cannot be taken into account in calculating the time-limit necessary for acquiring ownership by adverse possession of immovable property socially owned on 8 October 1991, unless [that] time-limit had elapsed before 6 April 1941 under the regulations in force at the time.” 20. The applicants then, on 23 July 2007, lodged a constitutional complaint against the second-instance judgment alleging infringements of their constitutional rights to equality before the law, equality before the courts and fair procedure. In their constitutional complaint they stated, inter alia: “... according to the findings in the contested judgment the plaintiffs ... have been in continuous exclusive possession from 1912 until the present day in good faith. ... The case therefore concerns [such] possession in the period of 90 years before the bringing of the civil action. ... In the instant case the court did not apply the cited provisions even though the plaintiffs’ predecessors had possessed [the property in question] since at least the beginning of the twentieth century and their possession had been continuous until the bringing of the civil action and lasts until the present day. ... If the view that the property in question was socially owned on 8 October 1991 is to be accepted, even though in the land register it was not registered as such in accordance with the [relevant regulations concerning registration of the property in the State and social ownership], then it was, in accordance with the cited statutory provisions, necessary to take into account the entire period of possession until the bringing of the civil action, except [the period] between 6 April 1941 and 8 October 1991.” 21. In a decision of 30 September 2009 the Constitutional Court dismissed the applicants’ constitutional complaint and on 19 November 2009 it served its decision on their representative. The relevant part of that decision reads: “Only those facts on the existence of which depends the assessment of a violation of a constitutional right are relevant for the Constitutional Court. In the civil proceedings ... it was established that ... the complainants ... had been in continuous exclusive possession of the disputed property since at least 1912 and in good faith. ... In the reasoning of its judgment the second-instance court notes that the case concerns immovable property which was socially owned on 8 October 1991 and that, in calculating the time-limit necessary for acquiring ownership by adverse possession of [such] property, the time which elapsed before that date cannot be taken into account. In the examination of the constitutional complaint ... one has to take note of the fact that section 388(4) of the 1996 Property Act was invalidated by the Constitutional Court’s decision of [17 November 1999] ... [I]n that decision the Constitutional Court held that possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time-limit for acquiring ownership by adverse possession. Given that the time-limit for acquiring ownership of property socially owned on 8 October 1991, did not run in the period between 6 April 1941 and 8 October 1991 (which view the Constitutional Court expressed in the decision UIII1595/2006 of 5 February 2009), the court finds that the legal views expressed in the contested judgment of the County Court are based on a constitutionally acceptable interpretation and application of the relevant substantive law.” 22. On 25 May 1993, 21 February 1996 and 20 July 1999 respectively, the applicants bought three plots of land from various individuals. However, the plots were recorded in the land register in the name of Stobreč Municipality as the legal predecessor of Split Township. 23. On 4 April 2002 the applicants brought a civil action in the Split Municipal Court against Split Township, seeking a declaration of their ownership of the three plots of land and registration in their names in the land register. They submitted that the property at issue, even though it had been recorded in the land register in the name of Stobreč Municipality as the legal predecessor of Split Township, had been in the possession of their legal predecessors for more than 100 years. Given that the statutory period for acquiring ownership by adverse possession had elapsed in respect of their legal predecessors, the applicants claimed that by buying the land from them they had validly acquired ownership. Their statement of claim read as follows: “The plaintiffs together, each in one half, bought from R.K. and M.K. ... the plots of land no. 866/34 (...) ... from T.F. ... the plot of land no. 866/59 (...), ... and from M.S. ... the plot of land no. 866/35 (...) ... EVIDENCE: [The three sale and purchase agreements between the plaintiffs and the above mentioned individuals] The plaintiffs immediately, upon the conclusion of the above sale and purchase agreements entered into possession of all the immovable property listed above. They remained in possession of it until the present day. After the [relevant tax authority ordered them to pay tax] they paid it. EVIDENCE: Tax payment receipt Witness testimonies of R.K., M.K., T.F., and M.S. ... All the above-mentioned immovable property is registered in the land register in the name of the Stobreč Municipality even though the vendors in the enclosed [sale purchase] agreements and their legal predecessors have been in possession of that immovable property for more than 100 years, which means that they acquired ownership of that immovable property by adverse possession. EVIDENCE: Extract from the land register; Witness testimonies of R.K., M.K., T.F., and M.S., ... ; and other evidence, if needed. Given that the vendors were non-registered owners of the above-mentioned immovable property, they have by the sale purchase agreements transferred their right of ownership to the plaintiffs as buyers. [In this way] the plaintiffs, through their legal predecessors, acquired ownership of the plots nos. 866/34 (...), 866/59 (...) and 866/35 (...) ... EVIDENCE: See above. For these reasons it is proposed that the court adopt the following Judgment 1. It is [hereby] established that the plaintiffs Jakov Jakeljić and Ivica Jakeljić are the co-owners, each in one half, of the plots nos. 866/34, 866/59 and 866/35 ... 2. The respondent authority shall within 15 days, on pain of enforcement, provide the plaintiffs with the document containing clausula intabulandi necessary to record the right of ownership in the land register and delete that right as registered to date in the name of the respondent authority’s legal predecessor, the Stobreč Municipality. Otherwise, this judgment shall replace [such document]. 3. The respondent authority shall, within 15 days, on pain of enforcement, reimburse the plaintiffs for the costs of these proceedings.” 24. In the response to the applicants’ action the respondent authority submitted that the property in question had been in social ownership and that, having regard to the Constitutional Court’s decision invalidating section 388(4) of the 1996 Property Act (see paragraph 15 above), the fact of possessing socially owned property before 8 October 1991 could not be taken into account in calculating the time-limit for adverse possession. The applicants replied that the Constitutional Court’s decision to which the respondent authority had referred was of no relevance for the resolution of the dispute. 25. In a judgment of 19 December 2002 the Municipal Court ruled in favour of the applicants. However, following an appeal lodged by the respondent authority, that judgment was quashed on 2 March 2006 by the Osijek County Court (Županijski sud u Osijeku) on procedural grounds. 26. In the resumed proceedings, by a judgment of 1 June 2007, the Split Municipal Court again ruled in favour of the applicants. It established, firstly, that the land in question had been in social ownership on 8 October 1991 and that under the relevant legislation it had not been possible to acquire ownership of socially owned property by adverse possession before that date unless the statutory requirements for doing so had been met by 6 April 1941 (see paragraphs 48, 52 and 59-60 below). It found, however, that the applicants had proved that their predecessors had had continuous and exclusive possession of the three plots of land in good faith for more than forty years before 6 April 1941, and had continued to do so until they had sold them to the applicants (see paragraph 22 above). The applicants’ predecessors had therefore, under Article 1472 of the 1811 Civil Code (applicable in Croatia from 1852 until 1980, see paragraphs 47-49 and 51 below), acquired ownership of the land by adverse possession even before that date. The relevant part of that judgment reads as follows: “In the response to the action the respondent denied the claim because the property in question had been [in] social ownership and because, pursuant to the Constitutional Court’s decision invalidating section 388(4) of the [1996 Property Act], possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time-limit for acquiring title to property by adverse possession. ... Given that the action was brought in 2002, that in the land register the right of ownership is registered in the name of the Stobreč Municipality, that section 388(4) of the [1996 Property Act] was invalidated by the Constitutional Court’s decision of 17 November 1999 – which means that the fact of possessing socially owned property in the period before 8 October 1991 cannot be taken into account in calculating the time necessary for adverse possession – ... the plaintiffs and their predecessors could not have acquired ownership before 1991 unless they manage to prove that they had acquired [it] by adverse possession before 6 April 1941. The plaintiffs’ action evidently relies precisely on that. Therefore, since [for the court] it is beyond dispute that the plot in question had been socially owned on 8 October 1991 ... in order to determine whether it had been acquired by adverse possession it had to be established whether the plaintiffs’ legal predecessors had been in possession of certain quality of the disputed property before 6 April 1941 and thus for the period prescribed for adverse possession by the rules applicable at the time.” 27. In their appeal the respondent authority emphasised that the applicants could not have become the owners of the property in question because prior to 8 October 1991 it had been prohibited to acquire ownership of socially owned property by adverse possession unless the ownership had been acquired in that manner before 6 April 1941. The respondent authority claimed that the lifting of that prohibition had not had retroactive effect (see paragraphs 11-15 above). In their reply the applicants retorted that it was undisputed that they had been in exclusive and continuous possession of the property in good faith for more than a hundred years and that they had in any event acquired ownership thereof by adverse possession, having possessed it for more than forty years before 6 April 1941. 28. In a judgment of 29 May 2008 the Split County Court (Županijski sud u Splitu) reversed the first-instance judgment and dismissed the applicants’ action. It found that the applicants’ predecessors had only been in possession of the land in question (continuously and in good faith) since 1912. The forty-year time-limit for acquiring ownership by adverse possession set out in Article 1472 of the 1811 Civil Code had not therefore expired by 6 April 1941 (see paragraph 51 below). In the subsequent period between 6 April 1941 and 8 October 1991 the relevant legislation had prohibited the acquisition of ownership of socially owned property by adverse possession (see paragraph 11 above and paragraphs 52-53 below). This had discontinued the running of the statutory time-limits. The time which had elapsed before 6 April 1941 had therefore not continued to run after 8 October 1991 – it had actually started to run again. The relevant part of that judgment reads: “In calculating the time-limit for acquiring by adverse possession immovable property socially owned on 8 October 1991, the period ... before 8 October 1991 is not to be taken into account because before that date section 29 of the Basic Ownership Relations Act expressly prohibited acquiring ownership of socially owned property by adverse possession. Even though [that] provision was repealed by section 3 of the Incorporation of the Basic Ownership Relations Act, it is because of that prior express statutory prohibition that the time which elapsed before that date cannot be taken into account in calculating the time-limit necessary for acquiring ownership by adverse possession of immovable property socially owned on 8 October 1991, unless [that] time-limit had elapsed before 6 April 1941 under the regulations in force at the time.” 29. The applicants then, on 1 August 2008, lodged a constitutional complaint against the second-instance judgment, alleging violations of their constitutional rights to equality before the law, equality before the courts and fair procedure. In their constitutional complaint they, inter alia, stated: “Therefore, from the legal and factual situation where, as in the instant case, the plaintiffs have, themselves and through their predecessors, indisputably been in possession in good faith of the property in question for more than 100 years, and viewing such situation in the light of Croatian law in force, ... it follows that it is necessary to ... quash the contested judgment and remit the case ... If the view that the property in question was socially owned on 8 October 1991 is to be accepted, even though in the land register it was not registered as such in accordance with the [relevant regulations concerning registration of the property in the State and social ownership], then it was, in accordance with the cited statutory provisions, necessary to take into account the entire period of possession until the bringing of the civil action, except [the period] between 6 April 1941 and 8 October 1991. ... by not taking into account the entire period of possession of the property at issue before the bringing of the civil action the court misapplied the substantive law and thereby violated constitutional rights relied on by the plaintiffs.” 30. In a decision of 15 September 2011, the Constitutional Court dismissed their constitutional complaint and on 4 October 2011 it served its decision on their representative. The relevant part of that decision reads: “Only those facts on the existence of which depends the assessment of a violation of a constitutional right are relevant for the Constitutional Court. In the civil proceedings ... it was established that ... the complainants ... had been in continuous exclusive possession of the disputed property since at least 1912 and in good faith. ... In the reasoning of its judgment the second-instance court notes that the case concerns immovable property which was socially owned on 8 October 1991 and that in calculating the time-limit necessary for acquiring ownership by adverse possession of [such] property the time which elapsed before that date cannot be taken into account. In the examination of the constitutional complaint ... the Constitutional Court notes that section 388(4) of the 1996 Property Act was invalidated by the Constitutional Court’s decision of [17 November 1999] ... [I]n that decision the Constitutional Court held that possessing socially owned property in the period before 8 October 1991 could not be taken into account in calculating the time-limit for acquiring ownership by adverse possession. Given that the time-limit for acquiring ownership of property socially owned on 8 October 1991 did not run in the period between 6 April 1941 and 8 October 1991 (which view the Constitutional Court expressed in decision UIII1595/2006 of 5 February 2009), the court finds that the legal views expressed in the contested judgment of the County Court are based on a constitutionally acceptable interpretation and application of the relevant substantive law.” 31. In the proceedings before the Chamber the applicants complained that the Split County Court judgments in their cases were in breach of their rights guaranteed by Article 1 of Protocol No. 1 to the Convention and Article 14 of the Convention. 32. The relevant part of the application forms in both cases reads as follows: | 0 |
test | 001-170028 | ENG | RUS | COMMITTEE | 2,017 | CASE OF LAVEYKIN v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 5. The applicant was born in 1980 and lives in the Kyiv Region. 6. On 15 August 2006 the applicant got involved in a drunken brawl with a stranger and beat him to death. 7. The date of his arrest cannot be established with certainty. According to the applicant, he was arrested on 20 August 2006. An internal police inquiry established the date as 22 August. The official arrest record gives the time and date of his arrest as 6.45 p.m. on 24 August. 8. On 25 August 2006 the Sovetskiy District Court in Omsk remanded the applicant in custody. On the same day he was seen by a medical expert who noted two abrasions on his forehead that could have been caused by a solid blunt object four to six days prior to the examination. 9. On 28 December 2006 the applicant was convicted of murder and sentenced to nine years’ imprisonment in a high-security facility. 10. On 21 January 2007 the applicant asked the prosecutor to investigate his allegation that police officers had beaten him up after his arrest. On 11 March 2008 the prosecutor refused institution of criminal proceedings. On the following day the decision was quashed and an additional inquiry was ordered. Since then the investigative authorities and courts issued and subsequently quashed at least eight decisions to open criminal proceedings into the alleged ill-treatment. Referring to the statements from three police officers and from the investigator all of whom denied any ill-treatment or intimidation, the decision of 31 December 2009 concluded that the applicant’s allegations were unsubstantiated because the expert had determined his injuries to have been caused no later than 21 August, that is to say, three days prior to his arrest. On 28 July 2015 the prosecutor of the Sovetskiy District in Omsk annulled the decision of 31 December 2009 and ordered an additional inquiry which should establish whether or not the applicant had been brought to the police station already on 20 August 2006 and whether or not the specific police officer described by the applicant had been on duty on that day. 11. Between 26 February 2007 and 30 October 2009 the applicant served the sentence in IK-9, a correctional institution in Omsk. The dormitory was crammed and in a poor state of repair. On the latter date the applicant was transferred to IK-3 where he stayed until 26 March 2010. The dormitories in which the applicant slept were overcrowded, affording at times no more than 1.5-1.7 sq. m per detainee. The access of natural light was restricted by plastic film covering the windows. The toilets, located in a separate building, were equipped with 7 pans for 600 detainees. On 26 March 2010 the applicant was transferred to LIU-2, a medical facility, where he appears to have stayed until the end of his sentence on 23 August 2015. The premises of the facility were overcrowded and afforded no more than 1.8 sq. m of space per detainee. | 1 |
test | 001-162199 | ENG | TUR | CHAMBER | 2,016 | CASE OF CANGÖZ AND OTHERS v. TURKEY | 2 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković | 5. The applicants’ seventeen close relatives were members of an outlawed organisation in Turkey, namely the Maoist Communist Party (hereinafter “the MKP”). On various dates since the 1970s criminal proceedings had been brought against the relatives for membership of a number of outlawed organisations and for carrying out activities on behalf of those organisations. They had spent various periods of time in prisons, and after their release some of them had left Turkey and settled in different countries in Europe. 6. In early June 2005 the seventeen relatives began arriving in a rural area within the administrative jurisdiction of the town of Ovacık, near the city of Tunceli, in order to hold a meeting of their organisation. They were all killed in that area by members of the security forces on 17 and 18 June 2005. 7. The names of the seventeen relatives and the applicants’ relationship to them are as follows: i. Cafer Cangöz was the first applicant Mr Mustafa Cangöz’s son; ii. Aydın Hanbayat was the second applicant Ms Fatma Hanbayat’s son; iii. Okan Ünsal was the third applicant Ms Bahriye Ünsal’s son; iv. Berna Saygılı-Ünsal was the fourth applicant Mr Tevfik Fikret Saygılı’s daughter; v. Ali Rıza Sabur was the fifth applicant Mr Hıdır Sabur’s brother; vi. Alattin Ataş was the sixth applicant Ms Nari Ataş’s son; vii. Cemal Çakmak was the seventh applicant Ms Zekiye Çakmak’s son; viii. Ökkeş Karaoğlu was the eighth applicant Ms Hatice Karaoğlu’s son; ix. Taylan Yıldız was the ninth applicant Ms İmiş Yıldız’s son; x. Dursun Turgut was the tenth applicant Mr İbrahim Turgut’s son; xi. Binali Güler was the eleventh applicant Ms Elif Güler’s husband; xii. İbrahim Akdeniz was the twelfth applicant Mr Mehmet Akdeniz’s son; xiii. Ahmet Perktaş was the thirteenth applicant Ms Gülsüm Perktaş’s son; xiv. Çağdaş Can was the fourteenth applicant Ms Şükran Can’s son; xv. Gülnaz Yıldız was the fifteenth applicant Mr Teslim Yıldız’s daughter; xvi. Ersin Kantar was the sixteenth applicant Mr Erdal Kantar’s brother; and, xvii. Kenan Çakıcı was the seventeenth applicant Ms Dilek Çakıcı’s husband. 8. The events which took place on 17 and 18 June 2005 are disputed between the parties. Thus, the parties’ submissions will be set out separately. The facts as presented by the applicants are set out in Section B below (paragraphs 9-13). The Government’s submissions concerning the facts are summarised in Section C below (paragraphs 14-20). The documentary evidence submitted by the parties is summarised in Section D below (paragraphs 21-76). 9. At around 9 p.m. on 17 June 2005 some of the applicants heard on the television news that nine MKP members had been killed by soldiers in Ovacık and that armed clashes were continuing. 10. The following day a number of family members, suspecting that their relatives might be among those who had been killed, went to the Ovacık District Gendarmerie Command to seek more information. When they failed to obtain any information there a lawyer representing one of the families went to see the local prosecutor. The prosecutor told the lawyer that seventeen people had been killed. 11. The families were then taken to a nearby military base to identify the seventeen bodies, which had been placed in the car park of the military base. The families noted that most of the bodies were naked. As the faces and bodies of the deceased had been destroyed beyond recognition, it was not possible to complete the identification process that day. 12. When all the bodies had been identified and autopsies carried out on them they were handed over to the families for burial. 13. The photographs and video footage taken by the families while the bodies were being prepared for burial were submitted to the Court. Very extensive injuries on the bodies of the seventeen can be seen in the footage. 14. In their observations the Government summarised a number of the steps taken by the national authorities (which are also summarised below between paragraphs 21-76), and added the following. 15. The applicants’ relatives were members of the MKP terrorist organisation and some of them had entered Turkey illegally in order to participate in a meeting of that organisation in Tunceli. After receiving intelligence reports, a patrolling helicopter found the terrorist group in an area near Tunceli on 17 June 2005. The terrorist group opened fire on the helicopter. After determining the location of the group the security forces arrived in the area to arrest them. At 5 p.m. the security forces encountered the group. Despite warnings to surrender issued by the security forces, the terrorists opened fire and injured a soldier. 16. At 9 a.m. on 18 June 2005 the armed clash between the security forces and the terrorists ended. Alongside the bodies of the terrorists the security forces found, amongst other things, a number of automatic rifles and ammunition. Three terrorists were apprehended alive and arrested. 17. On the same day, just after the armed clash ended, the prosecutor arrived at the incident area, conducted an on-site inspection, prepared an incident report, and opened an investigation concerning the deaths of the seventeen terrorists. The prosecutor then ordered the destruction of the material which had no evidential or economic value. 18. On 18 June 2005 between 9.30 a.m. and 2.30 p.m. the bodies and everything else found were photographed. 19. On 29 June 2005, at the request of the relatives of the deceased, the prosecutor asked the Forensic Medicine Institute to examine the clothes and bodies of the deceased with a view to establishing whether the security forces had opened fire from a distance without issuing any warning to surrender. 20. On 1 July 2005 the Forensic Laboratories of the Police in Diyarbakır released the ballistic report, which stated that sixteen of the seventeen terrorists had actively fired at the security forces during the armed clashes. 21. The following information appears from the documents submitted by the parties. 22. According to a report prepared by three non-commissioned officers from the Ovacık District Gendarmerie Command on 18 June 2005 (hereafter “the Ovacık report”), intelligence obtained by the security forces suggested that members of the MKP were planning to have a meeting in mid-June in an area in the vicinity of the Mercan Mountains, near the border between Tunceli and Erzincan provinces. Security forces from Erzincan and Tunceli subsequently started a military operation in the area on 15 June 2005. The operation was also supported from the air. At around 5 p.m. on 17 June 2005 the security forces conducting the operation came across a group of “armed members of the organisation” and asked them to surrender. However, “the members of the organisation” responded with fire and an armed clash ensued. During the first fire opened by “the terrorists” a soldier was injured on the upper leg and airlifted to hospital by helicopter. As the area was mountainous with many caves and in some places covered with snow, and as the “members of the illegal organisation” refused to surrender and opened intense fire, the clashes continued until the following day. At around 10 a.m. the following day the fire directed at the security forces stopped and then a search was conducted by members of the security forces. The bodies of fifteen male and two female “terrorists” were recovered. “As instructed by the public prosecutor”, the bodies and weapons recovered in the area were then taken by helicopter to the Ovacık District Gendarmerie Command. 23. According to the above-mentioned report, 13 automatic rifles (one M16, four G3s, seven Kalashnikov AK47s and one PKM), 23 spent cartridges discharged from G3 rifles, and 45 spent cartridges discharged from Kalashnikov rifles, 44 bullets for PKM-type rifles, 19 bullets for G3type rifles, 76 bullets for M16-type rifles and 77 bullets for Kalashnikov-type rifles, 11 Kalashnikov magazines, 7 M16 magazines and 12 G3 magazines were recovered together with the bodies. “Items which did not have evidential value”, including four rucksacks, fifteen items of male and two pieces of female clothing and shoes were destroyed in accordance with “the instructions given by the prosecutor”. 24. The report summarised in the preceding paragraphs, together with the weapons and ammunition mentioned therein, were handed over to the Ovacık prosecutor’s office on 20 June 2005 together with a number of other documents. According to one of those documents which, in effect, is a list of the documents forwarded to the prosecutor by the military, two of the documents handed over to the prosecutor were a twelve-page military order, drawn up on 15 June 2005, for the carrying out of the operation and a sketch of the operation area. Those two documents were not made available to the Court. 25. Another military report was drawn up on 18 June 2005 by the officer in charge of the District Gendarmerie Command of the neighbouring town of Kemah, and eleven gendarmes who had taken an active part in the operation (hereafter the “Kemah report”). The report states that “outlawed terrorist organisations had set up camp” in the area and that its members had been travelling between Erzincan city centre and Sarıyazı village. There was evidence and information showing that members of the terrorist organisation were in contact with three men from Sarıyazı village who were providing them with assistance. At 8 a.m. on 17 June 2005 two of the three men in question were apprehended and questioned by the soldiers. When they denied the allegations against them, the soldiers told them that the mobile telephone belonging to Ali Rıza Sabur – one of the applicants’ deceased relatives – was being intercepted and that the security forces were therefore aware that they had been in contact with members of the illegal organisation who had arrived in the area recently. One of the two men then told the soldiers that he had seen a number of armed men in the area and that he had subsequently helped them by supplying them with food and transport and by providing guidance about the local area. The man informed the gendarmes that the last time he had seen the armed men had been that very morning and that, given that three of the armed men were “limping” and thus walking slowly, they were probably at a location at approximately one hour’s walking distance away. 26. According to the above-mentioned Kemah report, the soldiers then asked for a military helicopter and went to that area with the man to look for the applicants’ relatives. The armed men were spotted in a river bed from armed Cobra-type military helicopters at 11 a.m. When one of the armed men noticed the helicopter, he opened fire and an armed clash ensued during which nine of the armed men were killed. At 4.30 p.m. the same day a number of soldiers taking security measures in the area came under intense fire as a result of which another armed clash ensued and continued until 9 a.m. the following morning, that is 18 June 2005. After the operations ended the bodies of eight more people – two of whom were female – were recovered together with their weapons. One of the three men, who had been apprehended the previous morning and had assisted the soldiers in locating the applicants’ relatives, was with the soldiers at that time and identified the bodies as the persons whom he and his two friends had helped after their arrival in the area. The report further states that the incident took place on the border between the Ovacık and Kemah districts. The Ovacık prosecutor was then informed about the operation and instructed the soldiers to take the bodies of the seventeen and their belongings to the town of Ovacık. 27. On 18 June 2005 a press release was issued by the Gendarmerie Headquarters in Ankara, stating that “seventeen terrorists were recovered dead and three terrorists were apprehended alive” during the operations. 28. Also on 18 June 2005, the applicants’ legal representative Ms Meral Hanbayat submitted a petition to the prosecutor’s office in Malatya and asked the prosecutor to order the carrying out of necessary forensic examinations on the body and clothes of the second applicant’s son, Aydın Hanbayat, with a view to establishing the distance from which he had been shot. The legal representative also asked the prosecutor to examine Aydın Hanbayat’s hands for gunpowder residue in order to establish whether or not he had opened fire. 29. According to a report drawn up by the Ovacık prosecutor on 18 June 2005, the area where the applicants’ relatives had been killed was not safe and therefore it was not possible for the prosecutor to go there to examine the bodies. Thus, a decision was taken to bring the bodies to the town of Ovacık in a military helicopter. When they were brought to the Ovacık District Gendarmerie Command the bodies were placed in the car park reserved for military vehicles. As their identities had not yet been established, each body was given a number. 30. The Ovacık prosecutor, assisted by two doctors, arrived at the car park and examined the bodies. The prosecutor noted that all seventeen were clothed and instructed that the clothes be removed for the examinations to be carried out. The bodies were also photographed, both with their clothes on and after they were taken off. The prosecutor and the doctors noted in their report the extensive injuries they observed on the bodies. A search was carried out of the clothes, in which sixteen identity documents were found. The prosecutor decided to keep the number tags on the bodies in place as he suspected that some of the identity papers might be forged. It was later established that ten of the identity papers belonged to the deceased and the remaining six identity documents were in the names of other people. 31. The two doctors concluded that all seventeen had died as a result of injuries caused by bullets and shrapnel, but considered it necessary to have detailed autopsies carried out. The bodies were then handed over to a gendarme non-commissioned officer, who took them to the Forensic Medicine Institute’s nearest branch in the city of Malatya at around 8 p.m. the same day. No mention is made in the document whether the clothes removed from the bodies of the seventeen were also handed over to that non-commissioned officer. 32. The same evening three people who claimed to know some of the deceased arrived at the Forensic Medicine Institute’s Malatya Branch and identified the bodies of Cafer Cangöz, Aydın Hanbayat, Ökkeş Karaoğlu, Okan Ünsal, İbrahim Akdeniz and Gülnaz Yıldız. 33. The same evening forensic pathologists started carrying out the autopsies; they completed their examinations at 6.30 the following morning. A detailed verbatim report of the actions taken during the autopsies was prepared in the presence of the Malatya prosecutor. Blood and urine samples taken from the bodies were sent for further analysis to verify whether the deceased had consumed alcohol or used drugs. Swabs were taken from their hands and sent for ballistic examinations with a view to establishing whether they had any gunpowder residue on their hands. Bullets and shrapnel found in the bodies were also sent for further analysis. Fingerprints were taken for identification purposes. 34. According to the findings of the forensic pathologists which are set out in the autopsy report, eight of the deceased had been killed by explosives, three of them by bullets, and the remaining six by both explosives and bullets. The forensic pathologists considered that to establish the distances from which the seventeen persons had been shot, further examinations had to be conducted on their clothes. They noted, however, that with one exception all the deceased had been stripped of their clothes and that the clothes belonging to thirteen of the remaining sixteen had not been provided. 35. After the autopsies were concluded the Malatya prosecutor ordered the return of the bodies and the clothes to the Ovacık prosecutor’s office. 36. On 21 June 2005 the Ovacık prosecutor wrote to his opposite number in Kemah and requested a copy of the investigation documents relating to the arrest of the three men (see paragraphs 25-26 above). According to the documents submitted to the Court, the Kemah prosecutor complied with that request and forwarded a copy of his investigation file to the Ovacık prosecutor. 37. It appears from the Kemah prosecutor’s file that on 9 June 2005 the security forces had obtained authorisation from a judge to intercept the applicants’ relatives’ mobile telephones, and telephone conversations some of the applicants’ relatives had had with a number of local people, including the men who were subsequently arrested for providing them with logistical support, were intercepted by the authorities between 9 and 17 June 2005. According to the transcripts of the intercepted telephone conversations drawn up on 11 June 2005, the applicants’ relatives had discussed over the telephone issues such as renting vehicles and facilitating their movements in the area. 38. On 21 June 2005 the Ovacık prosecutor also asked the Ovacık District Gendarmerie Command to send the weapons and the ammunition recovered together with the bodies of the applicants’ relatives to the Regional Forensic Laboratories with a view to establishing whether the rifles had been used in any other previous incident and whether the 23 G3 spent cartridges and the 45 Kalashnikov spent cartridges had been discharged from the G3 and the Kalashnikov rifles found together with the bodies and whether they had thus been used in the armed clash. 39. On 19 and 20 June 2005 most of the bodies were formally identified by their family members and burial certificates were issued. 40. On 22 June 2005 three of the deceased, namely Cafer Cangöz, Berna Saygılı-Ünsal and Ökkeş Karaoğlu, were formally identified after an examination of their fingerprints was conducted at the Malatya Police Headquarters. 41. The same day the Ovacık prosecutor was provided with the report pertaining to the medical examination of the soldier who had been injured during the operation and airlifted to hospital (see paragraph 22 above). According to the report, the soldier in question had been kept in a military hospital in Elazığ between 18 and 30 June 2005 for the “injury to the skin of and a foreign object on the left femur, which is not life-threatening and which can be treated with a simple medical intervention”. 42. On 27 June 2005 three of the applicants, namely Ms Fatma Hanbayat, Mr Mustafa Cangöz and Ms İmiş Yıldız, assisted by their legal representatives, submitted an official complaint to the Ovacık prosecutor’s office. The three applicants alleged in their complaint that the bodies of their three deceased relatives had been stripped of their clothes and displayed at the military base in Ovacık before they were taken to Malatya for autopsies. The three applicants added that they had not seen the clothes since the autopsies. They submitted that the way in which their relatives had been killed must be established before the investigation could proceed. They maintained that a forensic examination on the clothes was crucial and requested the prosecutor to ensure that it was done. 43. In their complaint the three applicants also informed the prosecutor that there were “strong indications” that their relatives had been killed by being bombed from a distance, without any prior warning and without any attempts being made to ask for their surrender. They asked the prosecutor to promptly carry out an impartial investigation and visit the area where the operation had been conducted. They also requested the prosecutor to carry out the necessary investigation into the removal of their relatives’ clothes and the exhibiting of their bodies, which, they argued, constituted an offence. Finally, the three applicants asked the prosecutor to give them a copy of the documents from the investigation file. 44. When the Ovacık prosecutor received the applicants’ complaint he wrote to the Ovacık Magistrates’ Court the same day and informed that court of his opinion that “when taken into account that [the three applicants] are related to the deceased members of the terrorist organisation, handing over to them documents from the investigation file would endanger the investigation”. The prosecutor asked the Magistrates’ Court to issue a decision classifying the investigation file as confidential so that neither the three applicants, their legal representatives, or anyone else would be able to examine the investigation file or obtain any documents from it, with the exception of the autopsy reports. 45. The prosecutor’s request was granted on the same day by the Ovacık Magistrates’ Court. The same day the prosecutor forwarded the Magistrates’ Court’s decision to the three applicants and informed them that in the light of the Magistrates’ Court’s decision it was not possible to accede to their request and that he was therefore unable to give them any of the documents from the file, with the exception of the autopsy reports. The three applicants’ legal representatives were handed a copy of the autopsy reports the same day. 46. On 29 June 2005 the Ovacık prosecutor wrote to the Forensic Medicine Institute’s headquarters in Istanbul, stating that although autopsies had been carried out on the bodies of the seventeen at the Malatya Branch of the Forensic Institute, clothes belonging to some of the deceased had been returned to his office without examination, because there was no expert in Malatya able to carry out that task. The prosecutor also informed the Institute about the allegation made by the three applicants that their relatives might have been killed without a warning and added that the applicants had requested that their relatives’ clothes be forensically examined. With his letter the prosecutor sent the clothes removed from the bodies of Cemal Çakmak, Cağdaş Can, Okan Ünsal and İbrahim Akdeniz, and asked the Institute to carry out the necessary examinations on them. 47. On 1 July 2005 the three applicants mentioned above (see paragraph 42) lodged an objection to the Ovacık Magistrates’ Court’s decision to restrict their access to the investigation file and asked for that decision to be set aside. In their submission the three applicants added that they had spoken to the prosecutor and had repeated their request to have their deceased relatives’ clothes forensically examined. However, the prosecutor had told them that the clothes had been “destroyed after the operation because [the authorities] had deemed it necessary to do so”. The three applicants also stated in their submission that all they needed were the documents recording the actions taken during the investigation, and not any of the documents pertaining to the organisation of the military operation. They argued that they needed those documents to exercise their statutory right to effectively participate in the investigation. Furthermore, when the facts were known by the perpetrators and by the prosecutors, hiding those same facts from the complainants was not compatible with the principle of equality of arms. It was thus evident that an investigation conducted solely on the basis of the documents prepared by the perpetrators, the contents of which were not known to them and could thus not be challenged, would not lead to a fair conclusion. 48. The applicants also challenged the logic behind the decision to restrict their access to the investigation file, and questioned how their involvement in the investigation, the aim of which was to establish the facts, would endanger it. They submitted that some of the evidence, such as the clothes worn by their relatives, had already been destroyed on the orders of the prosecutor. The applicants considered it telling that the clothes of those killed by explosives had been sent for forensic examinations whereas the clothes worn by those killed by bullets had been destroyed. They argued that those destroyed clothes could have been instrumental in establishing the distance from which the deceased had been shot. They complained, moreover, that the prosecutor had still not visited the place where the operation had been conducted; thus, there were serious questions about the way the evidence from that place had been collected. Lastly, the applicants referred to Articles 2 and 13 of the Convention and Paragraph 16 of the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions (adopted by Economic and Social Council Resolution 1989/65 on 24 May 1989) and argued that their exclusion from the investigation was in breach of those provisions. 49. The objection was rejected by the Tunceli Criminal Court of First Instance on 20 July 2005. 50. Also on 1 July 2005, the Forensic Laboratories of the Police in Diyarbakır published their reports on the swabs taken from the hands of the seventeen deceased. According to the report, there was gunpowder residue on the palms and the backs of the hands of the sixteen of the seventeen relatives. It was stated in the report that the presence of gunpowder residue on the backs of the hands meant that the person had either fired a weapon or been in close proximity to a weapon when it was fired. The presence of gunpowder residue on the palm of the hand meant that the person had either been holding a weapon or had had contact with objects on which there was gunpowder residue, or that he or she had been standing close to a weapon when it was fired. It was stated in the same report that gunpowder residue could be found on the hand of a person who had not fired a weapon but whose hand had been in contact with objects such as a weapon, a bullet entry wound, or the hands of another person who had fired a weapon. 51. On 6 July 2005 sixteen relatives, including fourteen of the applicants, submitted a complaint to the Ovacık prosecutor with the assistance of their legal representatives. 52. The relatives began by stating that the arguments they were making in their complaint were inevitably based only on the autopsy reports and the things they had heard or witnessed personally; as they had been denied access to the investigation they had not had the opportunity to see any of the evidence or the information in the prosecutor’s file. In their submission they complained about the killings of their relatives and about the public displaying of the bodies by the security forces. The relatives also submitted that the fact that the bodies of some of their relatives had been destroyed beyond recognition by bombs had led them to form the opinion that there had not been an armed clash as alleged and that their relatives had been killed by unlawful fire from military helicopters. In any event, on account of their ages and the various physical disabilities of five of them, their relatives had not been in a position to actively participate in an armed clash with soldiers in a mountainous area. Furthermore, although it had been alleged that firearms had been found next to the bodies of their relatives, those firearms would not have been effective against military helicopters. Thus, it was obvious that they had been killed as a result of the use of disproportionate force. 53. The relatives also repeated the criticism, which had already been voiced by three of them on a number of previous occasions (see paragraphs 42-43 and 47-48 above), of the fact that they had been denied access to the investigation file and the investigating authorities’ failures to take certain steps in the investigation. In that connection they highlighted, in particular, the destruction of their relatives’ clothes by the authorities. They also complained that crucial evidence had been collected without any judicial supervision and by members of the security forces who themselves had been implicated in the killings and were therefore under investigation. 54. The relatives argued that the killing of their relatives had been unlawful and in breach of Turkey’s obligations under various international treaties, including the Convention. Contrary to the requirements of those international obligations, no attempts had been made to apprehend their relatives in a non-life-threatening fashion. Moreover, members of the security forces had committed another offence by publicly exhibiting their relatives’ naked bodies. They invited the prosecutor to carry out an independent and effective investigation that was proportionate to the seriousness of the killings. 55. The applicant Tevfik Fikret Saygılı, together with his wife Necla Saygılı, submitted another complaint to the Ovacık prosecutor in addition to the one he had already submitted on 6 July 2005 together with the other applicants. In their complaint the couple complained about the killing of their daughter, Berna Saygılı-Ünsal, and alleged, in particular, that their daughter and her sixteen friends had been unarmed at the time and there had therefore not been an armed clash between them and the soldiers. They further complained that necessary precautions in the area where their daughter was killed had not been taken by the prosecutor, and the evidence in the area had thus been allowed to disappear. They also complained that their daughter’s body had been exhibited by the soldiers. 56. On various dates the Ovacık prosecutor asked his colleagues in various towns and cities to take statements from the applicants living within their jurisdictions. According to the documents submitted by the parties, the prosecutors complied with that request and took statements from twelve of the applicants and four other close relatives of the seventeen deceased. In their statements the relatives repeated their allegations and maintained their complaints. The relatives also stated that, although they had not personally seen the bodies of their deceased relatives being exhibited, they had heard about it from others. 57. On 19 August 2005 the Regional Forensic Laboratories of the Gendarmerie concluded their examinations in respect of the weapons and the spent cartridges found in the operation area (see paragraphs 23 and 38 above). It was stated in the report that 43 of the 45 spent Kalashnikov cartridges had been discharged from the seven Kalashnikov rifles found in the area. The remaining two had been discharged from two other Kalashnikov rifles, which were not among those recovered in the area. It was also established that 22 of the 23 spent G3 cartridges had been discharged from the four G3 rifles found in the area. As the remaining G3 spent cartridge had no markings on it, no examination could be carried out on it. 58. On 23 September 2005 the Forensic Medicine Institute prepared its report in response to the Ovacık prosecutor’s request of 29 June 2005 for the clothes worn by four of the deceased at the time they were killed to be examined. It was noted in the report that the holes observed on three of the four sets of clothes were not bullet holes. The holes observed on the fourth set of clothes which belonged to Cemal Çakmak did not have any gunpowder residue and it was not therefore possible to establish the distance from which he had been shot. 59. On 23 November 2005 the applicants asked the Ovacık prosecutor to give them a copy of the autopsy report and a copy of the document pertaining to the examination of the clothes removed from the bodies of their relatives. The prosecutor complied with that request on 8 December 2005. 60. Between September 2005 and June 2006 a number of ballistic examinations were conducted; the Ovacık prosecutor was informed at the end of those examinations that the rifles and the spent cartridges found next to the bodies had not been used in any other incident. 61. On 20 June 2006 the Ovacık prosecutor closed the investigation. After summarising some of the documents which are also set out in the preceding paragraphs, the prosecutor stated the following in his decision: “Sections 86 and 87 of the Code of Criminal Procedure set out how post mortem examinations should be conducted. As stated in the autopsy reports, there was no one to identify the members of the terrorist organisation MKP/HKO who had been recovered dead. That was why they could not be formally identified in Ovacık. Moreover, their clothes were removed on the instruction of the prosecutor so that their bodies could be examined. Thus, the bodies were not stripped of their clothes by members of the security forces so that they could be publicly displayed. Removing the clothes was a necessity and did not constitute an offence. As for the complaint concerning the killings, the terrorist organisation MKP/HKO issued press releases on 19 and 23 June 2005 in which it was made clear that the deceased had indeed been members of that terrorist organisation and in which the Turkish Republic was expressly referred to as the enemy. It was stated in the press releases, for example, ‘during the armed clashes that took place between the fascist Turkish State and the forces from the People’s Liberation Army (HKO) [acting] under the leadership of our Maoist-Communist Party, seventeen of our communist warrior comrades became martyrs’. Thus, those press releases not only confirm that the deceased were members of the terrorist organisation, but also that they died in armed clashes with the security forces. The aim and strategy of the terrorist organisation MKP/HKO is to destroy the constitutional order of the Turkish Republic through armed struggle and to replace it with a different regime. The deceased were members of the MKP/HKO and were carrying out armed and unlawful activities on behalf of that organisation in order to change the constitutional order by force. The investigation documents, the nature of the weapons recovered, the other documents and information [in the file] and the fact that the deceased did not obey the security forces’ warning to surrender show conclusively that they were members of the MKP/HKO and were acting in accordance with that organisation’s aims to change the constitutional order through armed struggle. In addition, it was openly stated in the press release issued by the terrorist organisation MKP/HKO that all the deceased were members of the MKP/HKO terrorist organisation. As explained above, the deceased were members of the illegal MKP/HKO terrorist organisation, which carries out activities aimed at changing the constitutional order by force of arms; they were carrying out armed and unlawful activities on behalf of that organisation. A report showing that they were members of the unlawful MKP/HKO terrorist organisation and that they had carried out armed activities on behalf of that organisation and thus had committed the offence of attempting to change the Turkish republic’s constitutional order, was prepared [by me] and sent to the Malatya prosecutor. The [deceased] had been wandering and hanging around as a group. Their aim was to inflict casualties on members of the security forces. It was the terrorists who fired first, despite an order to surrender issued by members of the security forces. When they first opened fire they injured a member of the security forces. Then, despite a warning to surrender, the terrorist group continued to open fire. Faced with an all-out armed attack, the security forces had no alternative but to open fire. Thus, the ‘absolute necessity’ and ‘reasonableness’ criteria were satisfied, which renders the killings lawful. In order to realise their so-called ideals, terrorists make plans and act in accordance with those plans. Even when they are dying they think of killing. They prepare traps with explosives and hand grenades and set them to explode when members of the security forces approach them when they are seriously injured or after their death to lift their bodies. The response of the security forces to prevent the terrorists’ so-called last mission (the traps) which caused severe damage to the terrorists’ bodies must be regarded as a lawful action carried out within the ambit of ‘self-defence’ and ‘necessity’, because they acted with the aim of protecting their own physical integrity and lives. According to the decision of the Grand Chamber of the Court of Cassation for Criminal Law Matters (10 October 1995, decision no. 1213/271), the existence of an attack must be interpreted widely; if it is definite that an attack is going to begin, it can be regarded as an attack already begun; if it has already come to an end but there is a fear that it might begin again, then it must be regarded as not yet ended. In the present incident, it is established that members of the security forces had persistently warned the deceased, who were members of the MKP/HKO terrorist organisation, and asked them to stop and surrender. The deceased, who were members of the MKP/HKO terrorist organisation and who opened fire and injured a gendarme soldier, were then recovered dead together with their weapons. In the course of anti-terrorism measures, members of the security forces have the power to use weapons pursuant to s. 1-3 of Law No. 1481 and s. 39-40 of the Regulations on the Establishment and Powers of the Gendarmerie: the latter was drafted in accordance with s. 24 of Law No. 280, and additional section 6 § 2 of Law No. 2559. According to Article 2 § 2 of the European Convention on Human Rights, members of the security forces can use weapons if it has become absolutely necessary to do so. In recovering dead the members of the MKP/HKO terrorist organisation, members of the security forces used their weapons in accordance with s. 24-25 of the Turkish Criminal Code, Article 2 § 2 of the ECHR and s. 17 § 4 of the Turkish Constitution, and they did so within the limits of their powers and duties. It is clearly established that their actions were lawful within the context of self-defence. Thus, no offence was committed by the members of the security forces who killed the deceased or by members of the security forces and the administrative officials who planned the operation and ordered it ... The decision is hereby taken not to continue with the investigation...” 62. The applicants lodged objections to the prosecutor’s decision on 14 and 22 July 2006. In their submissions the applicants also referred to the Kemah report and drew attention to the discrepancies between that report and the Ovacık report. They argued, in particular, that in the Kemah report there was no mention of any warnings having been issued to their seventeen relatives to surrender. In the Ovacık report it was stated, however, that their relatives had been given warnings to surrender. The applicants pointed out in this connection that, instead of trying to assess which version had represented the truth, when closing the investigation the prosecutor had completely ignored the Kemah report, in which no mention was made of surrender warnings, and relied solely on the Ovacık report. 63. The applicants further argued that no investigation had been conducted into the roles played by and the actions of members of the security forces during the operation. In fact, they had not even been named or questioned. Furthermore, no attempts had been made to find out what types of weapons had been used by the security forces in the operation. 64. The applicants also referred to the documents in the Kemah prosecutor’s investigation file concerning the actions of the three men who had been arrested on suspicion of helping their relatives. They submitted that those documents showed that members of the security forces had not simply “come across” their relatives on 17 June 2005 as alleged in the Ovacık report (see paragraph 22 above). Instead, those documents showed that the operation had in fact started on 2 June 2005 and had been meticulously carried out. For example, twelve of their relatives had been under close observation by the security forces from the time of their arrival in Erzincan on 2 June 2005, and their telephone conversations with the three men who were under investigation for helping them had been intercepted and their meetings photographed. According to the applicants, this background information showed that, instead of arresting their relatives at a much earlier stage, members of the security forces had chosen to wait until their relatives went to the countryside where the conditions were suitable for an operation to kill them. Nevertheless, despite their importance and relevance, none of the above factors had been taken into account by the prosecutor in the investigation. 65. The applicants argued that if the prosecutor had taken notice of the contents of the Kemah report he would have seen that no warnings had been issued by the soldiers before they opened fire on their relatives. Indeed, given that the first contact had been with their relative who had been on lookout duty and the members of the security forces who had been in the helicopter, it was improbable that such a warning had been issued first. Thus, the prosecutor’s reliance on the alleged warnings to surrender when concluding that the killings had been in self-defence was without basis. 66. The applicants also criticised the justification proffered by the prosecutor for the use of heavy weaponry by alleging that their relatives could have set up booby-traps. They argued that there was no evidence in the file to support the prosecutor’s conclusion. In particular, it was impossible to reach such a conclusion without first questioning the soldiers who, in any event, had not made any allegations that there were booby traps. The applicants argued that by doing so the prosecutor had replaced the lack of any evidence with his subjective assumptions and that the conclusion reached by him could not, therefore, have any legal significance and could not prove that the force used had not been excessive. 67. The applicants alleged that the prosecutor had failed to establish with any clarity the way in which their relatives had been killed. They submitted that, according to the news coverage of the incident in the media on 17 June 2005, initially nine of their relatives had been killed by bombs, and that those media reports were compatible with the Kemah military report. The remaining eight relatives had been killed mostly by bullets, because after the initial heavy bombing the soldiers on the ground had formed a circle around the eight relatives and shot them. 68. The applicants also criticised the fact that the swabs taken from the hands of their relatives were examined at the Forensic Laboratories of the Police in Diyarbakır rather than at the independent Forensic Medicine Institute. Moreover, when taking into account that their relatives had been killed in the course of a military operation during which heavy weapons had been used and that their bodies had been carried by soldiers who had taken part in the operation, the prosecutor’s conclusion, which was based on the forensic reports showing that they had gunpowder residue on their hands, that their relatives had taken part in the armed clash was not compatible with the other information in the file. 69. Furthermore, no fingerprint analysis had been conducted on the rifles with a view to establishing whether they had their relatives’ fingerprints on them. Similarly, although the fact that only spent cartridges belonging to Kalashnikov and G3 rifles had been found after the operation could lead to the assumption that only G3 and Kalashnikov rifles had been used in the operation, the failure to specify exactly where those spent cartridges had been found and the added failure to collect the spent cartridges discharged from the rifles used by the soldiers discredited that assumption. 70. In addition to the above, in their complaint the applicants also criticised the prosecutor’s failure to identify the names of the soldiers who had killed their relatives, to establish the exact locations and movements of both their relatives and the soldiers, to visit the scene, to identify the weapons used by members of the security forces, and to safeguard the clothes removed from the bodies of their relatives. 71. The applicants argued that, in the light of the serious failures it could not be said that an effective investigation had been conducted. Indeed, when looking at the investigation as a whole, one could see that both the security forces who had prepared the military reports after the operation, and subsequently the prosecutor, had been convinced that their relatives had deserved to die and that that had been the real reason behind their failure to take even the most basic investigative steps. In that connection they also criticised the fact that evidence had been collected by the soldiers who were supposed to be under investigation. 72. The applicants concluded their complaint by arguing that, in the light of the shortcomings in the investigation, the prosecutor had not been in a position to decide whether or not the use of force was justified under the national legislation set out in his decision. 73. The objection lodged by the applicants against the prosecutor’s decision was rejected by the Erzincan Assize Court on 24 August 2006. The Assize Court’s decision is as follows: “The complainants submitted through their legal representatives that, although their relatives who were killed on 17 May 2005 (sic) could have been apprehended alive, members of the security forces had acted with the intention to kill and that they had stripped the clothes off their relatives and displayed their bodies publicly. Their complaint was therefore against the military and administrative authorities who had ordered the operation, planned it, and carried it out. At the end of the investigation carried out by the Ovacık prosecutor a decision was taken not to bring criminal proceedings against the military or administrative authorities who had ordered the operation, who had overseen it and who had executed it, for the killings of the deceased persons and for displaying their bodies. It was considered that no offence had been committed. Having examined the file, a decision is hereby given to reject the objection lodged by the complainants because the Ovacık prosecutor’s decision is in accordance with the procedure and the legislation”. 74. In the meantime, on the same date as he closed the investigation that is on 20 June 2006 – the Ovacık prosecutor also prepared a report and sent it to the Malatya prosecutor’s office. In his report the Ovacık prosecutor asked his colleague in Malatya to take the necessary action against the applicants’ deceased relatives who, according to the evidence in his possession, had committed the offences of membership of a terrorist organisation and had attempted to destroy the constitutional order through armed struggle, and had injured a soldier. 75. On 18 August 2006 the Malatya prosecutor decided not to bring criminal proceedings against the applicants’ relatives, because they were dead. 76. According to a document which was made available to the Court by the respondent Government and which was prepared by the Ministry of Justice on 12 May 2009 and sent to the Ministry of Foreign Affairs apparently in order to advise the latter when preparing its observations to be submitted to the Court, the applicants’ relatives’ clothes and a number of other items found on their persons were destroyed on the orders of the Ovacık prosecutor, on the ground that they had no evidential value. | 1 |
test | 001-183203 | ENG | MDA | CHAMBER | 2,018 | CASE OF DORNEAN v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström | 5. The applicant was born in 1951 and lives in Trinca. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. Having divorced his wife, the applicant has continued to live in an annex to the same house as her and their children, some of whom are adults. He has a hostile relationship with them and all of his former in-laws. 8. On 30 May 2005 he wrote to the Prosecutor General’s Office, listing the many complaints that he had previously lodged with various authorities (including the police) of having been ill-treated by his ex-wife and children, the destruction of his property by them, and the failure of the local police to react in any manner. In reply, on 21 June 2005, he was informed that the local prosecutor’s decision not to initiate a criminal investigation had been annulled; the case was then sent for re-examination by the local prosecutor’s office. 9. On 31 March 2006 the applicant was examined by a medical expert, who found an excoriation on his right hand. He explained that he had been struck by his son. 10. On 15 May 2006 the applicant was examined by a medical expert, who determined that three of his teeth were loose and found a contusion of one of the fingers on his right hand. He explained that he had been again struck by his son. On 26 June 2006 the Edineț prosecutor’s office informed the applicant that it had decided not to initiate an investigation into the alleged attack by his son (D.V.). 11. The applicant lodged another complaint with the Edineț prosecutor’s office on 31 August 2006, stating that he had been again attacked by his children and ex-wife; during that attack they had also threatened to kill him and destroy or throw away his property if he did not leave the house. He lodged a further complaint on 19 September 2006, but was subsequently informed that it had been decided not to initiate a criminal investigation. 12. In a letter dated 12 December 2006 the head of Edineț police station informed the applicant’s brother that, on a date not indicated in the letter, “a cautionary discussion” had been conducted with the applicant’s ex-wife and that she had been “officially warned to change her conduct” towards the applicant and his brother. 13. On 27 December 2006 the applicant’s ex-wife and children allegedly assaulted him at their home. His left elbow was allegedly broken. According to the applicant, he called the police immediately after the incident and was told that they did not deal with such matters. The next day he went to the local doctor, B., who referred him to Edineț Polyclinic for examination (including an X-ray examination, which was carried out on 28 December 2006). With the results of that examination he went to a medical expert on 29 December 2006. 14. According to a medical report dated 29 December 2006 the applicant sustained a fracture of the upper third of the radial bone in his left elbow, as confirmed also by the X-ray images. The injury was considered to be of medium severity and requiring more than twenty-one days of treatment. According to the report, the injury had been caused by a blunt object, possibly in circumstances such as those described by the applicant. According to medical documents submitted by the applicant, he saw a doctor, T., on 28 and 29 December 2006, and on 4 and 17 January, 7 and 22 February and 6 March 2007 and was given prescriptions for medicine to treat his left elbow. 15. On 5 January 2007 the applicant lodged a complaint with the police about ill-treatment by his ex-wife and three of his children, including D.V. On 12 January 2007 he was informed that it had been decided not to initiate a criminal investigation. On 29 January 2007 the investigating judge of the Edineț District Court dismissed the applicant’s complaint, finding that the facts complained of were being investigated by the Edineț police. On 2 February 2007 a prosecutor initiated a criminal investigation into the applicant’s alleged ill-treatment by his ex-wife and children (including D.V.). On 1 March 2007 he was officially recognised as the victim of the alleged crime. 16. On 6 March 2007 the prosecutor requested that a new expert medical report be drawn up in order to assess the severity and origin of the applicant’s injury. He noted that the applicant had alleged that he had been struck by his ex-wife and children (including D.V.). On the same day a new medical report was drawn up which confirmed the previous report’s findings. 17. On 23 March 2007 the prosecutor interviewed a witness who stated that he had worked with the applicant on 12 January 2007, cutting wood at the local priest’s house. He had not seen any injury or sign of pain on his hand. A similar statement was given on 3 March 2007 by another participant in the wood-cutting. Another witness stated that he had seen the applicant cutting wood on 12 January 2007 at the local priest’s house, while three other persons were taking a rest. On 10 April 2007 T., the doctor who had seen the applicant on 28 December 2006 (see paragraph 14 above), was questioned as a witness and declared that he had seen a contusion on his body and another contusion on the left elbow, but had not identified any broken bones. He stated that the description contained in the medical report dated 29 December 2006 of the X-ray images taken on 28 December 2006 (see paragraph 14 above) was incomplete, as it did not indicate the exact location of the broken bone. T. himself did not see in the X-ray any sign of such trauma. 18. On 2 May 2007 the prosecutor ordered another medical report to be prepared by a medical commission, because the applicant’s wife disagreed with the results of the first two reports and argued that he had been fit after the alleged assault. On 7 May 2007 the head of the Forensics Department at the Centre of Forensic Medicine (“the Centre”) asked the prosecutor to submit the X-rays of the applicant’s elbow in order to allow the report to be prepared. In the absence of a reply, the doctor repeated his request on 14 September 2007, adding that the report could not be prepared without the X-ray results. 19. On 20 September 2007 the applicant was questioned by the investigator, who proposed that he submit the X-ray images taken on 28 December 2006 for examination by the medical commission. The applicant refused, stating that he did not trust the police. 20. On 4 December 2007 the Centre returned all relevant documents to the prosecutor, informing him that, in the absence of the applicant’s X-ray results, it had been impossible to carry out the examination. 21. On 19 March 2008 the prosecutor discontinued the investigation, finding that the applicant had often provoked quarrels with his ex-wife and children, and that they denied having caused him any injuries (they were examined as witnesses on 19 January and 8 February 2007, and on 15 March 2008.) The prosecutor also referred to the statement given by doctor T. (see paragraph 17 above), whom the applicant had asked for help and who had found bruising on the applicant’s body and on his left elbow, but no bone fractures. The prosecutor furthermore noted that the applicant had only gone to the medical expert on 29 December 2006 and not immediately after the incident. Lastly, the applicant had refused to submit his X-ray results, thus preventing the medical commission from drawing up its report. 22. On 10 April 2008 a higher-ranking prosecutor annulled the decision of 19 March 2008 as premature and taken without the origin of the applicant’s injury having been established. 23. On 17 May 2008 the prosecutor again discontinued the investigation, essentially for the same reasons as those for which he had discontinued it earlier. On 23 June 2008 the investigating judge of the Edineț District Court annulled that decision. The judge found that the investigator had ignored the prosecutor’s conclusion in the decision of 10 April 2008 and had limited his investigation to interviewing the applicant’s children and members of his ex-wife’s family, who all had a hostile relationship with him and who, moreover, had given somewhat different versions of the incident of 27 December 2006. Furthermore, one of the doctors (T.) had been interviewed only superficially, another doctor who had seen the applicant after the incident had not been interviewed at all, and a third doctor who had taken the X-ray of the applicant’s elbow had also not been interviewed. Another expert medical report had been ordered on 2 May 2007 without first observing the victim’s rights, such as being able to contribute to the questions asked of the experts. Lastly, the applicant had not been informed that he could submit the X-ray results directly to the Centre. 24. On 21 November 2008 the prosecutor again discontinued the investigation, essentially for the same reasons as those for which he had discontinued it earlier. On 3 December 2008 a higher-ranking prosecutor annulled that decision for reasons similar to those relied on by the investigating judge (see paragraph 23 above). He also found that the investigative actions had been “extremely superficial” and had had a “tendentious, unilateral character”. 25. On 20 March 2009 the applicant agreed to submit the X-rays taken on 28 December 2006 to the investigator. On 7 April 2009 the prosecutor ordered that a new expert medical report be drawn up by the Centre, to be based on those X-rays. 26. On 21 October 2009 the Centre informed the prosecutor that the applicant’s X-rays were of poor quality and that the applicant would have to have a new X-ray taken. On 2 December 2009 the applicant was asked to undergo a fresh X-ray examination. The medical commission drew up its report on 9 December 2009 and found signs of a fracture in the upper third of the applicant’s radial bone in his left elbow. The commission also concluded that this type of injury could have been caused in the manner described by the applicant, but could also have been self-inflicted. 27. On 30 June 2010 the prosecutor discontinued the investigation, essentially for the same reasons as those for which he had discontinued it previously, adding that the medical reports did not exclude the possibility that the injury had been self-inflicted. That decision was confirmed by a higher-ranking prosecutor on 17 December 2010. 28. On 25 July 2011 the investigating judge of the Bălți District Court upheld the decisions of 30 June and 17 December 2010. The judge found that the investigator had undertaken all possible measures to investigate the case, and that the witnesses had not confirmed the applicant’s version of the events and had even contradicted it by stating that on 12 January 2007 they had been out cutting wood with the applicant and had not observed any injury to his elbow. 29. In a medical report dated 15 August 2007 a doctor recorded an oval light-violet ecchymosis measuring 6 cm by 4 cm on the applicant’s forehead and an excoriation measuring 2 cm by 1 cm and covered with a red crust, as well as pain in the cervical column and the right side of the thoracic region. The applicant explained that he had been beaten by his ex-wife and daughter. 30. In another medical report dated 21 August 2007 a doctor recorded an excoriation on the applicant’s head measuring 2 cm by 1.5 cm and covered with a red crust. He explained that he had been hit on the head by his ex-wife the day before. 31. The applicant submitted similar medical reports, dated 13 September and 12 November 2007, which recorded various excoriations and bruises. Each time he explained that he had been beaten by his ex-wife and children. | 1 |
test | 001-152318 | ENG | MKD | ADMISSIBILITY | 2,015 | V.V.G. v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 1. The applicant is a Macedonian national, who was born in 1966 and lives in Skopje. The President authorised, of her own motion, the non-disclosure of the applicant’s identity (Rule 47 § 3 of the Rules of Court). 2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 27 August 2002 the applicant was admitted in a private hospital M.B. in Skopje (“the hospital”) for an induced labour. On that day, she gave birth to her son with the assistance of doctor S.T.C. According to a discharge notice dated 1 September 2002 issued by company S.M. (a company which ran the hospital), the applicant had been diagnosed as having suffered, as a result of the childbirth, from ruptura perinei gradus I (perineal tear). The applicant received a general anaesthetic so that doctor S.T.C. could repair the tear. 5. On 6 December 2002 the applicant was examined in the hospital and diagnosed as suffering from ruptura perinei gradus II. She underwent surgery recorded as perineoplastica. On 7 December 2002 she was discharged from the hospital. The discharge notice was signed by doctors S.T.C. and B. 6. Between 6 and 10 February 2003 the applicant was a patient in a gynaecological hospital in Skopje, where she had further surgery: colpoperineoplastica cum levatororraphia carried out by doctor N. On admission she was diagnosed as suffering from ruptura perinea cicatricialis gradus II. 7. Between March and December 2003 the applicant was examined in several hospitals in Skopje. Some noted that she was suffering from a prolapsed or descending uterus. 8. On 21 January 2003 the applicant and her new-born son lodged a criminal complaint with the public prosecutor, accusing doctor S.T.C. of a serious offence against health and medical malpractice (see paragraphs 20 and 21 below). They alleged that doctor S.T.C. had failed to carry out an episiotomy and prevent rapid delivery, which had led to rupture of skin and muscles. Furthermore, doctor S.T.C. had failed to repair the damaged tissues, despite the fact that a general anaesthetic had been administered to the applicant for that purpose. Doctor S.T.C. had left the wound to heal spontaneously, increasing the risk of sepsis. Because of those errors the complainants had sustained serious bodily injuries: notably the applicant had descending organs with an attendant risk of prolapse. She had further been required to undergo plastic surgery, as a result of which she had been suffering from depression. The newborn child had acquired a large bulge on his head, and this had had negative consequences over his breastfeeding reflexes. 9. On 28 May 2003 the public prosecutor requested that an investigating judge of Skopje Court of First Instance (“the trial court”) take certain measures regarding the applicant’s criminal complaint. On 1 September 2003 the investigating judge requested that the Forensic Institute (Институт за судска медицина и криминалистика) draw up an expert report on whether standard childbirth procedures had been applied in the applicant’s case; whether wounds after delivery had been correctly treated, and whether the plastic surgery had been necessary. She further interviewed the applicant, doctors S.T.C. and B. 10. On 18 May 2004 the Forensic Institute drew up a report which stated (1) it was at the discretion of the doctor, depending on the circumstances of each case, whether to carry out an episiotomy; (2) a general anaesthetic had been administered and the rupture caused after delivery had been repaired, and (3) the medical evidence suggested that a fresh rupture of a second degree had occurred, which had required further surgery. The latter had not been of a corrective nature. At the request of the public prosecutor, on 23 May 2005 the Forensic Institute drew up, on the basis of available medical evidence, an additional expert report according to which (1) there was no evidence that failure to carry out an episiotomy had caused prolapsed organs or that the baby had sustained any head injuries; (2) the subsequent medical treatment of the applicant had produced inconsistent evidence in this respect. In any event, any genital prolapse had occurred later; and (3) genital descent or partial prolapse could cause minor health problems. 11. During the investigation, the applicant contacted the public prosecutor on several occasions to provide additional evidence and relevant literature in support of her complaint. 12. On 7 July 2006 the public prosecutor lodged an indictment with the trial court charging doctor S.T.C. with serious offences against health and medical malpractice punishable under Articles 207 § 3 and 217 § 3 of the Criminal Code (see paragraphs 20 and 21 below). The trial court held several hearings, at which it heard oral evidence from the applicant, the accused, and doctors B. and N. (see paragraphs 5 and 6 above), as well as the expert who had signed the expert reports of the Forensic Institute. It also requested a third expert opinion, which the Forensic Institute drew up on 8 January 2008. That report stated that it had been at the defendant’s discretion whether to carry out an episiotomy. Furthermore, the available evidence indicated that doctor S.T.C. had promptly and adequately repaired the rupture after the delivery. 13. On 28 March 2008 the trial court acquitted doctor S.T.C., finding no evidence of professional misconduct at the time the applicant gave birth to her son on 27 August 2002 or immediately afterwards. In view of that conclusion, the court considered it irrelevant to establish whether the applicant’s health had seriously deteriorated, notably whether she had genital prolapse. In the absence of any evidence of misconduct on the part of doctor S.T.C., there was no need to establish any causal link between any of the applicant’s health problems and the conduct of the accused. 14. On 14 May 2008 the public prosecutor appealed. At a public hearing held on 3 September 2008 Skopje Court of Appeal overturned the trial court’s judgment and dismissed the indictment against doctor S.T.C. (се одбива обвинението) finding that the absolute time-bar of six years (calculated from the date of commission of the alleged crime) had expired. 15. On an unspecified date, insolvency proceedings were opened against the company S.M. In the course of those proceedings, on 23 January 2003 the applicant and her son sought recognition of their compensation claim regarding the alleged medical malpractice of doctor S.T.C. On 14 May 2003 an insolvency trustee (стечаен управник) disputed the claim and advised the claimants to pursue it by means of a separate civil action. 16. On 3 June 2003 the applicant and her son instituted separate civil proceedings before the Skopje Court of First Instance in which they claimed, under section 55 of the Medical Protection Act and section 157 of the Obligations Act (see paragraphs 24 and 25 below), compensation from the hospital and the company S.M. in respect of the alleged damage sustained during the birth on 27 August 2002. On 14 October 2005 the applicant’s son withdrew from the case. During the hearing before the civil court, the applicant argued, inter alia, that the defendants should be held objectively responsible for the damage sustained and that the criminal proceedings against doctor S.T.C. had no bearing on the outcome of the civil proceedings. Those proceedings (criminal) could only be relevant for the defendants’ right to claim reimbursement of the compensation awarded for doctor S.T.C.’s negligence (see paragraph 26 below). 17. On 11 December 2006 the Skopje Court of First Instance, sitting as a civil court, relying on sections 11(3) and 201(2) of the Civil Proceedings Act 2005 (see paragraphs 27 and 28 below) stayed the proceedings pending the outcome of the criminal proceedings against doctor S.T.C. On 15 March 2007 the applicant appealed against this judgment, reiterating that the defendants’ objective responsibility for the damage sustained had not depended on the courts’ finding of criminal liability on the part of doctor S.T.C. Furthermore, she alleged that section 11(3) of the Civil Proceedings Act had been inapplicable to her case, given the fact that the civil and criminal proceedings concerned different defendants. On 12 November 2009 Skopje Court of Appeal confirmed the lower court’s judgment, reiterating that the finding of criminal liability on the part of doctor S.T.C. was a preliminary issue (претходно прашање) relevant for the outcome of the civil case. 18. The applicant did not seek resumption of the compensation proceedings, since, according to her, that would offer no prospect of success. In this connection she submitted copies of documents regarding organisational, capital and other changes in the company S.M. that happened over the years. 19. Under Article 107 § 5 of the Criminal Code, prosecution of offences subject to a prison sentence of more than a year becomes statute-barred three years after the offence was committed. Article 108 § 6 of the Criminal Code provides for an absolute time-bar on prosecutions which is twice the time-bar specified under law. 20. Article 207 §§ 1 and 2 of the Criminal Code concern medical malpractice (несовесно лекување болни) and provide for a fine or a maximum prison sentence of three years in case of medical negligence. In case of unintentional medical negligence, the law provides for a fine or a prison sentence of a maximum of one year (sub-paragraph 3). 21. Article 217 § 3 of the Code concerns serious offences against health (тешки дела против здравјето на луѓето) and provides for a prison sentence of between three months and three years in case of serious bodily harm or grave deterioration of the health due to medical negligence (in relation to Article 207 § 3). 22. Section 101 provided that the (criminal) court was responsible for deciding on a civil-party claim. If the court found the accused guilty as charged, the victim could be awarded full or partial compensation (section 101(2)). 23. In case of an acquittal or dismissal of the prosecution, if the proceedings were stayed or the indictment was rejected, the court was to advise the victim to pursue his or her civil-party claim by way of civil proceedings (section 101(3)). 24. Section 55 provided for compensation for damage sustained due to errors or medical malpractice in accordance with tort rules. 25. Section 157 provides that an employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to them. A victim can claim compensation directly from the employee if the damage was caused intentionally. The employer can seek reimbursement of the compensation awarded to the victim from the employee if he or she caused the damage intentionally or negligently. 26. Section 189 provides for the right to claim just satisfaction in respect of physical or mental pain; disfigurement; damage to reputation, honour, rights and freedoms; and fear. 27. Under section 11(3) of the Civil Proceedings Act, civil courts are bound by judgments given by criminal courts finding an accused guilty, in respect of the commission of the offence and the convict’s criminal liability. 28. Under section 201(2), a civil court may stay proceedings if the decision depended on whether an offence subject to State prosecution had been committed, who the perpetrator was, and if he or she was found guilty. 29. If the proceedings are stayed for the reasons specified in section 201(1) and (2) of this Act, the proceedings will resume after final conclusion of the proceedings whose the outcome was relevant for the civil proceedings, or if the court finds no reasons to await their termination (section 203(3)). 30. The Government submitted copies of final court judgments in which courts had awarded damages for non-pecuniary loss sustained due to medical negligence in birth or abortion cases brought against public hospitals. In those cases, the courts awarded damages notwithstanding that no criminal proceedings had been brought against the doctors responsible (4П-684/06; П.бр.417/07; П-333/09; XXXIIIП1-4418/10 and XIXП1-5127/12). They also submitted a copy of a judgment in which a public hospital was ordered to pay non-pecuniary damages because of medical error committed by a doctor who had been found guilty of “serious crimes against health” and sentenced to a suspended prison sentence (VII П.бр.205/08). 31. Lastly, they provided a copy of a final judgment in which the courts accepted a compensation claim concerning defamatory statements the defendant (a journalist) had made in a weekly newspaper. The compensation claim was brought after criminal proceedings instituted by the claimant against the defendant had been stayed because of the absolute limitation period. In the judgment, the courts found that the termination of the criminal proceedings had not been binding on the civil courts in respect of the claimant’s action for damages (П1.бр.5466/10). | 0 |
test | 001-150383 | ENG | LVA | ADMISSIBILITY | 2,014 | VDOVINS v. LATVIA | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicant, Mr Aleksandrs Vdovins, is a Latvian national who was born in 1974 and lives in Valka. 2. The Latvian Government (“the Government”) were represented by their agent Mrs I. Reine, who was succeeded by Mrs K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 23 May 2001 at 11 p.m. the police received information about an incident in the centre of Riga in which S. had been beaten up and robbed. 5. According to the pre-trial statements of two police officers (A.V. and Z.O.), when they arrived at the scene the patrol team saw the victim S. lying on the ground and six young men running away. One of them, the applicant, had dropped a black jacket. S. pointed to the group as the perpetrators, so the police arrested all six of them and took them to a police station. 6. According to the pre-trial statements of the victim S., while he was standing outside a nightclub in the centre of Riga, three young men commenced a conversation with him and afterwards they started walking down the street together. Then two of them grabbed S. by the hands (one of them, P., had his arm in a splint) and tried to drag the victim away. The victim resisted and the man with the splint hit him. Afterwards the victim was kicked in the head and body, and robbed of his jacket and a watch. When the police arrived the victim drove around with a police officer, looking for the perpetrators. The victim saw his jacket next to a group of six men. With the exception of the man with his arm in a splint he could not describe those who had inflicted injuries on him. 7. The victim, the applicant and two other arrested persons (Ka. and Kv.) were taken to the police station in the same car. During the first identity parade, set up soon after the arrest, the victim did not recognise the applicant as the perpetrator. 8. On 31 May 2001, during a second identity parade, the victim for the first time recognised the applicant and P., who had his arm in a splint, as the perpetrators of the attack. The latter two had spent a week in custody, and they were presented in the identity parade together with people brought in from the street. 9. On 20 June 2001 the applicant was confronted with the victim. The latter had identified him as one of the perpetrators of the attack. 10. In September 2001 a bill of indictment was drawn up. The applicant and another person, P., were charged with aggravated theft, committed as a group. It stated, notably, that on the critical date the applicant and P. had forced the victim to follow them. Then, with the aim of robbing him, P. had hit the applicant in the face and the applicant had kicked him on the body, inflicting minor bodily injuries on him. Afterwards they had both taken off the victim’s jacket and watch, causing him total material loss in the amount of about 50 euros (EUR). Both defendants denied the offence. 11. During the pre-trial investigation the other four members of the group of six were questioned. In May 2001 Kv. and Ka. testified that on the critical date the defendants and another person from their group had been talking to a man. The latter had shown no resistance to being led away down the street. After a couple of minutes the defendants came back; the applicant was carrying a black jacket. When the police arrived the jacket was on the ground. Ka. testified that he had not seen anyone drop the jacket but that it could have been the applicant. According to Kv., when the police arrived the applicant dropped the jacket. Later, when questioned by a prosecutor, Kv. and Ka. upheld and added to the statements they had made during the police questioning. 12. During court hearings in November 2001 and March 2002 the defendants cross-examined the victim, both police officers (A.V. and Z.O.), and four other witnesses (Ka., Kv., R.P. and R.L). The four other witnesses were all part of the group which had initially been arrested, and R.P. and R.L. had been summoned to the court at the defendants’ request. 13. During the hearing defence witnesses R.P. and R.L stated, inter alia, that they had not been with the defendants the whole time. 14. On 20 March 2002 the Riga Central District Court acquitted the defendants and released them from detention. As far as the applicant was concerned, the lower court indicated, in particular, that the scene of the alleged crime had not been identified, and the victim could not indicate who had attacked him, with the exception of co-defendant P.; that his statements concerning the applicant’s clothes and height did not match those of the applicant; and that the victim had not stated that the applicant had beaten him and on what parts of the body; similarly it was not stated that the applicant had stolen the victim’s belongings. Finally, the court refused to admit in evidence the results of the identity parade and also refused to cross-examine the victim and the defendants. It emphasised that the record of the identity parade had been drawn up contrary to the domestic law, in that the defendants were presented in the parade after having spent a week in custody, and their clothes and appearance differed considerably from those of the others in the parade; also, no photographs were taken of those in the parade and there was no statement by the victim confirming which characteristics had caused him to recognise the defendants. 15. The prosecution lodged a protest reiterating the arguments set out in the bill of indictment. They considered that the lower court had failed to give weight to the statements of the victim and witnesses Kv., Ka. and both police officers. 16. The appellate court summoned the victim and two witnesses, Kv. and Ka. The latter failed to attend the hearing. Invited by the court to express an opinion about whether the court could commence adjudication in the absence of the witness Ka., the applicant confirmed that he had no objection. 17. Questioned during the appellate hearing about the circumstances of the attack, the victim stated that although it was dark, at the moment of the attack he had had a clear view of the faces of his attackers, but that immediately after the arrest he could not recognise them, because it was dark and the co-defendant’s splint was not visible. 18. Witness Kv. retracted his statements given to the prosecutor during the pre-trial investigation. The statements of the police officers were read out. 19. Before summing up, defence counsel argued that the objection was also based on the statements of the two police officers, who should be summoned to the appellate court hearing. Without giving reasons, the defence also asked for R.P. and R.L. to be summoned. 20. The appellate court dismissed the defence’s requests for witnesses to be heard, arguing that they had all already been cross-examined. The defence did not object to the court investigation being brought to a close. 21. On 27 October 2003 the Rīga Regional Court convicted the defendants and sentenced the applicant to eight years’ imprisonment. 22. The court preferred to give weight to Kv.’s statements given during the pre-trial investigation, because, as a friend of the applicant’s co-defendant, his statements given during the hearing of the appellate court in the presence of his friend were not to be treated as objective. In relation to the statements given by Ka., the court noted that he had not changed the statements he had made during the pre-trial investigation and before the court of first instance, and that his statements did not differ in substance from those given by Kv. The court also did not consider that there were contradictions in the victim’s statements and that it was not crucial that he could not tell precisely which defendant had kicked him and how many times. The court gave weight to the fact that during the court hearing the victim could describe the situation and explained that he had tried to cover his face instead of observing the actions of each perpetrator. In connection to the varying statements about the exact place of the fight, the appellate court observed that it was explained by the fact that neither the victim nor the defendants lived in Riga. As regards statements about the visual description of the perpetrator’s clothes, the court did not consider the slight differences in the statements crucial, given that the events took place at night. The court said that even without the identification parade the defendant’s guilt had been proved by other evidence. The court noted that the victim had recognised the applicant during the confrontation. 23. In their appeal on points of law the applicant and his counsel based their case on the shortcomings identified by the lower court. In connection to the witnesses’ statements the applicant noted “...the court investigated the case incompletely. [It] did not summon all the witnesses, and the statements they had given before the lower court were not read out and [were not] taken into account”. 24. On 13 January 2004 the Senate upheld the appellate court’s judgment. It noted that the appellate court had excluded from the evidence the contested records of the identification parade. The Senate noted that the appellate court had analysed in detail and assessed all the statements provided by the victim S., as well as the statements of Kv. provided during the pre-trial investigation and during the court hearing, and also the statements of Ka. which had been read out during the hearing, and other evidence described and analysed by the appellate court. 25. It noted that the question concerning the defence’s request in relation to witnesses had been examined and decided in accordance with the law. 26. Article 275 of the Code provides that when a court session is opened the presiding judge is to ask the defendant and his representative whether they request new witnesses to be summoned or the submission of new evidence and inclusion thereof in the criminal matter. The person who submits a request shall specify particular circumstances which should be clarified by the questioning of witnesses or the submission of other evidence. The court shall ask the opinions of other participants in the proceedings concerning each request in accordance with Article 243 of this Code, and shall make a ruling. Refusal of the request shall not deprive the person whose request has been refused of the right to submit the request during the court hearing. 27. Article 442 sets out that the appeal court may summon witnesses who have testified before the first-instance court to a court session if the appeal court deems it necessary. 28. Article 443 stipulates that parties to appeal proceedings have the right to request witnesses to be summoned who have not been heard by the first-instance court. Such witnesses may be summoned on the appeal court’s own initiative. | 0 |
test | 001-175216 | ENG | DNK | ADMISSIBILITY | 2,017 | ALAM v. DENMARK | 4 | Inadmissible | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström | 1. The applicant, Ms Faruk Rooma Alam, is a Pakistani national who was born in 1982 and lives in Denmark. She was represented before the Court by Ms Karoline Normann, a lawyer practising in Copenhagen. summarised as follows. 3. The applicant stated that she entered Denmark in 1984, when she was approximately 2 years old, to join her father, who already lived there. It is not known when her mother and siblings arrived. 4. The applicant was registered with the Danish National Register (folkeregisteret) as from 18 January 1986. On 2 February 2001 she was granted a permanent residence permit. 5. The applicant went to school and studied to be a datamathematician. 6. In 1999, when the applicant was 16 years old, her parents arranged her marriage to F, a Pakistani national, in Pakistan. 7. In May 1999, F entered Denmark on a tourist visa. After 3 months, he returned to Pakistan. During the subsequent years they visited each other in Denmark and Pakistan. 8. On 27 November 2000, the applicant gave birth in Denmark to their son, M, a Pakistani national. 9. On 1 March 2004, the applicant gave birth in Denmark to their daughter, I, a Pakistani national. 10. The applicant maintained that F was violent and that in 2006, when she had been in Pakistan to attend her brother’s wedding, she and the children had been locked up for days by F and his family, in order to keep her in Pakistan. She had managed to escape, but F had found them and kidnapped M. With assistance from the Danish Embassy, the applicant and I had returned to Denmark. After some time, F had agreed that M be returned to the applicant in Denmark. Thereafter the applicant did not return to Pakistan and the spouses had no contact. They divorced in 2006 or 2007. In 2008 the applicant was granted sole custody of M and I. 11. In Denmark the applicant lived with her children, her mother and a brother. 12. On 31 August 2011 she was convicted of social security fraud and given a six-month suspended sentence. 13. On 14 September 2012 the applicant was detained and charged with, inter alia, murder. 14. On 17 December 2013, she was convicted by a City Court (retten i Roskilde) of murder, attempted aggravated robbery and arson under Articles 237, 288 in conjunction with 21, and 180 of the Penal Code. She was sentenced to life imprisonment. 15. The City Court found it established, among other things, that the applicant had had a relationship with a Pakistani man who later married N, for which reason the applicant, who was 30 years old at the time, planned to murder N. With the help of her 19-year-old nephew and his 17-year-old friend, they watched the spouses’ apartment and, when they were certain that N was alone, they entered, masked, armed with a meat tenderiser and carrying petrol. Then they searched in vain for valuables, poured petrol over N and set her alight. She burned to death, and the apartment burned out, thereby also endangering the lives of the other inhabitants of the residential building. 16. By the same judgment, the applicant was expelled from Denmark with a life-long ban on returning. Before the City Court, the Aliens Board (Udlændingestyrelsen) gave a statement about the applicant’s situation, including, inter alia, that she had stayed legally in Denmark for approximately 27 years, that she spoke Danish, English, German, Pashto, Urdu and Punjabi, and that her mother and five siblings lived in Denmark. Moreover, since the children’s residence permits were dependent on the applicant living in Denmark, expulsion might have consequences for them. 17. Before the City Court, the applicant stated that most of her family in Denmark had obtained Danish nationality. Her father, who had died in 2003, had been married before, and she had half-siblings in Pakistan from that marriage. Her mother went often to Pakistan and owned a house there. Her children, at that time aged 9 and 13, had been placed with her sister and her husband since the applicant’s arrest. She was afraid that their father, F, would kidnap them and take them to Pakistan. He had obtained a Spanish passport. The children spoke Danish, and M also spoke a little Pashto in order to be able to talk to his maternal grandmother. 18. In respect of the expulsion order the City Court stated: “[The applicant] who is 30 years old, entered Denmark ... when she was one and a half years old. She has had all her upbringing, schooling and education in this country. Her mother and most of her siblings live in Denmark and are Danish citizens. Moreover, her children, who are 9 and 13 years old, live in Denmark. However, [the applicant] has maintained what must be considered a real attachment to Pakistan and Pakistani culture. With her mother she speaks only Pashto, and her family is integrated as a central part of her network. She has previously been to Pakistan, where she has two half-sisters, and her mother often goes to Pakistan, where she owns a house. Against this background, and having regard to the fact that [the applicant] is punished with life imprisonment for attempted aggravated robbery, murder and arson, and since the above-stated about the risk of double punishment and persecution and considerations for the applicant’s children cannot lead to another decision, expulsion will not breach Article 8 of the Convention or Denmark’s international obligations otherwise, see section 26, subsection 2, of the Aliens Act. Against this background there are 12 votes in favour of granting the expulsion request with a lifelong ban on returning by virtue of section 49, subsection 1, in conjunction with section 22, no. 6 and section 32, subsection 2, no. 5.” 19. The applicant appealed against the judgment to the High Court of Eastern Denmark (Østre Landsret) before which she explained, among other things, that her children had visited her in prison once or twice a week. F had requested custody of the children and that case was pending before the City Court. He had attempted, in vain, to obtain a residence permit in Denmark. 20. By judgment of 4 September 2014, the High Court confirmed the conviction but reduced the sentence to 16 years’ imprisonment. Adhering to the reasons set out by the City Court, it upheld the expulsion order. 21. Leave to appeal to the Supreme Court (Højesteret) was refused on 13 January 2015. 22. On 6 March 2015, the applicant married a Danish citizen. 23. By judgment of 29 June 2015, F’s request for custody of M and I was refused. From that judgment it appeared that the applicant had consented to her children being officially placed with her sister and her husband. The children were well-adjusted. They had not seen F for seven years. In the period from 2007 to 2012 he had not contacted them at all. They wanted to live with their mother, together with their aunt and uncle (with whom they lived). They did not want to live with their father in Pakistan. Even if the father had the possibility to move to Denmark, they did not want to live with him. They did not want contact with him. 24. The relevant provisions of the Aliens Act (udlændingeloven) relating to expulsion were recently set out in detail in Salem v. Denmark, no. 77036/11, §§ 49-52, 1 December 2016. 25. Article 38 of the Penal Code sets out that release on parole may take place at the expiry of two-third of the term of imprisonment, or in special circumstances, take place earlier, provided that the prisoner has served at least half of the sentence, and this constitutes a period of at least two months. If a sentence of life imprisonment has been imposed, leave on parole can only take place after the prisoner has served at least twelve years (Article 41). | 0 |
test | 001-180544 | ENG | UKR | COMMITTEE | 2,018 | CASE OF LADA v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Carlo Ranzoni | 5. The applicant was born in 1963 and lives in Khorly. 6. At the material time the applicant was the head of Khorly Village Council. 7. On 8 May 2007 he signed a permit allowing a businessman, Ya., to set up a tent with game machines in the village. This permit had no official stamp on it. According to the applicant, it was not stamped because the council’s accountant was away on a work matter and had the stamp with her. However, according to the court findings in the criminal case against the applicant (see below), the applicant told Ya. that the permit would be stamped upon receipt of 20,000 Ukrainian hryvnias (UAH – approximately 3,800 euros (EUR)). 8. On 14 May 2007 Ya. complained to the police. On the same day he was given audio and video-recording equipment and marked banknotes. When he entered the applicant’s office the applicant showed him a piece of paper with something written on it, pointed to the bus stop outside his window and said “There is a man out there”. Ya. went to the bus stop and gave money to V., who was standing there. Later, police officers seized the marked banknotes from V. in the presence of I. and L. 9. On the same day criminal proceedings were instituted against the applicant for requesting a bribe. 10. At 7 p.m. on 14 May 2007 the applicant was arrested. 11. On 16 May 2007 the applicant was charged with taking a bribe. 12. On 17 May 2007 the Komsomolskiy District Court (“the District Court”) authorised the applicant’s custody until 24 May 2007. The court held that there was no information about the applicant’s previous convictions, if any, or his family situation, state of health and so on; therefore the court “could not authorise a preventive measure, such as pre-trial detention”. That decision was not open to appeal. 13. On 22 May 2007 the District Court remanded the applicant in pre-trial detention, since he had been accused of a serious crime and might abscond, hinder the investigation or continue his criminal activity. 14. The applicant appealed. His lawyer indicated that, when requesting that the applicant be remanded in custody, the prosecutor’s office had failed to comply with the court decision of 17 May 2007 (see paragraph 12 above), and had submitted only documents referring to the absence of previous convictions and the applicant’s satisfactory state of health. The lawyer further argued that the applicant had not committed any crime, there were no indications that he would abscond or hinder the investigation, his state of health was not satisfactory, and that council members and village inhabitants had signed a petition for his release. 15. On 1 June 2007 the Kherson Regional Court of Appeal upheld the decision of 22 May 2007 (see paragraph 13 above). The court noted that the case file contained material confirming the applicant’s wish “to go to Russia to his brother”. It also noted that he might hinder the investigation by using his official position. 16. On 27 July 2007 the District Court released the applicant on bail. 17. On 16 January 2008 the District Court again remanded the applicant in pre-trial detention at the prosecutor’s request. The relevant decision reads as follows: “On 16 January 2008 the Komsomolskiy District Court of Kerson ... established: The criminal case concerning the accusation of [the applicant] under Article 368 paragraph 2 of the Criminal Code of Ukraine is pending before the Komsomolskiy District Court of Kherson. The prosecutor requested that the preventive measure against [the applicant] be changed in view of the fact that [the applicant], using publications in ... newspaper, is putting pressure on witnesses in the case (K. and A.) who have not yet been questioned by the trial court. [This] could affect the truthfulness of their testimony and their appearance before the court. In the hearing, the prosecutor further provided additional evidence to confirm the fact of [the applicant’s] putting pressure on I., a witness, and the victim, Ya. Having heard the prosecutor’s explanations, as well as [the applicant] and his lawyers, the court finds that the application has to be allowed on the following grounds. [The applicant] is accused of having committed a crime under Article 386 paragraph 2 of the Criminal Code of Ukraine. The sanction established for the crime is imprisonment for the period from five to nine years. On 27 July 2007 bail ... was chosen as a preventive measure in respect of [the applicant]. Pursuant to Article 148 of the Code of Criminal Procedure, preventive measures shall be applied to a defendant with the aim of preventing attempts ... to obstruct the truth from being established in a criminal case. ... Preventive measures shall be applied if there are sufficient grounds to consider that the defendant will try to abscond from the trial or obstruct the truth from being established in a case. [The applicant] has no criminal record, has committed a serious crime linked to his professional activity as the head of Khorol Village Council, is currently removed from his position and accordingly is not able to continue his criminal activity, [and] is well thought of at his place of work and place of residence. However, the court believes that [the applicant], acting through unidentified individuals, has taken steps aimed at obstructing the truth from being established in the case in the course of the court’s consideration of his case. Thus, according to statements of 28 December 2007 made by the victim, Ya., and I., a witness, unknown individuals acting on [the applicant’s] behalf, have put psychological pressure on them, trying to prevent their appearing at the hearing of 29 December 2007. The above-mentioned fact is evidence of a breach by [the applicant] of his undertakings. Bearing in mind that the court proceedings in the criminal case are still ongoing, that K. and A., witnesses, have not yet been questioned, and that there may be a need for additional questioning of I., a witness, and Ya., the victim, the court believes that the prosecutor’s application is well-founded and should be granted in order to prevent further possible pressure [being put] on the witnesses and the victim, and thus to eliminate obstacles to establishing the truth in the case ... Given what has been stated above, ... the court rules to change the preventive measure in respect of [the applicant] ... ” 18. On the same date the President of the District Court rejected an application by the applicant’s lawyer for the judge who was dealing with the case to be withdrawn on the basis of bias. He held that the expression “has committed a serious crime” used by the court concerned “the classification of the offence of which the applicant was accused”, and did not mean that the court was biased. 19. On 23 January 2008 the Kherson Regional Court of Appeal refused the applicant leave to appeal against the decision of 16 January 2008 remanding him in pre-trial detention (see paragraph 17 above), since that decision was not open to appeal. 20. On 15 and 22 February 2008 the applicant unsuccessfully asked the court to change the preventive measure to a non-custodial one. 21. On 29 February 2008 the District Court released the applicant on bail. It found that Ya. and I. had complained on 28 December 2007 to the police that that they had been threatened by individuals unknown to them. However, by 29 February 2008 no further investigation of this allegation had been carried out by the police, so it was decided that the applicant should be released. 22. On 16 April 2008 the District Court sentenced the applicant to five years’ imprisonment for taking a bribe. The applicant appealed, arguing, inter alia, that the principle of the presumption of innocence had been breached in his case. 23. On 24 June 2008 the Kherson Regional Court of Appeal upheld the District Court’s judgment. 24. On 26 February 2009 the Supreme Court of Ukraine rejected an appeal by the applicant on points of law. 25. The applicant served his sentence at Dariyivska Correctional Colony no. 10 (“the prison”) from 16 July 2008 to 14 March 2011. According to the applicant, there were up to ninety inmates in the living quarters. There was no ventilation. The washing facilities were situated in the basement, which was constantly flooded by underground water. There were five basins and three taps for 300 detainees. There was no electricity or light at night. The food was of a very low quality and the water was undrinkable. 26. According to the Government, the applicant was held in a block which measured 271.7 square metres and was designed to accommodate up to ninety prisoners, thus each prisoner had no less than 3 square metres of personal space. They did not provide any facts or comments with respect to the remainder of the applicant’s complaint. | 1 |
test | 001-156066 | ENG | ROU | CHAMBER | 2,015 | CASE OF CIPRIAN VLĂDUȚ AND IOAN FLORIN POP v. ROMANIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 4. The applicants, two brothers, were born in 1982 and 1974 respectively and live in Tautii Magheraus. 5. According to the first applicant, in the summer of 2004 he was contacted on several occasions by an undercover police agent who wanted to buy ecstasy from him, brought into the country from the Netherlands. According to the prosecutor’s report, the police gained knowledge of the first applicant’s alleged involvement in drug trafficking at the beginning of September 2004. 6. It was established by the prosecutor and domestic courts that some time in September the first applicant brought a batch of drugs into the country and sold ten tablets to the undercover agent on 26 October 2004 and 115 tablets on 29 October 2004. According to the transcripts of the conversations intercepted between the first applicant and the police agent, on 28 October the latter called the first applicant, asked him if he had “any left” and at the applicant’s confirmation that some 150 remained, the undercover agent calculated their price at 1,000 euros, and advised the applicant on where and how to meet the next day for him to buy them all. 7. On 29 October 2004 the police intercepted a conversation between the undercover agent and the first applicant when they met for the drug transaction. The police agent told the applicant that the day before he had been offered a batch of “1,000 pieces” (1,000 de bucăţi) which would be available the next week, and that he would not want to miss such an opportunity. The applicant offered to bring the same amount for him. The police agent agreed, and asked how much more he could bring. They settled for 5,000 pieces. The undercover agent warned the first applicant repeatedly during their conversation that if he did not receive his supply from the applicant he would go to the other provider. During the conversation it appeared that the applicant had meanwhile sold some twenty more tablets. The first applicant called someone on his mobile phone and discussed in English getting 5,000 or 10,000 tablets. He then reported to the agent that he could get him some stronger tablets, and described the sensations he had had when he had used them himself. The agent proposed the place and arrangements for their next transaction. 8. The new transaction was postponed for various reasons and was finally planned to take place on 23 December 2004 in Baia Mare. That day the first applicant informed his brother for the first time that he had brought drugs into the country and about the deal. After having initially refused and argued extensively about it with his brother, the second applicant agreed to help, in order to save the family from potential retaliation by the Dutch seller. That evening he took the drugs to an agreed location while the first applicant negotiated the terms of the transaction with the undercover agent. 9. The first applicant and the undercover agent then joined the second applicant; the agent was offered an ecstasy tablet for testing and then left with the first applicant in order to set out the details of the transaction. The second applicant was to wait at the same location for the buyer to return with the money to pay for the drugs. Meanwhile, the second applicant saw police agents approaching in a taxi. He threw the bag containing the drugs into a nearby bush and phoned his brother to warn him. The first applicant told the undercover agent that the transaction was cancelled. 10. Police agents apprehended the two applicants and later recovered a bag containing 4,409 ecstasy tablets from the bushes. 11. The applicants were taken to the police station for further questioning. After consultation with their counsel they refused to make any statements. They were arrested. 12. On 25 October 2004 the organised crime and terrorism division of the prosecutor’s office attached to the Cluj Court of Appeal (“the prosecutor”) identified the first applicant as being apparently involved with trafficking in drugs and drug consumption, the merchandise being brought from the Netherlands. 13. On 26 October 2004 the prosecutor authorised the use of an undercover police agent to infiltrate the applicants’ circle in order to obtain information and evidence about the drug trafficking. It also authorised the undercover agent to purchase 150 ecstasy tablets. After each transaction the undercover agent wrote a report on the meeting with the first applicant. The prosecutor noted as follows: “there are strong indications that the crime of drug trafficking has occurred/is about to occur ... as Ciprian Vlăduț Pop bought in 2004 high-risk drugs from the Netherlands, namely ecstasy tablets (MDMA), which he is selling in Baia Mare and Cluj-Napoca.” 14. On 29 October 2004 the prosecutor started criminal prosecutions against the first applicant on suspicion that he had both consumed and sold drugs. On 23 December 2004 the prosecution was extended to the second applicant. 15. On 27 October and 11 and 18 November 2004 the Cluj County Court authorised for a period of thirty days, at the prosecutor’s request, the tapping of the first applicant’s telephone and that of the undercover police agent. On 24 November and 22 December the authorisation was extended by thirty days on each occasion. Some 100 CDs were recorded in the process. 16. The prosecutor asked for the tablets purchased by the undercover agent to be tested by the police laboratory for physical and chemical analysis (“the police laboratory”). On 28 October, 2 November, and 27 December 2004 the police laboratory submitted its reports on the three batches of tablets, concluding that they contained methylenedioxymethamphetamine (MDMA). The tablets remaining after the laboratory test were sealed and stored in a special police depository. The applicants and two taxi drivers who transported the police agents to the crime scene were interviewed by the prosecutor. 17. On 11 January and 10 March 2005 the first applicant stated that he had visited the Netherlands in the summer of 2004 and met P., who had afterwards visited Romania and spent a few weeks at the applicant’s home. P. found out that ecstasy sold very well in Romania, and offered to obtain some for the first applicant. The applicant brought a first batch of 250 tablets and sold some of them to the undercover police agent; the remaining tablets he either consumed himself or gave away to others. During the night of 22/23 December 2004 the applicant returned from the Netherlands with a batch of 5,000 ecstasy tablets from P. He contacted several individuals to offer to sell them tablets, but the undercover police agent offered to buy them all. 18. The second applicant gave statements on 11 January 2005. He declared that before 23 December 2004 he had not known of any dealings in drugs that his brother might have had, that during the night of 22/23 December he had returned with his brother from the Netherlands but had not been aware until later that day that his brother, who had crossed the border on his own on foot, had brought drugs into the country. He further explained that he had agreed to help his brother because he feared his brother was in danger of being attacked and killed by the drug dealers, given the large amount of money involved in the transaction. He further explained that it was morally impossible for him, at the time of the crime, to denounce his brother to the authorities. He also explained that he had never taken drugs himself. 19. On 2 March 2005 the prosecutor presented the transcripts of some of the recorded conversations, along with forty CDs, to the Maramureş County Court. He sought confirmation from the court that the evidence produced before it was relevant to the case (procedure under Articles 913 and 915 of the CCP). The hearing took place on 9 March 2005. Defence counsel asked for an adjournment to allow her to study the evidence and form an opinion on the relevance of the CDs. She also expressed the wish to examine the remaining recordings which had not been produced before the court by the prosecutor. The court dismissed the requests and accepted the evidence in the file, as proposed by the prosecutor. It agreed with the prosecutor’s opinion and ruled that the remaining CDs were not relevant to the case. 20. On 10 March 2005 the applicants, in the presence of their counsel, acquainted themselves with the prosecution file. 21. On 15 March 2005 the prosecutor committed the applicants to trial for trafficking in drugs, under Law no. 143/2000 on the fight against drug trafficking and illegal drug use (“Law no. 143/2000”). The prosecutor noted that the first applicant was also a drug user, whereas his brother, the second applicant, was not and had had no knowledge of his brother’s dealing before 23 December 2004. The prosecutor also noted that the first applicant had a prior conviction for theft and breach of firearms regulations (nerespectarea regimului armelor). 22. The case was heard by the Maramureş County Court. The applicants’ detention pending trial was extended at regular intervals by the court. 23. On 5 April 2005 the applicants gave statements before the court, reiterating their declarations from the prosecution phase. It appears that at that time the first applicant was suffering from withdrawal symptoms and was under sedatives prescribed by the prison doctors to alleviate his symptoms. 24. The applicants’ counsel asked for an expert evaluation of the tablets to establish whether they contained MDMA or a lighter drug. Relying on the principle of equality of arms, defence counsel requested that the expert examination be performed by experts from the Ministry of Justice and not by experts from the Forensic Institute, as the latter institution was attached to the police. The prosecutor advised that the Police Forensic Institute was normally responsible for such analyses. On 11 July 2005 the Ministry of Justice informed the court that it would not be possible for their experts to perform the requested tests. 25. The second applicant also asked the court to hear evidence from the undercover police agent. His request remained unanswered. 26. On 26 July 2005 the first applicant, who was suffering from withdrawal symptoms, became ill in the court building and had to be taken to hospital. Defence counsel asked for a medical assessment of his client. Despite repeated requests by the court, the prison authorities later failed to take the first applicant to hospital so he could receive the expert examination ordered by the court. 27. On 10 August 2005, at the court’s request, the Police Forensic Institute re-examined the drugs and in a comprehensive report confirmed that the tablets contained MDMA. 28. On 8 November 2005 the court heard pleadings from counsel for the prosecution and the defence. The applicants did not deny the substance of the charges. The first applicant admitted that the police operation respected the domestic legislation, but doubted its morality; in particular, he argued that if it had not been for the undercover police agent’s insistence he would not have bought ecstasy in the first place. In his view the undercover police agent asked on purpose for a high-risk drug to attract a heavier penalty for the applicants, whereas if he had requested a milder drug the sentencing would have been consequently lighter. The prosecutor replied that as it was known that the first applicant had brought ecstasy into the country in the summer of 2004, the undercover agent had done no more than follow that lead; it would have made no sense for him to ask for another drug so long as there was no indication that the applicant had dealt in any other type of drugs. The second applicant pointed out that he had only been informed about the drug dealing on the very day when the last transaction had taken place, and that by telephoning his brother that day he had in fact prevented the crime from being committed. 29. The County Court rendered its judgment on 25 November 2005, based on the evidence in the file, namely the police reports from the undercover operation, witness statements (the two taxi drivers who had brought the police officers to the scene of the transaction and who had seen the applicants handcuffed and the police retrieving the bag containing the drugs from the bushes), the transcripts of the intercepted telephone calls and the expert reports concerning the content of the tablets. It reiterated the history as it had been established in the bill of indictment, and concluded that the applicants were guilty of the offences they had been accused of. The court gave no further answers to the arguments raised by the defence. It convicted both applicants and sentenced the first applicant to seven years and six months’ imprisonment and the second applicant to three years and six months’ imprisonment. 30. The applicants reiterated their complaints concerning breach of the principle of equality of arms, in that the tablets had been analysed in police laboratories and not by an independent expert. Finally they renewed their request to have all the transcripts of the intercepted conversations produced before the court, and complained that they could not have access to them as the remaining recordings had been destroyed. Before the court, they also argued that the unlawfully obtained evidence should be removed from the file and reiterated that the police operation had started only from a suspicion that the first applicant was a drug user. Throughout the proceedings, the second applicant made repeated requests to be allowed to study his file, but received no answer from the court. 31. On 5 October 2006 the Mina Minovici National Forensic Institute examined the first applicant and his medical record. On 19 January 2007 it rendered its medical report, which was examined at the court hearing held on 31 January 2007. The experts concluded that the applicant’s drug addiction could be treated in the prison hospitals and that the medication he had received so far had been adequate; as he was not experiencing withdrawal symptoms, he did not need to be placed in a special drug withdrawal programme; they also considered that his medical condition was compatible with detention. 32. The Cluj Napoca Court of Appeal delivered its decision on 7 February 2007. Concerning the defence’s arguments about lack of access to the transcripts of the intercepted telephone calls the court reiterated that on 9 March 2005 it had decided which transcripts were useful to the case. The court dismissed their complaints concerning the secret police operation; in doing so, it relied on the report drafted by the undercover agent and by the prosecutor, and observed that the applicants’ own statements to the police and before the courts corroborated those reports. The court of appeal substantially maintained the conclusions of the firstinstance court. 33. The applicants appealed on points of law and reiterated their main defence arguments. However, their appeal was dismissed in a final decision rendered on 29 March 2007 by the High Court of Cassation and Justice. 34. The second applicant described his detention as follows. He was arrested on 23 December 2004 and remained imprisoned until 1 May 2007. He spent the first three months of detention in police detention facilities, the following eight to nine months in Baia Mare Prison, then thirteen months in Gherla Prison; he spent the remaining time in Jilava Prison. 35. He had to share cells with smokers, although he was a non-smoker himself. He repeatedly asked the prison administration to place him in a cell with non-smokers. No such arrangements could be made for him, as the pretrial detention facilities were already overcrowded and there were no places available in the nonsmoking cells; according to the applicant, in Baia Mare Prison the ratio was of thirty-nine bunk beds, placed on three levels, for sixty inmates. When in Baia Mare Prison the applicant went on hunger strike from 13 to 16 April 2007 because he was placed in smoking cells despite being a non-smoker; he ended his protest when a nonsmoking cell became available after refurbishment. 36. When he was detained in Gherla Prison, he complained about being placed with smokers and about overcrowding in prison, notably that he did not have 4 sq. m of personal living space in the cell. On 5 February 2007 his complaint was dismissed by the judge delegated by the court to supervise the observance of the prisoners’ rights, under Law no. 275/2006 on the execution of sentences (“the post-sentencing judge”). The post-sentencing judge noted that there was no obligation in Romanian law to place a detainee in a non-smoking cell or to provide him with a certain amount of living space. According to the applicant, the cells were all dirty and infested with bugs. 37. According to information provided by the prison service, during his detention the applicant occupied altogether eleven cells in three prisons (Baia Mare, Gherla, and Jilava), sharing with between five and forty-three others; his personal living space was on average 1.91 sq. m at all times. In addition he spent three days in a cell alone in Baia Mare when he was on hunger strike, and two days alone in Gherla Prison infirmary; on those two occasions his living space was 16 sq. m. 38. The second applicant also described an episode where he was hit by a prison guard; he explained that he had got scared and become agitated because he had seen his brother suffering from withdrawal and was sure that his brother was about to die without anybody willing to come to his rescue. He pressed charges against the guard, and on 31 March 2006 the prosecutor decided not to prosecute. 39. He tried on two occasions to commit suicide by hanging himself (13 September 2005 and 2 December 2005). As a consequence of his attempted suicide of 2 December 2005, the second applicant was handcuffed to his bed for a month, according to his statements. The prison service explained that on 2 December 2005 he had been handcuffed to his bed as a means of preventing him from repeating his suicide attempt; he had been kept thus handcuffed while he remained “agitated and psychologically vulnerable”. On 2 December 2005 he was seen by the prison doctor, who noted his agitation, lack of cooperation and headache, and concluded that he could be treated in the medical infirmary. He was not known to have a mental disorder, and no recurrence of the suicidal behaviour was recorded while he was in detention. 40. On 9 March 2006 the second applicant complained before the Cluj Court of Appeal, within the appeal proceedings on the merits of the accusations against him, about the conditions of his detention, in particular the fact that he shared a large dormitory with smokers. He requested to be medically examined in order to demonstrate the negative consequences of the passive smoking on his health. He also complained of lingering pain in his right leg on which he had fallen from a three-metre height on 2 December 2005, when he had tried to hang himself from a suspended bar; he had sought medical examination, which he alleged had been refused by the prison doctors until 23 December 2005. The applicant made full statements about his attempted suicide on 2 December 2005, and described how he had been handcuffed to his bed and left without medical care. He received no answer to these complaints. | 1 |
test | 001-167483 | ENG | HRV | GRANDCHAMBER | 2,016 | CASE OF MURŠIĆ v. CROATIA | 1 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;András Sajó;Angelika Nußberger;Armen Harutyunyan;Dmitry Dedov;Egidijus Kūris;Erik Møse;Guido Raimondi;Jon Fridrik Kjølbro;Julia Laffranque;Khanlar Hajiyev;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Luis López Guerra;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Yonko Grozev;Ksenija Turković | 9. The applicant was born in 1987 and lives in Kuršanec. 10. In a judgment of the Čakovec County Court (Županijski sud u Čakovcu) of 19 June 2008, upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 3 February 2009, the applicant was sentenced to two years’ imprisonment for armed robbery. 11. On 2 July 2010 the Čakovec Municipal Court (Općinski sud u Čakovcu) sentenced him to one year’s imprisonment for theft, which was confirmed by the Čakovec County Court on 3 November 2010. 12. Following a request by the applicant, on 26 August 2011 a three-judge panel of the Čakovec County Court took into account those two convictions and sentenced him to a single term of two years and eleven months’ imprisonment. 13. On 16 October 2009 the applicant was transferred from a semi-open regime in Turopolje State Prison (Kaznionica u Turopolju) to Bjelovar County Prison (Zatvor u Bjelovaru) to serve the prison sentence originally imposed by the Čakovec County Court on 19 June 2008 (see paragraph 10 above). The reason for the transfer, as indicated in a report of Turopolje State Prison, was the applicant’s inappropriate behaviour and threats of escape. 14. The applicant remained in Bjelovar Prison until 16 March 2011, when he was transferred to Varaždin County Prison (Zatvor u Varaždinu) following a decision by the Ministry of Justice Prison Administration (Ministarstvo pravosuđa, Uprava za zatvorski sustav) of 11 March 2011. 15. According to the applicant, during his stay in Bjelovar Prison he was placed in overcrowded cells. He alleged in particular that for a period of fifty days in total he disposed of less than 3 square metres (sq. m) of personal space, including for a period of twenty-seven consecutive days. There were also several non-consecutive periods in which he was allocated between 3 and 4 sq. m of personal space in the cells (see paragraph 17 below). 16. The applicant further submitted that the cells in which he had been held were badly maintained, humid, dirty and insufficiently equipped with lockers and chairs for all inmates. The sanitary facilities were in the same room as the living area, from which they were not fully separated. Those facilities were about half a metre away from the dining table and there was a constant smell in the cell. Moreover, he had not been given any opportunity to engage in prison work and in general was not provided with sufficient access to recreational and educational activities. The prisoners were allowed to move freely outside the locked part of the prison between 4 and 7 p.m., and the out-of-cell facilities were inadequate and insufficient, particularly given that there was only an open recreation yard. The nutrition was poor and the hygiene conditions were inadequate, especially since the toilet was not separated from the living area. The inmates did not have sufficient access to hot water and were allowed to shower only once or sometimes three times per week. 17. According to the Government, while in Bjelovar Prison the applicant had at his disposal an average of 3.59 sq. m of personal space. He was held in four different cells, the conditions of which are detailed in the table below. The measurements of the cells indicate their overall size (as provided by the Government) and with the in-cell sanitary facility deducted (based on the methodology enunciated in paragraph 114 below). That calculation is based on an approximate measurement of the sanitary facility (1.9 sq. m) according to the floor plans of Bjelovar Prison, which the Government provided to the Court and which are not disputed by the applicant. 18. The Government further explained that each cell in which the applicant had been accommodated had had windows allowing in natural light and fresh air. Artificial light was also secured and all cells were heated by a central heating system and equipped with a communication system enabling the inmates to contact prison staff immediately in case of need. All cells had a toilet fully separated from the living area and equipped with its own ventilation system. All cells had direct access to drinking water. The cells were constantly maintained and some necessary reconstruction work and improvements to the facilities had been carried out in 2007, July 2009 and May-July 2010, as well as in 2011, 2012 and 2013. Furthermore, the inmates were provided with all necessary hygiene and sanitary facilities. This included a shower three times per week and after sports activities. Every inmate was also regularly provided with the necessary toiletries and cleaning supplies for keeping the cells clean. The inmates were provided with clean bedding and bedspreads every fifteen days, or more often if necessary. In addition, the inmates were provided with the necessary clothing although they were allowed to use their own clothes. Nutrition was based on an assessment by experts and the quality of the food was constantly monitored by the competent State authorities. The inmates were provided with three meals per day meeting the necessary nutrition requirements, as supervised by the prison doctor. Meals could be taken to cells or eaten in a common room. 19. The Government also explained that the inmates were allowed to move freely outside their cells in the morning and afternoon, and to use the indoor and outdoor facilities of Bjelovar Prison. This in particular included two hours of outdoor exercise and in addition free out-of-cell movement inside the prison between 4 and 7 p.m. Specifically, in the ordinary daily regime, the inmates would wake up at 7 a.m. on working days and at 7.30 a.m. on weekends and public holidays. They would then wash, tidy their beds, and have breakfast, followed by the morning cleaning of the cell. Leisure time was scheduled afterwards, until 1 p.m., when they had an opportunity to take part in a number of activities. Leisure time was followed by lunch served between 1 and 2 p.m. The period after lunch was usually set aside for various group activities and meetings with lawyers and prison staff. Between 4 and 7 p.m. all cell doors were opened again, enabling the inmates to move about within the prison and to use its facilities as they saw fit. Dinner was served from 7 p.m., followed by the evening tidying and cleaning of the cells and other rooms in the prison. 20. The Government submitted that Bjelovar Prison was equipped with a recreation area located in the courtyard, which, in addition to the asphalted parts, included a lawn. The surface area of the courtyard was 305 sq. m. There was also direct access to drinking water and artificial light as well as protection from inclement weather available in the recreation area. The gym was open between 8 a.m. and 12.30 p.m. and between 2 and 6 p.m., and the basketball court was open on working days between 3 and 4 p.m. and at the weekends in both the morning and the afternoon. The recreation area was also equipped with a badminton court and ping-pong tables. The inmates were able to borrow books and use other services of the Bjelovar library, which were regularly available in the prison. The prison administration also organised religious ceremonies and contacts with cultural and religious associations. Each cell was equipped with cable television, which could be watched between 7 a.m. and 11 p.m. during working days, and between 7.30 a.m. and midnight at weekends and on public holidays. There were also radio receivers in the cells and the possibility of borrowing and watching films from a collection available in Bjelovar Prison. In addition, the inmates were allowed to socialise by playing board games. There was also a room for spousal visits and the inmates were allowed to obtain various goods from outside the prison. Bjelovar Prison also offered a possibility of education in prison but the applicant had decided not to avail himself of that opportunity. Remunerated work in prison was available in accordance with the economic possibilities, which were at the time limited due to the general economic crisis. A possibility of work outside the prison existed but the applicant’s previous threats to escape and his inadequate behaviour in detention had not made him eligible for this possibility. During his stay in Bjelovar Prison, the applicant had regularly received medical treatment. He had seen his family four times while standing trial for another offence in Čakovec and had been allowed to speak to them by telephone twenty minutes per week, with an additional ten minutes on public holidays. 21. The Government substantiated their arguments with photographs taken in 2007, 2010 and 2011 in the context of the renovation of the prison and visits by various officials to the prison, floor plans and other relevant documentation related to the available facilities in Bjelovar Prison and the applicant’s health care and nutrition. 22. On 24 March 2010 the applicant lodged a request with the Bjelovar Prison administration through a lawyer, asking to be transferred to Varaždin Prison for personal and family reasons. 23. On 26 April 2010 he complained to the Ministry of Justice Prison Administration in general terms about the conduct of the Bjelovar Prison administration, alleging that they had never offered him the opportunity to have a meeting with the relevant officials, that his request for a transfer had been ignored and that the prison food had been inadequate. 24. The applicant again reiterated his request for a transfer to Varaždin Prison on 6 May 2010, citing personal and family reasons, particularly his family’s lack of financial means, which made it difficult for them to visit him. 25. On 14 July 2010 the Ministry of Justice Prison Administration replied to the applicant’s complaints, finding them ill-founded in all respects. It pointed out that he had been given sufficient opportunity to have contact with his family by telephone and while attending the court hearings in March, April and July 2010 in the criminal proceedings against him, that he had not been engaged in any work because there had been an insufficient number of work posts in Bjelovar Prison, that he had had seven meetings with the prison governor and twenty-five meetings with various other Bjelovar Prison officials, and that food had been prepared in consultation with experts, the prison diet having been continuously supervised by the prison doctor. 26. On 24 August 2010 the applicant complained about the conditions of his detention to a sentence-execution judge of the Bjelovar County Court (Županijski sud u Bjelovaru). He pointed out that central to his complaints was his wish to be transferred to another prison closer to his family. He also complained, in particular, that his request to engage in prison work had not been answered. He was being detained with seven other inmates in cell no. 8, which measured 18 sq. m in total and was inadequately equipped and maintained. Hygiene conditions were poor, given that he had been allowed to take a shower only three times per week. 27. Following the applicant’s complaint, the sentence-execution judge requested a detailed report from Bjelovar Prison concerning the conditions of his detention. 28. After obtaining the relevant report and hearing the applicant in person, on 7 October 2010 the sentence-execution judge dismissed his complaints as ill-founded. She found, in particular, that the applicant had sufficient personal space at his disposal, given that four other persons were at the time placed with him in the same cell. The sentence-execution judge also found that the applicant was provided with sufficient hygiene and sanitary facilities, and that he was not engaged in prison work since such opportunities did not exist for all prisoners in Bjelovar Prison. 29. On 15 October 2010 the applicant lodged an appeal against the sentence-execution judge’s decision with a three-judge panel of the Bjelovar County Court, alleging that she had erred in her factual findings, as cell no. 8 had been occupied by up to eight inmates. 30. On 21 October 2010 a three-judge panel of the Bjelovar County Court dismissed the applicant’s appeal as ill-founded, endorsing the reasoning of the sentence-execution judge. It also explained that the required standard for personal space under the Enforcement of Prison Sentence Act, namely 4 sq. m, was the recommended minimum standard that should in principle be respected, but that there could be no automatic violation of a prisoner’s rights if such a standard was temporarily not complied with. In view of the fact that a reduction in the applicant’s personal space in cell no. 8 had only been temporary, the three-judge panel considered that there had been no violation of his rights. 31. On 5 November 2010 the applicant complained to the Bjelovar County Court about the decision of its three-judge panel. He argued that for the first six months following his arrival at Bjelovar Prison, he had been detained in cell no. 1, measuring 17.13 sq. m, where six inmates in total had been detained. He had then spent one month in cell no. 8 on the first floor with six inmates, which had measured 17.13 sq. m. He had then been placed in another cell, also marked “cell no. 8”, which again measured 17.13 sq. m, where he had spent six months with eight inmates. At the time of his complaint he was being held in cell no. 4 with six inmates. 32. On 20 November 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), relying on Article 14 § 2 (equality before the law), Article 26 (equality before the State authorities) and Article 29 (right to a fair trial) of the Constitution, complaining in general terms of a lack of personal space and work opportunities in Bjelovar Prison. He also relied on section 74(3) of the Enforcement of Prison Sentences Act, guaranteeing adequate personal space to detainees, and alleged that this provision had not been complied with in his case. 33. On 26 November 2010 the applicant complained to the Ombudsperson (Pučki pravobranitelj) that he had not been granted a transfer to a prison closer to his family, and alleged in general terms that the conditions of his detention had been inadequate. 34. Meanwhile, in November 2010 the applicant joined a group of inmates who complained to the sentence-execution judge about inadequate general conditions in Bjelovar Prison. 35. By a letter of 7 December 2010 the Ombudsperson invited the applicant to further substantiate his complaints. 36. The applicant replied to that request on 21 December 2010, indicating that the sentence-execution judge and the three-judge panel of the Bjelovar County Court had never examined his complaints properly, and that he had not been granted 4 sq. m of personal space in detention as required under the Enforcement of Prison Sentences Act. 37. In March 2011 the applicant saw a psychiatrist, who found that the applicant was frustrated with his internment and the impossibility of seeing his family. 38. On 12 April 2011 the Ombudsperson replied to the applicant’s letter that, according to the information available, his accommodation in Bjelovar Prison had fallen short of the requirements of adequate personal space under the Enforcement of Prison Sentences Act. The Ombudsperson also pointed out that the cell where the applicant was being detained had been renovated in 2010, and complied with all hygiene and health standards. The Ombudsman also noted that, just like ninety-two other inmates, the applicant had not been engaged in prison work, as there had been an insufficient number of work posts for all prisoners. 39. On 5 June 2012 the Constitutional Court declared the applicant’s constitutional complaint (see paragraph 32 above) inadmissible as manifestly ill-founded. The relevant part of the decision reads: “In his constitutional complaint, the complainant was unable to show that the Bjelovar County Court had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions. The Constitutional Court therefore finds that the present case does not raise an issue of the complainant’s constitutional rights. Thus, there is no constitutional law issue in the case for the Constitutional Court to decide upon ... ” 40. The Constitutional Court’s decision was served on the applicant’s representative on 18 June 2012. | 1 |
test | 001-147533 | ENG | IRL | ADMISSIBILITY | 2,014 | REILLY v. IRELAND | 4 | Inadmissible | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 1. The applicant, Raymond Reilly, is an Irish national who was born in 1966 and lives in Dublin. He is represented before the Court by Mr C. Crowley, a lawyer practising in Dublin. The Government were represented by their Agent, Mr P. White, of the Department of Foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. 2. The applicant joined the Army in 1985 at the age of 18 and served until the expiry of his contract in November 1997. He had competed internationally as a boxer. He served in the Artillery Corps and held the rank of gunner. He married in 1989 and had three children with his wife. 3. The applicant claims that he was the victim of a series of sexual assaults (groping and inappropriate touching) by his superior officer, PD, who held the rank of Sergeant Major. This began in 1989 at a time of alleged personal difficulty for the applicant. At this time, he had been involved in a hit-and-run accident for which he was prosecuted as well as for driving under the influence of alcohol. The abuse typically involved PD touching the applicant intimately, rubbing his own private parts against the applicant’s body and physically forcing the applicant’s hand to touch PD’s private parts, all of this through clothing. The abuse occurred in PD’s office and it continued until about 1995. 4. The applicant claims that the Defence Forces could not have been unaware of PD’s proclivity to interfere with his subordinates. He alleges that he and at least one other gunner were subjected to protracted ridicule in the mess (canteen) as the officer’s “bum boy”. He did not at any time during his military career make a complaint about PD’s conduct. This, he claims, was partly out of shame and partly because PD had, allegedly, threatened that he would be locked up if he reported the abuse and that the word of a gunner would not be taken over that of a Sergeant Major. In the applicant’s view, the culture in the Defence Forces at that time was against making complaints. In the applicant’s subsequent proceedings against the army, his wife gave evidence to the High Court that his behaviour at that time began to deteriorate and that he had changed from being a model father and husband to being unrecognisable. In or about 1992 the applicant and his wife separated. 5. After the applicant had left the army, two other complaints were made against PD by two soldiers, CP and RM. 6. In October 1998 CP filed a complaint of sexual assault by PD which had allegedly occurred some days earlier during a room inspection and he sought to be discharged from the army because of it. The complaint was investigated by the military police who interviewed CP, PD and another officer involved in the room inspection. 7. In their investigation report, dated 9 October 1998, the military police noted that while CP claimed that the incident with PD was the reason for his seeking discharge he had, in fact, already been seeking civilian employment for some months before that time. It also noted CP’s disciplinary record. It noted Captain S’s testimony that when he left the room the door was ajar and that PD had followed him out of the room approximately 30 seconds later. It had regard to the fact that PD had a service record of 40 years and had never before been the subject of any allegations. The report concluded that it had not been possible to prove CP’s allegation. PD went on leave after this investigation and then decided to retire, leaving the army in April 1999. 8. In December 1998 RM confided in two colleagues that he had had similar experiences to CP, but he declined to identify the person responsible. The colleagues – both of whom later gave statements to the police – raised their concerns with Captain S. He undertook to deal with the complaint and arranged for RM to meet with the army psychiatrist. He also asked if PD was involved but RM was unwilling to discuss this and did not make any complaint against PD at this time. 9. At the end of 1998, the applicant happened to meet a former colleague of his, JW, who told him about the allegations that had been made concerning PD. The applicant then told him of his experience with PD but swore him to secrecy. JW, nevertheless, raised the matter immediately with his superior officer, Lieutenant Colonel C. 10. In December 1999 RM made a statement to the police about sexual assaults committed against him by PD the previous year. 11. The police commenced an investigation during which they became aware of the allegations made by CP and the applicant. They took statements from all three men between March and August 2000. The police also interviewed several military officers and took statements from the two soldiers who had brought RM’s situation to the attention of the military authorities, as well as from Captain S. 12. The police interviewed PD on 19 September 2000. He denied the allegations. Two days later, however, during a second interview, he confessed to having sexually assaulted RM. He was then arrested. He continued to deny the allegations made by the applicant and by CP. 13. In February 2001 the investigation file was submitted to the Director of Public Prosecutions (“DPP”) in respect of the three complainants. In August 2001 the DPP directed PD’s prosecution in respect of RM’s complaints and sought further information from the police concerning the applicant and CP. The information was furnished in January 2002. The initial decision of the DPP was not to prosecute PD in respect of complaints made by the applicant and CP. However, upon a request by the police the file was reviewed by the DPP who then issued a new direction in October 2002 to prosecute PD in respect of the applicant’s complaints. 14. In December 2002 PD pleaded guilty to six charges of sexual assault upon RM. On 9 April 2003 he was formally convicted and sentenced to 2 years’ imprisonment, suspended on condition that he enter a bond and agree to be of good behaviour and keep the peace for 5 years. He was also fined EUR 15,000, which was to be paid to RM, and was placed on the register of sexual offenders. 15. Following a criminal trial in July 2003, the jury acquitted PD in respect of certain charges and it failed to reach a verdict on other counts. A nolle prosequi (withdrawal of charges) was then entered in January 2004 in respect of the charges on which the jury had failed to reach a verdict. 16. In June 2001 the applicant issued civil proceedings for damages against PD, the Minister for Defence, Ireland and the Attorney General. He was legally represented and his claim against PD was settled in April 2006 in the sum of €5,000 without admission of liability. 17. The applicant’s claim against the remaining defendants (the “State defendants”) was heard by the High Court and was based on two alternative grounds. Firstly, he alleged that the State was vicariously liable for the actions of PD. Secondly, he alleged that the State was directly negligent in that he claimed it had knowledge of PD’s behaviour such as would have alerted a reasonable person to take steps to inquire into or prevent the activities of PD and that it had failed so to do. The trial commenced in the High Court in October 2006 and heard numerous witnesses over the course of nine days. 18. The High Court (Johnson P.) gave judgment on 30 July 2007, dismissing the applicant’s claims. 19. The court accepted that, on the civil standard of proof, that is, on the balance of probabilities, PD had assaulted the applicant causing posttraumatic stress disorder. It then considered whether the State should be held vicariously liable for this. The High Court reviewed all the relevant legal authorities that were opened to it on the question of vicarious liability, including Irish, Canadian and British jurisprudence and it found: “All of the above cases were cases which related to young and vulnerable children, which is not the situation in this case. The plaintiff was a married soldier at the time of the first incident and I do not think that the same principles that were applied in the cases of wardens of boarding schools and/or orphanages can be applied to the Army. I have come to this conclusion after a good deal of consideration and some doubt. The doubt was created particularly by the fact of the control which the first named defendant had over the plaintiff, but overall I feel that the balance in this particular case lies against vicarious liability.” 20. The High Court then considered the separate question as to whether the State had been directly negligent and addressed this issue in terms of whether the authorities had been or should have been aware of PD’s behaviour at the relevant time. It stated: “...[T]he evidence of the [applicant] and many of his witnesses is that there was general chat on a continual basis about [PD’s] activities, that it was well known and that it was the chat of the barrack room and the camp. This has been completely denied by all of the defendant’s witnesses. Whereas I grant there is a distinction in rank between the [applicant’s] witnesses and the defendant’s witnesses, I came to the conclusion that all of them appear to be attempting to tell the truth. Therefore, I am satisfied that there was banter, possibly name calling and certainly general slagging, I think would be the correct way of putting it, and, though that may have been prevalent in the mess room at times, none of it was taken sufficiently seriously by any of the men, the NCO’s and any other officers who may have heard it to be considered anything other than of a humorous nature. It is necessary to look at the incidents and at the evidence in light of the times as they then were. These events took place in the 1980’s and early 1990’s, at a time when the antenna of the ordinary reasonable person was far less acute to the potentials for sexual abuse or sexual assault than they are today. We must remember that, for the last ten years, the country has been subject to continual reports of sexual exploitation, sexual abuse and sexual assaults, all of which have tended to make the population a great deal more sensitive to matters which twenty years ago would not have drawn any attention whatsoever. I am quite satisfied that had any of the NCO’s or others, any real apprehension regarding the behaviour of [PD], they would have given notice of such apprehension one way or another through the preferred route as laid down in the Army code or otherwise. I am reinforced in this view by the speedy action of [JW], when informed by the [applicant] of the events which occurred, he immediately repeated to the Superior Officers and laid the [applicant’s] claim before them, despite the fact that he had been bound by the [applicant] to secrecy. It is for this reason, I have come to the conclusion that, on the balance of probabilities, the [applicant] failed to discharge the onus of proof on him that, at the time of the incidents when the subject matter of these proceedings occurred, the level or content of the activities which were described in the mess room, in the bar and in the canteen were such as would have alerted a reasonable person and cause them to take steps to either enquire into or prevent the activities of [PD].” 21. The applicant appealed to the Supreme Court, which dismissed the case in a judgment of 24 March 2009. 22. On the negligence claim, the Supreme Court (Kearns J) reviewed the evidence and did not interfere with the findings of fact made by the High Court. The court acknowledged the evidence in support of the applicant’s claims that the proclivities of PD were known in army circles and that there was no satisfactory method of bringing a complaint. It also acknowledged the large number of witnesses for the defendants who had contested these claims, meaning there was also ample evidence against the applicant’s case. The court referred to the various avenues of complaint that had been available to the applicant and the persons to whom he could have turned, in confidence, for help, such as the army chaplain or the social worker. The court recalled that its appellate role meant that it should only ensure that the primary findings of fact at trial and the inferences drawn from them were supported by the evidence. The trial judge had heard the witnesses directly and could assess their demeanour. He had been entitled to have regard to the fact that the applicant had never made a complaint about PD, even though he had used the complaints procedure regarding another unrelated matter, thus demonstrating that he was aware of the existence of a complaints procedure and had been ready to use it. The evidence did not support the claim that soldiers were reluctant to make complaints or that the army was unreceptive to them. An expert witness had confirmed that the complaints procedures in place at that time in the army were good and sufficient by the standards then prevailing. The court also agreed with the trial judge’s remarks about the importance of considering the issues in the light of the times as they then were and observed that it was “a dangerous exercise in hindsight to apply knowledge and standards of today to events which occurred twenty-five years ago”. 23. On the question of vicarious liability, the Supreme Court noted that the applicant did not challenge the correctness of the legal principles as emerged from the case law and as outlined by the High Court. He had only challenged that court’s application of those legal principles. The applicant had argued that, while his case did not concern a child, the environment of the armed forces was such that the normal rules of adult interaction did not apply given, inter alia, disparities in rank. The Supreme Court, however, concluded that the employment relationship between the applicant and the Defence Forces did not support finding of vicarious liability. It stated: “While undoubtedly [PD] exercised a supervisory and disciplinary role where the [applicant] was concerned, he was not in the same position as a school teacher or boarding house warden in relation to a child. Nor was the nature of the employment one which would have encouraged close personal contact where some inherent risks might be said to exist as, for example, might arise if [PD] had been a swimming instructor in close physical contact with young recruits. There was no intimacy implicit in the relationship between the [applicant] and [PD] nor was there any quasiparental role or responsibility for personal nurturing which was found to exist in the cases where vicarious liability was established. To hold otherwise would be to extend to the Defence Forces a virtual new species of liability where the defendants would be liable for virtually every act or omission of an employee.” 24. The Supreme Court went on to distinguish the relationship in issue in the applicant’s case from that of a teacher and a child referring back to the case of O’Keeffe v. Hickey [2008] I.E.S.C. 72. It held that while the O’Keeffe case had involved a vulnerable child who was sexually abused by a teacher at school, the facts of the relationship between the parties in the instant case could hardly be more different. The applicant in this case was at all material times an adult. He had elected to accept the rigours, the discipline and the camaraderie associated with the life of a professional soldier. It must be accepted that the Defence Forces require an atmosphere of discipline in order to function. A wide extension of liability would undermine the whole operational basis of any army. 25. The Supreme Court concluded that the applicant’s case fell short by a considerable margin of establishing the prerequisites for a finding that the State defendants should be held vicariously responsible for the criminal activities of PD. 26. According to the Government, the applicant took legal proceedings against the army on two previous occasions while he was serving member of the Defence Forces. The first was a claim to the High Court for damages for personal injuries (deafness) for which he was awarded compensation. Some 17,000 military personnel had sued for damage to hearing caused by inadequate protective material. He also brought a personal injuries action against the Defence Forces arising from a road traffic accident and the case was settled. 27. The applicant submitted a claim for compensation to the Criminal Injuries Compensation Tribunal (“CICT”) in respect of the injury caused by the sexual assaults of PD. His claim was rejected in April 2010 on the grounds of delay in reporting the crime. The applicant appealed. A hearing took place on 16 April 2012, leading to a decision of 24 May 2012 in which he was awarded €37,870 compensation. 28. A general formal complaint system was established by section 114 of the 1954 Act: “(1) If an officer thinks himself wronged in any matter by any superior or other officer, including his commanding officer, he may complain thereof to his commanding officer and if, but only if, his commanding officer does not deal with the complaint to such officer’s satisfaction, he may complain in the prescribed manner to the Minister who shall inquire into the complaint and give his directions thereon. (2) If any man thinks himself wronged in any matter by any officer, other than his company commander, or by any man he may complain thereof to his company commander, and if he thinks himself wronged by his company commander either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof to his commanding officer, and if he thinks himself wronged by his commanding officer, either in respect of his complaint not being redressed or in respect of any other matter, he may complain thereof in the prescribed manner to the Adjutant-General, who, if so required by the man, shall report on the matter of the complaint to the Minister who shall inquire into the complaint and give his directions thereon. (3) Every officer to whom a complaint is made in pursuance of this section shall cause such complaint to be inquired into, and shall, if on inquiry he is satisfied of the justice of the complaint so made, take such steps as may be necessary for giving full redress to the complainant in respect of the matter complained of, and shall in every case inform the complainant in the prescribed manner as to what action has been taken in respect of the matter complained of.” 29. The 1954 Act also provided for the trial of military and criminal charges by court-martial including within 3 months of the retirement from the Defence Forces of the accused (section 120 of the 1954 Act). Section 140 of the 1954 Act provided that anyone subject to military law who illtreated any subordinate was guilty of an offence against military law and would, on conviction by court-martial, be liable to imprisonment for a term not exceeding 2 years or to any less punishment awardable by a courtmartial. 30. The Defence Forces Regulations A7, adopted by the Minister under the 1954 Act, provided general guidance to commanding and other officers as to their responsibilities regarding discipline and misconduct. It also set out (section 11C) a procedure for the submission of grievances during the general annual inspection of the military unit by a General Officer Commanding. Notice of such inspections was given in advance with a reminder of the opportunity to bring forward any complaints. 31. In early 1996 the “Administrative Instruction A7” was adopted pursuant to Regulations A7. It was headed “Interpersonal Relationships in the Defence Forces” and it codified detailed procedures for making complaints in relation to unacceptable interpersonal behaviour to a company commander. Paragraph 102 of that Instruction accepted that the requirement to obey all lawful orders had to be counterbalanced by ensuring respectful and professional treatment and relationships between superiors of subordinates. Paragraph 114 defined what was unacceptable sexual behaviour and gave specific examples including sexual assault and attempting to engage in or engaging in sexual activity by force, coercion or intimidation. Separate provisions governed “sexual harassment” including defining the notion, giving concrete examples and providing particular provisions for complaints having regard to the specific difficulties attached thereto. 32. The Supreme Court in the present case summarised the relevant principles applicable to the issue of vicarious liability by listing the factors for establishing whether or not impugned acts were carried out within the course and scope of employment. These principles are set out in the Canadian cases of Bazley v. Curry (1999) 174 D.L.R. (4th) 45; and Jacobi v. Griffiths (1999) 174 D.L.R. (4th) 71), both of which concerned the sexual abuse of infant children. 33. In Bazley case, the Supreme Court of Canada noted that the established common-law test was that employers were vicariously liable for employee acts authorised by the employer or unauthorised acts “so connected with authorised acts that they may be regarded as modes (albeit unauthorised modes) of doing an authorised act”. In noting that vicarious liability was generally appropriate where there was a significant connection between the creation or enhancement of a risk and the wrong that accrued therefrom, the Supreme Court of Canada set out the principles by which the sufficiency of the connection between the employer’s creation and enhancement of the risk and the wrong complained of was to be determined. These included: “(a) The opportunity the enterprise afforded the employee to abuse his or her power; (b) The extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee); (c) The extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employers’ enterprise; (d) The extent of power conferred on the employee in relation to the victims; and (e) The vulnerability of potential victims to wrongful exercise of the employee’s power.” 34. The Jacobi case provided two further principles: “(a) A court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. (b) If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability.” 35. Both of these cases were analysed by the House of Lords in Lister v. Hesley Hall Limited ([2001] UKHL 22 [2002] 1 A.C. 215) and cited by the High Court in the present case as the leading United Kingdom authority on the issue. The plaintiffs in that case were residents in a school owned and managed by the defendants and they had been sexually abused by the warden. 36. Lord Steyn stated (§ 28 of the judgment): “Employing the traditional methodology of English law, I am satisfied that in the case of the appeals under consideration the evidence showed that the employers entrusted the care of the children in Axeholme House to the warden. The question is whether the warden’s torts were so closely connected with his employment that it would be fair and just to hold the employers vicariously liable. On the facts of the case the answer is yes. After all, the sexual abuse was inextricably interwoven with the carrying out by the warden of his duties in Axeholme House. Matters of degree arise. But the present case clearly falls on the side of vicarious liability.” 37. A victim can apply for compensation for injury suffered as a result of violent crime under the statutory Scheme of Compensation for Personal Injuries Criminally Inflicted. The Scheme is administered by the CICT. The prescription period is three months but it can be extended, exceptionally. Compensation is paid without any inquiry into liability and on an ex gratia basis. It covers expenses and losses and, since 1 April 1986, it does not include compensation for non-pecuniary loss. The Tribunal will deduct sums received by a victim in compensation from another source including from a civil action against the offender. | 0 |
test | 001-169916 | ENG | POL | ADMISSIBILITY | 2,016 | PIOTROWSKI v. POLAND | 4 | Inadmissible | András Sajó;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The applicant, Mr Andrzej Piotrowski, is a Polish national, who was born in 1952 and lives in Łódź. He was represented before the Court by Ms M. Wentland-Walkiewicz, a lawyer practising in Łódź. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 23 April 1977 the applicant married D. in a civil ceremony. In 2004 the applicant and D. married in church. 5. On 12 January 2010 the applicant filed a petition for divorce. He asked for a no-fault divorce (that is, for the court not to make any findings that either party was at fault for the breakdown of the marital relationship). The applicant stated that for a few years he could not agree with his wife on many issues touching on the basic aspects of everyday life, and that their life together had not been harmonious. This had caused a number of arguments and in May 2009 he had moved out of their flat. 6. In her reply to the petition, the respondent submitted that her marriage to the applicant was amicable, pleasant and that they used to be considered by other couples as having an exemplary relationship. She was of the opinion that the only reason the applicant had petitioned for divorce after thirty-two years of married life was because he was having an affair with another woman. The applicant had moved out of their flat in May 2009 but had returned in October of that year (despite continuing his relationship with the other woman). The respondent was of the view that this was a brief period of foolishness and that she could forgive her husband for his affair. 7. In pleadings dated 2 April 2010 the applicant changed his claim. He applied for a divorce on fault-based grounds (wina wyłączna). In his opinion, the respondent used to be controlling, incapable of reaching a compromise on any issue and unwilling to accept his arguments. This was, in his view, the main reason for the breakdown of their marriage. 8. During a hearing held on 16 June 2010 the applicant’s aunt, M.P., testified. She said that D. was a very good wife. She cared deeply about the applicant and was very conscientious about household tasks. The witness had never heard the applicant complaining about his marriage. A second witness, B.L., the parties’ friend, testified that the applicant and the respondent had complementary personalities and that she had never seen them fighting. A third witness, J.K., also their friend, recalled that the applicant used to say that he had “a wife and a mother in one” because of the good care the defendant had been taking of him. In his opinion, the applicant was satisfied with his marriage. A fourth witness, W.T., the respondent’s brother, said that in his view the marriage was good. 9. During a hearing on 4 October 2010 the applicant’s mother testified that she had considered her son’s marriage to be good. The applicant had never complained about his wife, but she sometimes complained about his flaws. She was not convinced that her son had really carefully considered his decision about the divorce. The parties’ home had been clean and well-kept thanks to the respondent’s efforts and work. She recalled only minor misunderstandings between the parties. The second witness, M.K., the applicant’s cousin, stated that the applicant had been deeply in love with the respondent. She had not heard the applicant praising the quality of his married life or complaining about it. 10. During a hearing on 7 February 2011 two witnesses expressed the opinion that the marriage was good. 11. The parties to the proceedings were also heard. The applicant testified that his new partner was against his divorce. Nevertheless, his new involvement had helped him to ponder carefully his decision to divorce. The applicant accused the respondent of infidelity, which had allegedly taken place during their engagement. He described his marriage as boring. The respondent did not agree to the divorce. In her opinion the applicant’s affair was just a passing period of foolishness. She declared that she loved the applicant and her willingness to give him a second chance. 12. On 16 February 2011 the Łódź Regional Court refused to grant the divorce. The court established that the applicant and D. had married in 1977. They did not have children. In 2004 they had married in church. Subsequently, the applicant had met another woman. In May 2009 he had informed D. that he had fallen in love with someone else. 13. The court held, having regard to the evidence gathered in the proceedings, that the breakdown of the marriage was complete and irretrievable within the meaning of the provisions of the Family and Guardianship Code on divorce. The financial, emotional and sexual relations between the spouses had come to end, essentially because of the applicant’s relationship with another woman. The court was of the view that there was no prospect of him returning to his wife. 14. The court further observed that D. was a very good partner to him and was not at fault for the breakdown of the marriage. She still loved her husband and was ready to forgive him for his affair. The court stressed that the applicant was the only person responsible for the marital breakdown. He was at fault not only because he had failed to comply with the spousal obligations enumerated in Article 23 of the Family and Guardianship Code, but also because he had not been loyal towards the respondent. He had failed to respect his obligation of fidelity and had clearly stated during the proceedings his intention to continue his relationship with another woman. Having regard thereto, the court considered that the wife’s refusal to give consent had to be considered to be legitimate and compatible with the principles of social coexistence within the meaning of Article 5 of the Civil Code. In this regard the court referred to established case-law of the Supreme Court concerning situations where an innocent spouse refuses to consent to a divorce. The court stressed that a refusal of consent to a divorce was a right and could not as such be presumed to be against the principles of social coexistence (Supreme Court judgment nos. II CKN 956/99 of 26 October 2000 and III CR 278/65 of 7 December 1965). Even considerable length of a separation between spouses did not override the presumption that a refusal to give consent to divorce complied with those rules (Supreme Court judgment no. III CR 147/65 of 18 August 1965). 15. The applicant appealed, challenging the findings of fact made by the court. He argued that his relationship with his wife had never been good. The fact that he had entered into a new relationship had been precisely because of the poor quality of their marriage. The court had been wrong in finding that his involvement with another woman had caused the marital problems. His relationship with her was viable as they had been living together for several months over the previous two years. The applicant referred to a new factor he had not raised before, namely that the respondent had not wanted to have sex with him. He changed his claim once again, asking this time for a divorce where both parties were considered at fault. 16. On 12 July 2011 the Łódź Court of Appeal upheld the first-instance judgment. It considered that the applicant’s wife was not at fault for the breakdown of the marriage and that her refusal to consent therefore had to be regarded as legitimate. The court noted that even the witnesses called by the applicant had testified that their marriage had been good and generally amicable. 17. The applicant and his legal representative were present at the hearing and during the oral pronouncement of the judgment. The president of the court read out the operative part and afterwards orally explained the main grounds for the decision. 18. On 14 July 2011 the applicant’s legal representative asked for the written grounds of the appellate judgment. On 5 September 2011 they were served on him. 19. Pursuant to Article 56 § 1 of the Family and Guardianship Code (Kodeks rodzinny i opiekuńczy), either spouse may file a petition for divorce if there has been a complete and irretrievable marriage breakdown (zupełny i trwały rozkład pożycia). For the purposes of establishing whether a complete breakdown has occurred, the established judicial practice is to examine ex officio whether the financial, emotional and sexual ties between the spouses have ended (Supreme Court decision no. III CKN 386/98 of 22 October 1999, and Katowice Court of Appeal decision no. I ACa 51/10 of 12 March 2010). The courts establish it applying the general procedural rules governing the taking of evidence, in addition to certain specific rules provided for by the Code of Civil Procedure for the purposes of divorce proceedings. 20. In particular, under Article 431 of the Code of Civil Procedure, a decision in a divorce case cannot be based exclusively on the admission of the claim or of certain facts by the respondent. Article 432 of the Code provides that both parties to a divorce case are to be heard in person. Under Article 442, if the respondent admits the divorce claim and the spouses have no minor children, the court may limit the taking of evidence to hearing the parties. 21. Under Article 56 §§ 2 and 3 of the Family and Guardianship Code, a divorce may not be granted even where there has been a complete breakdown of the marriage, if: “(2) ... it would be detrimental to the well-being of [the] minor children [of the marriage] or if, for other reasons, granting the divorce would be contrary to the principles of social coexistence (zasady współżycia społecznego); (3) ... it has been requested by the spouse who is at fault for the breakdown of the marriage, unless the other spouse has expressed his or her consent thereto, or the refusal of such consent by the other spouse is – in the circumstances at issue – contrary to the reasonable principles of social coexistence...” 22. Article 5 of the Civil Code reads: “No one shall exercise any right of his in a manner contrary to its socio-economic purpose or to the principles of social coexistence (zasady współżycia społecznego). An act or omission [fulfilling this description] on the part of the holder of the right shall not be deemed to be the exercise of the right and shall be protected [by law].” 23. The courts have developed ample case-law addressing situations where a respondent spouse refuses to consent to a divorce. In particular, they have held that an innocent respondent has a right to refuse to consent. A presumption of good faith was therefore applicable to such a refusal, until it was demonstrated, with reference to the specific circumstances of a case, that the refusal ran counter to the principles of social coexistence within the meaning of Article 5 of the Civil Code (Supreme Court decision nos. II CKN 956/99 of 26 October 2002 and I CKN 305/01 of 26 February 2000). In particular, the respondent spouse’s intention to frustrate the petitioner’s plans to formalise his or her extramarital relationship should not, by itself, be regarded as being incompatible with these principles, if it has been shown that the refusal was inspired by a wish to continue the marriage, consistent with ethical and social standards (Supreme Court decision no. CKN 305/01 of 26 February 2002). 24. The courts are obliged to assess whether or not a refusal to consent to a divorce amounts to an abuse of rights in the light of the spouses’ situation and conditions caused by the breakdown of their marriage, both of the innocent respondent and the petitioner. It is only in the light of these findings that a thorough assessment can be made whether a refusal is consonant with universally accepted morality rules (reguły moralności) and whether or not it is detrimental to other interests worthy of legal protection (Supreme Court decision no. I CKN 871/00 of 4 October 2001). The factors to be taken into account include, inter alia, the spouses’ health, age and ability to earn a living and the length of the marriage (Supreme Court decision nos. I CR 565/57 of 22 May 1958 and III CKN 573/98 of 9 October 1998, and Białystok Court of Appeal decision no. I ACa 48/97 of 6 March 1997). The fact that the petitioner has children born from an extramarital relationship is also of relevance (Supreme Court decision no. C 1115/52 of 8 July 1952). 25. The refusal of an innocent spouse should be overridden if it is shown that the respondent is motivated merely by a wish to harass the petitioner and to prevent him or her from formalising his or her new relationship (Supreme Court decision no. III CKN 665/00 of 21 November 2002). The respondent’s conduct after the marriage breakdown also has to be taken into consideration; if it is spiteful and reprehensible, the refusal of consent can be overridden (Supreme Court decision no. II CKN 1270/00 of 21 March 2003). Likewise, the causes of the breakdown and the circumstances which have arisen thereafter, including the existence of other relationships and extramarital children, have to be taken into consideration by the court (Supreme Court decision no. III CKN 1032/99 of 10 May 2000). 26. Under Article 326 § 3 of the Code of Civil Procedure, the president of a judicial panel reads out the operative part of the judgment in open court. Afterwards the president or judge rapporteur orally explains the main grounds for the decision (podaje ustnie zasadnicze powody rozstrzygnięcia). 27. Under Article 328 of the Code, written grounds for a judicial decision may be prepared at a party’s request submitted within one week of its delivery. Written grounds must consist of a summary of the facts established by the court, refer to the evidence relied on by the court, indicate the reasons why the court considered that evidence to be credible and give legal reasons for the decision adopted. | 0 |
test | 001-140029 | ENG | UKR | CHAMBER | 2,014 | CASE OF EAST WEST ALLIANCE LIMITED v. UKRAINE | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Paul Lemmens | 7. At the time of the events the applicant company, along with ATI (an air cargo traffic company), URARP (an aircraft repairs and maintenance company), and some other companies involved in the aviation business, belonged to the Titan Consortium. 8. At various times between August 1997 and March 2002, when he was elected to the national parliament, the president of the Ukrainian office of the applicant company, ATI and the Titan Consortium was a certain Mr L. 9. Pursuant to a sale contract of 30 July 1999, as modified on 28 December 1999, the applicant company purchased eight Antonov-28 (“An-28”) aircraft from the Russian airline company S. The aircraft had been manufactured in 1988-1990, and their flying records ranged from 1,455 to 2,821 hours. 10. On 9 and 19 January 2000 the applicant company leased those aircraft to ATI for ten years. It was stipulated in the contract that the aircraft would remain the property of the applicant company during that entire period. The ownership could then be transferred to ATI, on condition that it had settled all the leasing payments. 11. On 22 and 28 March 2000 the Ministry of Transport of Ukraine registered the aircraft. The applicant company was indicated as the owner in the registration certificates. 12. In November 2000 one of the aircraft was relocated to Moldova for commercial purposes. 13. On 7 March 2001 another aircraft was sold to company C. 14. The six remaining aircraft were parked at the Uzyn airbase in the Kyiv region (Bila Tserkva). 15. On 6 July 2001 the applicant company and ATI terminated the lease agreement because the lessee was unable to comply with its terms. 16. On 20 August 2001 the applicant company concluded an agreement on a ten-year lease of the six aircraft to another company, R.S.T., which was to take effect on 1 October 2001. That agreement, however, never entered into force. 17. Between 23 and 25 January 2001 the tax police conducted a search on the premises of the Titan Consortium in Kyiv, including the applicant company’s office, apparently in the context of criminal investigations against URARP on account of suspected tax evasion. As a result, it seized “a considerable number of documents” (quoted from a ruling of the Kyiv Prosecutor’s Office of 20 September 2002 – see paragraph 27 below). The seized documentation included the original contract of sale for the six An-28s parked at the Uzyn airbase. The case file does not contain the search-and-seizure report. 18. On 23 March 2001 the tax police launched criminal proceedings against ATI officials on suspicion of tax evasion. 19. On 29 March 2001 the proceedings were discontinued as they had been instituted prematurely. However, by the same ruling the tax police instituted criminal proceedings against ATI officials on suspicion of document forgery. 20. On 30 March 2001 the tax police held an “inspection of the scene” at the Uzyn airbase, as a result of which they discovered and seized the six An-28 aircraft. The seizure was documented by a “report of the inspection of the scene” (the same procedure took place at Cherkasy airport in respect of eight L-410 planes also belonging to the applicant company – see paragraph 104 below). As the security guard was unable to produce the documentation for those aircraft, submitting that it was in the applicant company’s office in Kyiv, the police concluded that “their owner could not be established”. 21. The applicant company challenged the aforementioned seizure (as well as the seizure of the L-410 aircraft – see paragraph 105 below) before the prosecution authorities. 22. On 10 January 2002 the tax police opened again a criminal case against the ATI officials on suspicion of tax evasion. 23. On 21 March 2002 the Kyiv City Prosecutor’s Office wrote to the applicant company, in reply to its complaint about the alleged unlawfulness of the seizure of the aircraft of 30 March 2001, that it could not decide on the seizure of the An-28 aircraft, as in the meantime, on 10 September 2001, the Kyiv City Commercial Court had also impounded them in the context of the commercial proceedings brought by the tax authorities (see paragraph 35 below). As regards the L-410s, their seizure was found to be unlawful as it had not been based on an adequate procedural document (see paragraph 106 below). 24. On an unspecified date a criminal case was opened against the vice-president of ATI, who was charged with abuse of office, forgery, tax evasion and money laundering. Apparently, this criminal case replaced those previously opened against the ATI officials (see paragraphs 18 and 22 above). The ATI vice-president was suspected, in particular, of having forged the contracts of 9 and 19 January 2000 (see paragraph 10 above) for the allegedly non-existent lease of the aircraft, with a view to tax evasion. 25. On 17 April 2002 the tax police investigator conducted another inspection of the planes at the Uzyn airbase. 26. On the same date the investigator classified the planes as material evidence in the criminal case against the ATI vice-president, with reference to Articles 78 and 79 of the Code of Criminal Procedure (see paragraph 138 below). 27. On 20 September 2002 the Kyiv City Prosecutor’s Office refused to institute criminal proceedings against the tax police in respect of, inter alia, the search of the applicant company’s office between 23 and 25 January 2001 and the seizure of documentation relating to the aircraft. It was the fourth decision of the prosecution authorities refusing to open a criminal case in that regard. The previous three had been quashed on grounds of insufficient evidence. The applicant company also unsuccessfully tried to bring a civil claim in that regard. 28. On 3 February 2003 the Pecherskyy District Court of Kyiv (“the Pecherskyy Court”) found the vice-president of ATI guilty of professional negligence and acquitted him of the other charges (including the forgery of the lease contracts of 9 and 19 January 2001). By the same judgment the court ordered that the six AN-28s used as material evidence in the case be returned to “their owner”. On 8 May 2003 the Kyiv City Court of Appeal upheld that judgment. 29. On 26 May 2003 the Pecherskyy Court wrote to the State company in charge of the management of the Uzyn airbase stating that, pursuant to the judgment of 3 February 2003, the planes in question were to be returned to their owner. 30. On 30 May 2003 the airbase manager forwarded that instruction to the State Tax Inspectorate in Bila Tserkva (further referred to as “the Bila Tserkva Tax Inspectorate” or “the tax inspectorate”), which had entrusted it with their storage. The airbase manager also indicated that the tax inspectorate owed the State company 46,295 Ukrainian hryvnias (UAH) for the storage. 31. On 2 June 2003 the tax inspectorate replied that meanwhile, on 16 September 2002, the aircraft had been declared ownerless (see paragraph 41 below) and that there were no lawful grounds for discontinuing their sale for State revenue (see also paragraphs 61-65 below). As to the supposed indebtedness, the tax inspectorate submitted that the planes, which were now State property, had been stored in a State-owned airbase and guarded by the tax police (see paragraphs 73-74 below). Accordingly, it considered the claim for storage costs to be without basis. 32. On 7 February 2005 the Pecherskyy Court specified that, in accordance with the judgment of 3 February 2003, the six An-28s were to be returned to the applicant company, which was their owner. 33. On 28 February 2005 the court issued a writ of execution on the basis of its ruling of 7 February 2005. 34. On 20 August 2001 the Pecherskyy District State Tax Administration in Kyiv lodged a claim with the Kyiv City Commercial Court against the applicant company and ATI, seeking to invalidate the lease contracts of 9 and 19 January 2000 (see paragraph 10 above). The claimant submitted that the applicant company had in fact supplied the planes to ATI free of charge, while the impugned lease contracts had subsequently been forged to conceal that fact, with a view to absolving ATI from any income tax payable. In addition to invalidation of the lease contracts, the tax administration sought confiscation of the eight aircraft, with the proceeds of their sale going to the State budget. It also requested that the planes be impounded as an interim measure to secure the claim. 35. On 10 September 2001 the court started the proceedings. It secured the claim by impounding the eight aircraft (including that sold to company C. and the one relocated to Moldova). 36. On 12 October 2001 company C. asked the court to lift the impoundment of the plane it had purchased. That request was apparently granted. 37. On 27 June 2003 the Kyiv City Commercial Court rejected the claim of the tax administration as unsubstantiated. It noted that it had been common ground that ATI had not complied with the lease contracts and therefore the applicant company remained the owner of the aircraft. The court also quashed the impoundment order of 10 September 2001 (see paragraph 35 above). 38. On 29 September 2003 the Kyiv Commercial Court of Appeal upheld that judgment. It stated that the applicant company’s ownership of the aircraft had been confirmed by documents, while the allegation that some of the documents had been forged had been found to be unsubstantiated in the judgment of 3 February 2003 (see paragraph 28 above). 39. On 10 July 2002 an investigator of the Bila Tserkva Tax Inspectorate issued a report about “the temporary seizure of the taxpayer’s assets” in respect of the six An-28 planes parked at the Uzyn airbase, with a view to “settlement of the taxpayer’s obligations vis-à-vis State budgets and target funds”. The report listed the planes’ registration numbers and referred to subsection 3.2 of section 9 of the Law of Ukraine “On the procedure for the settlement of taxpayers’ obligations to State budgets and special-purpose funds” (see paragraph 140 below). It was signed by a tax police official, the Uzyn airbase manager and two attesting witnesses. 40. On 11 July 2002 the deputy head of the Bila Tserkva Tax Inspectorate issued a decision about “the administrative seizure of the taxpayer’s assets” in respect of the aircraft in question. The decision reiterated that the measure had been undertaken with a view to “settlement of the taxpayer’s obligations vis-à-vis budgets and State target funds”. It was noted in the line “the taxpayer whose assets have been seized” that the owner of the aircraft had not been established. 41. On 16 September 2002 the Bila Tserkva City State Administration (“the Bila Tserkva Administration”) issued an order by which it declared the six aircraft ownerless and empowered the tax police to sell them. As a result, between March and June 2003 the planes were sold to third parties (see paragraphs 61-65 below). 42. On 15 May 2003 the applicant company lodged a claim with the Kyiv Regional Commercial Court against the Bila Tserkva Administration, challenging the order of 16 September 2002. It submitted that it was the legitimate owner of the aircraft, that the defendant had duly been informed of that fact, and that the impugned order had amounted to unlawful expropriation of the applicant company’s property. 43. On 3 June 2003, in order to secure the claim of the applicant company, the court banned any transactions involving the aircraft. 44. Consequently, on 4 June 2003 a bailiff sealed the six aircraft. The Ad Hoc Investigation Commission for the Investigation into Reasons for the Ukrainian Aviation Crisis Situation (“the Parliamentary Investigation Commission”), which in the meantime had been set up under the chairmanship of Mr L., MP (see paragraph 8 above), and to which the applicant company had complained, also sealed the aircraft. 45. The Bila Tserkva Administration appealed against the impoundment of the aircraft ordered on 3 June 2003 submitting, in particular, that the applicant company’s claim was of a non-pecuniary nature, being limited to the invalidation of a document. 46. On 8 July 2003 the Kyiv City Commercial Court of Appeal rejected that appeal. It found the appellant’s arguments groundless because the subject matter of the dispute was twofold: firstly, the impugned decision had declared the planes ownerless, and, secondly, it had authorised the tax authorities to sell the planes. Accordingly, a failure to secure the claim could jeopardise enforcement of any future judgment on the dispute. 47. On 11 November 2003 the Higher Commercial Court quashed the rulings of 3 June and 8 July 2003 on a cassation appeal lodged by the Bila Tserkva Administration. It noted that as of 3 June 2003 the planes had remained impounded in order to secure a claim in another set of proceedings under a ruling of 10 September 2001, which had not been quashed until 27 June 2003 (see paragraphs 35 and 37 above). As the legal procedure did not provide for “double” measures for securing claims, the ruling of the Kyiv Regional Commercial Court of 3 June 2003 had no legal basis. 48. On 25 December 2003 the Kyiv Regional Commercial Court found in favour of the applicant company and quashed the order of the Bila Tserkva Administration of 16 September 2002 (see paragraph 41 above). It stated that the property rights of the applicant company were confirmed by the aircraft registration certificates dated 28 March 2000 (see paragraph 11 above). 49. On 9 April 2004 the Kyiv Commercial Court of Appeal upheld that judgment. It also issued a separate ruling in which it referred, inter alia, to the documentary evidence in the case file proving that the Bila Tserkva Administration had proceeded with the sale of the planes on the grounds that they were ownerless (see paragraphs 41 and 61-65 below) after having received documents from the applicant company confirming the latter’s ownership of those planes. The court thus concluded that, by declaring the planes ownerless, the defendant had infringed the applicant company’s property rights. It further instructed the Kyiv Regional State Administration, the Kyiv City Tax Administration, and the Bila Tserkva Tax Inspectorate “to take appropriate measures in respect of the officials guilty of the violations of the procedure for identifying and declaring ownerless the property belonging to the [applicant company].” 50. On 20 July 2004 the Higher Commercial Court upheld the lower courts’ decisions of 25 December 2003 and 9 April 2004. 51. On 9 December 2004 the General Prosecutor’s Office (“the GPO”) instituted criminal proceedings on the suspected abuse of power by officials of the tax and other state authorities, which had “had grave consequences”. The prosecutor noted that, by declaring the applicant company’s aircraft ownerless and selling them, as well as by unlawfully seizing its L-410s (see also paragraphs 104 and 106 below), the authorities had caused the applicant company “direct pecuniary damage of over one million Ukrainian hryvnias”. On 15 December 2004 the supervision department of the GPO quashed the ruling of 9 December 2004 as premature. However, this later decision was subsequently also set aside (by the Deputy General Prosecutor’s decision of 14 April 2005). There is no information on any further developments in the investigation. 52. On 21 December 2004 the Supreme Court quashed the judgment of the Kyiv Regional Commercial Court of 25 December 2003 and the related rulings of the higher-level courts (see paragraphs 48 and 50 above) and remitted the case for fresh examination to the first-instance court. It considered that the courts had made a premature finding that the applicant company was the owner of the aircraft. The fresh examination of the case was supposed to clarify, including with the help of a forensic graphological examination, whether the contracts of sale of 30 July and 28 December 1999 (see paragraph 9 above) were authentic and in compliance with the Russian legislation as indicated therein. 53. On 25 September 2006 the Kyiv Regional Commercial Court, having examined the case afresh, allowed the applicant company’s claim once again and quashed as unlawful the order of the Bila Tserkva Administration of 16 September 2002 (see paragraph 41 above). Pursuant to the instructions of the Supreme Court, it had undertaken a forensic graphological examination of the contract of sale of 30 July 1999 and the additional agreement of 28 December 1999, and had found the signatures on them to be authentic. The court further established that the transaction had taken place in compliance with Russian legislation as indicated in the contracts. It underlined that the aircraft had been declared ownerless despite the fact that the case file had contained copies of the certificates of their registration with the Ministry of Transport of Ukraine of 28 March 2000 (see paragraph 11 above). Furthermore, the Russian company S. had confirmed to the court in writing that it had sold the planes at issue to the applicant company. Accordingly, the court concluded that there were no reasons not to consider the contract of sale of 30 July 1999 as appropriate proof of the applicant company’s title to the planes. The court also found that the Bila Tserkva Administration had breached the procedure for identifying and declaring the property ownerless. 54. The Bila Tserkva Administration, the Bila Tserkva Tax Inspectorate and the Kyiv Regional Prosecutor’s Office appealed. 55. The Kyiv Tax Administration also enquired with Interpol whether the applicant company was registered and pursued its activities lawfully. 56. On 16 January 2007 the Kyiv Regional Commercial Court of Appeal stayed the examination of the case pending receipt of information from the Irish Interpol Department concerning that enquiry. 57. On 27 February 2007 the Ukrainian Interpol Department informed the applicant company of the reply of their Irish counterparts confirming that it (the applicant company) had no criminal record, nor any problems with the police in Ireland. 58. On 7 June 2007 and 14 October 2008 the Kyiv Regional Commercial Court of Appeal and the Higher Administrative Court, respectively, upheld the judgment of the Kyiv Regional Commercial Court of 25 September 2006 (see paragraph 53 above; apparently at some point the jurisdiction over the case had been changed from commercial to administrative). 59. On 10 November 2008 the applicant company asked the Bila Tserkva Tax Inspectorate to return the six aircraft to it, with reference to those judicial decisions. 60. On 10 December 2008 the tax inspectorate replied that it was impossible to return the planes to the applicant company, because they had been sold off at a public auction in the meantime (see paragraphs 63-65 below). 61. In July 2002, following the seizure of the aircraft (see paragraphs 39-40 above), the Bila Tserkva Tax Inspectorate commissioned the Ukrimpeks-2000 company to store and sell them. 62. The applicant company unsuccessfully sought to prevent the sale before the Bila Tserkva Administration. 63. On 17 March 2003 Ukrimpeks-2000 sold one plane to a private company. 64. On 24 April 2003 four other planes were sold to another private company. 65. On 4 June 2003 the sixth plane was sold to the Ukrainian State Air Traffic Service Enterprise. 66. On 12 December 2003 the Kyiv Regional Commercial Court started proceedings following a claim by the applicant company challenging all those sale contracts, and impounded the aircraft in order to secure the claim. 67. Meanwhile, the Ukrainian State Air Traffic Service Enterprise, from its side, also challenged the contract of 4 June 2003 before the Commodity Market Arbitration Office (“Біржовий арбітраж (на правах третейського суду)”). The buyer could not get possession of the aircraft in question and found out that the sale had been carried out despite the judicial orders to impound the aircraft of 10 September 2001 and 3 June 2003. 68. On 19 February 2004 the Commodity Market Arbitration Office, in allowing the buyer’s claim, declared the sale of 4 June 2003 (carried out in the form of a commodity market transaction) null and void. 69. On 19 May 2005 the Kyiv Regional Commercial Court discontinued the proceedings in which the applicant company was seeking annulment of the sale contract of 4 June 2003, with reference to that decision. 70. On 6 July 2005 the court also quashed the impoundment order of 12 December 2003 on the ground that it was impeding technical maintenance of the aircraft (the ruling did not refer to any requests to have the order quashed). 71. On 25 August 2009 the Kyiv Regional Commercial Court, in allowing the applicant company’s claim, declared the sale contracts of 17 March and 24 April 2003 null and void. 72. On 17 December 2009 and 25 February 2010 the Kyiv Regional Commercial Court of Appeal and the Higher Commercial Court, respectively, upheld that judgment. 73. On 12 July 2002 the State Tax Administration instructed its Kyiv Regional Department to ensure security guard of the six An-28 aircraft. 74. The planes were apparently still parked at the Uzyn airbase after their sale to third parties (see paragraphs 14, 39 and 63-65 above). 75. According to the applicant company, on 4 June 2003 it concluded a contract with a State security agency on the guarding of the planes. That contract remained in force until August 2007 and the applicant company paid a total of UAH 351,522 (which, according to its calculations, was equivalent at the time to USD 67,865) for the services provided. According to the Government, that contract was of no effect in practice, given that the planes remained in the authorities’ custody (see also paragraph 243 below). 76. In 2004 the applicant company found out that some of the planes had been damaged or had had some equipment removed, so it complained to the police. 77. As a result, on 23 July 2004 the Bila Tserkva police investigator, in the presence of a representative of the applicant company, inspected the six planes. The inspection revealed that some of them had been damaged and/or had had certain equipment removed. A door handle had been broken and the door damaged on one plane, and the wheel housing, navigation equipment, engines, emergency radio installations, pilots’ seats and flashlight were missing on some of the planes. At the same time, some of the bailiffs’ seals and those of the Parliamentary Investigation Commission (see paragraph 44 above) were broken or missing, whereas there were fresh and intact Kyiv Regional Tax Administration seals on the planes. 78. On 26 July 2004 the applicant company complained to the GPO about the theft and damage of the aircraft, emphasising that it had happened while they were being guarded by the Bila Tserkva Tax Inspectorate. The applicant company sought to institute criminal proceedings against the latter. It further argued that the planes had arrived at the airbase in good condition, referring to the fact that they had all been independently flown there, rather than taken inside the hold of another aircraft. 79. On 5 August 2004 the prosecutor’s office refused to institute criminal proceedings against the officials of the Bila Tserkva Tax Inspectorate on account of the theft, having found no corpus delicti in their actions. 80. On 14 September 2004 the prosecutor’s office initiated criminal investigations into the theft without targeting them against any specific persons. 81. On 28 March 2005 the investigator terminated the investigations, having found it impossible to identify the perpetrator(s). 82. On 2 October 2007 the applicant company brought an administrative claim against the tax authorities on account of the allegedly unlawful armed guard of the aircraft, and sought its lifting. 83. On 19 November 2007 the Kyiv Regional Administrative Court refused to open the proceedings. It noted that the dispute in question had already been resolved by the judgment of the Kyiv Regional Commercial Court of 25 September 2006, upheld by the Kyiv Regional Commercial Court of Appeal on 7 June 2007 (see paragraphs 53 and 58 above). 84. On 17 February 2009 the applicant company brought another administrative claim against the Bila Tserkva Administration and Tax Inspectorate seeking the return of its six AN-28s. It submitted that those authorities had committed an unlawful omission by their failure to return the planes to the applicant company as their legitimate owner. It further noted that the decision of 16 September 2002 had been quashed by the Kyiv Regional Commercial Court on 25 September 2006, whose decision had been upheld by the higher-level courts. Nonetheless, the property had never been returned to the applicant company. 85. On 14 April 2009 the Kyiv Regional Administrative Court terminated the proceedings on the grounds that they fell under criminal rather than administrative jurisdiction. The court noted that it had been discovered that the applicant company’s claim concerned the alleged non-enforcement of a final criminal verdict (apparently meaning the verdict of the Pecherskyy Court of 3 February 2003, further clarified on 7 February 2005 – see paragraphs 28 and 32 above). 86. On 9 October 2009 the applicant company wrote to the tax authorities that it was the only legitimate owner of the six aircraft, as the decision to declare them ownerless had been quashed by the courts. It therefore insisted that the guard of the planes be lifted and that they be returned to it. 87. On 23 October 2009 the Bila Tserkva Tax Inspectorate replied that no decision had been taken about the lifting of the guard. 88. On 6 November 2009 the Kyiv Regional Tax Administration also replied to the applicant company that there was no reason to stop guarding the planes given that the court proceedings on the matter were ongoing (without specifying which proceedings it was referring to). 89. On 16 February 2010 the applicant company requested, once again, that the State Tax Administration set aside its instruction of 12 July 2002 regarding the guarding of the aircraft. 90. On 3 March 2010 the Deputy Head of the State Tax Administration forwarded that request to the Kyiv Regional Tax Administration. 91. On 15 March 2010 the latter dismissed the applicant company’s request. It noted that, indeed, the courts had invalidated both the decision to declare the planes ownerless and the contracts for their subsequent sale. Nonetheless, no decision had been delivered on the lifting of the security guard. 92. On 6 October 2010 an investigator of the Bila Tserkva police department declared the six AN-28 planes as material evidence in the criminal investigation into suspected embezzlement by Ukrimpeks-2000, which had been initiated in February 2006 (the company officials were suspected of having failed to transfer all the proceeds of the aircraft sales to the State budget – see paragraphs 61 and 63-65 above). The investigator noted that the planes were under constant security guard by the Bila Tserkva Tax Inspectorate (see paragraphs 73 and 87-91 above). 93. On 26 November 2010 the applicant company complained about that decision to the Kyiv Regional Department of the Ministry of the Interior. It stated that there were no grounds for attaching the aircraft as material evidence in the criminal case in question, which had been opened about four years earlier. The applicant company pointed out that, while the planes had been guarded by the tax authorities, their technical condition had considerably deteriorated and they had become unusable. Therefore, the applicant company suggested that the tax authorities might have been seeking ways to shift the responsibility for that deterioration onto the law-enforcement authorities. 94. On 25 December 2010 the Bila Tserkva Prosecutor’s Office, to which the applicant company’s complaint had apparently been referred, replied that there were no reasons for it to intervene. 95. On 17 June 2011 the investigator of the Bila Tserkva police department (apparently, the one in charge of the criminal investigation into suspected embezzlement by Ukrimpeks-2000 in which the planes had been declared as material evidence – see paragraph 92 above) decided that the planes should be returned to the applicant company. 96. On 9 August 2011 the applicant company contracted Antonov, the exclusive designer and manufacturer of An-28 aircraft, to carry out an expert evaluation of the planes. 97. From 3 to 8 October 2011 an expert commission of Antonov inspected the planes in the presence of the applicant company’s representative. It concluded that what had been presented to it for inspection had consisted of separate items and components, which could not be classified as aircraft. Nor could they be identified as constituent parts of exactly the planes belonging to the applicant company. Furthermore, no documentation for the planes was available. 98. On 25 July 2000 the applicant company purchased six L-410 aircraft at a public auction. 99. On 15 August 2000 it received notarised certificates that those planes were its property. 100. On 19 September 2000 it purchased two more planes of the same type at a commodity market. 101. Pursuant to lease contracts between the applicant company and ATI of 18 August and 1 October 2000, the eight L-410s were to be leased to the latter after repairs and technical upgrading had been carried out by the applicant company. This was envisaged to be completed by 1 May 2001. 102. The planes were parked at Cherkasy airport. 103. During the search conducted at the applicant company’s office in Kyiv between 23 and 25 January 2001 (see paragraph 17 above), the tax police seized original documentation for the L-410 planes. The case file does not contain the search-and-seizure report. 104. On 30 March 2001 the tax police seized the aircraft “for the purpose of using them as material evidence in the criminal case [against the ATI officials] and for redemption of tax arrears”. The seizure was documented by a “report of the inspection of the scene” (similar to the inspection conducted on the same date at the Uzyn airbase – see paragraph 20 above). 105. On 21 February 2002 the applicant company challenged the seizure of the planes before the Kyiv City Prosecutor’s Office. 106. On 21 March 2002 the prosecutor replied that, indeed, the seizure of the L-410 planes had not been based on any procedural document and that he had therefore instructed the tax police to “take an appropriate decision concerning those aircraft”. 107. On 22 April 2002 the Kyiv State Tax Administration instructed the applicant company to submit financial documentation in respect of the planes in order for a decision to be taken. 108. On 26 April 2002 the investigator of the police department of the State Tax Administration declared the eight L-410 planes as material evidence in the criminal investigations against the ATI officials (see also paragraph 26 above). 109. In August 2002 the criminal case was transferred to the GPO. 110. On 2 January 2003 a criminal case was opened in respect of Mr L. as the former president of ATI (see paragraph 8 above). Apparently, the planes were then classified as material evidence in those criminal proceedings. On 26 May 2003 the GPO discontinued the criminal investigations against Mr L. as there was insufficient evidence of any guilt. It was noted in the resolution that the eight L-410 planes, which had been classified as material evidence in the case, were to be returned to ATI. On 4 August 2004 the prosecutor amended his resolution to read that the planes had to be returned to the applicant company. 111. The applicant company unsuccessfully tried to bring proceedings before the commercial and civil courts on account of the seizure of the planes and their classification as evidence in the criminal case. On 18 October and 1 November 2004 the Kyiv City Commercial Court and the Shevchenkivskyy Court respectively refused to accept its claims for examination as being beyond their competence. 112. On 15 November 2004 the GPO’s supervisory department quashed the decision of 26 April 2002 (see paragraph 108 above). 113. On 19 November 2004 it informed the Kyiv Tax Administration of that decision and instructed it to return the aircraft to the applicant company as their rightful owner. A similar letter was sent to the management of Cherkasy Airport. 114. On 3 December 2004 the director of Cherkasy Airport informed the applicant company that the aircraft could be transferred to it only in the presence of the Kyiv Tax Administration which had seized them. 115. On 8 February 2006 the applicant company lodged a claim with the Kyiv City Commercial Court against the Kyiv Tax Administration seeking the return of the eight L-410 aircraft. 116. On 24 May 2006 the court allowed the claim and obliged the defendant to return the planes to the applicant company. It noted that the tax police had ignored the prosecutor’s unambiguous instructions to return the planes to the applicant company. The judgment stated as follows: “As confirmed by the case materials and not refuted by the defendant, the [applicant company] is the owner of the eight L-410 aircraft .... The failure of the Kyiv State Tax Administration to comply with the instructions of the General Prosecutor’s Office as regards the return of the planes to the claimant [unlawfully] deprives the latter of its right to possess and use its property”. 117. On 24 October 2006 the Kyiv Commercial Court of Appeal quashed that judgment on an appeal by the Kyiv Tax Administration and terminated the proceedings. It found that the defendant had no longer been in charge of the planes after the criminal case in which they had been declared as material evidence had been transferred to the GPO in August 2002 (see paragraph 109 above). Moreover, the court considered that the destiny of the planes had already been resolved in the context of the criminal proceedings by the prosecutors’ resolutions of 26 May 2003, 4 August and 19 November 2004, pursuant to which the planes had to be returned to the applicant company (see paragraphs 110 and 113 above). The court therefore concluded that, as from 4 August 2004, there had been no impediments, including from the defendant’s side, to the applicant company’s accessing the L-410 planes. 118. On 1 April 2008 the Higher Administrative Court issued a final decision quashing the ruling of the Kyiv Commercial Court of Appeal of 24 October 2006 and upholding the judgment of the Kyiv City Commercial Court of 24 May 2006 on the applicant company’s cassation appeal. 119. On 11 June 2008 the Kyiv City Commercial Court issued a writ of execution, according to which the eight L-410 aircraft were to be returned to the applicant company. 120. On 18 June 2008 the bailiff opened enforcement proceedings and instructed the Kyiv Tax Administration to send its representative to Cherkasy airport to inspect the planes, verify their completeness and implement the transfer. 121. From July to December 2008 the bailiff reported several times his failure to enforce the judgment because the tax authorities’ representative had been absent or because the airport administration had refused to allow the bailiff to enter the airport. 122. From 5 December 2008 to 6 May 2010 the enforcement proceedings were stayed pending the outcome of applications lodged by both the bailiff’s service and the tax authorities with the Kyiv City Commercial Court for clarification of its judgment of 24 May 2006 (those applications were eventually rejected). 123. From May to December 2010 the bailiff issued at least three more reports about his inability, for the same reasons as before (see paragraph 121 above), to enforce the judgment in question. 124. Meanwhile, in September 2010, the applicant company incidentally found out about a decision of the Cherkasy City Council of 24 July 2008 authorising the municipal enterprise “Cherkasy Airport” to sell the eight L410 planes (with the same serial numbers as those of the planes belonging to the applicant company) at a public auction. The proceeds of the auction were to be used for the needs of Cherkasy Airport. Five of the planes had been sold to third parties. 125. On 10 December 2010 the administration of Cherkasy airport finally allowed the bailiff to enter the airport. Instead of the eight L-410 planes to be returned to the applicant company, the bailiff discovered there only three (or, more precisely, their components). 126. On 23 December 2010 the bailiff reported that he could not transfer the planes to the applicant company because: firstly, only three of them were left; secondly, the planes were locked and there were no keys to open them, which made it difficult to evaluate their technical condition; and, thirdly, the documentation for the planes was missing. 127. On the same date an expert commission of T., an aircraft maintenance company, which had been contracted by the applicant company, examined the planes discovered at Cherkasy airport and reported the following: instead of the eight complete L-410 planes as indicated in the writ of enforcement, there were separate components and items of three planes; no documentation for those items was available; the planes had corrosion on their metal surfaces and cracks in their windows; and their engines and propellers were missing. The conclusion was reached that the planes had not been stored in compliance with storage rules and that, in fact, the items discovered could no longer be considered as aircraft. Lastly, the absence of any documentation made it impossible to identify the discovered items as those belonging, and supposed to be returned, to the applicant company. 128. On 24 December 2010 the bailiff enquired with the Kyiv City Commercial Court, with reference to the expert commission’s report, as to how to proceed with the enforcement. 129. On 3 March 2011 T. informed the applicant company that in 2008 and 2009 it had performed major repairs to six aircraft propellers, the serial numbers of which were the same as those of the L-410s belonging to the applicant company. The customer company had presented itself as the owner of the planes in question. 130. On 15 June 2011 the bailiff declared a “search for the debtor’s property” in respect of the eight L-410s to be returned to the applicant company. 131. On 20 June 2011 the above decision was sent to the State Aviation Security Service. 132. On 16 and 18 August 2011 the bailiff repeated his request to the tax authorities to appear at Cherkasy airport at a specific time. 133. On 19 August 2011 the Kyiv City Tax Administration replied to the bailiff that after an audit in 2007 the eight L-410s had been declared as assets of the Cherkasy Airport municipal company and their ownership had been transferred to the city. It was a known fact that the bailiff had discovered only three planes at the airport and had therefore declared a search for the remaining five planes. Accordingly, the bailiff was aware that the debtor did not have the property defined in the writ of enforcement. 134. On 26 August 2011 the bailiff asked the applicant company to make it clear whether it was ready to accept the three aircraft in the condition in which they had been discovered at Cherkasy airport (which had not improved since 23 December 2010 – see paragraphs 126-127 above). As to the remaining five planes, it turned out that they had been sold to third parties in 2008 pursuant to a decision of the Cherkasy City Council. Furthermore, the State Aviation Security Service informed the bailiff that on 13 August 2008 the eight L-410s had been excluded from the state register of civilian aircraft and that their location was unknown. 135. On 30 August 2011 the group of technical experts again examined the components of the three planes at Cherkasy airport and confirmed its conclusion of 23 December 2010 that those items could not be regarded as aircraft. 136. On the same date the bailiff issued a report about the impossibility of returning to the applicant company even the three planes. 137. On 30 August 2011 the bailiff terminated the enforcement proceedings with the conclusion that it was impossible to enforce the judgment because the debtor did not have the property in question and the search for that property had been unsuccessful. 138. The relevant provisions of the Code of Criminal Procedure (1960) read as follows: Material evidence consists of items that are instruments or objects related to a criminal offence or bearing its traces, money, valuables and other proceeds of crime, as well as any items which could serve to uncover a criminal offence, to identify a perpetrator or to refute the accusation or mitigate a penalty. Material evidence shall be carefully examined, if possible photographed, described in detail in the examination report and attached to the case file by the inquiry officer, investigator or prosecutor in charge or by a judicial ruling. The material evidence shall be kept in the case file, except for cumbersome items which shall be stored by the enquiry or investigation authority or in the court or shall be transferred for storage to a respective enterprise, institution or organisation. ... In some cases the material evidence may be returned to its owner if this is not detrimental to the proceedings. ... A seizure shall be carried out in cases where the investigator has accurate information that the items or documents of relevance are with a certain person or at a certain place. A seizure shall be based on the investigator’s ruling. ... A search and seizure shall be conducted in the presence of two attesting witnesses and the person occupying the premises in question .... A search and seizure in premises occupied by an enterprise, company or organisation shall be conducted in the presence of their representatives. ... The persons searched, the attesting witnesses and the respective representatives shall have explained to them their right to be present during all the actions of the investigator and to make statements on those actions; their statements shall be reflected in the report. ... During a search and seizure only items and documents relevant to the case may be seized, as well as the valuables and property of the accused or the suspect with a view to securing a civil claim or possible confiscation of property. ... The investigator shall present to the attesting witnesses and the other persons present all the documents and items subject to seizure. They shall be listed in the seizure report with an indication of their name, number, measurements, weight, material and individual features. Where necessary, the seized items and documents shall be packed and sealed on the spot. ... The investigator shall produce a report on a search and seizure in two copies .... The report shall indicate the grounds for the search and seizure, the premises on which it was conducted ... the investigator’s actions and the search and seizure results. The report of the search or seizure shall reflect all the statements and remarks of those present concerning the investigator’s actions. All those present shall sign both copies of the report. ... In order to uncover traces of a crime and other material evidence, to clarify the circumstances of the crime, as well as other circumstances of relevance to the investigation, the investigator shall conduct an inspection of the scene, premises, items or documents. In urgent cases, an inspection of the scene may be carried out before the institution of criminal proceedings. In this case, and where there are grounds for it, criminal proceedings shall be instituted immediately after the inspection of the scene.” 139. The Code of Commercial Procedure 1991 provided as follows: The commercial court shall be entitled to take measures for securing a claim, upon the request of the claimant ... or of its own motion. Securing a claim is allowed at any stage of the proceedings where a failure to take measures might complicate or render impossible the enforcement of the commercial court’s judgment. A claim may be secured by the following measures: impoundment of the property or money belonging to the defendant; prohibition on the defendant taking certain actions; prohibition on other persons taking certain actions related to the subject matter of the dispute; .... ... A ruling on securing a claim may be appealed against.” 140. The relevant provisions of the Law of Ukraine “On the procedure for the settlement of taxpayers’ obligations to the State budgets and special-purpose funds” (“Про порядок погашення зобов’язань платників податків перед бюджетами та державними цільовими фондами”) (enacted in 2000 and repealed following the entry into force of the Tax Code on 2 December 2010), read as follows: 9.3.1. Following an application by a tax police unit, the head of the tax authority (or his deputy) may decide to seize a taxpayer’s assets. This decision shall be sent: ... (b) to the taxpayer, with the assets’ alienation ban; (c) to other persons in possession of or using the taxpayer’s assets, with the ban on their alienation.” 9.3.2. An assets seizure may be ... applied to goods which are produced, stored, transported or sold in breach of customs legislation or legislation on excise tax, as well as goods ... sold in breach of legal procedures, without prior determination of their owner. In this case, officials of the tax or other law-enforcement authorities, acting within their competence, shall have the right to undertake a temporary seizure of such assets. This should be reflected in a report giving the reasons for the seizure, with references to breaches of concrete legal provisions, the description of the assets, their specific features and quantity, information about the person or persons from whom the goods have been seized (if applicable), and a list of the rights and duties of those persons in respect of the seizure. ...” | 1 |
test | 001-162207 | ENG | MDA | CHAMBER | 2,016 | CASE OF CRISTIOGLO v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1975 and lives in Chişinău. 6. In 2001 the Comrat Prosecutor’s Office initiated a criminal investigation against the applicant on charges of murder and an arrest warrant was issued by the Comrat District Court. Since the applicant had left the country, an international search order was issued. 7. On 21 January 2011, upon his return to Moldova, the applicant was arrested and placed in detention. On 4 February 2011, when the applicant was about to be transferred from Comrat to Chisinau, he cut open his abdomen as a sign of protest. He was taken to a hospital where his wound was taken care of. The applicant lodged a habeas corpus request, however it was rejected on the ground, inter alia, that he had been in hiding for more than ten years and that, consequently, he could abscond again. Later the detention warrant was renewed several times on similar grounds and the applicant’s appeals were rejected. The last judgment in the proceedings complained of by the applicant is dated 18 October 2011 and was issued by the Comrat Court of Appeal. 8. During all this time the applicant was detained in Prison no. 13 in Chisinau (between 4 March and 17 April 2011 and between 9 October 2012 and 12 June 2013) and in Prison no. 5 in Cahul (between 18 April 2011 and 8 October 2012). The applicant gave a detailed description of the conditions of detention in Prison no. 13 where, according to him, the cells were overcrowded and dirty. Each inmate only had between 1.5 and 3 square metres of available space in the cells in which the applicant was detained. The toilets were separated from the rest of the cells by a wall which was not very high and were located at a distance of some 1.5 metres from the table where the inmates served their meals. There was no ventilation system and the air was impregnated with a sewage smell and with cigarette smoke; there was no sufficient natural light because the windows were very small; the daily walks lasted for only one hour and the food served was of a very bad quality. The applicant submitted that according to information available on the web page of the Ministry of Justice, each inmate was allocated only 10 Moldovan Lei per day, i.e. the equivalent of 0.8 Euros (EUR) at the time. Moreover, the applicant alleged that after his arrest, he needed urgent medical care for the wound on his abdomen and for an ear infection and that no medical care was provided for him for one month. He provided medical documents to support his claims concerning his health problems. The Government provided documents according to which the applicant was seen by doctors and medication was prescribed for him. 9. In so far as Prison no. 5 is concerned, the applicant submitted that he was detained in two cells in which each inmate had between 2.4 and 3 square metres. The Government contested that information and presented a document according to which in the applicant’s cells each inmate had between 4.4 and 6.6 square metres. 10. The applicant was released from detention on 12 June 2013. The Court was not informed about subsequent developments in the criminal proceedings against the applicant. | 1 |
test | 001-177418 | ENG | RUS | COMMITTEE | 2,017 | CASE OF AVDEYEV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | 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 | 001-177691 | ENG | GRC | CHAMBER | 2,017 | CASE OF TSALKITZIS v. GREECE (No. 2) | 3 | Remainder inadmissible (Article 35-3-a - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court;Fair hearing) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos | 5. The applicant was born in 1944 and lives in Afidnes Attikis. 6. On 2 November 2001 the applicant lodged a criminal complaint against C.T. for breach of duty and extortion concerning acts he had allegedly committed as mayor of Kifissia Municipality. The applicant gave a statement under oath on the same day, repeating the allegations in his criminal complaint. He made a further statement under oath related to his criminal complaint on 21 December 2001. 7. At the time the complaint was lodged C.T. was a member of the Greek Parliament. In accordance with Article 62 of the Constitution, the public prosecutor asked Parliament to lift C.T.’s immunity from prosecution for breach of duty, extortion and bribery. That request was rejected on 20 March 2002. 8. On 5 August 2003 the applicant, relying on the Court’s judgments in Cordova v. Italy (no. 1) (no. 40877/98, ECHR 2003I) and Cordova v. Italy (no. 2) (no. 45649/99, ECHR 2003I (extracts)) resubmitted his criminal complaint, arguing that Parliament’s rejection of the request to lift C.T.’s immunity had violated his right to a fair trial under Article 6 § 1 of the Convention. On 21 October 2003 the criminal complaint was submitted to Parliament. On 2 February 2004 the President of Parliament rejected the request to lift C.T.’s immunity, relying on Article 83 § 8 of Parliament’s Regulation, according to which a request to lift a member’s immunity for a criminal complaint based on the same facts as a previous request was inadmissible. 9. On 18 March 2004 the applicant lodged an application with the European Court of Human Rights, complaining under Article 6 § 1 of the Convention that Parliament’s refusal to lift C.T.’s immunity had violated his right of access to a court. On 16 November 2006 the Court delivered a judgment concluding that the refusal by the President of Parliament to lift C.T.’s immunity for acts that had allegedly been committed prior to his election had violated the applicant’s right of access to a court under Article 6 § 1 of the Convention (Tsalkitzis v. Greece, no. 11801/04, 16 November 2006). To date, the Committee of Ministers of the Council of Europe has not yet concluded the supervision of the execution of the judgment under Article 46 § 2 of the Convention. 10. In the meantime, on 4 April 2004 the applicant appeared on a television show on the nationwide ALTER Channel and reiterated the allegations made in his criminal complaint. 11. On 2 July 2004 C.T. lodged a criminal complaint against the applicant for false accusation, perjury and slander. Following a preliminary examination, criminal proceedings were initiated against the applicant. On 15 November 2007 the applicant was convicted in absentia by a threemember panel of the Athens Court of First Instance. He was sentenced to twenty months’ imprisonment and deprivation of his political rights (decision no. 63131/07). C.T. joined the proceedings as a civil party. The applicant lodged an appeal against the decision. 12. Before the three-member panel of the Athens Court of Appeal (“the Court of Appeal”), the applicant submitted that his trial for slander should have been suspended pursuant to Article 366 § 2 of the Criminal Code or, in any event, that it should have been adjourned in respect of all the charges, pursuant to Article 59 § 2 of the Code of Criminal Procedure. At a hearing on 25 May 2009 the Court of Appeal dismissed the applicant’s application to suspend or adjourn the trial and proceeded to examine C.T.’s criminal complaint. In particular, it held the following: “... Following this, the party who had filed the criminal complaint, Vasileios Tsalkitzis, lodged application no. 11801/04 with the European Court of Human Rights in Strasbourg, complaining that Greece had not lifted C.T.’s parliamentary immunity and that criminal proceedings had not been initiated against him. That Court ... held that the refusal of the President of the Greek Parliament had violated Article 6 § 1 of the Convention ... Therefore, the following issues have been identified concerning: a) the relation of international conventions to current constitutional provisions; b) the act in question of the President of the Greek Parliament and whether it breaches constitutional provisions and the above-mentioned international convention; and c) the question of whether or not it is possible to suspend the current criminal case being tried following the criminal complaint dated 2.11.2001 by the defendant Vasileios Tsalkitzis against ... C.T ... The matter of the supremacy of the Constitution does not appear to be contradicted by the above-mentioned European Court of Human Rights judgment, which identifies the issue as the act of the President of Parliament of not putting the request to the Plenary of the Greek Parliament, which resulted, according to the judgment, in impeding the applicant’s and the case’s access to the competent criminal court ... It is noted that the President of Parliament’s act was based on Article 82 of Parliament’s Regulations... According to the foregoing, it is clear that the Greek Parliament has irrevocably dismissed the request of the public prosecutor of the Athens Court of First Instance, thus refusing to lift the immunity of the member of Parliament against whom the criminal complaint was lodged ... on the basis of a legitimate procedure foreseen by the above-mentioned constitutional provisions. Therefore, according to the legislation, there is absolutely no possibility of reconsidering the issue and, eventually, of instituting a criminal prosecution. During the ... Plenary meetings of the Greek Parliament, the issue of the well-foundedness of the accusation was examined as a whole, as were all aspects of the case, securing the work of the deputy and at the same time protecting him from malicious acts. In addition, and this is important, the whole case file which had been created following the preliminary examination was taken into account, as was the opinion of the competent public prosecutor who, following a review of the case, considered that there was no reason to initiate criminal proceedings against C.T. for the offences of which he had been accused ...” 13. Subsequently, the Court of Appeal proceeded to examine witnesses. The trial record shows that the applicant left the building following a short break after the examination of the first three witnesses for the prosecution. His lawyer then contacted him to find out his whereabouts and informed the court that he was not feeling well and had thus left the building. The hearing continued in the presence of his lawyer. In total, five prosecution witnesses were heard, including C.T., who joined the proceedings as a civil party, and one defence witness. It does not transpire from the information provided that the applicant or his representative requested the examination of any other defence witness and that such a request was refused. In view of the applicant’s absence, the Court of Appeal asked his representative to express the applicant’s views on the accusations. The applicant’s representative stated that his client denied all the charges and insisted on the truthfulness of his allegations against C.T. 14. The Court of Appeal upheld the first-instance verdict, including the sentence of twenty months’ imprisonment and the deprivation of political rights (decision no. 4512/2009). 15. On 9 November 2009 the applicant appealed on points of law. He stated, inter alia, that the proceedings should have been suspended or adjourned pursuant to Article 366 § 2 of the Criminal Code and Article 59 § 2 of the Code of Criminal Procedure. On 5 May 2010 the Court of Cassation dismissed the appeal on points of law (decision no. 912/2010). In particular, it held the following: “... It is clear from this new provision (Article 59 § 2 of the Code of Criminal Procedure) ... that in order to adjourn a trial owing to an interlocutory criminal issue (ποινικό προδικαστικό ζήτημα) concerning Articles 224, 229, 362, 363 of the Criminal Code, a criminal prosecution must have been instituted for an act attested to on oath or for which a legal complaint has been submitted or one which a defendant has alleged or disseminated information about. As regards Article 366 § 2 of the Criminal Code ... the suspension of criminal proceedings is obligatory, but also requires a prior criminal prosecution for the act that a defendant has alleged or disseminated information about ... In the present case ... the court dismissed the above requests, providing full and correct reasoning, in particular because the immunity of the person against whom the criminal complaint had been lodged, who is now a civil party and member of Parliament, had not been lifted. Hence, a criminal prosecution had not been instituted, which is a prerequisite for the suspension and adjournment of criminal proceedings against a defendant who requests them. It can be concluded from the above-mentioned considerations that the court correctly interpreted and implemented the above-mentioned provisions, and did not violate them, when it proceeded to examine the allegations of false accusation, perjury and slander against the defendant-appellant on points of law and dismissed the defendant’s request on the grounds that a criminal prosecution had not been instituted against the current civil party, former mayor and now member of Parliament, without suspending and adjourning the proceedings until the end of the previously instituted proceedings against him ...” 16. The decision was finalised on 4 June 2010 (καθαρογραφή) and the applicant was able to receive a copy on 7 June 2010. The applicant was imprisoned from 13 May 2010 to 21 May 2010 as he was not able to pay the fine to which his sentence had been commuted. On 21 May 2010 his sentence was commuted to community service and he was released. Finally, on 31 May 2010 the applicant paid 5,799.94 euros in lieu of serving his sentence. | 0 |
test | 001-146845 | ENG | ROU | ADMISSIBILITY | 2,014 | MARIN v. ROMANIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall | 1. The applicant, Ms Valentina Marin, is a Romanian national, who was born in 1971 and lives in Giurgiu. She was represented before the Court by Mr B.O.S. Ujeniuc, a lawyer practising in Giurgiu. 2. 3. On 20 March 2010 the applicant’s son was hit by a car while crossing the road and died. 4. On the same date the domestic authorities identified the driver and opened a criminal investigation against her for unintentional killing. In addition, they collected evidence, including inter alia witness testimonies and photographs of the scene of the accident. 5. On the same date the Giurgiu Medical Forensic Service produced a necropsy report which concluded that the victim’s lethal injuries had been caused by the car accident. It also noted that the victim had a large quantity of alcohol in his blood. 6. On 20 July 2010 the applicant joined the criminal proceedings as a civil party and claimed pecuniary and non-pecuniary damage. 7. On 6 September 2010 a technical expert report was produced in the case. It concluded that the applicant’s son had been responsible for the accident because he had crossed the road through an area that did not allow pedestrian crossing and without taking the required precautions. The car was driving within the lawfully allowed speed limit and the driver could not have prevented the accident. 8. By a decision of 26 October 2010 the Giurgiu Prosecutor’s Office discontinued the criminal proceedings against the driver on the ground that not all the elements of an offence had been met. The applicant challenged the decision before the hierarchical prosecutor. 9. By a final decision of 6 December 2010 the hierarchical prosecutor attached to Giurgiu Prosecutor’s Office dismissed the applicant’s challenge as ill-founded. The applicant appealed against the decision before the domestic courts. She argued that according to some of the witness statements there was reason to believe that the passenger in the car had also contributed to the accident. Consequently, she requested that the court allowed a new technical expert report in order to clarify the circumstances of the accident, that the witnesses be confronted with one another and that they undergo a polygraph test. 10. On 16 March 2011 the Giurgiu District Court allowed the applicant’s action, quashed the prosecutor’s orders and ordered the reopening of the criminal investigation. In addition, it instructed the prosecutor’s office to rehear and confront all the witnesses in the case and to order a new technical expert report which could clarify the level of the passenger’s involvement in the accident. In addition, it left the applicant’s request for polygraph tests to the prosecutor’s margin of appreciation, given that those involved in the events had to consent to the test. 11. On 20 April 2011 the Giurgiu Prosecutor’s Office reopened the criminal investigation and administered the additional evidence requested by the domestic court. 12. On 20 October 2011 the technical expert report produced by the Bucharest Forensic Laboratory concluded that the driver was driving within the lawful speed limit. Both the driver and the victim could have prevented the accident if the victim had not continued crossing the road and the driver had applied the brakes. However, it was impossible to determine if and how the passenger influenced the outcome of the accident. 13. By a decision of 24 November 2011 the Giurgiu Prosecutor’s Office, relying on the available evidence, indicted the driver and sent the case to trial before the Giurgiu District Court. 14. Between 24 November 2011 and 31 October 2012 the Giurgiu District Court adjourned the proceedings several times in order to allow the parties inter alia to prepare their defense, to submit evidence as well as oral and written observations. 15. On 8 October 2012 the National Forensic Institute in Bucharest produced a third technical expert report in respect of the case following the request of the first-instance court. Its conclusions confirmed the conclusions of the technical expert report produced on 20 October 2011. 16. By a judgment of 31 October 2012 the Giurgiu District Court convicted the driver for unintentional killing and sentenced her to two years imprisonment, suspended. In addition, it ordered jointly the driver and the insurance company covering the car to pay the applicant EUR 400,000 for non-pecuniary damage. It held that the driver had seen the applicant’s son and his group of friends and she had realized that they amounted to a potential danger because they had been agitated and loud. She had honked the horn of the car, had reduced the speed of the car and had tried to move away from the group by changing lanes. But once the youngsters started running across the street, the driver had no reaction to break until after she had hit the applicant’s son. Consequently, she had failed to act in a way that could have been reasonably expected of her. While applying the brakes might not have changed the outcome of the accident, the driver would have been acquitted, because she would have done everything possible to avoid the accident. In respect of the driver’s civil liability, the court noted that the victim was more responsible for causing the accident than the driver was. Consequently, it dismissed the applicant’s claim for pecuniary damage. The driver and the insurance company appealed on points of law (recurs) against the judgment. 17. By a final judgment of 23 January 2013 the Bucharest Court of Appeal allowed the appeals on points of law, quashed the judgment of the first-instance court, acquitted the driver and dismissed the applicant’s civil claims. It held that the driver had not broken any driving regulations at the time of the accident. In addition, it considered that in determining whether the driver could have avoided the accident and could have acted even more diligently than she had, a whole range of factors needed to be considered including the driver’s personal circumstances, namely her age and driving experience. The criminal liability would have been engaged even if the driver had obeyed all the rules, but had proved to be insufficiently concentrated on driving and if it could have been shown that by paying better attention she could have avoided the accident. According to the available evidence, including the expert report ordered by the first-instance court, the driver had two seconds to react to the group’s and the victim’s behavior. While the applicant’s son was running across the road, speaking on the phone, intoxicated and not paying attention to the incoming traffic, he had an unexplained moment of hesitation. Consequently, the driver was caught by surprise and had no time to react by breaking. In addition, the fact that the driver was young and an inexperienced driver who had obtained her driving license in 2009 also needed to be taken into account. In these circumstances, the driver could not be blamed for failing to apply the brakes at the time of the impact. Therefore, she could not be held responsible for the accident. The court also justified the dismissal of the civil action joined to the criminal proceedings on the lack of any guilt on the part of the car’s driver. | 0 |
test | 001-181070 | ENG | RUS | COMMITTEE | 2,018 | CASE OF SOLONENKO 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);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention;Trial within a reasonable time) | 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. The applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-145457 | ENG | CHE | CHAMBER | 2,014 | CASE OF A.B. v. SWITZERLAND | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 5. The applicant, Mr A.B., is a Swiss national who was born in 1965 and lives in Porrentruy. He is a journalist by profession. 6. On 15 October 2003 the applicant published in the weekly magazine L’Illustré an article entitled “Tragedy on the Lausanne Bridge – the reckless driver’s version – Questioning of the mad driver” (“Drame du Grand-Pont à Lausanne – la version du chauffard – l’interrogatoire du conducteur fou”). The article in question concerned a set of criminal proceedings against M.B., a motorist who had been remanded in custody after an incident on 8 July 2003 in which he had rammed his car into pedestrians, before throwing himself off the Lausanne Bridge (Grand-Pont). He had killed three of them and injured eight others. The incident had caused much emotion and controversy in Switzerland because of the extraordinary circumstances of the case. The article began as follows: “Surname: B. First name: M. Born on 1 January 1966 in Tamanrasset (Algeria), son of B.B. and F.I., resident in Lausanne, holder of a category C licence, spouse of M.B. Profession: nursing assistant ... It is 8.15 p.m. on Tuesday 8 July 2003, in the austere premises of the Lausanne criminal investigation department. Six hours after his tragic headlong race along the Lausanne Bridge, resulting in three deaths and eight casualties, this reckless driver is alone for the first time, facing three investigators. Will he own up? In fact he doesn’t actually seem to realise what is happening, as if oblivious to the events and all the hubbub around him. The man who upset the whole of Lausanne this fine summer day is not very talkative. This Algerian citizen is withdrawn, introverted, inscrutable, indeed completely impenetrable. And yet the questions are flying from all sides. What were the reasons for this ‘accident’, one of the policemen rather clumsily writes, as if he had already formed his opinion. Four words in reply: ‘I do not know’.” 7. The article continued with a summary of the questions put by the police officers and the investigating judge and M.B.’s replies. It also mentioned that M.B. had been “charged with premeditated murder (assassinat) and, in the alternative, with murder (meurtre), grievous bodily harm, endangering life and serious traffic offences”, and that he “show[ed] no remorse”. The article was accompanied by several photographs of letters which M.B. had sent to the investigating judge. It ended with the following paragraph: “From his prison cell, M.B. now spends his time sending letters to the investigating judge ...: on being taken into custody he asked for his watch to be returned and requested a cup for his coffee, some dried fruit and chocolate. On 11 July, three days after the events, he even asked to be temporarily released for ‘a few days’. ‘I would like to phone my big brother in Algeria’, he subsequently begged. He finally announced on 11 August that he had come to a ‘final decision’: he dismissed his lawyer, Mr M.B., on grounds of ‘lack of trust’. Two days later, another letter: could the judge send him ‘the directory of the Bar Association of the Canton of Vaud’ to help him find a different defence lawyer? However, with all the recurrent lies and omissions, the mixture of naivety and arrogance, amnesia and sheer madness characterising all these statements, surely M.B. is doing all in his power to make himself impossible to defend?” 8. The article also included a brief summary entitled “He lost his marbles ...” (“Il a perdu la boule...”), and statements from M.B.’s wife and GP. 9. M.B. did not lodge any complaint against the applicant. However, criminal proceedings were brought against the applicant on the initiative of the public prosecutor for having published secret documents. It emerged from the investigation that one of the parties claiming damages in the proceedings against M.B. had photocopied the case file and lost one of the copies in a shopping centre. An unknown person had then brought the copy to the offices of the magazine which had published the impugned article. 10. By an order of 23 June 2004 the Lausanne investigating judge sentenced the applicant to one month’s imprisonment, suspended for one year. 11. Following an application by the applicant to have the decision set aside, the Lausanne Police Court, by a judgment of 22 September 2005, replaced the prison sentence with a fine of 4,000 Swiss francs (CHF) (approximately 2,667 euros (EUR)). 12. The applicant lodged an appeal on points of law. His appeal was dismissed on 30 January 2006 by the Criminal Court of Cassation of the Canton of Vaud. 13. The applicant applied to the Federal Court, which on 29 April 2008 dismissed his public-law appeal and his appeal on grounds of nullity. The decision was served on the applicant on 9 May 2008. The relevant passages from the decision are as follows: “7. In short, the applicant submits that his conviction for a breach of Article 293 of the Criminal Code is contrary to federal law. He does not challenge the fact that the information which he published falls within the ambit of Article 293 of the Criminal Code. He does, on the other hand, submit, under an interpretation of Articles 293 and 32 of the Criminal Code in the light of the principles inferred from Article 10 ECHR by the European Court of Human Rights, that having received that information in good faith without any unlawful dealings he had the duty as a professional journalist, under Article 32 of the Criminal Code, to publish them owing to what he sees as the obvious interest of the so-called ‘Lausanne Bridge’ case to the general public in French-speaking Switzerland. 7.1 In accordance with Article 293 of the Criminal Code (Publication of secret official deliberations), anyone who, without being entitled to do so, makes public all or part of the proceedings of an investigation or the deliberations of an authority which are secret by law or by virtue of a decision taken by that authority, acting within its powers, will be punished by a fine (paragraph 1). Complicity in such acts is also punishable (see paragraph 2). The court may decide not to impose any penalties if the secret thus made public is of minor importance (see paragraph 3). According to case-law, this provision proceeds from a formal conception of secrecy. It is sufficient that the proceedings, deliberations or investigations in question have been declared secret by law or under a decision taken by the authority, or in other words that there has been an intention to keep them from becoming public, regardless of the type of classification selected (for example, top secret or confidential). On the other hand, strict secrecy presupposes that the holder of the specific information wishes to keep it secret, that there is a legitimate interest at stake, and that the information is known or accessible only to a select group of persons (see ATF [Judgments of the Swiss Federal Court] 126 IV 236, point 2a, p. 242, and 2c/aa, p. 244). This state of affairs was not altered by the entry into force of paragraph 3 of this Article on 1 April 1998 (RO 1998 852 856; FF 1996 IV 533). That rule concerns not secrets in the substantive sense but rather instances of futile, petty or excessive concealment (see ATF 126 IV 236, point 2c/bb, p. 246). In order to exclude the application of paragraph 3, the court must therefore first of all examine the reasons for classifying the information as secret. It must, however, do so with restraint, without interfering with the discretionary power wielded by the authority which declared the information secret. It is sufficient that this declaration should nonetheless appear tenable vis-à-vis the content of the proceedings, investigations or deliberations in issue. Moreover, the journalists’ viewpoint on the interest in publishing the information is irrelevant (see ATF 126 IV 236, point 2d, p. 246). In its Stoll v. Switzerland judgment of 10 December 2007, the European Court of Human Rights confirmed that this formal conception of secrecy was not contrary to Article 10 ECHR inasmuch as it did not prevent the Federal Court from determining whether the interference in issue was compatible with Article 10 ECHR, by assessing, in the context of its examination of Article 293, paragraph 3, of the Criminal Code, the justification for classifying a given piece of information as secret, on the one hand, and weighing up the interests at stake, on the other (see Stoll v. Switzerland, cited above, §§ 138 and 139). 7.2 In the present case the offence with which the appellant is charged concerned the publication of records of interviews and correspondence contained in the case file of a live criminal investigation. In pursuance of Article 184 of the Code of Criminal Procedure of the Canton of Vaud (CPP/VD), all investigations must remain secret until their final conclusion (see paragraph 1). The secrecy requirement relates to all the evidence uncovered by the investigation itself as well as all non-public decisions and investigative measures (see paragraph 2). The law also specifies that the following are bound by secrecy vis-à-vis anyone who does not have access to the case file: the judges and judicial staff (save in cases where disclosure would facilitate the investigation or is justified on public-order, administrative or judicial grounds; see Article 185 CPP/VD), and also the parties, their friends and relatives, their lawyers, the latter’s associates, consultants and staff, and any experts and witnesses. However, disclosure to friends or relatives by the parties or their lawyer is not punishable (see Article 185a CPP/VD). Lastly, the law provides for a range of exceptions. As an exception to Article 185, the cantonal investigating judge and, with the latter’s agreement, the judge responsible for the preliminary inquiry or senior police officers specially appointed by the cantonal government [Conseil d’Etat] (see Article 168, paragraph 3) may inform the press, radio or television about a pending investigation if so required by the public interest or considerations of fairness, particularly where public cooperation is required to shed light on an offence, in cases which are particularly serious or are already known to the general public, or where erroneous information must be corrected or the general public reassured (see Article 185b paragraph 1 CPP/VD). The present case therefore concerns secrecy imposed by the law rather than by an official decision. 7.3 As a general rule, the reason for the confidentiality of judicial investigations, which applies to most sets of cantonal criminal proceedings, is the need to protect the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed. Nevertheless, the interests of the accused must not be disregarded either, particularly vis-à-vis the presumption of innocence and, more broadly, the accused’s personal relations and interests (see Hauser, Schweri and Hartmann, Schweizerisches Strafprozessrecht, 6th ed., 2005, § 52, no. 6, p. 235; Gérard Piquerez, op. cit., § 134, no. 1066, p. 678; Gérard Piquerez, Procédure pénale suisse: manuel, 2nd ed., 2007, no. 849, pp. 559 et seq.), as well as the need to protect the opinion-forming process and the decision-making process within a State authority, as protected, precisely, by Article 293 of the Criminal Code (see ATF 126 IV 236, point 2c/aa, p. 245). The European Court of Human Rights has already had occasion to deem such a purpose legitimate in itself. The aim is to guarantee the authority and impartiality of the judiciary in accordance with the wording of Article 10 (2) ECHR, which also mentions the protection of the reputation or rights of others (see Weber v. Switzerland, judgment of 22 May 1990, § 45, and Dupuis and Others v. France, judgment of 7 June 2007, § 32). Furthermore, in so far as the impugned publication concerned excerpts from records of interviews of the accused and reproduced certain letters sent by the latter to the investigating judge, this evidence can validly be classified secret, by prohibiting public access to it, as provided by the legislation of the Canton of Vaud. This is the inescapable conclusion as regards the records of interviews of the accused, as it would be inadmissible to allow such documents to be discussed in the public sphere, before the conclusion of the investigation, before the trial and out of context, in a manner liable to influence the decisions taken by the investigating judge and the trial court. It is also the only possible conclusion as regards the letters sent by the accused to the investigating judge, which letters focused on practical problems and criticisms of his lawyer (see Police Court judgment, point 4, p. 7). We might point out here that it appears from the impugned publication – which the cantonal authorities did not reproduce in full in their decisions, although they did refer to it and its content is not disputed – that the aforementioned practical problems concerned requests for temporary release and for access to personal effects (letters of 11 July 2003), for a change of cell (letter of 7 August 2003) and for authorisation to use the telephone (letter of 6 August 2003). Regardless of the guarantee of the presumption of innocence and the inferences concerning the detainee’s personality which might be drawn during the criminal proceedings from such correspondence, the detainee, whose liberty is considerably restricted, even in respect of everyday acts relating to his private, or indeed intimate, life, can expect the authority restricting his liberty to protect him from public exposure of the practical details of his life as a remand prisoner and as a person under examination (see Article 13 of the Constitution). It follows that in the instant case the information published by the appellant, in so far as it concerned the content of the records of his interviews and his correspondence with the investigating judge, cannot be described as a secret of minor importance for the purposes of Article 293, paragraph 3, of the Criminal Code. Nonetheless, the impugned publication fulfilled the conditions set out in Article 293, paragraph 1, of the Criminal Code. 7.4 Moreover, the information in question may be described as being secret in substantive terms because it was only accessible to a restricted number of persons (the investigating judge and the parties to the proceedings). Furthermore, the investigating court was desirous to keep them secret, with not only a legitimate interest in doing so but an obligation under the Cantonal Code of Criminal Procedure, the justification for which was mentioned above (see point 7.3 above). 7.5 Therefore, the only remaining point at issue is the existence of justification. 8. In short, the appellant submits that he had the professional duty (under former Article 32 of the Criminal Code) as a journalist to publish the information in question because of the public interest for the population of French-speaking Switzerland of the ‘Lausanne Bridge’ case, which he describes as self-evident. He considers that in the light of European case-law, the basic point is that publication is justified in principle unless there is a pressing social need to maintain secrecy. From the standpoint of good faith, Article 32 should apply to journalists who have nothing to do with the indiscretion committed by a third person and who receive information without committing any offence themselves other than the breach of secrecy stemming from the publication. Lastly, he contends that the mode of publication is not a relevant criterion. 8.1 As regards the former point, the cantonal court found that while the accident of 8 July 2003, the circumstances of which were undoubtedly unusual, had triggered a great deal of public emotion, it had nevertheless, in legal terms, been simply a road accident with fatal consequences, and did not in itself entail any obvious public interest. It was not a case of collective trauma on the part of the Lausanne population, which would have justified reassuring the citizens and keeping them informed of the progress of the investigation (see judgment appealed against, point 2, p. 9). It is true that the ‘Lausanne Bridge case’ attracted extensive media coverage (see Police Court judgment, point 4, p. 8, to which the cantonal judgment refers (judgment appealed against, point B, p. 2)). However, this circumstance alone, alongside the unusual nature of the accident, is insufficient to substantiate a major public interest in publishing the confidential information in question. Unless it can be justified per se, the public interest triggered by media coverage of events cannot constitute a public interest in the disclosure of classified information, because that would mean that it would be sufficient to prompt public interest in a certain event in order subsequently to justify the publication of confidential information to fuel that interest. Furthermore, such a public interest is manifestly lacking as regards the letters published. As we have seen above (see point 7.3 above), these letters virtually exclusively concerned criticisms levelled by the accused against his lawyer and such practical problems as requests for temporary release, for access to personal effects, to change cells and to use the telephone. This type of information provides no relevant insights into the accident or the circumstances surrounding it. It relates to the private, or indeed intimate, life of the person in custody, and it is difficult to see any interest which its publication could satisfy other than a certain kind of voyeurism. The same applies to the appellant’s requests to the investigating judge in relation to his choice of defence lawyer. Nor is it clear, as regards the records of his interviews, what political question or matter of public interest would have arisen or been worth debating in the public sphere, and the cantonal authorities explicitly ruled out the existence of any collective trauma which might have justified reassuring or informing the population. This finding of fact, which the appellant has not disputed in his public-law appeal, is binding on this court (see section 277 bis of the Federal Criminal Procedure Act). That being the case, the appellant fails to demonstrate the ‘obvious’ interest to the general public of the information published, and the cantonal court cannot be criticised for having concluded that at the very most, such an interest involved satisfying an unhealthy curiosity. 8.2 The other two factors relied upon by the appellant concern his behaviour (good faith in access to information and mode of publication). 8.2.1 It should first of all be noted that Article 293 of the Criminal Code punishes only the disclosure of information, irrespective of how the perpetrator obtained it. Moreover, even under Article 10 ECHR, the European Court does not attach decisive importance to this fact when considering whether applicants have fulfilled their duties and responsibilities. The determining fact is rather that they could not claim in good faith to be unaware that disclosure of the information was punishable by law (see Stoll v. Switzerland, cited above, § 144, and Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999I). This point is well-established in the present case (see section B above). 8.2.2 On the other hand, the mode of publication can play a more important role in the context of safeguarding freedom of expression. While the European Court of Human Rights reiterates that neither it, nor the domestic courts for that matter, should substitute their own views for those of the press as to what technique of reporting should be adopted by journalists, in weighing up the interests at stake it nevertheless takes account of the content, vocabulary and format of the publication, and of the headings and sub-headings (whether chosen by the journalist or the editors), and the accuracy of the information (see Stoll v. Switzerland, cited above, §§ 146 et seq., esp. 146, 147 and 149). In the instant case the cantonal court ruled that the tone adopted by the appellant in his article showed that his main concern was not, as he claims, to inform the general public about the State’s conduct of the criminal investigation. The headline of the article (‘Questioning of the mad driver’, ‘the reckless driver’s version’) already lacked objectivity. It suggested that the case had already been tried in the author’s view, in the sense that the fatalities on the Lausanne Bridge had been caused not by an ordinary motorist but by a ‘mad driver’, a man ‘oblivious to the events and all the hubbub around him’; The journalist concluded by wondering whether the driver was not doing his best to ‘make himself impossible to defend’. The manner in which he quoted the excerpts from the records of interviews and reproduced the letters sent by the defendant to the judge pointed to the motives of the author of the impugned article: he confined himself to sensationalism, his modus operandi being exclusively geared to satisfying the relatively unhealthy curiosity which anyone is liable to feel about this type of case. Readers of this highly biased publication would have formed an opinion and subjectively prejudged the future action to be taken by the courts regarding this case, without the least respect for the principle of presumption of innocence (see judgment appealed against, point 2, pp. 9 et seq.). The cantonal court concluded that this factor did not indicate that the public interest in receiving information prevailed. That court cannot be criticised on that account. 8.3 The appellant also submitted that the records of interviews and the letters would in any case be mentioned in subsequent public hearings. He inferred from this that preserving the confidentiality of this information could therefore not be justified by any ‘pressing social need’. However, the mere possibility that the secrecy of criminal investigations might be lifted during a subsequent phase of proceedings, particularly during the trial, which is generally subject to the publicity principle, does not undermine the justification for keeping judicial investigations confidential, because the primary aim is to protect the opinion-forming and decision-making processes on the part not only of the trial court but also of the investigating authority, until the completion of this secret phase of proceedings. Moreover, far from being neutral and comprehensive, the publication in issue included comments and assessments which presented the information in issue in a particular light, without providing the opportunities for adversarial argument which are the very essence of proceedings in trial courts. 8.4 Lastly, the appellant did not explicitly criticise the amount of the fine imposed on him. Nor did he challenge the refusal to grant him a probationary period after which the fine would be struck (former Article 49, point 4, in conjunction with former Article 106, paragraph 3, of the Criminal Code) under Swiss law. From the angle of weighing up the interest in the interference, we might simply note that the fine imposed, the amount of which took into account a previous conviction dating back to 1998 (imposition of a CHF 2,000 fine, which could be struck out after a two-year probationary period, for coercion and defamation), does not exceed half the amount of the appellant’s monthly income at the material time (see Police Court judgment, point 1, p. 5), and there is nothing to suggest that his freelance status at the time of the first-instance judgment led to any significant drop in his earnings. It should also be pointed out that at CHF 4,000 the amount of the fine is below the statutory maximum set out in former Article 106, paragraph 1, of the Criminal Code (as in force until 31 December 2006), and that this maximum amount, set by the legislature more than thirty years ago, was not revised before the entry into force of the new general section of the Criminal Code, which now sets a figure of CHF 10,000 (see Article 106, paragraph 1, of the Criminal Code as in force since 1 January 2007). Furthermore, the sanction for the offence with which the appellant is charged did not prevent him from expressing his views, since it was imposed after the article had been published (see Stoll v. Switzerland, cited above, § 156). That being the case, it is unclear, in view of the nature of the offence charged (the least serious in the classification set out in the Swiss Criminal Code), the amount of the fine and the time of its imposition, how it could be regarded as a form of censorship. 8.5 It follows from the foregoing that the appellant disclosed a secret within the meaning of Article 293, paragraph 1, of the Criminal Code and that he cannot rely on any justifying factor in his favour. The decision appealed against does not violate federal law as interpreted in the light of the provisions of the Convention relied upon by the appellant.” | 1 |
test | 001-159041 | ENG | RUS | COMMITTEE | 2,015 | CASE OF KLIMOVA AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 4. The applicants are Russian citizens whose details are tabulated in the Appendix. 5. The applicants brought court actions against the authorities, seeking to recover the monetary value of the State promissory notes for purchasing of Russian-made cars. On the dates listed in the Appendix the domestic courts granted their actions and awarded them different amounts in compensation, payable by the Ministry of Finance. The judgments were upheld on appeal and became final on the dates listed below. They remained unenforced. 6. On various dates the supervisory review courts, upon applications from the Ministry of Finance and by way of supervisory-review proceedings, quashed the first-instance and the appeal judgments in the applicants’ favour, re-examined the cases and dismissed the applicants’ respective actions, having found that the lower courts had incorrectly interpreted and applied the domestic law. | 1 |
test | 001-159048 | ENG | RUS | CHAMBER | 2,015 | CASE OF DUDAYEVA v. RUSSIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 5. The applicant was born in 1953 and lives in Grozny. 6. At the material time the applicant’s family lived in a dwelling comprising several houses in one courtyard in Shakhterova Street in the Staropromyslovskiy District of Grozny. The family included the applicant, her husband Mr Ali (also sometimes written as Alik) Dudayev, their sons, Mr Alikhan Dudayev and Mr Aslan Dudayev, Ms Amnat (also sometimes written as Aminat) Yakhyayeva, the wife of Mr Aslan Dudayev, and their five children, including Mr Adam Dudayev. The dwelling was located two blocks from the military commander’s office and the Staropromyslovskiy district police station (the ROVD). The area was under curfew. 7. On the night of 8 to 9 July 2002 (in the documents submitted the date was also referred to as the night between 7 and 8 July 2002) the applicant’s family were at home. The applicant was not there as she had left to spend the night at her relatives’ house in Grozny. 8. At about 2 a.m. on 9 July 2002 a group of about fifteen federal servicemen in uniforms and balaclavas, armed with automatic weapons, arrived in an armoured personnel carrier (APC) at the applicant’s home and unlocked the gate. They then started shooting and throwing grenades at the applicant’s house. 9. One of the applicant’s sons, Mr Alikhan Dudayev, who was a police officer, shot back for about half hour. After that he managed to leave the house and inform the police about the incident. Meanwhile, the applicant’s family lay on the floor to avoid being hit. The applicant’s grandson Adam was injured in the foot and lower back by a hand-grenade explosion. Another APC had arrived at the house in the meantime. 10. About two hours later the servicemen stormed the building. The applicant’s son Mr Aslan Dudayev stood up and started moving towards the servicemen, trying to warn them that there were women and children in the house. He was shot in the head before the eyes of his wife and five children. His body was moved to another room where he was shot in the head again. 11. The servicemen then took the applicant’s husband, Mr Ali Dudayev, outside and put him in the APC and drove off. The applicant’s husband has been missing ever since. 12. At the end of their special operation, the servicemen took the applicant’s family outside and set the house and family car on fire. 13. The applicant heard of the incident at about 4 a.m. and immediately went home. Upon her arrival, the applicant was told by relatives of the circumstances of her son’s killing and of her husband’s abduction. 14. In their submissions before the Court the Government did not contest the facts as presented by the applicant. However, they denied any involvement by State agents in the alleged killing of her son and the alleged disappearance of her husband. 15. In reply to a request from the Court to submit a copy of the documents reflecting the most important steps taken by the investigation into the events of the night between 8 and 9 July 2002, the Government furnished copies of criminal case files nos. 54042 and 54108, running up to 224 pages. The information submitted may be summarised as follows. 16. On 9 July 2002 a group of investigators from the Grozny prosecutor’s office examined the crime scene. As a result, they collected 408 spent cartridges, two bullets and a machine gun as evidence. 17. On 9 July 2002 the investigators questioned the applicant’s other son, Mr Alikhan Dudayev, a police officer at the ROVD at the time. He stated that at about 2 a.m. he had been at home and had been woken up by someone opening the outside gates. He had then heard a group of men running into the courtyard. He had asked in Chechen and then in Russian who the men were, but had received no reply. He had seen that one of them was in camouflage uniform and a balaclava and was armed with a machine gun. The witness had warned the man that he was a police officer. In reply, the man had opened fire and the witness shot back. Then the other intruders had opened fire with machine guns and grenades, in an attack of about twenty minutes. The witness had been wounded by grenade splinters in the hand and the torso. He had managed to leave the house and run into the neighbouring courtyard. Meanwhile, the shooting continued. The witness had seen five ROVD officers come out after they heard the gunfire. He had explained the situation to them and they had contacted the local military commander’s office and the ROVD by radio. The witness and the police officers had then heard an APC arriving at the witness’s house, after which the shooting had intensified and had lasted for another half an hour. Then the two APCs had driven off and the gunfire stopped. The police officers had left one of their colleagues with the witness and had gone to the house. Upon their return, they had told him that his brother and father had been taken away in the APCs. 18. On 9 July 2002 the investigators questioned the applicant’s neighbour, Mr V.M., who stated that on the night between 8 and 9 July 2002 he had been woken up by intense gunfire from automatic firearms at the applicant’s house, which had lasted for about fifty minutes. Then he had seen that the applicant’s house had been set on fire. A group of men had shouted and sworn in unaccented Russian and had then driven off in an APC. 19. On 9 July 2002 the investigators questioned another neighbour of the applicant, Mr A.T., who stated that the night before he had been woken up by intense gunfire at the applicant’s house. When he had tried to open the door to see what was going on, he had been ordered to stay inside or be shot. He had heard men swearing in Russian. 20. On 9 July 2002 the investigators questioned the applicant’s neighbours Mr V.A., Mr A.Ch. and Ms Ay.V., whose statements were similar to the one given by Mr V.M. Ms Ay.V. also stated that at about 3 a.m. someone had demanded that she open her door and let in the wife of Mr Aslan Dudayev, Ms Amnat Yakhyayeva, and her children, including the wounded Adam Dudayev. Ms Amnat Yakhyayeva told the witness that all of the men who had been in their house had been killed by the armed men who had arrived in the APC. On the following morning the witness had found a spent 5.45 mm calibre cartridge at her home, presumably from an automatic gun. 21. On 9 July 2002 the investigators also questioned the applicant’s neighbour, Mr A.I., whose statement was similar to those of the other neighbours (see paragraphs 18-20 above). In addition, he stated that the shooting at the Dudayevs’ house had continued for at least one and a half hours, that the armed men who had attacked the applicant’s family had been an organised group of fifteen to twenty men in camouflage uniforms, that they had sworn a lot in unaccented Russian and that they had driven in an APC. After the shooting he had gone to the house and found the walls and furniture riddled with bullet holes. He had also found the body of the applicant’s son, Aslan, who had been killed in the gunfire. 22. On the same date, 9 July 2002, the investigators also questioned the applicant’s neighbours Ms A.Ya., Ms B.Dzh. and Mr Ab.V., whose statements were similar to those of the other neighbours (see paragraphs 1821 above). 23. On 10 July 2002 the investigators opened criminal case no. 54042 (in the documents submitted the number was also referred to as 54048) in connection with the murder of the applicant’s son Mr Aslan Dudayev “by a group of fifteen to twenty armed men in camouflage uniforms and balaclavas who had arrived at the [the applicant’s] house”. 24. On 10 July 2002 the investigators ordered a forensic examination of the body of the applicant’s son Mr Aslan Dudayev. On 12 August 2002 the forensic experts concluded that he had died from two gunshot wounds to the head. 25. On 13 July 2002 the investigators ordered a forensic examination of the applicant’s grandson Adam Dudayev. On the same date the experts concluded that he had received a perforating shrapnel wound and a gunshot wound to the torso. 26. On 15 July 2002 the applicant’s son Mr Alikhan Dudayev complained of the incident to the Chechnya Prosecutor. In particular, he stated that on the night of the events he had warned the intruders that he was a police officer, but they had opened fire. After an hour and a half of intense shooting, the perpetrators had taken his brother, Mr Aslan Dudayev, outside and executed him in the courtyard. They had then wounded his nephew Adam, and had taken away his father, Mr Ali Dudayev. Neither the military commander’s office nor the nearby police station had reacted to the gunfire or intervened in any way. 27. On 18 July 2002 the investigators questioned the applicant’s daughter-in-law Ms Amnat Yakhyayeva, whose statement concerning the events was similar to that of her brother-in-law, Mr Alikhan Dudayev. In addition, she stated that her husband, Mr Aslan Dudayev, had been shot dead by the perpetrators, who had been in military uniform and had driven around in two APCs. The perpetrators had also taken away the applicant’s husband, Mr Ali Dudayev. 28. On 18 July 2002 the investigators questioned the applicant’s neighbours Mr A.V. and Mr M.Kh., whose statements were similar to the applicant’s account before the Court. In addition, Mr M.Kh. stated that after the shooting had stopped, several military vehicles had driven down their street in the direction of the applicant’s house. In the morning he had learned that the attack had been carried out by federal servicemen who had been driving in three APCs. 29. On 28 July 2002 the investigators ordered a ballistics report on the cartridges, bullets and machine gun collected from the crime scene on 9 July 2002. On 12 August 2002 the ballistic experts concluded that the machine gun had been set for single shots only and that the cartridges had come from several different Kalashnikov machine guns. 30. On 30 July 2002 the investigators granted the applicant’s son Mr Alikhan Dudayev, the status of victim in the criminal case and questioned him again. He reiterated his previous statement (see paragraph 17 above). 31. On 1 August 2002 the investigators granted the applicant’s daughter-in-law Ms Amnat Yakhyayeva the status of victim in the criminal case and questioned her. Her statement was similar to the one given on 18 July 2002 (see paragraph 27 above). In addition, she stated that the perpetrators had wounded her father-in-law and taken him away in their APC. 32. On 1 August 2002 the investigators questioned the applicant’s neighbour Ms Yakh. Dzh., whose statement about the events was similar to those given by the other neighbours and to the applicant’s account before the Court. 33. On 1 August 2002 the Chechnya Prosecutor wrote to the Chechnya Military Prosecutor asking for assistance in the investigation of the criminal case. The letter stated, inter alia, the following: “... The Chechnya prosecutor’s office is investigating a criminal case concerning the killing of Mr A. Dudayev and the wounding of Mr A.M. Dudayev by a group of unidentified persons armed with automatic rifles. One of the theories being pursued by the investigation is that of the involvement in the crime of military servicemen from the United Group Alignment (the UGA). In connection with this I request that an investigator from unit no. 20102 of the military prosecutor’s office be included in the investigators’ group to assist in solving the crime...” 34. On 21 August 2002 the Grozny military commander’s office informed the investigators that they had no information about the possible identity of the perpetrators and had not issued orders for a special operation at the applicant’s house. 35. On 10 September 2002 the investigation of the criminal case was suspended owing to a failure to identify the perpetrators. The applicant and her relatives were not informed of this. 36. On 18 July 2003 the Staropromyslovskiy district prosecutor overruled the decision to suspend the investigation as unlawful and premature. He pointed out, among other things, that the investigators had failed to take basic steps, such as questioning the police officers whom Mr Alikhan Dudayev had met after his escape from the house or questioning the officers from the military commander’s office about the attackers’ use of APC military vehicles. The investigation resumed on the same day. 37. On an unspecified date in July 2003 the applicant complained of her son’s killing and her husband’s abduction to the Staropromyslovskiy district administration, which on 30 July 2003 forwarded her complaint to the investigators for examination. 38. On 10 August 2003 the investigators questioned the applicant’s neighbour Mr S.D., whose statement was similar to the applicant’s account before the Court. 39. On 18 August 2003 the investigation of the criminal case was suspended owing to a failure to identify the perpetrators. The applicant and her relatives were not informed of this decision. 40. On 2 June 2009 the investigators again took up the criminal case on the orders of their superiors after receiving a request for information from the applicant. 41. On 5 July 2009 the investigators granted the applicant the status of a victim in the criminal case and questioned her. The applicant’s statement concerning the circumstances of her son’s killing and the abduction of her husband by military servicemen was similar to her account before the Court. In addition, she stated that even though the servicemen had known that her son Mr Alikhan Dudayev worked in the police, they had still opened fire. 42. On 7 July 2009 the investigators again suspended the investigation owing to a failure to identify the perpetrators. They informed the applicant of this decision. 43. The applicant appealed against that decision to the Staropromyslovskiy District Court in Grozny. On 29 September 2009 the court rejected the complaint because earlier that day the investigators had resumed the proceedings in the criminal case. 44. On 30 September 2009 the investigations in criminal cases 54042 and 54108 were joined under the number 54042 (see below). 45. On 4 October 2009 the investigators suspended the proceedings in the joint criminal case and informed the applicant. 46. On 9 November 2011 the investigation was resumed by the supervising body as having been unlawfully suspended and the investigators were ordered to take fresh steps. 47. On 15 December 2011 the investigators again suspended the proceedings in the joint criminal case. 48. The document submitted shows that the investigation is still pending. 49. On 11 December 2002 the Grozny prosecutor’s office opened criminal case no. 54108 in connection with the disappearance of the applicant’s husband, Mr Ali Dudayev. 50. On 20 December 2002 the investigators questioned the applicant’s daughter-in-law Ms Amnat Yakhyayeva and her son Mr Alikhan Dudayev. Their statements were similar to the applicant’s account before the Court. 51. On 24 and 25 December 2002 the investigators questioned the applicant’s neighbours Ms A.V. and Ms Z.I., whose statements were similar to the applicant’s account before the Court. In addition, they stated that the perpetrators of the abduction had been military servicemen. 52. On an unspecified date in February 2003 the investigators informed the applicant’s lawyer that they were taking search measures to establish the whereabouts of the applicant’s missing husband. 53. On 11 February 2003 the investigation of the criminal case was suspended for failure to identify the perpetrators. The applicant was not informed. 54. On 18 June 2003 the investigation resumed and was again suspended on 18 August 2003. The applicant was not informed of either decision. 55. On 2 June 2009 the investigators resumed the investigation at the applicant’s request. 56. On 5 July 2009 she was granted victim status in the criminal case and questioned. Her statement was identical to the one given in criminal case no. 54042 (see paragraph 41 above). 57. On 7 July 2009 the investigators suspended the investigation on account of a failure to identify the perpetrators and informed the applicant. 58. The applicant appealed against the decision to suspend the proceedings to the Staropromyslovskiy District Court. On 29 September 2009 the court rejected the complaint because earlier on the same day the investigators had resumed proceedings in the criminal case. 59. On 30 September 2009 the investigation in the criminal case was joined with the investigation in criminal case 54042 under a joint number, 54042. 60. On 4 October 2009 the investigators again suspended the proceedings in the criminal case and informed the applicant. The document submitted shows that the joint investigation is still pending (see above). 75. The Government did not contest the essential facts underlying the application, but claimed that the applicant’s submission was unsubstantiated and that there was no evidence proving “beyond reasonable doubt” that State agents had been involved in the killing of the applicant’s son and the disappearance of her husband. In particular, they stated that the applicant herself had not witnessed the incident and that her application had been based “only on the suppositions of her relatives and neighbours” as none of the alleged witnesses had been able to say for sure that the man taken away in the APC by the abductors had been Mr Ali Dudayev. 76. The applicant submitted that it had been established “beyond reasonable doubt” that State agents had been involved in the attack on her house, which had resulted in the abduction of her husband and the killing of her son. In support of that assertion she referred to the ample evidence contained in her submissions and those of the Government, as well as the contents of the criminal investigation file. In particular, she pointed out that the perpetrators had arrived as a large group in APCs, which could only have been used by the federal forces, and that they had been able to move around freely during the curfew. The local military commander’s office had not reacted to the intense gunfire in the middle of the town during the curfew and the attack had taken place close to the local police station and lasted for more than an hour. She submitted that she had made a prima facie case that State agents had killed her son and abducted her husband and that the Government had failed to provide a plausible explanation for the events. In view of the absence of any news of her husband for a long time and the life-threatening nature of unacknowledged detention in the region at the relevant time, she asked the Court to consider him dead. 77. The Court will examine the application at hand in the light of the general principles applicable in cases where the factual circumstances are in dispute between the parties (see El-Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, ECHR 2012). 78. The Court has addressed a whole series of cases concerning allegations of disappearances and deaths of applicants’ relatives in Chechnya. Applying the above‑mentioned principles, it has concluded that if applicants make a prima facie case of abduction or killing by servicemen, this is sufficient for them to show that their relatives fell within the control of the authorities, and it is then for the Government to discharge their burden of proof, either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, among many examples, Aslakhanova and Others, cited above, § 99, and Inderbiyeva v. Russia, no. 56765/08, § 96, 27 March 2012). If the Government fail to rebut that presumption, this will entail a violation of Article 2 of the Convention in its substantive part. Conversely, where applicants fail to make a prima facie case, the burden of proof cannot be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012, and Udayeva and Yusupova v. Russia, no. 36542/05, § 78, 21 December 2010). 79. The Court has also found in many cases concerning disappearances that a missing person may be presumed dead. Having regard to the numerous cases of disappearances in Chechnya which have come before it, the Court has found that in the particular context of the conflict in the region, when a person has been detained by unidentified State agents without any subsequent acknowledgment of the detention, this could be regarded as life‑threatening (see, among many others, Yandiyev and Others v. Russia, nos. 34541/06, 43811/06 and 1578/07, 10 October 2013, and Dovletukayev and Others v. Russia, nos. 7821/07, 10937/10, 14046/10 and 32782/10, 24 October 2013). 80. The Court has made findings of presumptions of deaths in the absence of any reliable news about disappeared persons for periods ranging from four years (see Askhabova v. Russia, no. 54765/09, § 137, 18 April 2013) to more than ten years. 81. Turning to the circumstances of the present case, the Court notes that the documents from the investigation file provided by the Government (see, for example, paragraphs 17, 21, 24 and 31 above) demonstrate that the applicant’s son Mr Aslan Dudayev was shot dead on the night of 8 to 9 July 2002 by a group of armed servicemen who drove around in APCs and opened fire on the applicant’s house during curfew hours. As a result of the two-hour attack, which took place in proximity of the military commander’s office and the police station, the applicant’s husband, Mr Ali Dudayev, was taken away by the same group of servicemen and has been missing since. In their submissions to the authorities, the applicant, her relatives and neighbours, pointed out that the killing of Mr Aslan Dudayev and the abduction of Mr Ali Dudayev had been carried out by the same group of perpetrators, who belonged to the federal forces (see paragraphs 27, 28 and 41 above). The investigators considered this version of events and took steps to verify this assertion (see paragraphs 33 and 36 above). In view of all the evidence in its possession, the Court finds that the applicant has presented a prima facie case that State agents killed her son and abducted her husband, who subsequently disappeared. 82. The Government neither contested the essential facts underlying the application nor provided a satisfactory and convincing explanation for the events in question. Bearing in mind the general principles set out above, the Court finds that Mr Aslan Dudayev was killed on the night of 8 to 9 July 2002 in the applicant’s house by a group of State agents and that her husband Mr Ali Dudayev was taken into custody on the same night by the same group of State agents. In view of the absence of any reliable news of the applicant’s husband since that date and the lifethreatening nature of such detention (see paragraph 79 above), the Court also finds that Mr Ali Dudayev may be presumed dead following his unacknowledged detention. | 1 |
test | 001-144673 | ENG | RUS | CHAMBER | 2,014 | CASE OF PRIMOV AND OTHERS v. RUSSIA | 3 | Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 5. On 10 April 2006 a group of seven people living in the Dokuzparinskiy District of Dagestan, a mountainous region close to the border with Azerbaijan, posted a written notice informing the district authorities that on 25 April 2006 they would hold a public demonstration in the village of Usukhchay. The applicants’ names were not mentioned in the list of organisers of the demonstration. The principal aims of the demonstration were to criticise the work of the head of the local administration, Mr A., to denounce corruption and the misuse of public funds by the local administration, and to draw attention to the inactivity of the law-enforcement agencies vis-à-vis abuses committed by Mr A. and his colleagues. The demonstration was supposed to be held in a recreational park in the village of Usukhchay from 11 a.m. to 5 p.m.; the estimated number of participants was 5,000. The organisers asked the police to dispatch officers for the protection of those participating in the demonstration. Although the applicants’ names were not in the notice, they claimed that they had played an active part in the organisation of the meeting in their respective communities. 6. The notice (уведомление) was sent to the district administration with copies to the Dokuzparinskiy district prosecutor and the head of the district police department. The applicants produced a copy of a payment slip from a post office in Makhachkala indicating that the notice had been posted by registered mail on 10 April 2006. It appears from the documents submitted by the Government that the notice was received by the district administration on 17 April 2006. 7. On 17 April 2006 the head of the district administration, Mr A. – the same person who was the principle target of the criticism by the demonstrators – informed the organisers that the district administration was opposed to the demonstration. In his letter of 17 April 2006 Mr A. said that, first, the notice had been lodged (подано) outside the time-limit fixed in the Public Gatherings Act. Secondly, the park in Usukhchay was not supposed to admit more than 500 people, so it was impossible to hold a demonstration there. Thirdly, the purpose of the demonstration was to condemn the embezzlement of public funds and the deliberate destruction of financial records by the district administration. However, according to Mr A., the competent law-enforcement authorities, in particular the prosecutor’s office, and financial authorities such as the Ministry of Finance of Dagestan, had already inquired into those allegations and concluded that there had been no case to answer. The letter also contained a warning addressed to the organisers that if they proceeded with the demonstration as planned, they would be held liable in accordance with the law. 8. At about 4 p.m. on 19 April 2006, a group of men armed with iron rods and sticks attacked another group of individuals near the village of Khiv. Two persons were injured. Having received information about the clash, the Derbent police dispatched a group of officers to the scene. The police set up an improvised roadblock near the “Gereykhanov Sovkhoz” (Kasumkent village) to check the passing cars and prevent further clashes. A few hours later a group of about 300 people armed with wooden sticks, iron rods and similar objects arrived at the roadblock in several cars without licence plates. The police stopped those cars. According to the authorities, the second applicant then climbed onto the roof of his car and started to incite his fellow villagers to resist the police and to run them over. His followers started to abuse the police verbally, pushed them out of their way and tried to overturn a police vehicle and a truck which the police had used to block the road. One of the police officers was injured, and his uniform was ripped. As a result, the police gave up and let the cars pass. 9. The second applicant denied having participated in the scuffle. He maintained that on that day he had been taking part in a gathering in the Kurakhskiy District. As to the episode near the police roadblock, he claimed that he had argued with the police officers, asking them to let him and his car through, and the windscreen of his car had been broken by them. However, he had not committed any unlawful acts. 10. On an unspecified date the prosecutor’s office opened a criminal investigation into the events of 19 April 2006 (case no. 6424). 11. On 21 April 2006 the second applicant was arrested with reference to case no. 6424, which concerned the riot on 19 April 2006 in the village of Khiv. On 22 April 2006 the Khiv District Court granted the police’s request to detain the second applicant on remand. The second applicant was suspected of having committed a crime under Article 212 § 3 (“Mass riots”), and Article 318 § 1 (“Use of violence against a public official”) of the Criminal Code of the Russian Federation. The court ruled that the second applicant should be detained because otherwise he might obstruct the establishment of the truth, destroy evidence or abscond. The second applicant appealed, claiming that the court’s decision was unsubstantiated, but on 28 April 2006 the Supreme Court of Dagestan dismissed the appeal in a summary fashion. 12. On 20 June 2006 the Sovetskiy District Court of Makhachkala ordered the second applicant’s release, indicating that he had a permanent place of residence, three children to take care of and an elderly father who was ill, and that the charges against him were not serious. The second applicant was released. 13. Subsequently, the criminal case against the second applicant was closed by the trial court for “active repentance”. 14. Despite the decision of the local administration of 17 April 2006 whereby the demonstration of 25 April 2006 had not been allowed, the organisers decided to hold it as planned. The first and the third applicants took part in that “unauthorised” demonstration; the second applicant was not amongst the protesters since at that time he had been detained on remand in connection with the episode of on 19 April 2006 in the village of Khiv (see paragraphs 8 to 13 above). 15. At about 10 a.m. on 25 April 2006, a group of approximately 1,000 people gathered on the outskirts of Usukhchay. Other demonstrators were unable to reach the assembly point because the roads had been blocked by the police. 16. The organisers tried to meet representatives of the village administration in order to discuss the situation, but to no avail. When the demonstrators started moving towards the centre of the village, the police blocked their way. At the same time another group of demonstrators from the neighbouring village of Miskindzha were stopped by the police on the way to Usukhchay; they were ordered to return to Miskindzha and hold their demonstration there separately, if they so wished. 17. In the afternoon the demonstrators from Usukhchay started moving towards Miskindzha. As the police had blocked the road, the demonstrators had to leave their cars and walk. Because of the bad weather and the long distance to walk, some of them decided to give up. As a result, when the demonstration arrived at Miskindzha, there were no more than 200 to 300 participants. 18. The meeting was peaceful; however, at about 3 p.m. the demonstrators were encircled by police officers from the Special Police Force Unit (the “OMON”). The police opened fire with automatic rifles above the demonstrators’ heads. They also used tear gas, smoke bombs and stun grenades to disperse the demonstration. The demonstrators started to run in the direction of the village; the police officers followed them. The police beat the demonstrators with rubber truncheons and rifle butts. As a result, one person was shot dead, five people were severely injured and several dozen people were beaten up or were injured by the shells of the tear-gas bombs which had exploded in the midst of the crowd. Sixty-seven people were arrested, and the organisers of the meeting were charged in connection with their participation in the organisation of an unauthorised demonstration. From the first and the third applicants’ submissions it appears that they were present at the scene of the confrontation in Miskindzha up to a certain moment but left when the clash started at about 3 p.m. None of them was hurt during the clash. 19. As to the gunshot injury received by a police officer, one of the participants in the demonstration, referring to the words of another witness, Mr S.F., claimed that the wound had been self-inflicted: the officer concerned had shot himself in the leg by accident, because his gun had not been locked. 20. On 24 April 2006 the Ministry of Internal Affairs of Dagestan issued Order No. 7 “On measures to stabilise the situation in the Dokuzparinskiy District of Dagestan”. The order described the unauthorised demonstration of 25 April 2006, which supposedly would involve about two thousand people “with an aggressive predisposition”. The order mentioned the risks of blocking the roads and disturbing the normal work of State institutions. A “mixed squad” was formed comprising of thirty-five police officers from the Special Forces Unit of the Ministry (OMON) and 147 officers from eight local police stations. Colonel Iz. was appointed as commander of the “mixed squad”. The order provided for undercover observation of the leaders of the demonstrators, video-recording of the events, strengthening of identity checks at the roadblocks and other security measures. 21. The squad moved to Usukhchay and took position at several roadblocks controlling roads leading to the village and near certain buildings occupied by State bodies. The aim of the operation was to secure public order, guarantee the constitutional rights and freedoms of the population and prevent clashes between the supporters of Mr A. and his opponents. 22. In their observations, the Government claimed that on the eve of the demonstration someone had taken alcohol, foodstuff and illegal drugs to Usukhchay. It had all been distributed amongst the residents of the village. In addition, there was information about individuals from other villages who had arrived in Usukchay with the aim of inciting the local population to participate in the unlawful demonstration and to insubordination to the lawenforcement authorities. 23. At about 11 a.m. on 25 April 2006, three groups of people gathered near the premises of the village administration. One group of about 150 people were supporters of Mr A., the head of the district administration. The two other groups – which counted about one thousand people in aggregate – were the opponents of Mr A. Official documents contained in the case file also refer to another group of about 450 to 500 people, who arrived in Usukhchay to take part in the demonstration; it is unclear whether that group was able to join the gathering in the centre or was stopped by the police on the outskirts of the village. 24. In view of the risk of clashes between the opposing groups, representatives of the protesters were invited to take part in negotiations in the local prosecutor’s office. The negotiations involved Colonel Iz., the Deputy Minister of Internal Affairs of Dagestan, the prosecutor, Ms Lg., and the head of the local police, Mr Akb. The authorities proposed to the organisers that they could hold the demonstration in a municipal garage. 25. However, that offer was declined. The demonstrators started to move from Usukhchay to Miskindzha, where they arrived at about 1 or 2 p.m. In the meantime, however, someone had blocked the road with objects including paving stones, timber beams and water pipes. This was a federallevel road connecting several villages and its blockage caused a considerable traffic jam. 26. The authorities warned the organisers that if the road remained blocked, the organisers would be held liable, and that the law-enforcement authorities present on the spot would use force and “special equipment”. 27. The organisers refused to follow the instructions and told other demonstrators to disobey the police orders. When the police, following the orders of Deputy Minister Colonel Iz., started to remove the barricade from the road, unidentified men in the crowd started to throw stones at them. In addition, several shots were fired from a garden situated uphill on the left side of the road. Some of the protesters were armed with cold weapons such as iron rods, which they used as bats while attacking the police, whereas others tried to grab the service guns from the police officers. 28. As a result, the police had to use firearms and special equipment. In particular, they used two stun grenades, twenty-three tear-gas grenades, thirtysix rubber bullets, and fired 747 shots from automatic rifles above the heads of the crowd. Fifty-two of the most active protesters were arrested and taken to the Dokuzparinskiy police station. 29. In addition, unidentified police officers used pump-action shotguns loaded with 22 mm grenades filled with tear gas. Those shots were fired in the direction of the crowd. 30. Following the clash between the police and the demonstrators, several police officers were injured. Eleven had bruises on their arms and legs, scratches and concussion; one had a ruptured spleen; and one, Mr Il., had a gunshot wound in the form of a perforated bullet hole in the right thigh. 31. Four civilians were seriously injured and one died. Mr Akh. had a blunt gunshot wound to the right side of the thorax with fractured ribs; Mr Nsr. had a gunshot wound to the left side of the thorax with broken shoulder bones; Mr Al. was wounded by a shell fragment in the right shin and thigh; Mr Gnd. had a gunshot wound to the right forearm with a fractured bone; and Mr Ng. received a mortal wound by a gas grenade to the thorax and died on the way to hospital. 32. In support of their account, the Government produced some documents apparently obtained in the course of the investigation (case no. 67610). It is unclear, however, whether all those documents related to case No. 67610 and whether they constituted the entirety of the materials collected within that case. The content of those documents, insofar as relevant, is described below. 33. The Government produced medical certificates describing the injuries of several police officers, but not Mr Il. They also produced several medical certificates describing the injuries sustained by the protesters, all of whom had bruises and scratches. According to the certificates, the protesters claimed that the police had kicked, beaten and battered them with rubber truncheons and gun butts. Some of the protesters had been injured by the rubber bullets used by the police. Others claimed that they had been beaten up after having been arrested and taken to the police station. 34. In his testimony Mr Akb., the head of the Dokuzparinskiy police, gave an account of the events which was generally consonant with that of the Government. He said that he had been warned about the demonstration in a telegram sent by the organisers. On 17 April 2006 he had met one of them and discussed the event. He further explained that at some time after 10 a.m. on 25 April 2006, his men had stopped a large group of protesters who had been trying to enter Usukhchay. Mr Akb. had spoken with the leaders of the protesters and explained to them that “the demonstration had not been authorised, and that the actions [of the demonstrators] were unlawful”. Subsequently, he had been involved in the negotiations with the demonstrators. The deputy head of the district administration had proposed to the protesters that they hold the demonstration in a municipal garage, explaining that if they stayed in the square near the district administration premises, they risked blocking the main road. The leaders of the protesters visited the garage, but were not satisfied with that offer. They informed the authorities that they would send the protesters to Miskindzha and hold their demonstration there, in the village community centre. When the negotiations were over, a small group of protesters started to move towards the village centre, whereas others marched to Miskindzha, accompanied by the police. At about 1 p.m. Mr Akb. was informed that the federal road had been blocked by two large heaps of stones. He arrived at the scene and started to negotiate with the leaders of the protesters. He tried to persuade them to unblock the road, but they refused and insisted on meeting the leadership of the Dagestan Republic. New people arrived at the scene, armed with stones and sticks. Since the negotiations had failed, Mr Akb. ordered the police to start clearing the road. The men who had gathered on the sides of the road started to throw stones at the police officers, several of whom were hit, so Mr Akb. authorised the use of shields and rubber truncheons. Once the first heap of stones had been removed and the traffic had started to move, the police discovered that 300 metres further down the road it had again been obstructed with pipes. Throughout that time the police officers had stones thrown at them. Mr Akb. authorised them to use firearms but only above the heads of the protesters. By 6 p.m. the road had been unblocked. 35. Mr Yakh., one of the protesters, testified that when they had arrived in Miskindzha, the road had not yet been blocked. People had started to block the road spontaneously with stones in order to draw the authorities’ attention to their claims. The leaders of the demonstration, who spoke before the crowd, called everybody to order and asked them not to break the law. Then a police colonel appeared. He asked the leaders of the protesters to unblock the road, but they refused. The police then attacked the protesters from two sides and started to shoot and throw gas grenades into the crowd. People started to run in the direction of Miskindzha. Mr Yakh. testified that he had not seen protesters throwing stones at the police: by contrast, the police had thrown stones at the crowd in order to unblock the road. 36. Witness Mr Ag., a district administration official, testified that all the protesters, including women and elderly people, had been drunk, because earlier a mini-lorry had brought a cargo of vodka which had been distributed to the protesters. Mr Ag. joined the crowd and went with the protesters to Miskindzha, where he listened to the speeches of the leaders of the demonstration before a crowd of approximately 300 people. After the failure of the negotiations between the protesters and the authorities, the leaders started to incite the protesters to throw stones; he also heard the sound of shots coming from the side where the protesters had gathered. A police officer was wounded. The police started to move towards the protesters and fired two or three warning shots above their heads. When the police started to remove the stones from the road and arrest the protesters, Mr Ag. left. On the way back he overheard two women complaining that the organisers had not paid them and that they had been used as a human shield against the police. 37. According to an undated report by the head of the Special Forces Unit, Major Kr., the police had started using gas grenades only when a large group of about 1,000 men armed with iron rods, wooden sticks and knives had attacked them. Major Kr. also specified that when his officers were moving from the first barricade to the second, someone had started to shoot at them from under the nearby trees with an automatic gun and a hunter’s gun. 38. Witness Mr Agb. testified that on 25 April 2006 he had been going on his business but had been stopped by the crowd. He had heard the first applicant calling the protesters not to block the road but to gather in the community centre of Miskindzha. However, some of the demonstrators disobeyed; two lorries arrived and dumped stones on the road. Some of the protesters were throwing stones at the police. 39. One of the witnesses, Mr Chub., was the driver of the lorry that had brought stones for the first barricade. He explained that he had loaded the stones near the river in order to build a shed in his garden. Near the entry to Miskindzha he was stopped by a group of youngsters who ordered him, under the threat of violence, to dump the stones directly on the road. 40. The written testimonies of several other eyewitnesses were inconclusive. Some of them testified that a group of adolescents had been throwing stones at the police; others said that the police had used firearms by shooting in the air, whereas the demonstrators had no firearms. Some witnesses heard shots from the side of the protesters. 41. On 29 April 2006 the first applicant was arrested for participating in the organisation of an unauthorised demonstration on 25 April 2006 (criminal case no. 67610). He was suspected of having committed a crime under Article 213 § 2 (“Hooliganism”), and Article 318 § 2 (“Use of violence against a public official”) of the Criminal Code of the Russian Federation (for all further references to the Criminal Code see “Relevant domestic law” below). 42. In particular, the police suspected that the first applicant had incited the demonstrators to block the road and to “disobey the lawful orders of the police with the use of firearms”. The police applied to the Sovetskiy District Court for a detention order against the first applicant. 43. According to the Government, the decision of the Prosecutor of the Dagestan Republic (hereinafter “the RPO”, the Regional Prosecutor’s Office) to seek the first applicant’s detention was based on the witness statements of Mr Als., Mr Agsh., Mr Shk. and an anonymous witness. Those witnesses identified the first applicant as one of the leaders of the demonstration who had incited the crowd to attack the police. 44. On 30 April 2006 the Sovetskiy District Court of Makhachkala placed the first applicant in pre-trial detention. In its ruling the court noted that he was suspected of having committed a serious crime and that he might continue his criminal activity, abscond or obstruct the course of justice. The court also referred to his “personality”. 45. The first applicant’s lawyer appealed. He indicated that the first applicant worked as head of a municipal social-security office, had a permanent place of residence and four children, and had good references from his colleagues and neighbours. The lawyer also stated that the first applicant had not been contacted by the investigators before his arrest. The lawyer noted that a suspect could be held in pre-trial detention before being formally charged only in exceptional circumstances. The court’s ruling did not refer to any specific facts showing that the first applicant indeed intended to continue his criminal activities, abscond or obstruct the course of justice. Furthermore, the lawyer pointed to various irregularities in the application by the police and in the court’s ruling imposing the detention order. 46. On 6 May 2006 the Supreme Court of Dagestan dismissed the appeal in a summary fashion. The Supreme Court’s reasoning was identical to that of the lower court. 47. On 8 May 2006 the first applicant was charged under Article 213 § 3 and Article 318 § 2 of the Criminal Code. In the indictment the first applicant was referred to as “the organiser of the demonstration”. The indictment also mentioned that, as one of the organisers of the demonstration, the first applicant had ordered the protesters to block the road, throw stones in the direction of the police and use firearms. 48. It appears that in the meantime the first applicant had a confrontation with the witnesses who had earlier identified him as one of the instigators of the riot. According to the Government, they had all denied their previous allegations concerning his role in the riot. 49. On 27 June 2006 the Sovetskiy District Court of Makhachkala refused to extend the first applicant’s pre-trial detention. The court ruled that the police had not produced any evidence that he might abscond or obstruct the course of justice, and that another preventive measure could not be applied. The court also stated that the need to question other demonstrators who had used violence against the police was not a good reason for extending his detention. The court lastly stated that the first applicant had no previous convictions, was married, was in employment, had good references, had been awarded State decorations and had a permanent place of residence. The first applicant was released. 50. On 25 December 2006 the criminal case against the first applicant was discontinued for lack of evidence. The investigator established that the road going to Miskindzha had been blocked by the protesters; when the police had tried to clear the road, the protesters had started to throw stones and sticks at them. Several police officers had been injured; police officer Il. had been wounded by a bullet fired from a hunter’s gun. 51. The investigator’s decision to discontinue the case referred to the protocol of examining the site of the clash during which he had discovered the following objects: 139 5.45 mm cartridges (the type used in the police’s automatic guns), one 7.45 mm cartridge (standard army Kalashnikov rifle), two cardboard cartridges (hunter’s gun) and one cartridge from a teargas grenade. 52. The investigator further referred to the testimony of several demonstrators who had stated that when the police had approached the demonstrators, most of the people had remained calm. However, some time later, a group of young men whom the witnesses had identified as “the people of Mr Kanberov”, had arrived and started to throw stones and shout insults at the police. 53. Two police officers questioned by the investigator were granted anonymity. They testified that the leaders of the demonstration, including the first and third applicants, had ordered the protesters to disobey the police and throw stones at them. The testimony of the two anonymous witnesses was confirmed by several other police officers who testified under their real names, including Mr Sch. However, during a face-to-face confrontation with the first applicant, officer Sch. retracted his statement. 54. Police officer Mr Msl. testified that the first applicant had left the scene of the confrontation between 12 noon and 1 p.m., namely before the start of the clash, because of an emergency in his family. That fact was confirmed by witness Mr Dzhv. Witness Mr Um. testified that the first applicant had tried to persuade the protesters to follow the orders of the police and had designated thirty people to keep order during the demonstration. 55. The first and third applicants were also questioned. They denied their guilt and claimed that they had been collaborating with the police and had tried to call the protesters to order. 56. The investigator lastly referred to a video recording of the demonstration which showed that the first and third applicants had asked the protesters not to react to provocations and to remain calm. 57. On 25 December 2006 the first applicant was informed of his right to claim damages in connection with the criminal prosecution against him. 58. The third applicant was arrested on 29 April 2006. Whereas it is undisputed that the third applicant was present during the demonstration of 25 April 2006, his arrest was connected not to that demonstration but to his role in the events of 19 April 2006 in the village of Khiv and was ordered within criminal case no. 6424 (see paragraphs 8 to 13 above). 59. On 1 May 2006 the Sovetskiy District Court of Makhachkala ordered the third applicant’s pre-trial detention. The court reasoned that as he might be given a prison sentence, he might abscond. The court noted that although the arrest warrant had been issued by the police on 20 April 2006, the third applicant had not been arrested until 29 April 2006. 60. The third applicant appealed. He stated, in particular, that before 29 April 2006 the police had not taken any steps to enforce the arrest warrant of 20 April 2006. He had been arrested on the premises of the Ministry of the Interior of Dagestan, where he had gone of his own motion. 61. On 6 May 2006 the Supreme Court of Dagestan upheld the findings of the first-instance court in a summary fashion. On the same day the third applicant was charged under Articles 212 and 318 of the Criminal Code for participating in the events of 19 April 2006 in the village of Khiv. The charges against him were similar to those against the second applicant. 62. On 26 June 2006 the Sovetskiy District Court of Makhachkala refused to extend the third applicant’s pre-trial detention. The court ruled that the police had not produced any evidence that he might abscond or obstruct the course of justice. The court also indicated that the need to conduct further investigative steps was not a legitimate reason for extending his detention. The court concluded that it was possible to apply a milder preventive measure. The third applicant was released. 63. As follows from the Government’s submissions, the accusations against the third applicant were based on the testimony of one witness. The prosecution authorities decided to drop the charges against him. 64. On 25 April 2006 the RPO ordered a criminal investigation into the events in Usukhchay and Miskindzha (case no. 67611). The facts were categorised under Article 105 § 2 (e) (“Murder”) and Article 222 (“Unlawful possession of or trafficking in firearms”) of the Criminal Code (“the CC”). 65. On 7 May 2006 Colonel Mk., acting head of the Special Forces Unit (OMON) of the Ministry of Internal Affairs of Dagestan, drew up a report on the events of 25 April 2006. He explained that the tear-gas grenades had been used when the protesters attacked the police with iron rods and tried to grab the service guns. 66. On 10 May 2006 an internal inquiry carried out by the federal Ministry of the Interior concluded that the police’s actions on 25 April 2006 had been appropriate. In particular, according to the final report of the inquiry, at 4.45 p.m. Colonel Iz. had ordered his officers to unblock the road, but the officers were attacked by a group of men armed with iron rods, stones and knives. Some of those men tried to grab the officers’ service guns. When the police entered Miskindzha, they discovered a lorry loaded with alcohol, cigarettes and foodstuff. Lieutenant-Colonel Mr Og. testified that his men had been fired at from the nearby gardens located on the left side of the road. Officer Il. (who had sustained a bullet wound to his thigh) testified that a hooded man had shot at him with a hunter’s gun. An appendix to the internal inquiry described restrictions on the use of gas grenades; in particular, it was prohibited to “shot gas grenades directly at humans”. 67. On an unspecified date in May 2006 the first applicant drafted and submitted to the investigator his account of the events of 25 April 2006 (a copy was submitted by the Government). He claimed that the demonstration had started peacefully, despite information that a group of Mr A.’s supporters had occupied the park in Usukhchay. During the negotiations with the authorities in the morning of 25 April 2006 the authorities’ representatives warned the protesters that if they insisted on holding the demonstration in Usukhchay, there would be bloodshed. In the afternoon, when the demonstrators refused to leave the road near Miskindzha, the police started to shoot and beat them with rubber truncheons. The first applicant submitted to the prosecutor a video recording of the start of the clash, and requested the questioning of several participants of the events. 68. On 19 October 2006 the RPO opened a criminal investigation under Article 286 § 3 (b) and (c) of the CC (“Abuse of office”) concerning the killing of Mr Ng. (case no. 668459). 69. On 4 December 2006 cases nos. 668459 and 67611 were joined. 70. According to the Government, within those two cases the investigators questioned more than seventy witnesses and conducted ballistic and medical forensic examinations. The relatives of the victims or the victims themselves were granted the status of victims in those proceedings. 71. However, the prosecution was unable to establish the persons responsible for the facts at the heart of the investigation. As a result, on 20 February 2007 the investigation was suspended. The investigator held that “in breach of the instruction on the use of special equipment ... No. 865dsp, officers of the Special Forces Unit ... fired twenty-three 23mm gas grenades ...” However, it was impossible to identify the police officers who had fired the fatal shot. 72. It appears that on an unidentified date the investigation was reopened and on 16 January 2010 it was suspended again. | 1 |
test | 001-147613 | ENG | SVN | COMMITTEE | 2,014 | CASE OF PETROVIC 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) | Angelika Nußberger;Vincent A. De Gaetano | 5. The applicant was born in 1969 and lives in Trlić. 6. The applicant served his prison sentence in the closed and semi-open sections of Ljubljana prison. 7. In the period from 25 August 2009 to 22 September 2009 and from 4 November 2009 to 12 November 2009 he was held in the closed section: for two days in cell 4, measuring 18.75 square metres (not including a separate 2.44 square metre sanitary facility) shared with two to four other inmates and with 3.26 to 5.4 square metres of personal space and for thirtysix days in cell 2 measuring 16.18 square metres (not including a separate 1.7 square metre sanitary facility) shared with two to four other inmates and with 2.9 to 4.8 square metres of personal space. 8. In the period between 23 September 2009 and 3 November 2009 he was held in the semi-open section for forty-two days in cell 137, measuring 17.94 square metres (not including a separate 1.75 square metre sanitary facility) shared with two to four other inmates and with 3.2 to 5.4 square metres of personal space. 9. As regards the general characteristics of the cells in the closed and semi-open sections, 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. 10. 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). 11. As to the out-of-cell time in the semi-open section, the Government submitted that the cell doors in the semi-open section of the prison were unlocked, except from 9.45 p.m. (on Fridays, Saturdays and before holidays from midnight) until 6.00 a.m. (on Saturdays, Sundays and during holidays until 8.30 a.m.). During this time prisoners could move freely in the corridor (35.7 square metres), living quarters of co-prisoners or in the indoor or outdoor exercise areas, in accordance with prison rules. The Government contended that this regime had been in place for several years. 12. 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 | 001-177232 | ENG | HUN | CHAMBER | 2,017 | CASE OF KÖRTVÉLYESSY v. HUNGARY (No. 3) | 4 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani | 5. The applicant was born in 1965 and lives in Budapest. 6. On 14 April 2010 the applicant notified the police that he planned to organise a demonstration from 2 to 7 p.m. on 17 April 2010 in front of the Venyige Street prison in Budapest, in order to draw attention to the “situation of political prisoners”. Venyige Street is a broad cul-de-sac with a service lane. 7. On 16 April 2010 the head of the Budapest Police Department banned the demonstration on the grounds that traffic could not be diverted to alternative routes (section 8(1) of the Assembly Act). In the decision, he referred to Article 21 of the International Covenant on Civil and Political Rights, Article 11 of the Convention and Decision no. 55/2001.AB of the Constitutional Court. 8. On 19 April 2010, within the statutory time-limit, the applicant sought a judicial review of the decision. 9. On 22 April 2010 the Budapest Regional Court dismissed the applicant’s case. It noted that in assessing whether or not traffic could be diverted to other routes, the authority had reckoned on the participation of some 200 demonstrators, as per the applicant’s notification, and that – after having obtained the opinion of a traffic expert – it had established that lawful parking and traffic circulation in the neighbourhood would become impossible should the event take place. The court agreed with the police’s decision in that although the right to assembly was a constitutional fundamental right, it was not absolute and must not give rise to a violation of the fundamental rights of others, and could therefore be restricted. The court was satisfied that the decision had been lawful as the police had adequately established the facts, complied with the procedural rules and applied clear assessment criteria, and the assessment of the evidence had been logical. | 1 |
test | 001-169271 | ENG | RUS | ADMISSIBILITY | 2,016 | RYABTSEVA v. RUSSIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 1. The applicant, Ms Tatyana Sergeyevna Ryabtseva, is a Russian national who was born in 1949 and lives in Voronezh. She was represented before the Court by Mr Sivoldayev, a lawyer practising in Moscow. 3. On 30 June 2009 the applicant was dismissed from her post as director of a municipal art school in Voronezh. 4. A month later the applicant took Voronezh Town Council to court, seeking reinstatement. 5. On 20 August 2009 Judge Z. of the Central District Court of Voronezh dismissed her claim in full. It found that her dismissal had been lawful and had come as a response to her unsatisfactory performance at work. 6. The applicant appealed. She then submitted an addendum to the appeal, stating that Judge Z. was biased because the judge’s daughter worked as a lawyer at the Town Council. The applicant also alleged that as Judge Z. was also a Deputy President of the Central District Court and, among other duties, was in charge of the allocation of civil cases, she had intentionally taken charge of the applicant’s case. 7. An internal inquiry into the impartiality of Judge Z. was ordered by the President of the Central District Court of Voronezh. 8. The inquiry showed that there were no reasons for the judge to recuse herself suo motu in accordance with Article 16 of the Russian Code of Civil Procedure (see paragraph 10 below). There were no grounds to believe that Judge Z. had allocated the applicant’s case to herself intentionally. She had received the case because she was a senior judge who dealt with complex issues, such as reinstatement disputes, on a regular basis. Furthermore, her daughter had no evident connection to the applicant and had never been involved with the case. Also, the judge’s daughter had been on maternity leave since April 2009. 9. On 26 November 2009 the Voronezh Region Court dismissed an appeal in cassation by the applicant. The Regional Court addressed the applicant’s allegations of impartiality and also found them unsubstantiated. 10. Section 16 of the Russian Code of Civil Procedure reads as follows: “1. ... a judge shall not hear a case and shall be recused when: 1) he or she was involved in the case as a prosecutor, court clerk, representative, witness, expert or interpreter; 2) he or she is related to any person involved in a case or their respective representatives; 3) he or she has a personal direct or indirect interest in the outcome of a case or there are some other grounds to doubt his or her impartiality.” | 0 |
test | 001-169422 | ENG | RUS | ADMISSIBILITY | 2,016 | OAO AFANASIY-PIVO AND OTHERS v. RUSSIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 1. The applicants are three companies: OAO Afanasiy-Pivo (Russia), OOO Brau Service (Russia), and Eastern Union Holding AG (Switzerland). They were represented before the Court by Mr A. Shcherba, a lawyer practising in Moscow, Y. Fedichkin, a lawyer practising in Tver, and Ms Mjriana Visentin, a lawyer practising in Lainate in Italy. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, the 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. Afanasiy-Pivo ran a brewery in Tver. In June 2002 its chief executive officer Mr M. Larin was charged with abusing his position by transferring the company’s taxable profits to his other company, Eastern Union Holding. 5. On 9 September 2002 the Tverskoy District Court of Moscow made a freezing order (наложил арест) against Mr Larin under Article 115 of the Code of Criminal Procedure. The order concerned the Afanasiy-Pivo shares owned by Easter Union Holding and Brau Service, real estate and industrial equipment owned by Afanasiy-Pivo and Brau Service, Brau Service shares owned by Eastern Union Holding, and trademarks that Mr Larin had allegedly criminally assigned to Eastern Union Holding. 6. On 25 September 2002 the applicant companies learned of the freezing order. They realised that domestic law, in particular Article 354 of the Code of Criminal Procedure did not allow them to lodge an ordinary appeal against such an order. 7. In October 2002 Mr Larin applied for a supervisory review of the order. On 10 December 2002 the Moscow City Court returned his application as incomplete. 8. In January 2003 Afanasiy-Pivo and Brau Service applied for a supervisory review. On 18 March 2003 their application was dismissed on the merits. 9. In May 2003 Brau Service lodged an ordinary appeal against the order. On 7 July 2003 the Moscow City Court terminated the proceedings (прекратил производство) as under Article 115 of the Code of Criminal Procedure the company was not affected by the order. 10. In July 2003 Afanasiy-Pivo applied for leave to appeal against the order out of time. On 21 July 2003 the Tverskoy District Court of Moscow refused. 11. Between February and May 2003 the applicant companies four times asked an investigator or prosecutor to unfreeze the assets, without success. 12. The Code of Criminal Procedure 2001, as in force at the material time: 1. A prosecutor ... or investigator ... may ask a court to freeze the assets of the suspect [or] the accused ... to secure them for meeting any award of damages, other recovery orders, or eventual forfeiture. 2. The asset freeze prohibits the owner or holder of the assets from disposing of and ... using them, and puts the assets into custody. 3. Assets held by third parties may be frozen if there is reason to believe that they were gained by criminal activity of the suspect or accused. 1. An appeal or appeal in cassation may be lodged by parties against ... court decisions that have not yet come into force.... 4. The right of appeal lies with a convicted person, an acquitted person, their defenders or legal representatives, the public prosecutor, a victim or his representative. | 0 |
test | 001-173778 | ENG | POL | CHAMBER | 2,017 | CASE OF KOŚĆ v. POLAND | 4 | Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression) | Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 5. The applicant was born in 1942 and lives in Tomaszów Mazowiecki. 6. On 29 September 2010 at a village meeting in Jadwigów, fifteen residents voted in favour of holding the previous local mayor (sołtys) Z.M. to account for his management of public funds. They appointed the applicant to be in charge of further action in that regard. 7. On 7 October 2010 the applicant sent a document to the mayor of the Tomaszów Mazowiecki District (Starosta Powiatowy - “the district mayor”) entitled “Petition” (Wniosek - “the document”), which was signed by the applicant and three other residents of Jadwigów who confirmed their agreement with the petition. 8. The text read as follows: “On 27 September in the village of Jadwigów a legally valid village meeting took place, during which residents of the village decided by a large majority to appoint me to be in charge of investigating the concerns detailed below. It took me over one week to figure out a solution to this problem. I came to the realisation that the best way to approach [it] would be to file a request with the Mayor of the District in order to clarify the issue, even though I had already informed the current local mayor and Mayor of the Tomaszów Mazowiecki Commune (wójt) of the allegations. The facts and circumstances are as follows. The local mayor of Jadwigów, Z.M., whose term in office was concluded on the election of the current local mayor, Ms J. G., received grants for the benefit of the village from the Commune and accepted payments from the lease of the village shop. During his term in office, he never asked the residents or the local council for what purpose the money should be used. He managed the funds arbitrarily and, I think, used them for building works, namely the renovation of the community hall (świetlica – dom ludowy). However, he never shared the accounts with the residents of the village; in particular how much money there was and what it was spent on. There are many rumours going around the village, which out of respect for your office I will not be repeating. I will only add one more thing, namely that the community hall was not accessible to the residents and their children for [ten] years. I consider, therefore, that the petition and the request are both valid. [signatures of three residents] I, other signatories of this request for a petition and all the residents believe that, thanks to the Mayor of the District, they will receive a full and plausible explanation of the facts described above.” 9. The document was sent to the district mayor before local elections which took place on 21 November 2010 (wybory samorządowe). Both the applicant and Z.M. were candidates in those elections but neither of them became a local councillor. 10. On an unspecified date the Tomaszów Mazowiecki Commune Council Audit Committee analysed the document. It decided, as summarised by the domestic court, “that there were no grounds to allege that somebody had mismanaged the funds.” 11. On 14 December 2010 Z.M. lodged a civil action with the Piotrków Trybunalski Regional Court (“the Regional Court”) against the applicant for infringement of his personal rights. He requested that the court order the applicant to publish an apology in the local weekly newspaper and pay 4,000 Polish zlotys (PLN) to the Voluntary Fire Brigade (Ochotnicza Straż Pożarna – “the VFB”). 12. On 31 May 2011 the Regional Court decided that the applicant had violated Z.M.’s personal rights and ordered that he send a statement by post to the district mayor, the Tomaszów Mazowiecki Commune Office (Urząd Gminy w Tomaszowie Mazowieckim) and Z.M. stating: “I, Jarsosław Kość, apologise to [Z.M.] for violating his reputation by forwarding to the Mayor of Tomaszów District a document on [7 October] 2010 entitled “Petition”, which contained false allegations that the local mayor, Z.M., arbitrarily managed funds for the benefit of the village; that he took, as local mayor, the payments under the lease of the village shop; and a statement that the community hall had not been available to the residents for the past [ten] years.” 13. In the course of the proceedings the court examined a statement made at the village meeting on 10 February 2011 at which six residents of Jadwigów confirmed that they had all been instigators of the enquiry in October 2010 which had resulted in the applicant’s document to the district mayor. The residents explained that their intention had been to clarify the questions raised, given Z.M.’s involvement in matters such as the community hall refurbishment and running of the VFB. 14. The court considered that the applicant’s letter from 7 October 2010 contained false information, which supported the finding of a violation of Z.M’s personal rights. This included statements claiming that Z.M., acting in his capacity as local mayor, had taken rent from the lease of the village shop. The domestic court established that even if Z.M. had taken any payments, he had done so as chairman of the VFB. The court also found that the village shop was located in the building owned by the VFB, which also hosted the community hall, and that the rent under the lease was paid to the VFB through an intermediary, its treasurer. Z.M., as chairman of the VFB, merely set the amount of rent to be paid each year. The court also found that during Z.M.’s time in office, the community hall had been open for public use; in that respect it dismissed the testimony of some witnesses stating the opposite. At the time, there were also building works being carried out in the same building. It was established that nobody, and this included Z.M., had received any money in cash for the work. It was also established that the village had not received any funds directly from the commune. The commune had paid the costs of the renovations of the VFB’s building. 15. The court considered that since the applicant had failed to prove the veracity of his accusations and, given their adverse effect, this amounted to a violation of Z.M.’s personal rights. 16. On 12 July 2011 the applicant lodged an appeal with the Łódź Court of Appeal, alleging that the court had not considered that the relevant text had been communicated in the public interest. 17. On 4 November 2011 the Łódź Court of Appeal dismissed the applicant’s appeal, emphasising that the publishing of false information would result in a violation of a person’s personal rights. It rejected the applicant’s claim that the petition was merely an expression of doubt concerning the lawfulness of Z.M.’s actions when he was local mayor. The court considered that the timing of the applicant’s actions proved that they had not served the public interest and had been motivated by his desire to win the elections. He had raised his concerns almost three years after the end of Z.M.’s mandate during the electoral campaign which Z.M. had lost. The applicant received a copy of the judgment on 15 December 2011. 18. On 1 March 2012 the Regional Court issued a writ of enforcement in respect of its final judgment of 31 May 2011. The applicant instituted proceedings to have the enforcement order quashed on the grounds that he had a case pending before the European Court of Human Rights. On 21 September 2012 the Piotrków Trybunalski Regional Court dismissed his claim. On 18 October 2012 the applicant lodged an appeal against the latter judgment. On 7 November 2013 it was dismissed by the Piotrków Trybunalski Court of Appeal. 19. On 21 January 2011 the applicant was elected mayor of Jadwigów. | 1 |
test | 001-181382 | ENG | UKR | CHAMBER | 2,018 | CASE OF CHUMAK v. UKRAINE | 3 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani | 5. The applicant was born in 1968 and lives in Stryzhavka. 6. On 12 September 2006 the applicant submitted a written notice to the mayor of Vinnytsia informing him that the Chumatskyy Shlyakh civic youth association (“the Association”) registered in Vinnytsia, of which he was chairman, intended to hold a picket (пікет) outside the Vinnytsia Regional Authority (“the regional authority”) building. The notice read as follows: “We inform you that, starting from 14 September 2006 our organisation will hold a picket [in front] of the [regional authority] for an indefinite term in view of the unhealthy, in our view, social and economic state of affairs in the region. Beginning of the picket: 14 September 2005 at 14:00. Place: square in front of the [regional authority] building; Responsible person according to the decision of the Association’s management: Chumak S.V. [the applicant]. Chairman of the [Association] Chumak, Sergiy Viktorovych.” 7. According to the Government, the Association’s officially registered chairman at the material time was a certain Igor Viktorovyh Chumak. The applicant was neither the chairman, nor could he even be a member of the Association because according to the Association’s charter, membership was open to persons under the age of twenty-eight. At the time of the relevant events the applicant was older. 8. On 13 September 2006 the mayor’s office forwarded the applicant’s notice to the police, requesting that they maintain public order during the demonstration. 9. On 14 September 2006 the Association started the picket as intended. According to the applicant, several other local groups joined the action and two small camping tents (measuring 2 by 2 metres) were erected by the walls of the regional authority building on a 15-metre wide street for storing handout materials and displaying the protesters’ slogans. 10. On 15 September 2006 the executive committee of Vinnytsia City Council instituted administrative proceedings seeking “to enjoin the [Association] not to organise and carry out pickets on the streets and squares of Vinnytsia and to oblige it to uninstall the unlawfully erected ‘small architectural structures’ (малі архітектурні форми).” The plaintiff alleged that the protesters had been breaching the peace and public order by offending passers-by, acting arrogantly towards them, obstructing the traffic and pedestrians and endangering the lives and health of local residents. Referring to Article 182 of the Code of Administrative Justice (“the CAJ”, see paragraph 20 below), which provided for the lodging of an action before the start of a picket, the plaintiff asked the court to admit its action for consideration out-of-time on the grounds that only after the picket had started had it become apparent that the protesters intended to engage in inappropriate conduct. The statement of claim was supplemented with applications by V.Ch. and Y.S., two passers-by, addressed to the police, in which they complained that the protesters had “acted arrogantly”, had offended their feelings and had erected tents obstructing pedestrians and spoiling the street aesthetics. 11. On the same date the Leninskiy District Court in Vinnytsia (“the District Court”) held a hearing at which the applicant, representing the Association, denied the allegations that the picketers had engaged in any inappropriate conduct. According to him, during the hearing he had unsuccessfully made several requests for the production of evidence. Notably, he had requested that V.Ch., Y.S. and the police officers present at the site of the picket be summoned for questioning; that the police authorities be asked whether any incidents of unlawful conduct by the picketers had been documented; and that the site be inspected in order to determine whether, in fact, the camping tents mounted by the picketers had obstructed the traffic or the passage of pedestrians. 12. Later on the same date, the District Court allowed the claim, having decided that the case file contained sufficient evidence that the protesters had behaved inappropriately. The relevant part of the judgment read as follows: “... [the] executive committee ... did not and could not have known about a possible breach of public order by the participants of the event, which fact resulted in missing the time-limit for lodging a court action as required by paragraph 1 of Article 182 of the Code of Administrative Justice of Ukraine; the court therefore resets the procedural time-limit ... The court, when deciding the case, takes into account that the participants in the event installed small architectural edifices on the pavement. In addition, during the event, they acted arrogantly, thus offending other citizens, obstructed the passage of pedestrians along Soborna street, and endangered road users, a fact confirmed by the complaints from Y.S. and V.Ch. In addition, the court has regard to the fact that in the notice of the event it is stated that it will be held indefinitely. Also the number of protesters is not defined ... and it may gradually increase. Accordingly, at any time during the picket of indeterminate length, it cannot be excluded that those taking part might repeatedly breach public order.” 13. The court also noted that the picket “may potentially encroach upon the rights and freedoms of other local residents” and held as follows: “[the court holds] to prohibit [the Association] and other persons taking part in the action from organising and carrying out peaceful assemblies in the streets and squares of Vinnytsia, [and] from installing small architectural edifices in Vinnytsia; ... oblige them to dismantle the small architectural edifices installed in the square in front of the [Administration’s] building ... To allow immediate enforcement of the court ruling ...” 14. At 9 p.m. on 15 September 2006 the protesters were dispersed by the police. 15. On 29 September 2006 the local registry office informed the applicant that V.Ch. and Y.S. were not registered as residents at the addresses indicated by them in their complaints lodged with the police. 16. On 8 October 2006 the applicant lodged an appeal against the court judgment of 15 September 2006, which he signed as the Association’s chairman. He submitted that under Article 182 of the CAJ, a plaintiff’s action could not be examined when it had been lodged out of time. He further submitted that the court’s factual conclusions had been devoid of an evidentiary basis. In particular, there was no evidence whatsoever that the protesters had breached the law, apart from the complaints by V.Ch. and Y.S., who had given false home addresses and thus could not be identified. The applicant further complained that the court had rejected his request that those individuals be located and summoned, and that the police officers present at the site of the picket also be summoned for questioning concerning the alleged breaches of the law by the protesters. He also regretted that the court had refused his requests that the relevant police reports documenting the purported breaches of the law (if any) be produced and an inspection of the picket site be carried out with a view to determining whether the tents erected by the activists could count as “architectural structures” and whether there had been any obstruction of traffic or pedestrians. Lastly, the applicant complained that the sanction imposed by the District Court (a total and permanent ban on the Association organising peaceful assemblies in Vinnytsia) had been arbitrary and disproportionate. 17. On 22 November 2006 the Vinnytsia Regional Court of Appeal examined the applicant’s appeal and decided that, in view of namely, the short notice of the intention to hold a picket and the indefinite period during which the participants planned to continue their demonstration) the administrative action lodged by the executive committee could be accepted for examination. It agreed with the District Court’s findings of fact and noted, in particular, that by installing the tents, the protesters had breached section 16 of the Populated Localities Development Act and section 18 of the Automobile Roads Act. At the same time, the Court of Appeal found that the sanction imposed on the protesters had been disproportionate. In particular, the Constitution of Ukraine generally allowed peaceful assemblies, which could therefore not be prohibited in a blanket manner. Nevertheless, it did not envisage a form of assembly such as the “picketing” of administrative buildings “with the installation on the streets of small architectural structures”. Accordingly, the court found that the term “peaceful assemblies” in the operative part of the District Court’s judgment had to be substituted with the term “pickets”. The court then rejected the applicant’s remaining arguments as unsubstantiated. 18. On 1 April 2009 the Higher Administrative Court of Ukraine dismissed an appeal on points of law lodged by the applicant. | 1 |
test | 001-175706 | ENG | LTU | ADMISSIBILITY | 2,017 | LINKEVIČIENĖ AND OTHERS v. LITHUANIA | 4 | Inadmissible | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Gabriele Kucsko-Stadlmayer | 1. A list of the applicants is set out in the appendix. 2. The Lithuanian Government (“the Government”) were represented by their former Agent, Ms E. Baltutytė. 3. The facts of the case, as submitted by the parties, may be summarised as follows. The applicants were judges and presidents of their respective courts: - the first applicant at the Biržai District Court; - the second applicant at the Panevėžys City District Court; and - the third applicant at the Lazdijai Dictrict Court. 4. On 6 July 2002 the Lithuanian authorities arrested V.R. and M.R., who were suspected of smuggling a large quantity of cigarettes. V.K., who was also implicated in the ensuing criminal investigation, feared that V.R. and M.R. would disclose information about the other people involved in the smuggling if they were detained. 5. In July 2002, with the aim of preventing V.R. and M.R. from testifying against him, V.K. contacted the third applicant, at the time president of the Lazdijai District Court and father of the woman V.K. was living with. V.K. asked the third applicant to use his position, personal contacts, authority as a judge and possible influence on other judges to make sure that V.R. and M.R. were released from detention pending trial. 6. The third applicant, acting in V.K.’s interests, contacted the second applicant by telephone and conveyed V.K.’s request. The second applicant also used his authority and personal contacts and, by telephone, conveyed the message to the first applicant, who on 8 July 2002 refused to grant a prosecution request to remand V.R. and M.R. in custody. 7. Between July and December 2002 there were four other episodes of V.K. and the second and third applicants, communicating by telephone calls and by themselves or through other judges, successfully preventing or attempting to prevent the suspected smugglers from being detained pending trial. In particular, on 16-18 July 2002, V.K. asked the third applicant to exert his influence on a judge at a higher level court, the regional court, so the judge would reject the prosecutor’s request to remand V.R. and M.R. in custody. Afterwards, on 27-28 November 2002, V.K. and the second and third applicants again attempted to influence the first applicant so that another suspected smuggler, V.P., who was in pre-trial detention, would be released. However, the first applicant refused to continue such criminal activity and neither decided the question of V.P.’s detention herself, nor transmitted the request to other judges. On 29 November 2002 V.K. was placed in pre-trial detention, pending a criminal case for smuggling. Between 29 November and 1 December 2002 the second and third applicants again attempted to exert influence on the first applicant to act in a way that would lead to V.K. being released, but the first applicant did not respond to their request. Lastly, on 1-6 December the third applicant attempted to influence the second applicant to get the latter to exert influence on a higher instance – regional court and have V.K. released from pre-trial detention. However, the second applicant did not respond to that request. The prosecutors considered that V.K. and the three applicants had by such actions caused serious damage to the State because they had made it more difficult to bring people to justice who had committed crimes. They had also obstructed the course of justice, damaged the authority of the judiciary and discredited the title of judge of the Republic of Lithuania (pažemintas teisminės valdžios autoritetas ir diskredituotas Lietuvos Respublikos teisėjo vardas). 8. After gathering information about the activities of the three applicants, on 9 July 2003 Deputy Prosecutor General G.J. wrote to the President of the Supreme Court to inform him that the three applicants had possibly seriously violated the ethical rules of the judicial profession and asked that the Judges’ Ethics and Disciplinary Commission initiate proceedings against them. The operational information was based on evidence gathered, inter alia, by the State Security Department. 9. On 17 and 18 July 2003 the three applicants were charged with abuse of office and perverting the course of justice. The President of the Supreme Court was immediately informed about the charges and that a pre-trial investigation had been going on. 10. On 17 July 2003 another Deputy Prosecutor General, V.B., who was acting in place of the Prosecutor General A.K. while he was on summer vacation, on the basis of Article 89 of the Law on Courts (see paragraph 62 below), asked the State President at the time, Mr Rolandas Paksas, in writing to consent to lifting the three applicants’ immunity so that criminal proceedings could be started against them in connection with the aforementioned allegations. Materials from the criminal case file were provided to the State President to support the request. 11. On the same day the President signed two decrees: no. 161, suspending the applicants’ powers as judges, and, on the basis of Article 114 § 2 of the Constitution, decree no. 162, by which he consented to having the three applicants charged with criminal offences and detained if necessary (see paragraph 59 below). Both decrees came into force that day and were published in the Official Gazette (Valstybės žinios) on 23 July 2003. 12. On 21 July 2003 the Prosecutor General Office informed the President of the Supreme Court in writing that the second and the third applicants had acknowledged carrying out the acts specified in the notice of suspicion (see paragraphs 5-7 and 9 above), however, according to the prosecutor, “they did not regard those actions as criminal deeds, but as violations of the Code of Conduct of Judges and conduct discrediting the title of judge”. On the same day, 21 July 2003, the State President’s Office asked the Judicial Council (Teismų taryba) for advice on whether the three applicants should be removed from office (on the function of the Judicial Council, see Article 112 § 5 of the Constitution, cited in paragraph 59 below; also see paragraph 60 below). On the same day the Judicial Council, presided over by the President of the Supreme Court, gathered to review the material provided to it by the prosecutor (see paragraph 10 above) and to hear the applicants. The first applicant was notified of the hearing of the Judicial Council; she did not attend it. The second applicant was present and gave an explanation. According to the minutes, the second applicant “agreed that he should not have behaved in such a manner, acknowledged having made telephone calls, but thought that it would be a little too harsh to consider that he had discredited the title of judge (D. Japertas sutinka, kad nederėjo taip elgtis bei pripažįsta, jog skambino, tačiau mano, kad tokia formuluotė, jog pažemino teisėjo vardą, kiek per griežta)”. The third applicant was not present at the hearing; instead he had already submitted a request to be dismissed as a judge and as president of the Lazdijai District Court of his own will, under Article 115 § 1 of the Constitution (see paragraphs 47 and 59 below). The Judicial Council then decided to advise the President that the three judges should be removed from office for discrediting the title of judge (Article 90 § 1 (5) of the Law on Courts; also see paragraph 60 below). 13. On 22 July 2003, the State President signed decree no. 164, removing the applicants from their positions as judges and presidents of their respective courts. The decree was based on Articles 84 § 1 (11), 112, and 115 § 1 (5) of the Constitution, and also on the advice of the Judicial Council (see paragraphs 59 and 60 below). The decree came into force on the same day. It was published in the Official Gazette (Valstybės žinios) on 22 July 2003. 14. On 18 July 2003, in the daily newspaper Lietuvos Rytas, the President of the Supreme Court, in answer to a journalist’s question as to whether the information about the judges helping the smugglers had come as a surprise, stated: “I very much regret that the judges could have done this. Personally, I am very taken aback, astonished even, by this information. I did not believe that such gross violations occurred. Unfortunately, they do.” 15. In response to a journalist’s question as to how he would react to the three judges’ actions, he replied: “A pre-trial investigation is ongoing at this time and I do not wish to talk on that topic ... I have already responded. I think that the State President will ask the Seimas to suspend the powers of those judges. I understand that the State President will also make sure that those judges are removed from office. For that, the approval of the Judicial Council is necessary. Yesterday I again explained the situation to the State President. How did he react? He was decisive. The matter has been discussed with the State President more than once. He [the State President] is for decisive action”. 16. On 18 July 2003 the daily newspaper Respublika wrote that the President of the Supreme Court had initially thought that disciplinary sanctions would suffice in the applicants’ case, but quoted him as adding: “However, after looking into the matter more carefully, it was agreed [with the Prosecutor General’s Office] that a criminal investigation must be conducted.” The same article stated: “Officials have established that all the judges consciously acted for the benefit of the smugglers and might have received remuneration [from them].” 17. On 22 July 2003 the Internet site of New Union, one of the ruling political parties at the time, published the following statement by the Speaker of the Seimas: “The disclosed facts of corruption among the [three] judges have shown that neither big salaries nor good social guarantees ... protect the court system from corruption.” 18. On 23 July 2003 the newspaper Lietuvos Žinios published an article in which the State President’s press officer outlined the President’s position on the three applicants: “The court system will not be a safe haven for such judges; the [response of the] President will be categorical in respect of these judges (“Teismų sistema tokiems teisėjams netaps užuovėja, jų atžvilgiu Prezidentas elgsis kategoriškai”).” 19. The same publication quoted the President of the Supreme Court as stating that “it is very unlikely that those judges [the applicants] will ever work in the justice system again”. 20. On 24 July 2003, in weekly publication Veidas, the chairman of Seimas’s Anti-corruption Commission, in response to the journalist’s statement that a couple of days earlier three corrupt judges had been exposed, said: “People say that smuggling without a ‘cover’ is not possible. Consequently, if smuggling took place, there must have been ‘covers’. It was the Commission and myself who first received information about this smuggling, in which ... judges were involved. ... I think that it would be most appropriate to conduct a joint pre-trial investigation in the smuggling case which came to light and to try the [three] judges, like the other suspects, as members of a criminal organisation.” 21. On 24 July 2003 the news agency BNS cited the head of the State Security Department as saying after a meeting with the State President that the possible connections between the three judges and the smugglers were only “a fragment of a big case”, in which even politicians could be involved. 22. In summer 2004, Mr Valdas Adamkus was elected as the President of the Republic of Lithuania. In summer 2005, on his proposal, the Seimas appointed the Prosecutor General A.K. to the Supreme Court’s judges. 23. On 26 April 2004 and 20 October 2004, the first applicant’s lawyer unsuccessfully applied to the Vilnius Regional Court to suspend the criminal proceedings and ask the Constitutional Court whether the State President’s decree no. 162, by which the President had lifted the applicants’ immunity from prosecution, and Article 228 of the Criminal Code were in conformity with the Constitution. The first applicant’s lawyer did not challenge before the trial court the statements made by State officials in the press. 24. On 29 November 2004 the Vilnius Regional Court acquitted the applicants of abuse of office and perverting the course of justice. The court, however, convicted V.K. of attempting to influence a judge. After the trial court’s judgment, on 30 November 2004 the newspaper Lietuvos Žinios interviewed the former President, Rolandas Paksas, who stated: “I remember those events very well. It happened last summer, when the Seimas was not in session. I think that my decision was in line with the information that I had received from the President of the Supreme Court and the State Security Department (see paragraphs 8-10 above). I learned the information from the file on the criminal investigation into the crime that had been committed (operatyvinius duomenis apie padarytą nusikaltimą) and I could not have acted otherwise.” Mr Paksas also stated that when signing the decree to remove the three applicants from office he had not only taken into consideration the fact that they had possibly taken part in a crime, but also emphasised that “Disciplinary liability was also very important (Labai svarbi yra drausminė atsakomybė)”. 25. The prosecutor, V.K. and the third applicant appealed against the trial court’s judgment. The third applicant argued that his acquittal should have been on a different legal basis. He also challenged decree no. 162 of the State President as the basis for his prosecution. The two other applicants asked the appellate court to dismiss the prosecutor’s appeal. It transpires from the Court of Appeal judgment that none of the applicants argued a breach of the principle of the presumption of innocence on account of the statements in the press by State officials. 26. On 12 April 2005 the Court of Appeal upheld the trial court’s verdict. The appellate court dismissed the third applicant’s argument that decree no. 162 had not given a sufficient basis on which to prosecute the three applicants. 27. The prosecutor, V.K. and the third applicant lodged appeals on points of law. The third applicant argued that the criminal proceedings against the three judges had been initiated in breach of the procedural rules applicable when a judge was charged with a criminal offence. He asked the Supreme Court to specify additional grounds for his acquittal, without arguing a breach of his right to the presumption of innocence on account of the public statements by high-ranking State officials. 28. On 29 November 2005 the Supreme Court, sitting in an enlarged chamber of seven judges, quashed the Court of Appeal’s decision, noting that the latter had not thoroughly examined the prosecutor’s appeal and, as a result, it had committed a substantive breach of criminal procedure. The former Prosecutor General A.K. did not sit on the Supreme Court’s bench. The third applicant’s appeal on points of law was dismissed. The case was remitted to the Court of Appeal for fresh examination. 29. The third applicant made written submissions, arguing that domestic criminal law had been applied erroneously. The other two applicants made oral requests to the appellate court to dismiss the prosecutor’s appeal. They did not raise the matter of the presumption of innocence. 30. On 9 June 2006 the Court of Appeal found that between July 2002 and December 2002 V.K. and the three applicants had acted jointly, and that the three applicants had used their personal connections and authority as judges to make sure that some of the suspects in the smuggling cases would not be detained on remand. The appellate court therefore found the applicants guilty of abuse of office, under Article 228 § 2 of the Criminal Code. The punishment for abuse of office was either imprisonment for up to six years, or, as an alternative, a prohibition on taking up a particular activity or working in a certain area. When considering the most effective and just punishment to be imposed on the three applicants, the Court of Appeal underlined that they had committed the crime “within the area of their work and professional activity”, and “performed actions discrediting the title of judge”, and that therefore they should be prohibited from working in law-enforcement, law and order and judicial institutions (see paragraph 73 below). The first applicant was barred for one year and three months; the second applicant was barred for two years and three months; and the third applicant was barred for four years. 31. The criminal charges of perverting the course of justice (Article 298 of the Criminal Code, see paragraph 74 below) against V.K. and the three applicants were dropped as time-barred. 32. In addition, V.K. was found guilty of organising an act of abuse of office (five episodes). The court sentenced him to two years and six months’ imprisonment, suspended for two years. 33. The Court of Appeal decision came into force on the day it was pronounced, and the three applicants and V.K. started serving their sentences from that day. 34. The prosecutor, V.K. and the three applicants lodged appeals on points of law. The three applicants alleged, inter alia, that there had been breaches of procedural requirements when the criminal proceedings had been instituted against them as judges and that the appellate court had wrongly applied and interpreted the provisions of the Criminal Code. 35. In his appeal on points of law, invoking Article 31 of the Constitution (see paragraph 58 below) and Article 6 § 2 of the Convention, the third applicant further argued that there had been a breach of the right to the presumption of innocence. Firstly, he contended that pending the pretrial investigation some information about the case had been leaked to the media, including transcripts of telephone conversations between the three applicants and comments on those conversations. As a result, an opinion had been formed in advance as to the applicants’ guilt. He had thus not had a fair trial, in breach of Article 6 § 1 of the Convention. Secondly, before the guilty verdict had been reached, high-ranking State officials – the State President and the Speaker of the Seimas – had on many occasions made public statements to the effect that the applicants were guilty. They had also commented on the crimes which the applicants were said to have committed. In the third applicant’s view, the State President had publicly acknowledged in his interviews that he had removed the three applicants from office after he had found that they had committed the crimes in question. 36. On 6 February 2007 the Supreme Court dismissed the three applicants’ appeals on points of law. As regards the third applicant’s complaint of an alleged violation of the right to the presumption of innocence, the Supreme Court noted that there was no indication that the public disclosure of the facts about the criminal case had had an effect on its outcome. The dismissal of three judges was a noteworthy event, about which society had a right to be informed. The publicity had also been unavoidable because the State President’s decrees dismissing the applicants had been public documents. Nonetheless, there was no proof that any of the public comments on the case had been made by the prosecutors or judges who had been dealing with it. 37. The Supreme Court observed that the public statements by the State President and other State officials or politicians could not be examined on points of law since those questions had not been raised before the lower courts. The issue of the presumption of innocence had been mentioned only when the case had been examined on points of law a second time, and it was not for the Supreme Court to gather evidence or examine it, because under domestic law its competence was to examine questions of law and to ensure its uniform application. Even assuming that the third applicant had correctly understood the statements by the politicians, there was no reason to find that those statements had prevented the appellate court from impartially and objectively deciding the case and adopting a lawful and reasonable judgment. 38. Lastly, the Supreme Court dismissed the three applicants’ suggestion that the criminal proceedings against them had been started in breach of domestic law. The former Prosecutor General A.K. did not sit on the Supreme Court’s bench. 39. On 14 August 2003 the first applicant started civil proceedings with the Vilnius Regional Court, alleging that she had been unlawfully removed from office by the State President’s decree no. 164 of 22 July 2003 (see paragraph 13 above). She argued that by initially suspending her from her duties by the earlier decree, no. 161 of 17 July 2003 (see paragraph 11 above), the President had already passed judgment on her actions, which had still been the subject of an ongoing criminal investigation. As a result, her removal from office for those actions, before a criminal court had found her guilty, had been a form of political pressure on the criminal courts, and had also been in breach of the right to the presumption of innocence under Article 6 § 2 of the Convention. She asked Vilnius Regional Court to refer questions to the Constitutional Court about whether decree no. 164 had been in breach of the Constitution and the principle of the presumption of innocence. 40. By a ruling of 9 March 2004 the Vilnius Regional Court suspended the civil proceedings and asked the Constitutional Court to rule on the constitutionality of decree no. 164. It also asked, inter alia, whether the decree in the first applicant’s case, as far as its content and adoption procedure were concerned, had been in conflict with, inter alia, Article 31 § 1 of the Constitution, which establishes the principle of the presumption of innocence, Article 115 of the Constitution on the grounds for a judge’s removal, or with Articles 83, 84 and 86 of the Law on Courts, which regulate judges’ disciplinary liability (see paragraphs 59 and 62 below). 41. After receiving similar requests in the other two applicants’ cases (see paragraphs 44-51 below), in November 2005 the Constitutional Court joined them in one case. 42. On 16 January 2007 the Constitutional Court delivered a ruling. It found that decree no. 164 of 22 July 2003, by which the three applicants had been removed from office for discrediting the title of judge, had not been in breach of the Constitution or the Law on Courts. It also held that the first applicant’s removal from office by the same decree of the State President had not been in breach of Article 6 § 2 of the Convention (the Constitutional Court’s reasoning is given in paragraphs 52-55 below). 43. In March 2007 the first applicant asked the Vilnius Regional Court to discontinue the civil proceedings for unlawful dismissal and reinstatement. The court granted that request on 16 March 2007. 44. On 17 August 2003 the second applicant brought a civil claim with the Vilnius Regional Court, asking it to quash the State President’s decree no. 164 as regarding this applicant’s dismissal. He argued, inter alia, that there had been a breach of the right to the presumption of innocence because he had been dismissed as a judge while criminal proceedings against him had still been pending. 45. On 2 April 2007 the Vilnius Regional Court dismissed the second applicant’s claim. The court considered that the criminal charges against the applicant, as indicated by the prosecutor’s report of 17 July 2003 and given to the State President (see paragraph 10 above), had been sufficient to hold that by his behaviour the applicant had discredited the title of judge. The judgment of 9 June 2006 by the Court of Appeal, finding the three applicants guilty (see paragraph 30 above), had only confirmed that there had been grounds to dismiss the second applicant for discrediting the title of judge. The Vilnius Regional Court also relied on the Constitutional Court’s aforementioned ruling regarding the three applicants’ case. The civil court also rejected the argument that the State President’s decree on the applicants’ dismissal had been in breach of the principle of the presumption of innocence. In fact, the decree had specified another ground for his dismissal, which was discrediting the title of judge, and not that a crime had been committed. The State President’s decree had thus had no influence on the subsequent criminal proceedings against the second applicant. Lastly, the civil court found no breaches of law as regards the domestic proceedings for the second applicant’s dismissal. 46. The Government submitted that the second applicant lodged no appeal against that decision. 47. The third applicant challenged the lawfulness of the decision of the Judicial Council of 21 July 2003, which had recommended that the State President remove the three applicants from office for having discredited the title of judge (see paragraph 12 above). The third applicant requested that he be allowed to step down voluntarily, under Article 115 § 1 of the Constitution (see paragraph 59 below). He also alleged that the Judicial Council had committed numerous violations of procedural and substantive legal rules when suspending him from his duties and removing him from office. As it transpires from the summary of the third applicant’s lawsuit, he did not argue that statements by State officials in the press had breached his right to the presumption of innocence. However, he argued that the right to the presumption of innocence had been breached because conclusions as to his guilt had been made and he had been dismissed as a judge before the criminal proceedings had finished. 48. On 2 April 2007 the Vilnius Regional Court dismissed the third applicant’s claims as unfounded. Relying on the Constitutional Court’s ruling of 16 January 2007, the civil court found that the Judicial Council had acted lawfully when recommending that the three applicants be removed from office. The prosecutor’s request to the State President of 17 July 2003, where the three applicants’ actions had been described (see paragraph 10 above), as well as the fact that criminal charges had been brought against them, had been sufficient grounds to hold that the third applicant’s actions had discredited the title of a judge. The court also dismissed the argument that the State President’s decree on the removal of the three applicants had been in breach of the principle of the presumption of innocence. In fact, the decree had not stated that the judges had been removed for committing a crime. In other words, the applicant had been removed from office not for committing a crime, but for discrediting the title of judge. Lastly, the court found that no laws had been broken during the proceedings for the three judges’ removal from office. 49. The third applicant appealed. He argued, inter alia, that the presidential decree on his dismissal had been in breach of the principle of the presumption of innocence because after the applicants’ acquittal the State President had allegedly acknowledged in the press that he had dismissed the applicants because they had committed a crime. Such statements by the State President had also been in breach of the principle of the independence of courts. The criminal courts had subsequently been obliged to find the applicants guilty. Undue influence on the criminal courts had also been exerted by the statements of other politicians in the press. 50. On 31 August 2007 the Court of Appeal endorsed the lower court’s reasoning. For the Court of Appeal, the State President’s prerogative to dismiss someone for discrediting the title of judge could not be seen as undue influence on the criminal courts. 51. By a ruling of 4 December 2007, the Supreme Court refused to examine an appeal on points of law by the third applicant. Even so, the Supreme Court underlined the fact that the third applicant had erred in his appeal on points of law by ignoring the fact that a judge’s removal from office for committing a crime and discrediting the title of judge, as foreseen in Article 115 § 1 (5) and (6) of the Constitution, were two distinct grounds for a judge’s dismissal. 52. On 16 January 2007 the Constitutional Court issued a ruling regarding the constitutionality of presidential decree no. 164 (also see paragraphs 40-42 above). Firstly, it emphasised that under Articles 112 § 5 and 115 § 1 (5) the State President retained the right to remove a judge from office who had discredited the title of judge, whether or not there had been disciplinary proceedings before the Judges’ Court of Honour, however, on condition that removal had been recommended by the Judicial Council. As that had been the situation in the three applicants’ case, decree no. 164 had not been in conflict with Articles 83, 84 and 90 of the Law on Courts. 53. The Constitutional Court also underlined the fact that the Law on Courts provided for two separate grounds for removing a judge from office – if a court judgment which has entered into force has established that a judge has committed a crime (Article 90 § 1 (6)), or if a judge has discredited the title of judge (Article 90 § 1 (5)), the latter provision being the relevant legal ground in the applicants’ case. For the Constitutional Court, it was paramount that the disputed decree no. 164 of the State President did not stipulate that the three applicants had committed a crime. Nor did that decree declare that actions for which the three applicants had been removed from office had been a crime. The Constitutional Court also held that the principle of the presumption of innocence, as enshrined in Article 31 of the Constitution, could not be interpreted as prohibiting the State President from removing a judge, who by his or her actions had discredited the title of judge, until a criminal court had found that person guilty in criminal proceedings. In fact, Article 115 of the Constitution contained distinct grounds for a judge’s dismissal, those being “when their conduct discredits the title of judge” in point 5, and “upon the entry into force of court judgments convicting them”, in point 6 (see paragraph 59 below). Those two grounds could not be considered to be the same (negali būti tapatinami). On the one hand, actions which discredited the title of judge might not necessarily be a crime. On the other hand, conduct discrediting the title of judge might be recognised as a criminal act later by a court conviction. Under point 5 of Article 115 of the Constitution therefore, a judge could be dismissed for discrediting the title of judge, whether or not the conduct in question was later judged by a court to have been a criminal deed, and regardless of whether a corresponding court conviction came into effect. The Constitutional Court further noted: “ ...the content of the principle of the presumption of innocence which is entrenched in Paragraph 1 of Article 31 of the Constitution cannot be construed that it, purportedly, implies, inter alia, that the President of the Republic cannot dismiss a judge who by his conduct has discredited the title of a judge, until a conviction in regard of that judge has been adopted and come into force. In this context, it should be noted that Article 115 of the Constitution establishes various grounds for the removal of judges from office, that judges may be removed from office also ‘when their conduct has discredited the title of judges’ (point 5), and ‘upon the entry into force of court judgments convicting them’ (point 6). In its ruling of 27 November 2006, the Constitutional Court held that the Constitution does not expressis verbis establish any type of conduct by judges which discredits the title of judges; that the formula ‘conduct discrediting the title of judges’ is wide, and includes not only conduct which discredited the title of a judge while implementing his powers as a judge, but also conduct which discredited the title of a judge which has no relation to the implementation of the powers of the judge; that, under the Constitution, the legislature, as well as the self-governing institutions of the judiciary, have the discretion to establish what conduct should be regarded as that which discredits the title of a judge, however, neither laws nor the decisions of self-governing institutions of the judiciary may establish any thorough (final) list of actions by which a judge discredits the title of a judge. In the said Constitutional Court’s ruling it was also held that when deciding whether the conduct of a judge is such that the title of a judge has been discredited, all the circumstances related to the said conduct and its significance to the case must be assessed each time.” 54. The Constitutional Court also gave weight to the fact that by its judgment of 9 June 2006 in the applicants’ criminal case the Court of Appeal had acknowledged that within their area of work and professional activity the applicants had performed actions which had discredited the title of a judge and undermined the authority of the judiciary (see paragraph 30 above). 55. Consequently, there were no grounds to find a violation of the right to the presumption of innocence, as enshrined in Article 31 of the Constitution and in Article 6 § 2 of the Convention, on account of the State President’s decree no. 164 removing the first applicant from office. 56. By a letter of 5 March 2014, the Government informed the Court that Article 8 of the Law on the Bar had been amended, thus having an impact on the applicants’ eligibility to work as advocates (see paragraph 65 below). The Government submitted that the applicants were therefore no longer prevented from working as advocates, given that their convictions had expired and the period in the law of three years after serving their sentence had passed. The Government also stated that the second and the third applicants had been admitted to the Bar by decisions of the Bar Association on, respectively, 16 January 2014 and 17 October 2013. To the Government’s knowledge, the first applicant had not addressed the Bar Association with a request to be recognised as an advocate. All three applicants were informed about the Government’s letter but none of them commented on it. 57. In June 2017 the Lithuanian Bar Association’s website listed the third applicant among the advocates practising in Lazdijai. The other two applicants were not listed among advocates practicing in Lithuania. 58. Article 31 of the Constitution provides that a person is presumed innocent until proved guilty by a final court judgment and in accordance with a procedure established by the law. 59. As to the appointment of judges and their removal from office, the Constitution reads as follows: “The President of the Republic: ... 11) ...shall appoint the judges and presidents of regional and district courts and change their places of work ...” “... The justices of the Supreme Court, and its President chosen from among them, shall be appointed and released by the Seimas upon submission by the President of the Republic. Judges of the Court of Appeal, and its President chosen from among them, shall be appointed by the President of the Republic with the assent of the Seimas. The judges and presidents of district, regional, and specialised courts shall be appointed, and their places of work shall be changed, by the President of the Republic. A special institution of judges, as provided for by law, shall advise the President of the Republic on the appointment, promotion, and transfer of judges, or their release from their duties. ...” “Interference with the activities of a judge or court by any institutions of State power and governance, Members of the Seimas or other officials, political parties, political or public organisations, or citizens shall be prohibited and lead to liability provided for by law. Judges may not be held criminally liable or be detained, or have their liberty otherwise restricted, without the consent of the Seimas or, in the period between sessions of the Seimas, without the consent of the President of the Republic of Lithuania.” “Judges of the courts of the Republic of Lithuania shall be removed from office according to the procedure established by law in the following cases: 1) of their own will; 2) on the expiry of their term of office, or upon reaching the pensionable age established by law; 3) owing to their state of health; 4) on election to another office, or upon transfer, with their consent, to another place of work; 5) when their conduct discredits the title of a judge; 6) on the entry into effect of court judgments convicting them.” 60. The Law on Courts (Teismų įstatymas) also reads that a judge may be removed from office if the title of judge has been discredited through his or her conduct (Article 90 § 1 (5)). A judge may also be removed from office if a court judgment convicting him or her comes into force (įsiteisėja) (Article 90 § 1 (6)). In such cases, the Judicial Council, a body assuring the independence and self-governance of judges, advises the State President. The hearings of the Judicial Council are public, and a judge whose removal from office is to be considered at such a hearing has a right to take part in that hearing and to be heard. Should the Judicial Council recommend the State President to remove a judge from office and the State President would pass such a decree, the removal may be appealed against to the civil courts of three instances. Historically, the Judicial Council has recommended the State President to remove from office judges for having discredited the title of a judge by behaviour such as being drunk at work, drunk driving, swearing in a public place, negligent performance of work duties, undue influence on other judges in order to affect outcome of court proceedings, accepting objects of material value, and sometimes also whilst criminal proceedings had still been pending. 61. The Law on Courts also reads that disciplinary proceedings may be brought against a judge in the Judges’ Court of Honour if a judge has discredited the title of judge or breached the requirements of the Judges’ Code of Ethics (Articles 83 §§ 1 and 2 and 84 § 6). 62. The Law on Courts further reads that criminal proceedings against a judge may be started and his or her liberty restricted only with the agreement of the Seimas, or with the agreement of the State President when the Seimas is not in session (Article 89 § 1). Criminal proceedings against a judge can only be initiated by the Prosecutor General (Article 89 § 2). 63. At the time of the applicants’ conviction on 9 June 2006 (see paragraph 30 above), the Law on the Bar (Advokatūros įstatymas) read that a person who wished to become an advocate must be of high moral character. The law stipulated: “A candidate is not considered of high moral character and thus cannot be recognised as an advocate, if he or she: 1) has been convicted of a serious or very serious crime (teistas už sunkų ar labai sunkų nusikaltimą), irrespective of whether the conviction has expired, or has been convicted of another crime, until the conviction expires; 2) has been dismissed from the post of judge, prosecutor, advocate, trainee advocate, notary, trainee notary, bailiff ... or dismissed from the civil service ... for professional misconduct ... and less than three years has passed ...”. 64. On 15 April 2008, which was after the applicants had started serving their sentences (see paragraph 30 above), Article 8 of the Law on the Bar was amended and, as regards the concept of high moral character, stated the following: “A candidate is not considered to be of high moral character and thus cannot be recognised as an advocate, if he or she: 1) has been convicted of an intentional crime, irrespective of whether the conviction has expired or not; or, alternatively, if a candidate has been convicted of another crime, until the conviction has expired; 2) has been dismissed from the post of judge, prosecutor, advocate, trainee advocate, notary, trainee notary, bailiff ... or dismissed from the civil service ... for professional misconduct ... and less than three years have passed ...”. 65. After the latest amendments of 2 July 2013, Article 8 of the Law on the Bar reads as follows: “A candidate is not considered to be of high moral character and cannot be recognised as an advocate, if he or she: 1) has been convicted of a serious or very serious crime and until the conviction has expired ..., and less than four years have passed since serving the sentence or being released from serving the sentence; 2) has been convicted of any other intentional crime and the conviction has not expired ..., and less than three years have passed since serving the sentence, a suspension of the sentence, or release from serving the sentence; 3) has been dismissed from the post of judge, prosecutor, advocate, trainee advocate, notary, trainee notary, bailiff ... or dismissed from the civil service ... for professional misconduct ... and less than three years have passed ...”. 66. The Law on the Prosecutor’s Office (Prokuratūros įstatymas) currently reads that a person who wishes to become a prosecutor must be of high moral character. Those convicted of a crime by a court judgment that has come into force, or, alternatively, those dismissed from the civil service for a gross professional misconduct and less than five years have passed, may not be considered as being of high moral character (Article 25). 67. The Law on the Courts currently reads that a person cannot be considered as being of high moral character, and therefore may not be appointed as a judge, if he or she has been convicted by a court judgment which has come into force, or if he or she has been dismissed as a judge, prosecutor, notary, or from the police or civil service for professional misconduct and less than five years have passed (Article 52). 68. The Government referred to the following domestic court decisions regarding the recognition of a person as an advocate and the concept of high moral character. 69. By a ruling of 7 February 2000 the Supreme Court held that gross violations of the law (šiurkštūs įstatymų pažeidimai) committed by a judge were incompatible with the high moral character requirement applied to a person who wished to become an advocate. Respect for the law was a particularly important quality for a person who wished to become an advocate. The case concerned a complaint by a former judge who had been disciplined twice for negligence at work and for showing a serious disregard to the rules of court proceedings. He resigned as a judge of his own free will, but afterwards wished to become an advocate. 70. On 5 September 2000 the Court of Appeal examined a claim by a plaintiff who once had been an advocate but had been convicted for attempting to bribe a judge. The plaintiff complained that the Lithuanian Bar Association had argued that he was not of high moral character and had therefore refused to admit him to the Bar, even though his conviction had expired. The Court of Appeal, however, held that the commission of a crime had a significant impact when assessing a person’s reputation. The fact that a person had served his or her sentence showed that person was no longer a criminal. However, those facts could not be ignored when assessing a person’s character. Even after a criminal conviction had expired, they were still relevant when assessing character. The Court of Appeal therefore dismissed the plaintiff’s claim, noting that he could not be considered as being of high moral character, as required by the Law on the Bar. 71. The case concerned the personal situation of a plaintiff who in 1992 had been convicted for an intentional but not serious crime (nesunkus tyčinis nusikaltimas) related to his activities as an advocate and had been disbarred. In 1994 the conviction had expired. In 1999 the plaintiff asked to be recognised as an advocate. The Bar Association refused the request, relying on the legal rule that a person who had been dismissed from the Bar for breaches of professional activity could not be considered as being of high moral character. The plaintiff argued that because of that decision he had been punished twice for the same crime. 72. On 7 February 2001 the Supreme Court held that an advocate who had been convicted of an intentional crime of such severity as in that case could start proving that he was again of high moral character once the conviction had expired. 73. Article 228 § 2 of the Criminal Code at the relevant time provided for criminal liability for the crime of abuse of office where a State official or a person of similar legal status had abused his or her office for pecuniary or other gain, and that abuse had caused significant damage to the State. The sanction for this crime was a prohibition on taking up a particular activity or working in a certain area or, alternatively, a deprivation of liberty for up to six years. Abuse of office is an intentional crime. Under Article 11 of the Criminal Code, crimes were put into categories, in accordance with the possible sanction they could attract. Abuse of office did not fall into the categories of serious or very serious crimes (sunkūs arba labai sunkūs nusikaltimai), but was considered to be a crime of medium severity (apysunkis nusikaltimas). 74. Article 298 § 1 of the Criminal Code at the relevant time provided for criminal liability for an attempt of any kind to influence an investigator, prosecutor or judge with the aim of preventing a pre-trial investigation from being concluded properly and objectively, or preventing the proper examination of the case in court. 75. Article 320 §§ 3 and 4 of the Code of Criminal Procedure at the material time read that an appellate court could examine a case to the extent it had been asked to do so in the appeal, and only in respect of the persons who or on whose behalf the appeal had been lodged. An appellate court could aggravate the situation of a convicted or acquitted person only if there had been such an application by a prosecutor. The Code of Criminal Procedure also provides that the court must suspend the criminal proceedings if a question must be referred to the Constitutional Court for interpretation (Article 234 § 5 (3)). Analogous rule and right of a court is set out in Article 3 § 3 of the Code of Civil Procedure. | 0 |
test | 001-146703 | ENG | RUS | CHAMBER | 2,014 | CASE OF CHURCH OF SCIENTOLOGY OF ST PETERSBURG AND OTHERS v. RUSSIA | 4 | Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion) read in the light of Article 11 - (Art. 11) Freedom of assembly and association (Article 11-1 - Freedom of association) | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicants are: The Church of Scientology of St Petersburg, an unincorporated group of Russian citizens formed for the collective study of Scientology (“the applicant group”); Ms Galina Petrovna Shurinova, born in 1954, the president of the applicant group and a member since 1989; Ms Nadezhda Ivanovna Shchemeleva, born in 1955, a member of the applicant group since 1993; Ms Anastasiya Gennadyevna Terentyeva, born in 1979, a member of the applicant group since 1998; Mr Ivan Vladimirovich Matsitskiy, born in 1975, a member of the applicant group since 1994; Ms Yuliya Anatolyevna Bryntseva, born in 1977, a member of the applicant group since 1995; Ms Galina Georgiyevna Frolova, born in 1955, a member of the applicant group since 1999. 6. In 1984, a first group of Scientologists appeared in St Petersburg under the leadership of Mr M. Goldberg. By the end of the 1980s it had split into two smaller groups, one of which was led by the second applicant. 7. On 23 March 1995 the second applicant, together with nine other founder members of the “Church of the Scientology Mission in St Petersburg”, applied for registration of their group. Having received no response for more than two years, the second applicant pressed the authorities for an explanation. The St Petersburg Justice Department replied that their application had been sent to the State Duma’s Expert Consultative Council for an opinion by an expert in legal and religious studies but had received no response, and it had been decided to “leave the application unconsidered”. 8. On 7 February 2002 the individual applicants, together with other fellow believers, submitted a new application for registration of the applicant group as a local religious organisation. The municipal council of municipal circuit no. 20 of St Petersburg provided the applicants with a letter which stated: “In accordance with section 11 (5) of the Religions Act and on the basis of the application and documents provided, the municipal council ... confirms that the religious group of Scientologists has existed in St Petersburg since 1984.” 9. On 6 March 2002 the St Petersburg Justice Department refused the application, citing three technical grounds relating to the application documentation. On 7 March 2002 the applicants corrected these defects and resubmitted the application. 10. On 3 April 2002 the Justice Department notified the applicants that it had extended the period for consideration of the application because of the “necessity of conducting a State expert religious study”. 11. On 11 September 2002 the Justice Department issued a formal refusal of the resubmitted application. The refusal made no reference to any religious study but instead cited eight different technical grounds and asserted that the confirmation of the applicant group’s existence in St Petersburg for at least fifteen years was “unreliable”, without giving further details. 12. On 24 October 2002 the applicants resubmitted a corrected application which was refused on 22 November 2002, referring to the eight new technical grounds and the “unreliability” of the group’s existence for fifteen years. It also stated that an unspecified expert religious study had concluded that the applicant group was non-religious in nature. 13. On 19 December 2002 the second applicant asked the Justice Department to explain the basis for its claim regarding the “unreliability” of the group’s existence and to provide her with a copy of the religious study. In a letter of 8 January 2003, the Justice Department declined to give any clarification, referring to its discretionary power to refuse applications. 14. The third applicant complained to the Ombudsman about the Justice Department’s actions. In response to a subsequent enquiry from the Ombudsman’s office, the Justice Department supplied a copy of the religious study, dated 19 November 2002 and authored by Mr I., an academic secretary at the State Museum of the History of Religion in St Petersburg. 15. On 11 February 2003 the Ombudsman notified the head of the Justice Department that the religious study had breached the established procedure for conducting religious studies, as approved by Government Regulation no. 565. The study had not been approved by majority vote of the panel of experts duly appointed under the terms of the Regulation and therefore reflected nothing more than Mr I.’s personal opinion. 16. On 17 April and 14 August 2003 the applicants submitted a fifth and a sixth registration application, which were refused on 14 May and 8 September 2003 respectively. On each occasion, the Justice Department cited a number of new technical grounds that it had not relied upon in the previous refusal: it also referred to the expert religious study and the assertion that the confirmation of the applicant group’s existence for at least fifteen years had been “unreliable”. 17. Responding to a further request for clarification by the applicant Ms Shurinova, on 31 July 2003 the Justice Department stated that she did not have a right of access to the documents supporting the conclusion that the information purportedly confirming the existence of the religious group for fifteen years was unreliable, and that the law did not require it to provide any explanation as to the reasons for refusing State registration. 18. On 11 October 2003 the applicants challenged the Justice Department’s refusals in court. The first hearing on the merits was held on 21 September 2005, and further hearings were held on 1 November and 20 December 2005. 19. On the latter date the Oktyabrskiy District Court of St Petersburg gave judgment, holding that the refusal had been lawful. In respect of the Justice Department’s rejection of the confirmation letter, it stated: “Having examined the letter of 16 February 2002 and the reply from the municipal council to the enquiry from the [Justice Department] concerning the documents that served as the basis for the letter, the court concludes that the applicants have not supplied evidence that there was only one religious group of Scientologists in St Petersburg that included the applicants and that the letter was given to their particular group. One cannot exclude the possibility that there were many groups practising this creed in St Petersburg and that the letter confirms the existence of one of the [other] groups of Scientologists, and not the religious group of Scientologists that decided to create the local religious organisation ‘Church of Scientology of St Petersburg’... Even if any of the participants in the religious group that currently includes the applicants had studied Scientology in St Petersburg since 1984 and had participated in Scientologist rituals and ceremonies and in auditing, that does not prove that he or she did so within one and the same continuously operating, stable religious group that currently includes the applicants, as opposed to some other group that currently does or does not exist, and [later] ended up forming part of the applicants’ group. In addition, the court takes into consideration the following. The St Petersburg Law no. 111-35 of 23 June 1997 on Local Authorities, which establishes an exhaustive list of matters that come within the competence of municipal councils in St Petersburg (section 8), did not place the registration of religious organisation or the issuing of letters confirming the existence of a religious group in St Petersburg within the competence of municipal bodies. There is no St Petersburg law that confers such powers upon municipal bodies. On the basis of the above, it follows that the [municipal council] was not competent to issue such letters. Furthermore, as can be seen from the municipal council’s reply ... to the court’s enquiry, the [municipal council] was formed on 8 February 1998 and registered by order no. 111 of 27 May 1998 of the Legislative Assembly of St Petersburg, so it cannot reliably confirm the existence of any religious group before its formation in 1998...” 20. As to the Justice Department’s reliance on Mr I.’s religious study, the court noted that at the time of the study’s preparation no expert panel had been appointed in St Petersburg under the terms of the Regulation, even though the Justice Department had “undertaken all possible measures” to comply with the Regulation. The court did not make any assessment of the legal significance of Mr I.’s religious study. 21. The applicants appealed. 22. On 24 May 2006 the St Petersburg City Court rejected their appeal, endorsing the first-instance court’s findings that the municipal council was not authorised by law to provide confirmation of the religious group’s existence or the claim that it had been one and the same group of Scientologists who had existed for fifteen years. | 1 |
test | 001-181875 | ENG | RUS | CHAMBER | 2,018 | CASE OF ALEKSANDR ALEKSANDROV v. RUSSIA | 3 | Violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security;Article 5-1 - Deprivation of liberty;Article 5-1-a - After conviction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 4. The applicant was born in 1983 and lives in Cheboksary. 5. On 19 July 2005 the Chertanovskiy District Court in Moscow found the applicant guilty of kicking a police officer while intoxicated, an offence under Article 318(1) of the Criminal Code, and sentenced him to one year’s imprisonment. The District Court explained the decision to impose a custodial sentence in the following manner: “When sentencing the defendant, Mr Aleksandrov, the court takes into account the nature and degree of the social danger of the offence, all the , and the information regarding the defendant’s personality: [he] has never incurred any criminal or administrative liability, he is not registered [as a drug addict or as a person suffering from psychotic disorders], he was given positive references by his neighbours and employers, [and] his military registration has been annulled because of a kidney disease. The court accepts the above-mentioned circumstances as mitigating the defendant’s guilt; however, it does not find any grounds for sentencing [him] to probation or imposing a fine on him, given the particular circumstances in which the offence was committed and the fact that [he] does not have a permanent place of residence in Moscow or in the Moscow Region”. 6. The applicant appealed, claiming in particular that he had been discriminated against by the trial court’s refusal to impose a non-custodial sentence on the grounds that he did not have a permanent residence in Moscow or in the Moscow Region, even though there had existed circumstances calling for the mitigation of his sentence. 7. On 29 August 2005 the Moscow City Court dismissed the appeal. It held, in a summary fashion, that the trial court had complied with every legal requirement and had issued a reasoned judgment, having sentenced the applicant to a term of imprisonment. | 1 |
test | 001-154984 | ENG | ROU | CHAMBER | 2,015 | CASE OF LUPENI GREEK CATHOLIC PARISH AND OTHERS v. ROMANIA | 3 | Remainder inadmissible (Article 35-3 - Manifestly ill-founded;Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 14+6-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | I. THE CIRCUMSTANCES OF THE CASE 7. The applicants belong to the Eastern-Rite Catholic (Greek Catholic or Uniate) Church. A. The historical background to the case 1. The legal framework governing the Greek Catholic parishes 8. Until 1948 the Greek Catholic parishes owned various properties, including churches and adjacent land, parish houses and cemeteries. 9. The Uniate Church was dissolved by Legislative Decree no. 358/1948. By virtue of the same Legislative Decree, properties belonging to that Church were transferred to the State, except for parish property. An inter-departmental committee with responsibility for determining the ultimate allocation of those properties never completed its task. Parish property was transferred to the Orthodox Church under Decree no. 177/1948, which provided that if the majority of one Church’s adherents became members of a different Church, the former’s property would be transferred to the ownership of the latter. 10. After the fall of the communist regime in December 1989, Decree no. 358/1948 was repealed by Legislative Decree no. 9/1989. The Uniate Church was officially recognised by Legislative Decree no. 126/1990 on certain measures concerning the Romanian Church United with Rome (the Greek Catholic Church). Article 3 of that Legislative Decree provided that the legal status of property that had belonged to the Uniate parishes was to be determined by joint committees made up of representatives of both Uniate and Orthodox clergy. In reaching their decisions, the committees were to take into account “the wishes of the adherents of the communities in possession of these properties” (see paragraph 38 below). 11. Article 3 of Legislative Decree no. 126/1990 was supplemented by Government Order no. 64/2004 of 13 August 2004 and Law no. 182/2005. The Decree, as amended, specified that in the event of disagreement between the members of the clergy representing the two denominations on the joint committee, the party with an interest entitling it to bring judicial proceedings could do so under ordinary law (see paragraph 40 below). 2. The legal situation of the applicants and of their church 12. The applicant parish, diocese and archpriesthood were dissolved on the basis of Legislative Decree no. 358/1948. In 1967 the church and the adjoining courtyard, which had belonged to the applicant parish, were entered in the land register as having been transferred to the ownership of the Lupeni I Romanian Orthodox Church. 13. The applicant parish was legally re-established on 12 August 1996. It comes under the authority of the Lugoj Greek Catholic Diocese (the second applicant) and the Lupeni Greek Catholic Archpriesthood (the third applicant). The applicants took steps to have the church and adjoining courtyard returned to them. B. The attempts by the Romanian Orthodox Church and the Greek Catholic Church to reach a friendly settlement 1. Meetings of the joint committee 14. The Orthodox Church and the Greek Catholic Church convened meetings of a joint committee, composed of senior representatives of the two denominations, with a view to determining the fate of the church buildings that had belonged to the Greek Catholic Church. Between 1998 and 2003 the joint committee met on seven occasions. The Greek Catholic party submitted a list of the churches claimed by it, including that of the applicant parish. It also proposed a friendly settlement, recommending that in those municipalities where there were two church buildings, one of them be restored, and that in municipalities where there existed only one church building but the two denominations were present, religious services be organised on an alternate basis. The Orthodox side refused this proposal. 15. During the meetings, the representatives of the two denominations noted that the dispute would be protracted and called for dialogue at local level and the construction of new church buildings for both denominations. At the final meeting the Orthodox side refused to return the properties and referred to the wishes of the majority of the adherents. 16. The applicant parish convened a meeting at local level with the Orthodox parish which held the property in issue, scheduling it for 9 November 2004. The Orthodox side did not attend, and nor did it attend a further meeting scheduled by the applicant party for 10 June 2006. 2. Meeting of the interested parties under the auspices of the Ministry of Culture and Religious Affairs 17. In the meantime, on 5 April 2002, at the initiative of the Ministry of Culture and Religious Affairs (“the Ministry”), a meeting took place at the Bucharest headquarters of the State Secretariat for Religious Affairs under the title “Fraternal Dialogue”. At that meeting, the representatives of the Orthodox Church had emphasised the importance of constructing new churches in order to resolve the problem. The Government’s plans to launch a church-building programme had been welcomed. The Ministry had asked the Greek Catholic side to provide it with a more detailed list of the places of worship claimed by that denomination. 18. According to the applicant parish, the Greek Catholic side had duly handed over the requested documents to the Ministry, but the latter took no further action. C. The judicial proceedings brought by the applicants 19. Previously, on 23 May 2001, the second applicant, namely the Lugoj Greek Catholic Diocese, citing also the other two applicants, had brought proceedings before the domestic courts against the Arad Orthodox Archdiocese and the Lupeni Orthodox Parish. It requested that the expropriation of the church building and cemetery in Lupeni, carried out on the basis of Decree no. 358/1948, be set aside, and that the church be returned to the applicant parish. 20. By a judgment of 10 October 2001, the Hunedoara County Court (“the county court”) declared the action inadmissible on the ground that the dispute ought to be settled through the special procedure established by Legislative Decree no. 126/1990, that is, by means of the joint committee. 21. An appeal against that judgment by the second applicant was dismissed by a judgment of the Alba Iulia Court of Appeal (“the appeal court”) on 25 March 2003, which held that the action was premature. On an appeal on points of law (recurs) by the applicant parish and the second applicant, the High Court of Cassation and Justice, in a final judgment of 24 November 2004, sent the case back to the same appeal court for a fresh examination of the merits. 22. On 12 May 2006, in application of the legislative amendments which gave the courts jurisdiction to rule on the merits of the cases (see paragraph 11 above), the appeal court upheld the second applicant’s appeal and sent the case back to the county court. 23. On 27 July 2006, when the case was restored to the county court’s list, the action was amended in order to add the applicant parish and the third applicant as claimants in the proceedings. On 8 November 2006 the claimants supplemented their action with a claim for recovery of possession of the church building in question, on the basis of ordinary law. 24. The county court asked the Greek Catholic and Orthodox parties to organise a meeting in order to decide the fate of the church in question, and to inform it of the outcome of the negotiations by 25 April 2007. 25. On 20 April 2007 a meeting was held between the representatives of the applicants, the Orthodox Church and the Lupeni Mayor. The Orthodox Church refused to return the church, arguing that the majority of believers in the municipality were Orthodox. The applicant parish replied that the ownership of property was not related to the number of practising adherents in a congregation. The minutes of the meeting were transmitted to the county court, which continued its examination of the case. 26. By a judgment of 27 February 2008, the county court dismissed the applicants’ action on the ground that the Lupeni Orthodox parish had become the legally recognised owner of the property in question by virtue of Decree no. 358/1948. The applicants lodged an appeal. By a judgment of 26 September 2008, the appeal court set aside the judgment of 27 February 2008 on formal grounds and remitted the case to the county court. 27. By a judgment of 13 February 2009, the county court found in favour of the applicants and ordered that the church be returned to the applicant parish. In comparing the title deeds of the parties to the dispute in respect of the property in question, the county court noted that the Greek Catholic party had been entered in the land register as owner of the property from 1940, and that in 1967 the Orthodox Church had entered its ownership right in the land register by virtue of Decree no. 358/1948. It held that the repealing of Decree no. 358/1948 had had the effect in the present case of terminating the Orthodox party’s right of ownership over the disputed property. It added that the applicant parish did not have a place of worship and that it was obliged to rely on the Roman Catholic Church, which rented the parish its premises for religious services. 28. The Orthodox parish lodged an appeal against that judgment. 29. By a judgment of 11 June 2010, the appeal court allowed the appeal and dismissed the applicants’ action. It described how the proceedings had developed and noted that the case had been instituted by the second applicant in 2001 and joined by the two other applicants in July 2006, after it was restored to the county court’s list. On the basis of the evidence in the case file, it noted, firstly, that the church building being claimed and the two Lupeni parish houses had been constructed between 1906 and 1920 by members of the Eastern-rite Orthodox and Greek Catholic churches and that, after its construction, the church building had been used alternately for services by both denominations. It noted that in 1948 the members of the Greek Catholic Church had been obliged to “move” to the Orthodox Church and that the church building had become the property of the Orthodox Church, which had maintained it and carried out improvements. 30. The court of appeal questioned three witnesses, including two Orthodox believers who stated that they no longer intended to return to the Greek Catholic Church to which they had belonged prior to 1948. The third witness stated that she was one of the few Greek Catholics in Lupeni. The appeal court noted that the statements by these witnesses supported the statistical data, which showed that there were more Orthodox than Greek Catholic adherents in Lupeni. 31. It further held that the county court had carried out its comparison of the title deeds without taking into consideration the wishes of the majority of those currently in possession of the building, a criterion that, as the appeal court noted, had been laid down in Article 3 § 1 of Legislative Decree no. 126/1990. In so far as there were more Orthodox adherents than Greek Catholic adherents in Lupeni – taking account also of those who had converted and no longer wished to return to the Greek Catholic Church – their wishes had to be taken into consideration in ruling on the case. It found that “having regard to the social and historical realities, ignoring the wishes and proportional strength of Orthodox adherents, who are in the majority, in relation to the less numerous Greek Catholic worshippers, would be to contravene the stability and certainty of legal relations”. 32. Lastly, the court of appeal noted that the fact that Decree no. 358/1948 had been repealed did not automatically mean that the Orthodox Church’s title to the building was set aside, and that this Decree had represented the law in force at the time that the ownership right was transferred. In consequence, it considered that, even if it had been granted unlawfully, the Orthodox Church’s title had been valid from the date on which the transfer had been made, with the result that the action to recover possession was ill-founded. 33. The applicants lodged an appeal on points of law before the High Court of Cassation and Justice, alleging that the appellate court had incorrectly applied the legal provisions governing actions for recovery of possession. They emphasised that the right of ownership could not be linked to a religion’s majority status, since ownership was, in their submission, a legal concept that was independent of the numerical strength and wishes of the parties. 34. In a final judgment of 15 June 2011, the High Court of Cassation and Justice dismissed the applicants’ appeal by a majority and upheld the appeal judgment. It held as follows: “With regard to a request for restoration of a place of worship which had belonged to the Romanian Church United to Rome (the Greek Catholic Church), the appellate court correctly established the special legal framework for ruling on those claims. Pursuant to Legislative Decree no. 126/1990 ... a distinction is made between two situations: (a) that in which the property is within the ownership of the State ... (b) that in which the places of worship and the parishes have been taken over by the Romanian Orthodox Church and in respect of which [the question of] restitution will be decided by a joint committee made up of representatives of the clergy of the two denominations, a committee which will take account of the wishes of the adherents of the communities in possession of these properties. In the light of those provisions, the appellate court, examining an action for recovery of possession of a place of worship, correctly applied the criterion of the wishes of the adherents (Orthodox in the majority) of the community in possession of the property, while simultaneously emphasising the unlawfulness of the reasoning provided by the first-instance court, which had merely compared the title deeds and ignored the special law... The fact of supplementing Article 3 [of Legislative Decree no. 126/1990] with a paragraph stating “If the committee does not meet within the period established in its mandate, or if the committee does not reach a conclusion or if one of the parties is dissatisfied with the decision taken by the committee, the party which has an interest is entitled to bring judicial proceedings under ordinary law” does not mean that actions for restitution governed by the special provisions are transformed into applications to establish title under ordinary law. A court which is required to examine such an action cannot ignore the special regulations in this area, which indicate the criterion to be taken into account in resolving such claims, namely the wishes of the adherents of the community in possession of the property. In other words, by virtue of its full jurisdiction and in order not to compromise access to justice, a court may be called upon to decide an action on the merits, even though the prior procedure did not culminate in a decision by the joint clerical committee; at the same time, however, it may not go beyond the limits imposed by the special statutory framework. The priority to be given to the criterion of the adherents’ wishes was decided by the legislature, which wished in this way to regulate an area which concerns the buildings assigned to a particular use (places of worship), [and so] the court was not authorised to criticise the law. Moreover, in ruling on the alleged unconstitutionality of Article 3 of Decree no. 126/1990 and the criterion of the adherents’ wishes, the Constitutional Court has stated that the text did not infringe the Romanian State’s principle of democracy, nor that of the freedom of religious denominations (CC decision no. 23/1993, CC decision no. 49/1995). Democracy “also implies the application of the principle of majority rule, as set out in the final part of Article 3 – the wishes of the adherents of the community in possession of these properties – which introduces a social criterion, that of the choice of the majority of the worshippers”. Equally, it has been established that “the freedom of religious denominations implies not only their autonomy with regard to the State, but also freedom of religious belief”; where “in the same parish there are Orthodox and Greek Catholic worshippers, the application of the social criterion – namely [the wishes] of the majority of parishioners – in deciding on the allocation of places of worship and parish houses is compatible with the democratic principle of determining the religious use of the said property, given that this is the wish of the majority of those who benefit from such use, because “were it otherwise, this would mean that the Orthodox adherents, who are in the majority, would be unjustifiably prevented from practising their religion unless they transferred to the Greek Catholic Church”. In addition, the procedures for regulating social relations and restoring the assets (averi) of the religious communities are a matter of legislative policy (and not of judge-made law, which would attempt to settle such issues by judicial means, to the exclusion of the special law); it cannot be claimed that by introducing the criterion of the wishes of the faithful the [special] law failed to achieve its compensatory purpose. The appellate court considers that – in a State subject to the rule of law – the fact that the State unlawfully dispossessed the Greek Catholic Church of its places of worship in 1948 cannot be remedied by committing the opposite error, that is, in failing to take account of the wishes of the majority of worshippers at the point of adopting the given measure. However, returning the properties which belonged to the Greek Catholic Church without respecting the criteria imposed by Article 3 § 1 of Legislative Decree no. 126/1990 would infringe the stability and security of judicial relations. A right cannot be reconstructed in abstracto, in disregard of social and historical realities, and mitigation for past damage must not create disproportionate new problems... In order to bring an action under ordinary law for recovery of possession without being subject to the special law, the applicants must be able to claim that there existed a “possession” or a right of ownership to their property. However, through Decree no. 358/1948, the Greek Catholic Church was outlawed and its assets were transferred to the State; the building in dispute [was] registered as belonging to the Lupeni I Romanian Orthodox Church. The fact that, through Legislative Decree no. 9/1989, the Romanian Church United to Rome (Greek Catholic) was officially recognised following the repeal of Decree no. 358/1948 does not mean that its title to property was restored, in so far as the right of ownership is subject to a procedure (namely the provisions of Legislative Decree no. 126/1990 and its subsequent amendments), as the hope of obtaining title to property is not to be equated with a possession... Contrary to the arguments of the parties having lodged the appeal on points of law [recurentilor], the solution adopted does not infringe the freedom to practice a religion, since, as they submitted in their own observations, “the practice of religion is a private matter”, which consists primarily in a “strong and personal spiritual investment”. At the same time, the legislature provided for the scenario where the places of worship could not be returned; thus, Article 4 of Legislative Decree no. 126/1990 provides that “in those municipalities where the number of places of worship is insufficient in relation to the number of believers, the State shall provide support for the construction of new churches; for that purpose, it shall make available to those denominations the necessary land if the denomination does not possess it, and shall contribute to raising the necessary funds”. Thus, the State, as the authority with power to control life in society, will guarantee that the necessary conditions for the manifestation of religious beliefs are met without ... the exercise of this right being limited by the number of adherents (a substantive limitation). The State’s task here is to fulfil a positive obligation, so as to contribute to the effective exercise of the right to freedom of conscience and religion...” 35. In a separate opinion, one of the judges sitting on the case noted that the legislature’s reference to ordinary law could not be reduced to a purely procedural dimension, but was to be interpreted as the application of a rule of substantive law. Referring to the rules governing the preparation of statutes, the judge indicated that, if the legislature had wished to ascribe a specific meaning to this reference to “ordinary law”, it ought to have done so explicitly. He also cited Article 31 § 3 of Law no. 489/2006 on religious freedom and the legal status of religious denominations, according to which property differences between denominations were to be resolved by friendly settlement and, where that proved impossible, on the basis of ordinary law. After indicating that an action for recovery of possession implied a comparison of the relevant titles to the property, the judge concluded that the Orthodox Church did not have title to the place of worship in question. D. Other information about the case 36. According to a memorandum provided by the National Institute of Statistics, in 2002 there were 501 Greek Catholic adherents and 24,815 Orthodox adherents in Lupeni. The applicant parish is currently holding religious services at scheduled times in premises rented by it from the Roman Catholic Church in Lupeni. | 1 |
test | 001-145704 | ENG | SRB | COMMITTEE | 2,014 | CASE OF RADOVANOVIĆ 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) | Ján Šikuta | 4. The applicant was born in 1957 and lives in Šabac. 5. The applicant was employed by “Zorka-mineralna đubriva” AD, a socially/State-owned company based in Šabac (hereinafter – “the debtor”). 6. On 10 April 2001 the Šabac Municipal Court, by a court order, gave effect to a settlement made by the applicant and the debtor. According to that settlement the debtor had to pay the applicant certain sums in respect of salary arrears and costs of proceedings. 7. On 25 March 2003 the applicant lodged an application for the enforcement of the above court decision with the Šabac Municipal Court. 8. On the same date the court allowed the application and issued an enforcement order. 9. On 4 April 2003 the enforcement proceedings were stayed because the debtor was undergoing restructuring. 10. On 11 May 2007 the applicant requested the court to continue the enforcement proceedings. 11. On 6 July 2007 the court continued the enforcement proceedings. 12. On 24 June 2008 the enforcement proceedings were stayed again because the debtor was undergoing restructuring. 13. On 26 March 2010 the applicant requested the court once again to continue the enforcement proceedings. 14. On 27 December 2011 the court considered the request of 26 March 2010 to be a fresh application for the enforcement of the decision of 10 April 2001 and ordered the applicant to submit again a copy of that decision. 15. As the applicant failed to comply with this this request on 30 January 2012 the court terminated the enforcement. 16. On 3 July 2003 the Šabac Municipal Court ruled in the favour of the applicant and ordered the debtor to pay him certain sums in respect of salary arrears and costs of proceedings. This judgment became final on the same date. 17. On 29 September 2004 the applicant lodged an application for the enforcement of the above court decision with the Šabac Municipal Court. 18. On 30 September 2004 the court allowed the application and issued an enforcement order. 19. On 4 January 2005 the enforcement proceedings were stayed because the debtor was undergoing restructuring. 20. On 11 May 2007 the applicant requested the court to continue the enforcement proceedings. 21. On 4 October 2007 the court continued the enforcement proceedings. 22. On 3 March 2008 the enforcement proceedings were stayed again because the debtor was undergoing restructuring. 23. On 10 July 2002 the Privatisation Agency ordered the restructuring of the debtor as part of privatisation process. The restructuring of the debtor is still ongoing. | 1 |
test | 001-183687 | ENG | LTU | CHAMBER | 2,018 | CASE OF ABU ZUBAYDAH v. LITHUANIA | 3 | Preliminary objection dismissed (Art. 34) Individual applications;(Art. 34) Victim;Preliminary objections joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-1) Six-month period;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Inhuman treatment;Prohibition of torture);Respondent State to take individual measures (Article 46-1 - Parties to case;Article 46-2 - Individual measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;Egidijus Kūris;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paul Mahoney;Robert Spano | 15. The applicant was born in 1971 and is currently detained in the Internment Facility at the US Guantánamo Bay Naval Base in Cuba. 16. It is to be noted that in the present case involving, as the applicant’s previous application before the Court, complaints of secret detention and torture to which the applicant was allegedly subjected during the extraordinary rendition operations by the United States authorities (see paragraphs 19-88 below) the Court is deprived of the possibility of obtaining any form of direct account of the events complained of from the applicant (see Husayn (Abu Zubaydah) v. Poland, cited above, § 397; and Al Nashiri v. Poland, cited above, § 397; see also paragraph 90 below). As in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland (both cited above), in the present case the facts as adduced by the applicant were to a considerable extent a reconstruction of dates and other elements relevant to his rendition, detention and treatment in the US authorities’ custody, based on various publicly available sources of information. The applicant’s version of the facts as stated in his initial application of 14 July 2011 evolved and partly changed during the proceedings before the Court (see paragraphs 111-117 below). The respondent Government contested the applicant’s version of the facts on all accounts, maintaining that there was no evidence demonstrating that they had occurred in Lithuania (see paragraphs 398-405 and 423-446 below). 17. In consequence, the facts of the case as rendered below (see paragraphs 90-211 below) are based on the applicant’s account supplemented by various items of evidence in the Court’s possession. 90. In the application and further written pleadings, the applicant’s lawyers stressed that restrictions on information regarding the entirety of Abu Zubaydah’s detention necessarily meant that the case presented a range of complex, unusual and at times unique characteristics that the Court should be aware of in its consideration. In their view, several factors heightened the already significant challenges related to uncovering and presenting evidence in the case. First, the clandestine nature of the rendition operations coupled with a concerted cover-up intended to withhold or destroy any evidence relating to the rendition programme inherently limited the applicant’s ability to produce evidence in his case. Second, the lack of any meaningful investigation by the Lithuanian authorities, in whose hands much of the necessary information rested, impeded access to evidence and information. Third, they referred to what they called “the unprecedented restrictions on communication” between Mr Abu Zubaydah, his counsel and the Court, which “precluded the presentation of information or evidence directly from or in relation to the client”. Only the applicant’s US counsel with top-secret security clearance could meet with the applicant and all information obtained from him was presumptively classified. In consequence, counsel could not disclose to other members of the legal team or to the Court any information obtained from the applicant or other classified sources without obtaining the declassification of that information by the US authorities. According to the applicant’s lawyers, “Abu Zubaydah [was] a man deprived of his voice, barred from communicating with the outside world or with this Court and from presenting evidence in support of his case”. For that reason, his story was therefore to be told and the case was presented on his behalf by reference principally to publicly available documentation (see also Husayn (Abu Zubaydah) v. Poland, cited above, § 80). 91. As regards the events preceding the applicant’s secret detention in Poland, i.e. his capture in Faisalabad, Pakistan on 27 March 2002 and his initial detention from that date to 4 December 2002, in Husayn (Abu Zubaydah) v. Poland the Court held as follows: “404. In the light of the above first-hand CIA documentary evidence and clear and convincing expert evidence, the Court finds established beyond reasonable doubt that the applicant, following his capture on 27 March 2002, was detained in the CIA detention facility in Bangkok from an unknown date following his capture to 4 December 2002, that Mr Al Nashiri was also held in the same facility from 15 November 2002 to 4 December 2002 and that they were both moved together to ‘another CIA black site’ on 4 December 2002 (see also Al Nashiri, cited above, § 404).” The experts, Senator Marty and Mr J.G.S., heard by the Court at the factfinding hearing in Husayn (Abu Zubaydah) v. Poland and Al Nashiri v. Poland identified the detention facility in Bangkok, Thailand as the one referred to in CIA declassified documents under the codename “Cat’s Eye” or “Catseye” (see Husayn (Abu Zubaydah) v. Poland, cited above, § 403; and Al Nashiri v. Poland, cited above, § 403). In the 2014 US Senate Committee Report that facility is referred to as “Detention Site Green”. 92. The 2014 US Senate Committee Report relates the events concerning the applicant’s capture and initial detention as follows: “In late March 2002, Pakistani government authorities, working with the CIA, captured Qa’ida facilitator Abu Zubaydah in a raid during which Abu Zubaydah suffered bullet wounds. At that time, Abu Zubaydah was assessed by CIA officers in ALEC Station, the office within the CIA with specific responsibility for al-Qa’ida, to possess detailed knowledge of al-Qa’ida terrorist attack plans. However, as is described in greater detail in the full Committee Study, this assessment significantly overstated Abu Zubaydah’s role in al-Qa’ida and the information he was likely to possess. ... In late March 2002, anticipating its eventual custody of Abu Zubaydah, the CIA began considering options for his transfer to CIA custody and detention under the MON. The CIA rejected U.S. military custody [REDACTED] in large part because of the lack of security and the fact that Abu Zubaydah would have to be declared to the International Committee of the Red Cross (ICRC). The CIA’s concerns about custody at Guantánamo Bay, Cuba, included the general lack of secrecy and the ‘possible loss of control to US military and/or FBI’. ... Over the course of four days, the CIA settled on a detention site in Country [REDACTED] because of that country’s [REDACTED] and the lack of U.S. court jurisdiction. The only disadvantages identified by the CIA with detention in Country [REDACTED] were that it would not be a ‘USG-controlled facility’ and that ‘diplomatic/policy decisions’ would be required. As a[t] March 28, 2002, CIA document acknowledged, the proposal to render Abu Zubaydah to Country [name REDACTED] had not yet been broached with that country’s officials. ... The decision to detain Abu Zubaydah at a covert detention facility in Country [REDACTED] did not involve the input of the National Security Council Principals Committee, the Department of State, the U.S. ambassador, or the CIA chief of Station in Country. On March 29, 2002, an email from the Office of the Deputy DCI stated that ‘[w]e will have to acknowledge certain gaps in our planning/preparations, but this is the option the DDCI will lead with for POTUS consideration’. That morning, the president approved moving forward with the plan to transfer Abu Zubaydah to Country [REDACTED]. During the same Presidential Daily Brief (PDB) session, Secretary of Defense Rumsfeld suggested exploring the option of putting Abu Zubaydah on a ship; however, CIA records do not indicate any further input from the principals. That day, the CIA Station in Country obtained the approval of Country’s [REDACTED] officials for the CIA detention site. ... Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country [REDACTED] where he was held at the first CIA detention site, referred to in this summary as ‘DETENTION SITE GREEN’.” 93. The report cited a CIA cable dated April 2002 relating the applicant’s physical conditions of detention as follows: “[REDACTED] a cable described Abu Zubaydah’s cell as white with no natural lighting or windows, but with four halogen lights pointed into the cell. An air conditioner was also in the room. A white curtain separated the interrogation room from the cell. The interrogation cell had three padlocks. Abu Zubaydah was also provided with one of two chairs that were rotated based on his level of cooperation (one described as more comfortable than the other). Security officers wore all black uniforms, including boots, gloves, balaclavas, and goggles to keep Abu Zubaydah from identifying the officers, as well as to prevent Abu Zubaydah ‘from seeing the security guards as individuals who he may attempt to establish a relationship or dialogue with’. The security officers communicated by hand signals when they were with Abu Zubaydah and used hand-cuffs and leg shackles to maintain control. In addition, either loud rock music was played or noise generators were used to enhance Abu Zubaydah’s ‘sense of hopelessness’. Abu Zubaydah was typically kept naked and sleep deprived.” 94. The report states that on 3 August 2002 the CIA Headquarters informed the interrogation team at Detention Site Green that it had formal approval to apply the EITs, including waterboarding, against Abu Zubaydah. After Abu Zubaydah had been held in complete isolation for forty-seven days, the most aggressive interrogation phase began “at approximately 11:50 a.m. on August 4, 2002”. The report gives the following description of that particular interrogation session: “Security personnel entered the cell, shackled and hooded Abu Zubaydah, and removed his towel (Abu Zubaydah was then naked). Without asking any questions, the interrogators placed a rolled towel around his neck as a collar, and backed him up into the cell wall (an interrogator later acknowledged the collar was used to slam Abu Zubaydah against a concrete wall). The interrogators then removed the hood, performed an attention grab, and had Abu Zubaydah watch while a large confinement box was brought into the cell and laid on the floor. A cable states Abu Zubaydah ‘was unhooded and the large confinement box was carried into the interrogation room and paced [sic] on the floor so as to appear as a coffin’. The interrogators then demanded detailed and verifiable information on terrorist operations planned against the United States, including the names, phone numbers, email addresses, weapon caches, and safe houses of anyone involved. CIA records describe Abu Zubaydah as appearing apprehensive. Each time Abu Zubaydah denied having additional information, the interrogators would perform a facial slap or face grab. At approximately 6:20 PM, Abu Zubaydah was waterboarded for the first time. Over a two-and-a half-hour period, Abu Zubaydah coughed, vomited, and had ‘involuntary spasms of the torso and extremities’ during waterboarding. Detention site personnel noted that ‘throughout the process [Abu Zubaydah] was asked and given the opportunity to respond to questions about threats’ to the United States, but Abu Zubaydah continued to maintain that he did not have any additional information to provide.” 95. From 4 August to 23 August 2002 the CIA interrogators subjected Abu Zubaydah to EITs on a near 24-hour-per-day basis. The report relates the following facts: “The use of the CIA’s enhanced interrogation techniques – including ‘walling, attention grasps, slapping, facial hold, stress positions, cramped confinement, white noise and sleep deprivation’ – continued in ‘varying combinations, 24 hours a day’ for 17 straight days, through August 20, 2002. When Abu Zubaydah was left alone during this period, he was placed in a stress position, left on the waterboard with a cloth over his face, or locked in one of two confinement boxes. According to the cables, Abu Zubaydah was also subjected to the waterboard ‘2-4 times a day ... with multiple iterations of the watering cycle during each application’. The ‘aggressive phase of interrogation’ continued until August 23, 2002. Over the course of the entire 20 day ‘aggressive phase of interrogation’, Abu Zubaydah spent a total of 266 hours (11 days, 2 hours) in the large (coffin size) confinement box and 29 hours in a small confinement box, which had a width of 21 inches, a depth of 2.5 feet, and a height of 2.5 feet. The CIA interrogators told Abu Zubaydah that the only way he would leave the facility was in the coffin-shaped confinement box. According to the daily cables from DETENTION SITE GREEN, Abu Zubaydah frequently ‘cried’, ‘begged’, ‘pleaded’, and ‘whimpered’, but continued to deny that he had any additional information on current threats to, or operatives in, the United States. By August 9, 2002, the sixth day of the interrogation period, the interrogation team informed CIA Headquarters that they had come to the ‘collective preliminary assessment’ that it was unlikely Abu Zubaydah ‘had actionable new information about current threats to the United States’. On August 10, 2002, the interrogation team stated that it was ‘highly unlikely’ that Abu Zubaydah possessed the information they were seeking. ... [REDACTED] DETENTION SITE GREEN cables describe Abu Zubaydah as ‘compliant’, informing CIA Headquarters that when the interrogator ‘raised his eyebrow, without instructions’, Abu Zubaydah ‘slowly walked on his own to the water table and sat down’. When the interrogator ‘snapped his fingers twice’, Abu Zubaydah would lie flat on the waterboard. Despite the assessment of personnel at the detention site that Abu Zubaydah was compliant, CIA Headquarters stated that they continued to believe that Abu Zubaydah was withholding threat information and instructed the CIA interrogators to continue using the CIA’s enhanced interrogation techniques. [REDACTED] At times Abu Zubaydah was described as ‘hysterical’ and ‘distressed to the level that he was unable to effectively communicate’. Waterboarding sessions ‘resulted in immediate fluid intake and involuntary leg, chest and arm spasms’ and ‘hysterical pleas’. In at least one waterboarding session, Abu Zubaydah ‘became completely unresponsive, with bubbles rising through his open, full mouth’. According to CIA records, Abu Zubaydah remained unresponsive until medical intervention, when he regained consciousness and expelled ‘copious amounts of liquid’.” According to the report, “CIA records indicate that Abu Zubaydah never provided the information for which the CIA’s enhanced interrogation techniques were justified and approved”. Furthermore, “as compared to the period prior to August 2002, the quantity and type of intelligence produced by Abu Zubaydah remained largely unchanged during and after the August 2002 use of the CIA enhanced interrogation techniques”. 96. The report also confirms that Abu Zubaydah and Al Nashiri were held at Detention Site Green until its closure in December 2002 and that they were then moved together to another CIA detention facility, Detention Site Blue. The relevant part of the report reads as follows: “In December 2002, when DETENTION SITE GREEN was closed, Al Nashiri and Abu Zubaydah were rendered to DETENTION SITE BLUE.” 97. As regards the events after 4 December 2002, in Husayn (Abu Zubaydah) v. Poland (§ 419) the Court held: “419. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that: (1) on 5 December 2002 the applicant, together with Mr Al Nashiri arrived in Szymany on board the CIA rendition aircraft N63MU; (2) from 5 December 2002 to 22 September 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename ‘Quartz’ and located in Stare Kiejkuty; (3) during his detention in Poland under the HVD Programme he was ‘debriefed’ by the CIA interrogation team and subjected to the standard procedures and treatment routinely applied to High-Value Detainees in the CIA custody, as defined in the relevant CIA documents; (4) on 22 September 2003 the applicant was transferred by the CIA from Poland to another CIA secret detention facility elsewhere on board the rendition aircraft N313P.” 98. The events that took place between 5 December 2002 and 22 September 2003 at the CIA detention facility code-named “Quartz” and located in Poland correspond to the events that the 2014 US Senate Committee Report relates as occurring at “Detention Site Blue” (see paragraphs 24 above and 166 below; see also Al Nashiri v. Romania, cited above, § 101). 99. The applicant submitted that on 22 September 2003 he had been transferred from Poland to a CIA detention facility at Guantánamo Bay. In Spring 2004, in anticipation of the US Supreme Court’s ruling in Rasul v. Bush granting Guantánamo detainees the right to legal counsel and habeas corpus review of their detention in a US federal court (see also paragraph 61 above), he had again been secretly transferred, this time to a facility in Morocco, where he had been detained incommunicado for almost a year. 100. In that regard, he relied on a July 2011 report by the Associated Press stating that “according to two former US intelligence officials” Abu Zubaydah had been held in “a secret prison in Lithuania”. Another press report indicated that his detention in Lithuania had followed his detention in Morocco. 101. On the basis of their investigations, research and various material in the public domain, the experts heard by the Court at the fact-finding hearing reconstructed the chronology of the applicant’s transfers and identified the countries of his secret detention in the period from 22 September 2003 to 17-18 February 2005. 102. In the light of the material in the Court’s possession the chronology of the applicant’s detention can be described as follows. 103. In Husayn (Abu Zubaydah) the Court, in its findings as to the applicant’s transfer out of Poland considered, among other things, the collation of data from multiple sources, including flight plan messages concerning the N313P flight circuit executed through Poland on 22 September 2003 (see Husayn (Abu Zubaydah) v. Poland, cited above, § 109). Those data showed that N313P had travelled the following routes: Take-off Destination Date of flight Washington, DC (KIAD) Prague, Czech Republic (LKPR) 21 Sept 2003 Prague, Czech Republic (LKPR) Tashkent, Uzbekistan (UTTT) 22 Sept 2003 Tashkent, Uzbekistan (UTTT) Kabul, Afghanistan (OAKB) 21 Sept 2003 Kabul, Afghanistan (OAKB) Szymany, Poland (EPSY) 22 Sept 2003 Szymany, Poland (EPSY) Constanţa, Romania (LRCK) 22 Sept 2003 Constanţa, Romania (LRCK) Rabat, Morocco (GMME) 23 Sept 2003 Rabat, Morocco (GMME) Guantánamo Bay, Cuba (MUGM) 24 Sept 2003 104. Mr J.G.S., at the fact-finding hearing in the above case testified as follows (ibid. § 312): “One flight circuit however is of particular significance and this is the final part of our presentation in which we would like to discuss how the detention operations in Poland were brought to an end. In September 2003 the CIA rendition and detention programme underwent another overhaul analogous to the one which had taken place in December 2002 when Mr Nashiri and Mr Zubaydah were transferred from Thailand to Poland. On this occasion, the CIA executed a rendition circuit which entailed visiting no fewer than five secret detention sites at which CIA detainees were held. These included, in sequence, Szymany in Poland, Bucharest in Romania, Rabat in Morocco and Guantánamo Bay, a secret CIA compartment of Guantánamo Bay, having initially commenced in Kabul, Afghanistan. On this particular flight route, it has been found that all of the detainees who remained in Poland at that date were transferred out of Poland and deposited into the successive detention facilities at the onward destinations: Bucharest, Rabat and Guantánamo. Among those persons was one of the applicants today, Mr Zubaydah, who was taken on that date from Poland to Guantánamo Bay. This particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland. It was the sole official declaration of Szymany as a destination in the course of all the CIA’s flights into Poland. The reason therefor being that no detainee was being dropped off in Szymany on the night of 22 September and the methodology of disguising flight planning pertained primarily to those renditions which dropped a detainee off at the destination. Since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination, openly, and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania and indeed for other detention sites situated elsewhere in the world.” 105. At the fact-finding hearing in the present case, in the course of the PowerPoint presentation, Mr J.G.S. testified as follows: “Abu Zubaydah was the first high value detainee, he was arrested in late March 2002 in an operation in Faisalabad, Pakistan and was initially held in Thailand. We have established before this Court the mode of his transfer to Europe. First to Poland on 5 December 2002 and he was detained in that site for 292 days. ... We know that when he departed Poland on 22 September 2003 upon the closure of the site, that he did not go to Romania directly, he was rather held in both Guantánamo Bay, at the CIA facility there, and in Rabat – Morocco, for a period of over one year after his departure from Poland. Unlike Mr Nashiri whom we refer to in earlier proceedings [Al Nashiri v. Romania], when Zubaydah left Guantánamo he was taken back to the same site in Morocco at which he had previously been detained, Rabat – Morocco, the site which had been the subject of some acrimonious relations between the CIA and its Moroccan counterparts. It was in this site that Mr Zubaydah found himself in early 2005, specifically February 2005, when the aforementioned clear-out of Morocco took place and, as I stated, and connected with specific flight paths, the destination of his transfer out of Morocco was Lithuania.” 106. Mr J.G.S. further explained that the applicant was transferred from Guantánamo to Rabat on board rendition plane N85VM on 27 March 2004 and provided details of the flight circuit executed by that plane. In Mr J.G.S.’ description, “the CIA facility at Guantánamo was cleared in March-April 2004 as the CIA sought to evade justice”; in this respect he referred to the passage in the 2014 US Senate Report speaking of moving the CIA detainees from Guantánamo in anticipation of the US Supreme Court’s ruling in Rasul v. Bush (see also paragraph 61 above and paragraph 110 below). 107. The N85VM flight on 27 March 2004 was the first part of the CIA double rendition circuit performed by that plane between 27 March and 13 April 2004. On the first circuit some prisoners, including the applicant, were transferred from Guantánamo to Rabat directly. The plane then returned to Washington on 29 March 2004. The second part of the circuit took place between 12 and 13 April 2004 and N85VM brought the remaining prisoners from Guantánamo via Tenerife, Spain to the CIA secret prison in Bucharest, Romania, returning to Washington via Rabat on 13 April 2004 (see also Al Nashiri v. Romania, no. 33234/12, §§ 119-120, 31 May 2018). 108. Mr Black, at the fact-finding hearing, testified as follows: “We know that Abu Zubaydah was in Poland and that he was transferred out of Poland in September 2003. The transfer that took him out of Poland in September 2003 had two possible destinations, one of which was Romania and one of which was Guantánamo Bay. Prima facie it is possible that he could have gone to either. In 2011 I received an off-the-record briefing and my take-away from this briefing, which I believe to be accurate, was that in the Summer of 2005 or before that Abu Zubaydah had not been held in Romania. It follows from this that Abu Zubaydah must therefore have been taken to Guantánamo on that flight in September 2003. We know that everyone who was taken there had to be moved out in March or April 2004. They were taken to Morocco. We also know that after a certain time in Morocco, the CIA had too many disagreements with the Moroccan Intelligence Agencies with regard to the treatment of prisoners in Morocco. This is dealt with at some length in the Senate Report. And so everyone who was in Morocco was moved out at the latest in February 2005.” 109. The 2014 US Senate Committee Report’s section entitled “Country [name REDACTED] Detains Individuals on the CIA’s Behalf” reads, in so far as relevant, as follows: “Consideration of a detention facility in Country [REDACTED] began in [month REDACTED] 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the custody of a foreign government to CIA custody [REDACTED] which had not yet informed the country’ political leadership of the CIA’s request to establish a clandestine detention facility in Country [REDACTED], surveyed potential sites for the facility, while the CIA set aside [USD] [number REDACTED] million for its construction. In 2003, the CIA arranged for a ‘temporary patch’ involving placing two CIA detainees (Ramzi bin al-Shibh and Abd al-Rahim al-Nashiri) within an already existing Country [REDACTED] detention facility, until the CIA’s own facility could be built. ... By [day/month REDACTED] 2003, after an extension of five months beyond the originally agreed upon timeframe for concluding CIA detention activities in Country [REDACTED], both bin al-Shibh and al-Nashiri had been transferred out of Country [REDACTED] to the CIA detention facility at Guantánamo Bay, Cuba.” 110. The report, in the section entitled “US Supreme Court Action in the case of Rasul v. Bush Forces Transfer of CIA Detainees from Guantánamo to Bay to Country [name REDACTED]” (see also paragraph 61 above),states: “Beginning in September 2003, the CIA held a number of detainees at CIA facilities on the grounds of, but separate from, the U.S. military detention facilities at Guantánamo Bay, Cuba. In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case Rasul v. Bush, might grant habeas corpus rights to the five CIA detainees then being held at a CIA detention facility at Guantánamo Bay. Shortly after these discussions, CIA officers approached the [REDACTED] in Country [REDACTED] to determine if it would again be willing to host these CIA detainees, who would remain in CIA custody within an already existing Country [REDACTED] facility. By January [day REDACTED] 2004, the [REDACTED] in Country [REDACTED] had agreed to this arrangement for a limited period of time. Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the National Security Council, and the White House Counsel for advice on whether the five CIA detainees being held at Guantánamo Bay should remain in Guantánamo Bay or be moved pending the Supreme Court’s decision. After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantánamo Bay pending the Supreme Court’s resolution of the case. The Department of Justice concluded that a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had originally been detained under military authority and had been declared to the ICRC. Nonetheless, by April [REDACTED two-digit number] 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities. [REDACTED] Shortly after placing CIA detainees within already existing Country [REDACTED] facility for a second time, tensions arose between the CIA and [REDACTED] Country [REDACTED]. In [month REDACTED] 2004, CIA detainees in a Country [REDACTED] facility claimed to hear cries of pain from other detainees presumed to be in the [REDACTED] facility. When the CIA chief of Station approached the [REDACTED] about the accounts of the CIA detainees, the [REDACTED] stated with ‘bitter dismay’ that the bilateral relationship was being ‘tested’. There were also counterintelligence concerns relating to CIA detainee Ramzi bin al-Shibh, who had attempted to influence a Country [REDACTED] officer. These concerns contributed to a request from [REDACTED] in [month REDACTED] 2004 for the CIA to remove all CIA detainees from Country [REDACTED]. [REDACTED] In [month REDACTED] 2004 the chief of Station in Country [REDACTED] again approached the [REDACTED] with allegations from CIA detainees about the mistreatment of Country [REDACTED] detainees [REDACTED] in the facility, the chief of Station received an angry response that, as he reported to CIA Headquarters, ‘starkly illustrated the inherent challenges [of] [REDACTED]’. According to the chief of Station, Country [REDACTED] saw the CIA as ‘querulous and unappreciative recipients of their [REDACTED] cooperation’. By the end of 2004, relations between the CIA and Country [REDACTED] deteriorated, particularly with regard to intelligence cooperation. The CIA detainees were transferred out of Country [REDACTED] in [name of month REDACTED; appears to have comprised eight characters] 2005.” 111. In his initial submissions of 14 July 2011 and 27 October 2011 the applicant maintained that the existence of a CIA secret prison in Lithuania had first been disclosed in August 2009, when ABC News had reported that according to “former CIA officials directly involved or briefed” on the CIA HVD Programme, the Lithuanian authorities had provided the CIA with a building on the outskirts of Vilnius where terrorist suspects had been held for “more than a year” (see also paragraph 257 below). 112. He further submitted that after his rendition from Poland to Guantánamo on 22 September 2003 and from Guantánamo to Rabat in Spring 2004, he had been transferred from Rabat to Lithuania “in early 2005”. Relying on flight information supplied by the Lithuanian Civil Aviation Administration (Civilinės Aviacijos Administracija – “CAA”), Reprieve and Interights, he indicated two possible dates – 17 February 2005 and 18 February 2005 – and two CIA rendition aircraft – N724CL and N787WH – on which he could have been transferred to Lithuania. 113. On 10 September 2012 the applicant filed with the Court’s Registry a pleading entitled “Additional Submission” in which he rectified and supplemented information of his alleged rendition to and from Lithuania in the light of newly emerging materials in the public domain. 114. As regards the alleged rendition to Lithuania on 17 February 2005 or 18 February 2005, the information produced by the applicant could be summarised as follows: (a) Between 15-19 February 2005, N787WH and N724CL, arranged by CSC, travelled from the USA to Lithuania via Morocco and back to the USA. No other flights of CIA-related aircraft have so far come to light connecting the three countries during or around this period; (b) Data from the Federal Aviation Authority and EuroControl showed that N787WH, a Boeing 737 operated by Victory Aviation Florida, executed the following flight circuit on 15-19 February 2005: Baltimore (KBWI) - Santa Maria, Azores (LPAZ) - Salzburg (LOWS) - Malaga (LEMG) - Rabat (GMME) - Constanţa /Bucharest (LRCK / LRBS) - Palanga (EYPA) - Copenhagen (EKCH) - Gander (CYQX) - Baltimore (KBWI). (c) Data from the Federal Aviation Authority and EuroControl showed that another Boeing 727, registered as N724CL, followed a similar route to N787WH on its flight circuit executed on 15-18 February 2005: Van Nuys (KVNY) - Baltimore (KBWI) - Santa Maria, Azores (LPAZ) - Gran Canaria (GCLP) - Rabat (GMME) - Amman (OJAM) - Vilnius (EYVI) - Keflavik (BIKF) - Goose Bay (CYYR) - Baltimore (KBWI) - Van Nuys (KVNY). (d) Both planes travelled from the USA to Morocco; their paths then diverged, as N787WH went on to Romania and N724CL to Amman, Jordan. Both planes then re-converged on Lithuania, arriving within twentyfour hours of each other, before returning to the USA. 115. In his initial submissions the applicant did not indicate any specific date of his rendition from Lithuania. 116. In his Additional Submission of 10 September 2012 (see also paragraph 112 above), he stated that, according to public sources, the CIA “black site” in Lithuania had been closed “in the first half of 2006 and its occupants transferred to Afghanistan or other countries”. The applicant indicated 25 March 2006 as the date of his rendition from Lithuania, which he linked with the flight circuit executed through Palanga Airport in Lithuania by the CIA rendition plane registered as N733MA on 23-27 March 2006. It was alleged that he had been transferred to Afghanistan by the so-called “double-plane switch”. This operation was executed by using two planes, each one of which completed only half the route so that the CIA prisoners could be transferred from one plane to another in an airport in which they converged. It involved N733MA and another CIA rendition aircraft registered as N740EH, which both made a connection in Cairo on the night of 26 March 2006. 117. It was submitted that N733MA’s landing in Palanga on 25 March 2006 had been mentioned in the Lithuanian Parliamentary inquiry. No further information about it was provided by the Parliamentary investigators, other than that “no customs inspection was carried out” and the border guard provided “no records of the landing and inspection of this aircraft” (see also paragraph 173 below). While an entry in the records of the Palanga Airport indicated that N733MA departed from Palanga to Porto, Portugal on 25 March 2006, the analysis of flight plan data released by PANSA and EuroControl showed that N733MA did not fly to Porto but proceeded to Cairo, Egypt. On 26 March 2006 in Cairo the plane converged with another Boeing 737 rendition aircraft registered as N740EH. Afterwards, N733MA travelled from Cairo to Heraklion, Greece. It had left Heraklion for Keflavik, Iceland in the morning of 27 March 2006. On 26 March 2006 N740EH, shortly after the arrival of N733MA in Cairo, took off from there for Kabul, Afghanistan. It then stopped briefly in Amman, Jordan and travelled to Heraklion, Greece. On 28 March 2006 it left Heraklion for Keflavik, Iceland. Both planes were chartered by CSC and operated by Miami Air International, Florida. 118. The applicant produced flight and other data from multiple sources, including extracts from EuroControl and Lithuanian aviation authorities’ flight records, flight messages regarding circuits executed by N787WH on 15-19 February 2005, N724CL on 15-18 February 2005 and the landing of N7333MA at Palanga Airport on 25 March 2006, as well as aircraft charter contracts concluded in respect of those flights. He also produced, among other things, flight data concerning the “double-switch” flight circuits executed by planes N308AB and N787WH between 4 and 7 October 2005 and by N733MA and N740EH on 2328 March 2006, the Report to the Lithuanian Government on the visit to Lithuania carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) from 14 to 18 June 2010 (“2011 CPT Report”) and the Briefing and Dossier for the Lithuanian Prosecutor General: CIA Detention in Lithuania and the Senate Intelligence Committee Report dated 11 January 2015 and prepared by Reprieve (“2015 Reprieve Briefing”). 119. Other evidence before the Court comprised the 2014 US Senate Committee Report, publicly available flight data, testimony of the experts heard at the fact-finding hearing and the material of the PowerPoint presentation given by Senator Marty and Mr J.G.S. 120. The 2015 Reprieve Briefing states that the partially released 2014 US Senate Committee Report confirmed previous accounts of CIA secret detention in Lithuania and existing public source data on transfer dates of prisoners into and out of Lithuania and referred to prisoners held in Lithuania. The conclusions were as follows: (a) it was established beyond reasonable doubt that one of the facilities adapted by the CIA in Lithuania was used to hold prisoners; (b) prisoners were transferred into this facility in February and October 2005; (c) prisoners were transferred out of this facility in March 2006; (d) the transfers were carried out on planes contracted to Computer Sciences Corporation, all operating within a linked group of contracts. 121. The document summarises key statements in the 2014 US Senate Committee Report relating to three CIA detention facilities referred to therein – Detention Site Black, Detention Site Violet and Detention Site Brown and, using also other public source data, concludes that Detention Site Violet was located in Lithuania. Also, on the basis of the number of the characters blackened in the redacted passages of the report, it attempts to decipher certain dates. The 2015 Reprieve Briefing’s findings as to the operation of the CIA secret detention site in Lithuania and the flights indicated by the applicant as those on which he could have been transferred from Morocco to Lithuania and out of Lithuania can be summarised as follows. 122. The Reprieve document provides the following information: (a) According to the 2014 US Senate Committee Report, CIA detainees were transferred to Detention Site Black in “the fall of 2003”. The closure of that site was precipitated by revelations in the Washington Post, published on 2 November 2005 (see also paragraphs 149 and 256 below; see also Al Nashiri v. Romania, cited above, §§ 133 and 161). At this point the host country demanded “within [two characters/digits redacted] hours” the site’s closure and the remaining detainees were transferred out of that country “shortly thereafter”; (b) Detention Site Violet, in a different country from “Black”, opened “in early 2005”. The CIA conducted discussions with officials from “Violet’s” host country; these discussions left one such official “shocked” but host country approval was nonetheless given for the facility. Evidently the CIA had originally constructed a “holding cell” in the same country as Detention Site Violet, which was not used. They then decided to “build a new, expanded detention facility” in the same country. Approval was provided by an official from that country. Money, in the amount of several million dollars, was also provided to that country, although this required the development of “complex mechanisms” to effect the transfer. (c) The first detainees were transferred to the expanded site “Violet” [fourteen lower-case characters redacted for the date]. This information corresponds to the flight data analysed by Reprieve, which indicates flights by two planes N787WH and N724CL, contracted by Computer Sciences Corporation, into Lithuania on 17 February and 18 February 2005 respectively. They came via Morocco, Romania and Jordan and were operating under the same renditions-specific contract. (d) Detention Site Violet was closed as a result of a lack of available medical care “in [five lower-case characters redacted for the month] 2006.” The CIA then transferred its remaining detainees to Detention Site Brown. At that point, all CIA detainees were located in Country [name redacted]; (e) Detention Site Brown was in the same country as Detention Sites Cobalt, Gray and Orange. It first received detainees in “[five lower-case characters redacted for the month] 2006”. The 2014 US Senate Committee Report states that Khalid Sheikh Mohammed was transferred into Detention Site Brown on “[two characters redacted for the date] March 2006”. Prior to this he was held in a different site, to which he had been transferred after being held at Detention Site Black. He was transferred from that site to site [six upper-case character redacted] in 2005, on a redacted date [eight lower- case characters redacted]. Detention Site Cobalt, on the basis of extensive reporting, can be firmly placed in Afghanistan. Detention Site Brown must therefore be in the same country. (f) A transfer of prisoners into Kabul, organised by the CSC within their rendition contracting network took place on 25-26 March 2006. The transfer came from Lithuania and used two planes – N733MA and N740EH travelling via Cairo. The former carried out the leg of the trip from Lithuania to Cairo, the latter from Cairo to Kabul. (g) The above March 2006 transfer matches the closure of Detention Site Violet which, according to the 2014 US Senate Committee Report, was closed as a result of lack of available medical care in [five characters for the month redacted] 2006. The five-character redacted month could only be “March” or “April” on account of the length of the redaction. Of these two possibilities, March fits the data given in the report for Khalid Sheikh Mohammed’s transfer to Detention Site Brown. (h) The lack of medical care which caused the closure of Detention Site Violet seems to have affected Mustafa al-Hawsawi and “four other CIA detainees”. (i) On 1 January 2006 the CIA were holding twenty-eight prisoners, divided between Detention Site Orange and Detention Site Violet. (j) Despite the redactions in the above citations, careful reading of the 2014 US Senate Committee Report alongside other public source documents supports the conclusions that: – Detention Site Black was in Romania; – Detention Site Violet was in Lithuania; – Detention Site Brown was in Afghanistan; – CIA detainees were first transferred into Detention Site Violet in February 2005; – Detainees were transferred out of Detention Site Violet into Detention Site Brown in March 2006. 123. The Reprieve document states that the first transfer occurred in early 2005. The transfer could have been carried out on either or both of two planes (N787WH and N724CL), one from Morocco and Amman, one from Morocco and Bucharest, arriving in Lithuania on 17 and 18 February 2005 respectively. (a) N787WH and N724CL were operating under subcontract S1007312 to CSC. Their trips in February 2005 were task orders 20 and 21 of this subcontract. (b) Data from EuroControl shows N787WH’s progress from the USA to Morocco, Romania, Lithuania and back. On 15 February 2005 it flew from Baltimore Washington International (KBWI) to Santa Maria, Azores (LPAZ). It then filed a flight plan to Munich (EDDM) but was impeded by snow and went instead to Salzburg (LOWS). On 17 February it left Salzburg in the afternoon and headed to Malaga (LEMG), where it paused until the middle of the night. It then left Malaga in the early hours of 18 February 2005, arriving in Rabat (GMME) around 02:40. After just over two hours in Rabat it proceeded to Romania, filing a flight plan into Constanţa (LRCK) – although its flight plan for the next leg of the trip was filed not out of Constanţa but out of Bucharest Băneasa Airport (LRBS). It left Bucharest in the afternoon of 18 February 2005 and filed a false flight plan into Gothenburg, Sweden. Its true destination was Palanga where it arrived, according to an invoice for “State Charge for Air and Terminal Navigations Services – Palanga”, at 18:09. EuroControl and Palanga airport records both indicate that it left Palanga shortly afterwards, at 19:30, bound for Copenhagen. The plane paused overnight in Copenhagen, then continued to Gander, Canada (CYQX). Information released by the Federal Aviation Authority shows that it then returned to Baltimore International (KBWI/ BWI) and finally to its home base in Florida (FLL). (c) Although the Lithuanian Parliamentary Committee on National Security and Defence inquiry cited N787WH’s flight from Bucharest to Palanga on 18 February 2005, the Committee was not aware of the plane’s complete route, its contractual basis, or the identification of its contractual basis with rendition operations (see also paragraph 173 below). (d) N724CL’s flight under the same subcontract occurred at the same time (16-17 February 2005) as the flight of N787WH and took a similar route: Rabat (GMME) – Amman (OJAM) – Vilnius (EYVI) – Keflavik (BIKF). 124. The 2015 Reprieve Briefing states that prisoners were again transferred into Lithuania from Romania in October 2005. The document refers to the flight circuits executed by N308AB and N787WH on 17 October 2005. (a) Data from EuroControl shows that N308AB flew from Teterboro, New Jersey, to Slovakia on 4 October 2005. After an overnight stop it proceeded to Romania, filing a flight plan to Constanţa on the evening of 5 October 2005. It left Romania soon afterwards (this time filing a flight plan out of Bucharest) and headed to Tirana, Albania. (b) An email and a “preliminary requirements” document corresponding to this flight give further information, namely that on arrival in Romania the plane was to pick up two people (“PU 2 PAX”) in addition to the five people it had set off with. In Albania it was to “Drop All PAX”. The document instructs: “Must have 3 pilots, NO Flight Attendants. At least a G-IV performance with 10 PAX capability. No customs help”. (c) Flight data shows that on its drop-off in Albania N308AB was met by N787WH, which proceeded just over an hour later to Lithuania. N787WH disguised its route into Lithuania by filing a flight plan to Tallinn (EETN). The Vilnius Airport “State Charge” document incorrectly asserts that N787WH arrived from Tallinn, while another airport log shows that it did in fact arrive from Tirana. (d) On its arrival in Vilnius, as recorded by the Lithuanian Parliamentary Committee on National Security and Defence (see also paragraph 173 below), a border guard was prevented from carrying out his duties and checking the plane; he observed a vehicle drive away from it and exit the perimeter of the airport. 125. The 2015 Reprieve Briefing states that the CIA prisoners were transferred out of Lithuania to Afghanistan in March 2006. (a) Two trips contracted by Computer Sciences Corporation on 2526 March 2006, involving planes N333MA and N740EH, connect Lithuania to Afghanistan and correspond to the closure of Detention Site Violet and the transfer of its prisoners to Detention Site Brown. (b) The Lithuanian parliamentary inquiry noted that N733MA had arrived in Palanga on 25 March 2006, coming from Porto, and that it had returned to Porto; no further information about it was provided, other than the facts that “no customs inspection was carried out” and the border guard provided “no records of the landing and inspection of this aircraft”. Investigation by Reprieve has established that, far from returning to Porto as recorded by officials at Palanga Airport, N733MA continued to Cairo, where it made a connection with N740EH. N740EH then proceeded to Kabul. Both planes were chartered by Computer Sciences Corporation and operated by Miami Air International, Florida. (c) Data provided by EuroControl shows that N740EH flew from New Castle, Delaware (KILG) to Marrakesh (GMMX) on 23 March 2006. There is no record of its subsequent movements until 26 March 2006. In the meantime, N733MA, having left Philadelphia International (KPHL), passed through Porto (LPPR), then filed a flight plan to Helsinki (EFHK) on the afternoon of 25 March. Instead of going to Helsinki, however, N733MA went to Palanga (EYPA), touching down at 22:25 local time (in close proximity to its scheduled arrival time of 20:38 GMT). It paused for 90 minutes in Palanga. Records from EuroControl and the Polish Air Navigation Authority both show that on leaving Palanga it went not to Porto, as the Lithuanian parliamentary inquiry was informed (see also paragraph 173 below), but to Cairo (HECA). Its scheduled arrival time in Cairo was 02:19 GMT on 26 March. (d) While N733MA was making its way to Palanga, N740EH was on its way to Cairo. Although records do not show when it arrived in Cairo, or from where, they do indicate that it left Cairo shortly after N733MA arrived there – at 02:45 GMT on 26 March 2006 – and that it went from Cairo to Kabul (OAKB), with an arrival time in Kabul of 08:32. N740EH then returned westwards from Kabul, pausing briefly in Amman (OJAI) before making a longer stop in Heraklion (LGIR). It arrived in Heraklion around 23:07 on 26 March 2006. N733MA had also flown to Heraklion direct from Cairo and was waiting there, having arrived at 04:59 the same day. Both planes left Heraklion for Keflavik (BIKF) – N733MA on the morning of 27 March 2006, and N740EH on the morning of 28 March 2006. (e) Documents relating to the planning of these two trips show complex attempts to disguise the fact that the purpose of the trips was to provide a connection between Lithuania and Afghanistan. Both trips were included in one invoice. Consistent with the other trips mentioned in the briefing, the invoice relates the task back to the original rendition subcontract. (f) The flight schedule accompanying the charter contract shows that both planes’ destinations were kept secret up to the last minute. 126. At the fact-finding hearing the experts, Mr J.G.S. and Mr Black, gave evidence on the alleged operation of the CIA secret detention facility in Lithuania, code-named “Detention Site Violet” in the 2014 US Senate Committee Report, the applicant’s alleged rendition to Lithuania, his secret detention and his transfer out of the country. They replied to various questions from the judges and the parties. They testified as follows. 127. In the course of the PowerPoint presentation Mr J.G.S., when explaining in general the rendition scheme operated by the CIA, characterised Lithuania as a “drop-off” point for CIA detainees, which had served the purpose of hosting a detention facility. In particular, he stated: “I wish to begin by setting out in the form of a graphic illustration the system in which such detention sites were situated. This is a system that spanned the entire globe but it had at its heart several hubs of operation here on the European continent. I am using a map of the world to show those present several categories of places at which aircraft landed in the course of the so-called ‘war on terror’. We categorised these landing points according to a set of criteria developed in 2006 whereby each landing point exhibited certain characteristics which allowed us to discern the purpose for which an aircraft landed there. The four categories as denoted are first stopover points where aircraft tended to stop shortly, primarily to refuel, staging points where often two or more aircraft would converge in their planning or preparation of specific detainee transfer operations, pick up points at which individual suspects, persons captured by the CIA, were taken on board rendition aircraft by CIA rendition crews in order to be flown to secret detention, in places of the last category detainee transfer or drop-off points. The original graphic on display here dates to 2006. We are in a position today to add one further detainee transfer drop-off point in Vilnius on the territory of the Republic of Lithuania. Having subsequently uncovered records of flights into and out of that territory and been able to devote an equal amount of rigour and attention to the underlying documents, we have found that Vilnius together with Szymany and Bucharest bore the character of a detainee drop-off point in the CIA’s system of renditions. I will explain how that occurs by developing some of the analysis further. ... Vilnius has been added here for the specific purpose of today’s proceedings albeit that at the time in 2006 and 2007 we did not have sufficient information to place it on the original map. What we can say today about the CIA’s operations of a ‘black site’ in Lithuania has increased considerably in scope and volume thanks to various declassifications, also various records obtained through court proceedings in the United States of America, and indeed through the diligent efforts of various Lithuanian partners who have investigated this issue since its first exposure in 2009 and 2010. ... [F]or example ... this is a document on record before the court which attests to the landings of CIA rendition aircraft in Vilnius in the months of February and October 2005. This is significant and this was furnished in 2011 by the Lithuanian authorities themselves. It is significant because the aircraft denoted in these disclosures are not the same aircraft that carried out the bulk of the rendition operations in respect of Poland and Romania earlier in the life of the program.” 128. According to Mr J.G.S., the first CIA detainees were transferred to Lithuania in February 2005. He stated that 17-18 February 2005 had been the critical juncture at which CIA detention operations overseas had once again been dramatically overhauled and that the removal of CIA detainees from Morocco had led to the opening of their new “black site” in Lithuania. Mr Zubaydah was transferred to Lithuania in February 2005. Other detainees were transferred to the country in October 2005. The closure of the site had been marked by the transfer of the CIA detainees, including the applicant, out of Lithuania on 25 March 2006. He referred to the following elements in support of his conclusions. 129. He first referred to the “cyclical nature” of CIA secret detention sites and explained its relevance for the opening and closure of the CIA secret prison in Lithuania as follows: “The Court will recall my reference to the CIA’s in-house aviation service providers. There was a shell company known as Aero Contractors that administered two aircraft N313P and N379P in the early years of the rendition programme and much of the planning for the flights was done by one provider Jeppesen Dataplan. In those early years therefore there is quite a consistent pattern to the execution of rendition operations and that certainly encompasses the timeframe of the Polish site –from December 2002 until September 2003 – and it encompasses much of the operations at the Romanian site from September 2003 until November 2005. But in Lithuania we do not have any record of a single landing of either of those aircraft, the typical rendition aircraft: neither the Boeing Business Jet, nor the Gulfstream express plane which were used customarily in the early years. However, through these disclosures the Lithuanian records allow us to find out how the CIA developed its methodology, expanded its fleet and in some cases replaced its original operator with new contractors, new aircraft and new modus operandi. Among the routes flown by these new aircraft was the putative transfer of the applicant in today’s proceedings into Lithuania in February of 2005. For reasons I have addressed in [Al Nashiri v. Romania] proceedings, Madam President, it stands to reason that February 2005 was another important juncture in the evolution of the CIA secret detention program. As I will demonstrate in my presentation the programme was cyclical in character: detention sites did not exist in perpetuity for the entire lifespan of the war on terror, rather the CIA tended to innovate and improvise to situations as it found them. Its earliest sites, in theatre, in a country like Afghanistan, they were able to last somewhat longer because of the context and often also because of the military support that they were able to draw upon, but in the cases of Thailand and Poland and Morocco and even Guantánamo Bay, extenuating circumstances caused by external factors, whether political, legal or reputational, led to the abrupt closure of detention sites at moments when the CIA had not necessarily planned for them to close. So the story of the secret detention programme includes several of these junctures at which one detention site closes abruptly and another opens in its place. However, that February 2005 fits into this pattern for the specific reason that in February 2005 the cooperation with the Moroccan authorities in the administering of a secret detention site in Rabat, Morocco finally ran aground. All the CIA’s remaining detainees in Morocco had to be moved out. In February 2005 the flight data tells us that there were two principal destinations for detainees being taken out of Morocco. Those were the two European sites. Firstly Romania, which we have addressed in the [Al Nashiri v. Romania] proceedings, and secondly, for the first time, Lithuania.” He added: “Detention sites did not endure for periods of several years, rather at particular junctures in the programme they were abruptly closed and all classified information housed in those facilities destroyed. Here we have the example of when Thailand was closed, December 2002. And by collating material from the reporting the cabling at the base with flight data, including that from our own investigations we identified this juncture of ... December 4th-5th, 2002 as the first of several on which CIA detention and interrogation operations were dramatically overhauled. That meant that one base closed - CATESEYE in Thailand and immediately afterwards a new base opened QUARTZ base in Poland. And just as the detainees from one site moved to another so the operational focus shifted with them. QUARTZ became the facility from 5 December 2002, to which the CIA brought its highest value detainees for HVD interrogation. Likewise, if we move forward nine months, the same report reveals that QUARTZ itself only existed until 22 September 2003, whereupon QUARTZ base in Poland was closed and a successor site BRIGHTLIGHT base in Romania was opened, 22 September 2003. This cyclical nature evidenced in the documents and supported by analysis of the flight data persisted all the way till the end of Europe’s participation in the rendition programme. Specifically the last juncture of interest to the Court is that on 25 March 2006. Detention Site Violet, the Lithuanian site itself, would close and would lead to a wholesale transfer of detainees from that site to the final site in the programme back in Afghanistan. So, rather than having multiple sites existing simultaneously and in perpetuity, the story of this programme is of a shifting operational focus whereby each site at one time is the hub of operations where the key interrogations are taking place, where enhanced interrogation techniques are being routinely authorised and instrumentalised, and where new detainees captured are sent by rendition aircraft in order to enable this honing of resources.” 130. In this connection, in the course of the PowerPoint presentation, Mr J.G.S. demonstrated two rendition circuits executed through Lithuania, the first executed by aircraft N724CL in February 2005, the second by aircraft N787WH on 5-6 October 2005. (a) As regards N724CL’s circuit in February 2005: “This circuit in February 2005 encompasses the period from the 15th to 20th February 2005 in which two rendition aircraft deployed to Morocco simultaneously. I shall demonstrate the circuit of the aircraft N724CL which embarked here from Gran Canaria to the pickup of the remaining detainees in Rabat - Morocco. It flew the path to Amman - Jordan before flying onward to Vilnius - Lithuania. This is the first of the landings which the Lithuanian authorities themselves evidenced in their documentary submissions of 2011. The aircraft landed in Vilnius on 17 February 2005, the date on which the applicant of ours, the beginning of his secret detention in Lithuania. It departed via Keflavík before returning to its base in the United States. This simple illustration is backed up by a large trench of documentation and in particular it is in respect of these contractor operations that we are able to draw upon the docket of litigation in the United States between two contractors, both of them servicing the CIA’s rendition programme. The name of the case in question which is in the records before the Court is Sportsflight Air Inc. [sic] versus Richmor Aviation.” (b) As regards the N787WH circuit in October 2005, Mr J.G.S. testified that it had involved the transfer of detainees between the CIA “black sites” in Romania and Lithuania, which had been disguised by using both the socalled “dummy” flight planning and the CIA methodology of “switching” aircraft. The CIA, under its aviation services contract with Computer Sciences Corporation, tasked two rendition aircraft – N308AB and N787WH – with flights to Europe simultaneously. N308AB arrived in Bratislava, Slovakia from Teterboro, USA, while N787WH landed in Tirana, Albania. A “dummy” flight plan from Bratislava to Constanţa, Romania was filed in respect of N308AB but when the plane entered Romanian airspace, the Romanian aviation authorities navigated it to an undeclared landing in Bucharest. The plane collected CIA detainees from Romania. Subsequently, N308AB flew from Bucharest to Tirana on the night of 5 October 2005. The CIA detainees “switched” aircraft in Tirana; they were transferred onto N787WH for the rendition flight. A “dummy” flight plan from Tirana to Tallinn, Estonia was filed in respect of N787WH. Instead, the plane flew to Lithuania and the Lithuanian aviation authorities navigated it to an undeclared landing at Vilnius in the early hours of 6 October 2005. The plane dropped off the CIA detainees for ground transportation to the CIA “black site” in Lithuania. Then the planes departed; N787WH flew to Oslo, Norway and onwards, N308AB made a stopover in Shannon, Ireland and returned to its base in the USA (see also Al Nashiri v. Romania, cited above, § 135). Mr J.G.S. stated, in particular: “In respect of Lithuania I would like to draw attention in particular to the records around the October 2005 flights. On this occasion two aircraft are implicated in the transfer of a single group of detainees. There are records pertaining to N308AB and there are also records pertaining to N787WH. N787WH is a Boeing business Jet, a 737, and as I mentioned it took the place of the earlier N313P aircraft in performing large scale transfers of detainees simultaneously. Among the documents there are emails and other items of correspondence which give an extraordinary insight into the CIA’s planning of these operations. If asked how do we know that the deceit was deliberate, how do we know that the disguise was a tactic rather than a facet of in-flight changes, I would point to the documents in this docket which refer explicitly to sleight of hand. They deliberately purport to file flight plans to destinations of which the aircraft has no intention of flying and they include such statements as ‘no customs help’ or on occasion ‘drop all passengers’ or on occasion ‘hard arrival’, which are not legal terms in the planning of international flights; they are rather efforts to circumvent the system of controls and regulations put in place by among others the international civil aviation organisation. This particular circuit, which I will demonstrate, is of great relevance to our proceedings today because it links the detention site in Bucharest - Romania with the detention site in Vilnius - Lithuania and demonstrates how the CIA’s tactics to evade accountability had evolved over the course of the programme. Herein we will see not only instances of dummy flight planning, the customary filing of false flight plans but also the use of a new methodology switching aircraft mid operation to avoid the eventuality that the same aircraft appeared in the site of two different places of detention. On this map we have two aircraft which arrived in Europe simultaneously on 5 October 2005. The first N308AB arrived from its base in Teterboro – New Jersey, the second N787WH arrived from Keflavík and landed at Tirana – Albania. Tirana Albania was to be the point at which these two aircraft would converge hence it is marked here as a staging point. Before arriving there, however, the first aircraft N308AB filed a dummy flight plan to the false destination of Constanţa, Romania and then flew to its real destination Bucharest Băneasa airport, where it collected detainees from the Romanian detention site. After its collection it flew to Tirana from Bucharest directly with the prior instruction to drop all packs. This in jargon means the passengers on the plane, explicitly here the crew, the rendition personnel who are responsible for removing, securing and transporting the detainees. In Tirana the crew transferred onto the waiting second aircraft N787WH together with the detainees. The dummy flight plan was then filed for this second aircraft furthering the layers of deceit. Tallinn, Estonia was used as a false destination to enable the flight to enter Lithuanian airspace and land at Vilnius airport in Lithuania. This is the point at which the detainees on board were dropped off, hence the direct link between the ‘black site’ in Bucharest and the ‘black site’ in Vilnius. Both aircraft thereafter returned towards the United States, N787WH flying via Oslo and northward, N308AB flying via stopover in Shannon back to New Jersey. Again Lithuanian records attest to the landing of N787WH in Vilnius, notwithstanding its false or ‘dummy’ flight planning and this document, which also forms part of the records before the court from the Litcargus provider at Vilnius, is the completion of the switching aircraft operation, a typical and short time on the ground in Vilnius in the early hours of the morning in which the detainees were transported by ground to the detention facility in Lithuania.” 131. Replying to the judges’ question about the relation between the above circuit and the applicant’s case, Mr J.G.S. testified as follows: “You asked also why did I focus my attention on this pattern of switching aircraft in October 2005 and it is because that operation links two detention sites in European territories, namely the detention site in Romania and the detention site in Lithuania, and illustrates adequately to the Court that there were complex, deliberately deceitful, tactics at play that make it very difficult to follow a particular detainee’s path for the transfers that the CIA undertook in moving its detainees from one site to another. That particular joint operation, involving N308AB and N787WH, is an operation to which I have devoted considerable time in documenting, in correlating, collating different information sources and I am confident in pronouncing that as a rendition operation in which persons from Romania were transported via a switching of aircraft in Tirana to the site in Lithuania. At this present time that operation stands as the only other confirmed inward rendition to Lithuania that I have been able to document from material in the public domain. And it is for that reason that I presented it to the Court because it enhances the certainty with which we can see a detention site existed in Lithuania.” 132. In reply to the judges’ question as to whether it could be established that the CIA detention facility in Lithuania was code-named “Violet” in the 2014 US Senate Committee Report and, if so, on what basis, Mr J.G.S. testified: “The Detention Site Violet is the colour code name used to denote Lithuania in the [2014 US Senate Committee] Report. I have reached this conclusion by collating information around specific dates, specific detainees, and specific junctures in the broader CIA programme that are explicitly mentioned and unredacted in the report. I refer in particular to the nexus between different detention sites and the cyclical nature of the programme, such that when one site closed another opened, when one site was demoted in importance another site was promoted, and establishing the identity of Detention Site Violet as Lithuania derives from a deep understanding of both Romania’s role under the code name ‘Black’, and in particular the role played by Morocco, an authority that is only referred to by a country letter rather than a colour, because it did not act as a detention site or ‘black site’ within the CIA structure. But I would direct the Court in particular to pages 139 to 142 of the [2014 US Senate Committee Report], in which the role of Morocco is described extensively as a country which ‘detains individuals on the CIA’s behalf’ and through a close reading of these passages linked with the evidence I have presented in these and earlier [Al Nashiri v. Romania] proceedings, one reaches the incontrovertible conclusion that when the facility in Morocco was finally closed the only possibility is that Detention Site Violet, namely Lithuania, then took the detainees from that country in conjunction with ‘Detention Site Black’. In particular a paragraph on page 142, which describes the end of relations between the CIA and Morocco, concludes with the passage that the CIA detainees were transferred out of this country in February 2005 and corresponds precisely with the flight movements, the planning documentation and the detailed insights afforded by the American litigation proceedings, to lead us from Rabat - Morocco to Vilnius - Lithuania.” 133. As regards other elements justifying the conclusion that Detention Site Violet was located in Lithuania Mr J.G.S. testified as follows: “I would like now to move on to some of the references in the declassified American documents that might help the Court to place the Lithuanian site in the context of the broader rendition detention and interrogation programme. In respect of Lithuania the most important document at hand is the declassified [2014 US Senate Committee Report], the Feinstein Report as it is sometimes known. Whilst incomplete and whilst heavily redacted, the document nonetheless plays into the aforementioned collation or distillation of multiple documentary sources and it is possible to link the colour coded references to specific detention sites in the report to known and recognisable host countries of ‘black sites’ including that of Lithuania. As has been widely reported since this document was declassified the Lithuanian site is associated with the colour code Violet. References in the [2014 US Senate Committee Report] to Detention Site Violet accord completely with the timings, with the character and with the chronological progression of detention operations in respect of Lithuania. Notably I would point the Court to two sections of the report, pages 96 to 98 and pages 154 to 156. In these two sections the Committee engages in an analysis of the reasons behind both the opening and the closing of Detention Site Violet in Lithuania and it delivers several pertinent observations regarding the question of relations with the host national authorities. It is important first in order to establish this relation to the coding to recognise that Detention Site Violet was created in a separate country to any of the other detention sites mentioned in the report. So, where there is a raft of evidence connecting Detention Site Cobalt to Afghanistan correlating with many of the detentions we know took place there and indeed many of the techniques practised there; Detention Site Green we know to have been Thailand, the place in which Al Nashiri and today’s applicant Abu Zubaydah were waterboarded and the only site at which videotaping took place; Detention Site Blue, the first European site at Szymany in Poland to which both today’s applicant Mr Zubaydah and Mr Nashiri were transferred upon the closing of the Thai site in December 2002, and as mentioned in earlier [Al Nashiri v. Romania] proceedings Detention Site Black, the site situated in Romania at which Mr Al Nashiri and others were detained between 2003 September and 2005 November. The reference to a separate country here opens a new territory to the programme. Here we see discussion of political approval of the site which indicates that the same processes were aptly as pertained in Poland and Romania and as were described in the Marty Reports. The same conceptual framework where authorisation was required to situate a detention site in a European country from the highest levels of government. Here we have references in descriptive narrative to how Lithuanian counterpart officials may have been ‘shocked’ by the presence of detainees on their territory but ‘nonetheless’ approved. We know from both the [US] Senate inquiry and the inquiry undertaken by the Lithuanian Parliament, the Seimas, that there were in fact two projects in Lithuania aimed at providing support for the CIA detention operations. These are referred to in the Lithuanian reports as Project No. 1 and Project No. 2. In the [2014 US Senate Committee Report] these projects are referred to somewhat more obtusely but notably it states that by mid-2003 the CIA had concluded that its completed but still unused holding cell in this country, by which is meant Project No. 1, was insufficient, given the growing number of CIA detainees in the programme and the CIA’s interest in interrogating multiple detainees at the same detention site. This sentence is very important in respect of Lithuania because it corresponds precisely with the description of the provenance of Project No. 2 furnished by the Lithuanian Parliament. It states the CIA thus sought to build a new expanded detention facility in the country. The Committee report provides insight into both the opening and the closing of the site referred to in Romania and this is important because it will also help to situate the Lithuanian site in the timeline. Here, as mentioned in earlier proceedings, we learned that Detention Site Black opened in the fall of 2003, the specific date 22 September 2003. We also learn that it closed within a period of only a few days after the publication of the exposé in the Washington Post; namely on 5 November 2005. The Detention Site Black closed. Therefore, the reference to a separate country means a site that endured beyond Detention Site Black in Romania and in fact endured beyond the period at which the secret detention system in Europe was known about, hence my earlier reference. The Lithuanian Detention Site Violet became the longest or latest standing European detention site. ...” He added: “I want to share the few further insights into operations in Lithuania which come by looking at specific CIA detainee case studies. We have been able definitively to associate three of the CIA’s high-value detainees with the site in Lithuania. However, we know that at least five persons were detained there because in the Senate Committee Inquiry Report it refers to one of these men, Mustafa al-Hawsawi, and four others simultaneously being in country. So today I am only in a position to provide references to these three individuals here: the applicant in today’s proceedings, the applicant Abu Zubaydah, Khalid Sheikh Mohammed, at the bottom left, who was detained at one time in each of the European sites - in Poland, then in Romania and finally in Lithuania, and the aforementioned Mustafa al-Hawsawi, who became one of the reasons for which the site was closed, as I will illustrate.” 134. In reply to the judges’ question whether the applicant’s allegations that he had been transferred to Lithuania on 17 or 18 February 2005 and transferred out of the country on 25 March 2006 could be confirmed, Mr J.G.S. testified: “With regard to inward transfer, I can attest that an operation was mandated by the CIA through the air branch of its rendition group to its principal air services/division services contractor to carry out a movement of detainees held in Morocco towards other active ‘black sites’/detention sites, namely those in Romania and Lithuania. I can further attest by analysis of the documents that this operation was executed by using two aircraft. The two aircraft you mentioned, N724CL and N787WH. In my presentation I illustrated the flight of N724CL for the express reason that that aircraft flew, and can be demonstrated to have flown, to Vilnius. And Vilnius is unambiguously the airfield associated with the detention site in Lithuania, the physical location of which, as I have suggested, is undisputed. In my experience each detention site is inexorably connected with one destination airfield, hence the Polish site with Szymany airport, hence the Romanian site with Bucharest Băneasa and in my understanding the Lithuanian site is principally primarily associated with the airfield Vilnius airport, denoted by its code EYVI. That is the reason I chose that flight to illustrate to the Court. However, I cannot rule out the possibility that another airfield may have been used in conjunction with Vilnius in operating in Lithuania, and at the present time there is insufficient evidence in the public domain to make a categorical determination, for example as to the use of Palanga airfield. By way of explanation, the tactical methodologies of the CIA did evolve over time as I have presented to the Court today. This switching aircraft methodology was something which was not used in the early years of the programme, it was rather a later resort. So it is eminently possible that in pursuit of the same objectives absolute secrecy, security of transfer, evasion of accountability, the CIA innovated new methods of transfer which entailed using other airports inside the territory of Lithuania. I cannot rule that out nor can I make a categorical pronouncement as to which of those two aircraft brought Mr Zubaydah to Lithuania. I can, however, state that he was detained there in that last year of Europe’s participation in the ‘black sites’ programme, and that at this moment the only known and evidenced outward flight from Lithuania was the N733MA flight on 25 March 2006, which engaged in an analogous switching aircraft operation, and carried ultimately the detainees who were left at Detention Site Violet to Detention Site Brown, the newly opened site in Afghanistan, thereby closing the chapter on the Lithuanian site. On that front and again, notwithstanding my recognition that other evidence may yet be revealed, I would feel confident in associating this aircraft with the outward rendition of Mr Zubaydah.” In that context, he also added: “I cannot rule out that there was another form of deceit or sleight of hand at play that led to the appearance of two Lithuanian airports in some of these flight routes. Palanga does not immediately strike me as being an airfield associated with the site because of its geographical distance from Antaviliai, but I cannot rule out that perhaps flights landed there and detainees were then transported onwards by some other means. I do not have categorical information on that question. What I can say is that the flights mentioned in the statement of facts, as I have read it, include two flights in this period in February, between 15 and 20 February 2005, one of which is confirmed to have landed at Vilnius, N724CL on 17 February, the other of which N787WH is recorded as having landed at Palanga. On one of these aircraft the applicant was brought to Lithuania but beyond that categorical certainty is not yet achievable.” As regards the applicant’s transfer out of Lithuania, he further stated: “You asked about the destination of his outward flight and it is fairly clear that that was Afghanistan. I would say beyond a reasonable doubt he was taken to Afghanistan when he left Lithuania, because he was one of the fourteen high-value detainees who were transported from Afghanistan to Guantánamo Bay and declared by President George W. Bush to have been held in the CIA programme in September 2006, when he revealed its existence for the first time to the world. So there were no further renditions between March 2006 and September 2006. So I would be confident in concluding that he was taken from Lithuania to Afghanistan and thereafter to Guantánamo, and I believe the records that are before the Court state as to how and when those transfers took place.” 135. As regards the applicant’s alleged detention at the CIA detention site in Lithuania and the closure of that site, Mr J.G.S. also stated: “Mr Zubaydah does not have a mention by name in [the 2014 US Senate Committee Report] in connection with the Site Violet but the other two detainees cited here, both do. In the case of Khalid Sheikh Mohammed, there is a lengthy description of his detention in multiple different sites, notably in this passage the reference to his being transferred to Detention Site Violet on that earlier switching aircraft circuit in October 2005. He was also held in Lithuania up until the point of the site’s closure. Hence his final transfer to Detention Site Brown which was in Afghanistan on March 25, 2006. The passage around Khalid Sheikh Mohammed also talks about how reporting around him accounted for up to 15% of all CIA detainee intelligence reporting, which demonstrates his enduring importance to the purported intelligence gathering objectives of the programme. I find that pertinent because Khalid Sheikh Mohammed was detained in Poland, he was detained in Romania, he was detained in Lithuania, and he stands as a symbol of the centrality of these detention sites in Europe to the overall objectives of the CIA’s programme. The third detainee, Mustafa al-Hawsawi is mentioned in the report in relation to his need for medical care. In this passage here which comes from the later section, pages 154 -156, it states that the CIA was forced to seek assistance from three thirdparty countries in providing medical care to Mustafa al-Hawsawi because the local authorities in Lithuania had been unable to guarantee provision of emergency medical care. And as is stated explicitly in the Senate Committee’s Report, based upon cables sent from the base at Detention Site Violet, these medical issues resulted in the closing of the site in this country in the date March 2006. It was at that point that the CIA transferred its remaining detainees to Detention Site Brown. In my view these passages, when read in conjunction with the other documents, constitute a fairly comprehensive record of the reasoning and indeed the methodology behind the closure of the Lithuanian site. Furthermore, subsequent packet passage refers to the overall number of persons in the programme at 1 January 2006 as having been twenty-eight. It states that these twenty-eight persons were divided between only two active operational facilities at that time. One was Detention Site Orange in Afghanistan but importantly the other was Detention Site Violet, the Lithuanian site. The date references here, corresponding with the different flights we have had coming in and later going out, place Detention Site Violet in that time period as the hub of detention operations.” 136. In response to the Government’s question as to whether he could attribute a colour code to each CIA “black site” mentioned in the 2014 US Senate Committee Report and whether there had been any locations with no colour codes, Mr J.G.S. stated: “Yes, I can attribute colour codes as mentioned in the Senate Committee Report to each of the detention locations that had the character of a CIA ‘black site’. In order to be clear, there were some places used by the CIA that did not meet the precise criteria of a ‘black site’, a customised high-value detainee facility. Those criteria were set out in the Inspector General’s Report. I indicated it in my presentation, and among the criteria were the exclusive operation by CIA agents and contractors without the participation of foreign counterparts. The criteria for a ‘black site’ are in fact enumerated in several of the CIA documents and those sites in the Senate Committee Report were all accorded a colour code. So, for example, whilst Lithuania is associated with Violet, Romania is associated with Black, Poland is associated with Blue, Thailand is associated with Green, in Afghanistan there are several sites, notably Cobalt, Orange and Brown. At Guantánamo also there are multiple sites, notably Maroon and Indigo in the report. But Morocco, a country in which CIA detainees were housed at several points in the programme, does not have its own colour code because it did not meet the criteria as a customised high-value detainee facility. Specifically, Moroccans participated in the detention of CIA HVDs on their territory and they housed those persons within existing detention operations in Morocco, as is described in the report. So I can attribute colour codes to every one of the ‘black sites’ and I can also further identify countries that did not have a colour code, but which bore characteristics unique to one country and through the collation of other data sources allow me to categorically pronounce where they were situated. I am not alone in this endeavour, I can say that, having met with several of those involved in the Senate inquiry process, I believe that most reasonably informed observers would be able to associate now the publicly available information with at least one or more of those colour codes. I am not alone, this is not at a simple personal conclusion. It is one which is widely shared, not contradicted across the community of investigators who have occupied themselves with these matters.” 137. Replying to the judges’ questions as to whether it could be established that Abu Zubaydah had been secretly detained at Detention Site Violet and what was the physical location of that site on Lithuanian territory, Mr J.G.S testified: “The report does not mention the applicant Mr Zubaydah explicitly by name in connection with the Detention Site Violet. However, through an intimate familiarity with the chronology of his detention, much of which I have presented in evidence in these proceedings and the prior proceedings, I have reached the conclusion that there is only one place he could have been in the early part of 2005 and that that place was indeed Morocco. Furthermore, having closely analysed the text regarding Morocco in the report, some of which derives from cables declassified correspondence and other sources which I have also engaged with, I know that the transfers out of Morocco in 2005 went to other active ‘black sites’, that one of these was ‘Detention Site Black’ in Romania, but that there was also another one in a separate country, to use the terms of the report and based on the answer I gave to Your Honourable colleague Judge Sicilianos, this other country was Lithuania. Because the applicant Mr Zubaydah did not arrive in Romania, ‘Detention Site Black’, which I know based upon my years’ long investigations into the operations of that site much of which I have presented to the Court, the only other destination to which he could have been transferred was the active site in Lithuania and this transfer took place in accordance with the flights described in February 2005. Therefore, on the balance of probabilities, I believe it is established that Abu Zubaydah was secretly detained at Site Violet. As to the physical location of the facility in Lithuania it is my understanding that there is no dispute that there was a facility purpose-built, that this was the converted site of the horseback riding academy at Antaviliai, that the CIA oversaw the construction afresh, that this place was referred to as Project No. 2 in the Seimas parliamentary inquiry in Lithuania, and that the evidence gathered both through the Senate Inquiry and through the Lithuanian authorities’ own inquiries is in fact perfectly convergent on this point. I should also note that esteemed colleagues in the Committee for Prevention of Torture have visited the site and chronicled many aspects of it, which accord perfectly with the description of secret detention facilities I am familiar with from the American documentation. So as to the physical location, I think it is established beyond a reasonable doubt that this place was the ‘black site’ on the territory of Lithuania.” 138. In response to the judges’ question as to what extent, in comparison to Mr Abu Zubaydah’s case against Poland, or to Al Nashiri v. Poland and Al Nashiri v. Romania, he considered his conclusions in the present case to be based on the same elements of certainty, Mr J.G.S. stated: “Thank you, Your Honour, and I appreciate very much the focus on my choice of words because I have attempted, wherever possible, to be quite precise and circumspect in the pronouncements I make with regards to issues of fact. You are quite correct that in respect of this same applicant in his application against Poland I was able to make categorical pronouncements against a burden of proof beyond a reasonable doubt, that he was transferred into Poland on a specific date, that he was subjected to specific forms of treatment, that he was held together with Mr Nashiri and various other aspects, because they were described chapter and verse in documents declassified and made public by the CIA itself, notably the Inspector General’s Report. In respect of Romania, again by virtue of its earlier start date of operations, it was included by reference in the Inspector General’s inquiry and furthermore features prominently in the [US] Senate’s inquiry. 2003, according to the Senate, is the year in which the most high-value detainees persons involved in this programme were captured and interrogated, so understandably, since the Romanian site was the hub of operations, the most important ‘black site’ at that time, it is possible to glean a higher quality and volume of evidence from the declassified documents in respect of Romania, hence being able to associate more high-value detainees, more types of treatment as practised on the territory, and indeed a greater degree of certainty when pronouncing on questions of fact in respect of Romania. As I mentioned in the presentation, Lithuania was the latest of the European sites to be opened and therefore received detainees at a later phase of their detention cycles or, alternatively, received fewer detainees whose cases were subjected to the scrutiny of the oversight bodies I have mentioned. There is no Inspector General reference to Lithuania because at the moment when he published his special review in May 2004, the site in Lithuania had not yet been opened. In the Senate Report there are extensive references to Detention Site Violet, but naturally because the preponderance of detainees and their interrogations had taken place in the earlier years of the programme, it is not possible to find as many specific or explicit date references or references to specific renditions as is the case for the other two countries.” 139. Lastly, in reply to the applicant’s counsel question as to whether, based on his years as investigator, he was satisfied or was in doubt as to Abu Zubaydah’s presence in Morocco, Afghanistan and Lithuania at times referred to by him, Mr J.G.S. testified: “Yes, I am satisfied as to the presence of Mr Zubaydah, respectively in early 2005 in Morocco up to the point where the CIA detention site in Morocco was cleared, thereafter on the territory of Lithuania in the detention site coded as ‘Violet’ and thereafter on the territory of Afghanistan in the detention site coded as ‘Brown’.” 140. Mr Black, in reply to the judges’ question regarding the alleged existence of the CIA detention facility in Lithuania, in particular whether it could be established beyond reasonable doubt that it had operated in Lithuania and, if so, whether its location could be established, stated: “The answer to both parts of that question is unequivocally yes. It is certainly the case beyond reasonable doubt that the CIA established a detention centre in Lithuania. It is certainly the case beyond reasonable doubt that that facility – the facility that they established was in fact used for the purpose of holding prisoners – was in the warehouse outside the village of Antaviliai, a little bit to the north-east of Vilnius. So the issue of the evidence that allows me to make these statements and to say that they are beyond reasonable doubt is necessarily fairly lengthy and it rests on a number of key points which I shall do my best to summarise as concisely as possible. The Senate Report clearly indicated the times of operation of a site which it called Violet, which operated from February 2005 until March 2006. The site was in a country where there had previously been another site established that was in fact never used. This is discussed in the Senate Report. This detail of there having been two sites, one never used and one which was used between February 2005 and March 2006, corresponds accurately with the details given in the Lithuanian Parliamentary Committee’s investigation published in 2009, where they state very clearly that their partners, by which they mean the CIA, equipped two sites: one that was not used and one that was used for a purpose which the Parliamentary Committee does not reach a firm conclusion on, at least in its printed document. Now, it is further the case that my research has established flights going into and out of Lithuania precisely at the times that prisoners are said to have been moved into and out of the facility in Violet and that this corresponds with flights into and out of Lithuania in, firstly, February 2005, then in October 2005 and lastly in March 2006. And it is further the case that all these flights are contractually related, that is they are related by their contract numbers, their task order numbers, their invoice numbers and other details to an overall contract, that – we have been able to establish beyond reasonable doubt – was used by the CIA, by the US Government, for the purpose of outsourcing the movement of prisoners. I think that covers the essentials of how we can identify the Violet, the country that site Violet was in, with Lithuania. In terms of the precise circumstances of the building in Antaviliai, it is clear from documents that were gathered by the Parliamentary Committee in Lithuania, as well as from my own field researches – around that area I made several trips to that place in 2011-2012 to interview people around there – it is clear from those interviews and those documents that that building was essentially bought by a company and that Americans were in it, were fitting it out, were then guarding it, that vehicles were coming and going with tinted windows, there was one person living in the vicinity who called this ‘certain emptiness’, was the phrase he used that settled over the site at the time. The Parliamentary Report is quite clear that the CIA were occupying the building and it is also quite clear that Lithuanian officers did not necessarily have access to the entire building or if they did have access to it they did not necessarily take advantage of that access. It is also clear that the planes which were arriving in Lithuania, pursuant to the contracts that I mentioned, were being met by a very special regime of, there is a witness statement, that was made by an employee of the border guards and transmitted by his boss – whose name I believe is Kasperavičius, although probably I am pronouncing that wrong – in which he describes the landing of a plane on 6 October 2005 in Vilnius, and he describes how he was told by State security officials that he was not allowed to carry out his normal inspections of the plane and that, although he was kept away from the plane by a security coordinator, he was able to see in the distance a vehicle driving away from the plane. Now new documents which have been released very recently, earlier this month by the CIA pursuant to information requests by the American civil liberties union, allow us to clarify today that that plane was transporting Khalid Sheikh Mohammed into Lithuania. Previously in the dossier that I submitted to the prosecutor in January 2015, I said that it was not clear whether he came on the February flight or the October flight. It is now clear that he came on the October flight. I am sorry that it is a rather long-winded answer to your question, but I think that it has covered most of the main points that I think are necessary and sufficient to show that there was a prison in Lithuania and that it was in the site in Antaviliai.” 141. In reply to the judges’ question whether it could be established beyond reasonable doubt that Mr Abu Zubaydah had been secretly detained in Lithuania, Mr Black testified: “I have no doubt that Site Violet was in Lithuania and I have no doubt that prisoners were held in it, including, as I said before, Khalid Sheikh Mohammed, also including others who I believe, on the basis of my professional opinion, include Abu Zubaydah. To explain why I believe Abu Zubaydah was held in Lithuania, we need to retrace our steps in a way so that I can explain to you the logical sequence of events that leads me to this conclusion. ... We ... know that after a certain time in Morocco, the CIA had too many disagreements with the Moroccan Intelligence Agencies with regard to the treatment of prisoners in Morocco. This is dealt with at some length in the Senate Report. And so everyone who was in Morocco was moved out at the latest in February 2005. Now again, prima facie, it is possible that Abu Zubaydah, being in Morocco in February 2005, was moved either to Romania or to Lithuania. But again, the statement which I take to be accurate, that he was not in Romania in or prior to the Summer 2005, means that logically he must have gone to Lithuania on that flight on 18 February 2005. I can explain momentarily why I believe he was on N787WH and not on N724CL but if you do not mind I will come back to that. There is a further indicator of his presence in Lithuania, specifically soon after February 2005 – which is new research that has been done by my colleague, Sam Raphael, at the rendition project which has not yet been published, I have seen his work product and I have worked with it and I believe it will be published later this year – this research indicates that a cable relating to Abu Zubaydah was sent in March 2005, although the provenance of the cable is redacted, the length of the redaction is consistent with it coming from Lithuania and inconsistent with the coming from either of the two possible sites at the time which are in Romania or in Afghanistan. Cumulatively I take the total effect of all these bits of evidence to my satisfaction to say that beyond reasonable doubt Abu Zubaydah was held in Lithuania, starting in February 2005.” 142. As regards the date and the flight on which the applicant had been transferred from Morocco to Lithuania, Mr Black testified: “The reason I believe that he was flown in on the plane on 18 February rather than that on 17 February is simply that when you analyse the logs that we published for the 17 February flights, what appears is that everyone on that plane actually got off it in Jordan prior to its landing in Lithuania. So I do not think that the N724CL plane, that went via Jordan to Vilnius, transported prisoners into Lithuania. What it did in Jordan I do not know. I think it is also clear, it follows subsequently, that everybody who was held in Lithuania was moved out in March 2006, on 25 March 2006. I think perhaps it was previously unclear, a couple of years ago, where their destination was, but it is now clear – and it has been corroborated by the Senate Report – that the country to which they were moved was Afghanistan.” 143. In his reply to the judges’ further question about the flight of N787WH on 18 February 2005, identified as being the one on which the applicant had been transferred to Lithuania, Mr Black confirmed that, in his view, on the basis of evidence this had been established beyond reasonable doubt, adding that “to provide an alternative narrative one ha[d] to enter a kind of world of absurdity”. When a similar question regarding the dates on which the applicant had been transferred into and out of Lithuania was put by the Government –whose representatives also asked how relevant the N787WH October 2005 flight was in the context of the applicant’s alleged rendition – Mr Black stated: “So to clarify, I believe that Abu Zubaydah was flown into Lithuania on N787WH on 18 February 2005. I believe that he was flown out of Lithuania on N733MA and N740EH on 25 March 2006. The reason I mention the October 2005 flight is because it is to that flight that we can firmly correlate, again in my opinion beyond reasonable doubt, the arrival of Khalid Sheikh Mohammed in Lithuania and I mention it because (a) it provides more evidence of the pattern of conduct that was engaged by and in Lithuania and (b) because it is specifically for that flight that we have the data relating to the very special, as it were, welcoming procedures that the flight had. Although it has been clarified I believe by the Lithuanian Parliamentary Committee that these same procedures were also in effect for other flights, but I mention that one because the document exists that describes very clearly what these procedures were. So I believe it is important holistically taking into account all the evidence that is available to us – I believe that flight is another important part of the puzzle.” 144. In response to the Government’s further question whether the 2014 US Senate Committee Report – on which his conclusions were based –indicated the years and exact months of the opening and closure of Detention Site Violet, Mr Black stated: “If I remember rightly, the Senate Report indicates the year and the months are generally redacted. Because of the way in which they are redacted it is possible to deduce the number of letters, so in a sense it is easy to say which is a long month and which is a short month. One can tell that, let’s say, it might be February but not June or so on. Now, the weights of these redactions has to be calculated in accordance when they correlate other public information. So, for example, the new document released of Khalid Sheikh Mohammed’s Combatant Status Review Tribunal, is consistent with the redacted Senate Report but it also adds new unredacted information, to the extent that it gives the months of October and March, which are what our reconstruction initially was. And the same can be said of the redacted February. In one place there is a word that is the same length as February that has been redacted and in another place it says ‘in early 2005’. We have the flights that are the only flights at that point that correspond to it. Taking the whole weight of those and other indicators, to me, that is the only solution that makes any sense is the solution that indeed the site in Lithuania operated at the times that we have stated and was serviced by the flights that we have stated.” 145. In reply to the Government’s question as to whether the 2014 US Senate Committee Report did state that the national institutions had refused highvalue detainees access to medical institutions, Mr Black stated: “Yes, that was specifically stated of Site Violet in the Senate Report and it was also discussed in the new release of the, I think it is called, the facility audit, which is one of the documents released in the last few weeks by the CIA. That document describes the problems that the CIA had in 2005 and 2006 getting medical attention in host countries. Now the new document, the facility audit, does not specifically mention which countries it refers to, although the only countries that were operating at the time that it covers were Lithuania and Afghanistan. The Senate Report on the other hand, contextually, in that paragraph it is clear, I believe, that it references to Lithuania and what it says is that they did not have the right type of medical facilities on their site to deal with medical problems and that they initially had an agreement with the host country that the host country would provide medical facilities in such eventualities. The host country had decided that it was not going to do that. The word that is used in the facility audit is that it ‘reneged’. I do not think that word is used in the Senate Report.” 146. The 2014 US Senate Committee Report refers to “Detention Site Violet” in several sections concerning various events. 147. In the chapter entitled “The CIA establishes DETENTION SITE BLACK in COUNTRY [REDACTED] and DETENTION SITE VIOLET in Country [REDACTED]” the section referring to Detention Site Violet reads as follows: “[REDACTED] In a separate [from country hosting Detention Site Black], Country [name blackened], the CIA obtained the approval of the [REDACTED] and the political leadership to establish a detention facility before informing the U.S. ambassador. As the CIA chief of Station stated in his request to CIA Headquarters to brief the ambassador, Country [REDACTED]’s [REDACTED] and the [REDACTED] probably would ask the ambassador about the CIA detention facility. After [REDACTED] delayed briefing the [REDACTED] for [number blackened] months, to the consternation of the CIA Station, which wanted political approval prior to the arrival of CIA detainees. The [REDACTED] Country [REDACTED] official outside of the [REDACTED] aware of the facility, was described as ‘shocked’, but nonetheless approved. [REDACTED] By mid-2003 the CIA had concluded that its completed, but still unused ‘holding cell’ in Country [REDACTED] was insufficient, given the growing number of CIA detainees in the program and the CIA’s interest in interrogating multiple detainees at the same detention site. The CIA thus sought to build a new, expanded detention facility in the country. The CIA also offered $ [one digit number blackened] million to the [REDACTED] to ‘show appreciation’ for the [REDACTED] support for the program. According to a CIA cable however [long passage blackened]. While the plan to construct the expanded facility was approved by the [REDACTED] of Country [REDACTED], the CIA and [passage redacted] developed complex mechanisms to [long passage REDACTED] in order to provide the $ [one digit number blackened] million to the [REDACTED]. [REDACTED] in Country [REDACTED] complicated the arrangements. [long passage REDACTED] when the Country [REDACTED] requested an update on planning for the CIA detention site, he was told [REDACTED] – inaccurately – that the planning had been discontinued. In [date REDACTED], when the facility received its first detainees, [REDACTED] informed the CIA [REDACTED] that the [REDACTED] of Country [REDACTED] ‘probably has an incomplete notion [regarding the facility’s] actual function, i.e., he probably believes that it is some sort of [REDACTED] center.” 148. In the chapter entitled “The Pace of CIA Operations Slows; Chief of Base Concerned About ‘Inexperienced, Marginal, Underperforming’ CIA Personnel; Inspector General Describes Lack of Debriefers As ‘Ongoing Problem’”, the section referring to Detention Site Violet reads as follows: “[REDACTED] In 2004, CIA detainees were being held in three countries: at DETENTION SITE BLACK in Country [REDACTED], at the [redacted] facility [REDACTED] in Country [REDACTED], as well as at detention facilities in Country [REDACTED]. DETENTION SITE VIOLET in Country [REDACTED] opened in early 2005.” 149. In the chapter entitled “Press Stories and the CIA’s Inability to Provide Emergency Medical Care to Detainees Result in the Closing of CIA Detention Facilities in Countries [REDACTED] and [REDACTED]”, the section referring to the disclosure regarding CIA secret prisons in Europe published in the Washington Post and the closure of Detention Site Black and Detention Site Violet reads as follows: “In October 2005, the CIA learned that the Washington Post reporter Dana Priest had information about the CIA’s Detention and Interrogation Program, [REDACTED]. The CIA then conducted a series of negotiations with The Washington Post in which it sought to prevent the newspaper from publishing information on the CIA’s Detention and Interrogation Program. ... After publication of the Washington Post article, [REDACTED] Country [REDACTED] demanded the closure of DETENTION SITE BLACK within [REDACTED two-digit number]. The CIA transferred the [REDACTED]| remaining CIA detainees out of the facility shortly thereafter. ... [long passage REDACTED] In [REDACTED] Country [REDACTED] officers refused to admit CIA detainee Mustafa Ahmad al-Hawsawi to a local hospital despite earlier discussions with country representatives about how a detainee’s medical emergency would be handled. While the CIA understood the [REDACTED] officers’ reluctance to place a CIA detainee in a local hospital given media reports, CIA Headquarters also questioned the ‘willingness of [REDACTED] to participate as originally agreed/planned with regard to provision of emergency medical care’. After failing to gain assistance from the Department of Defense, the CIA was forced to seek assistance from three third-party countries in providing medical care to al-Hawsawi and four other CIA detainees with acute ailments. Ultimately, the CIA paid the [REDACTED] more than $ [two-digit number redacted] million for the treatment of [name REDACTED] and [name REDACTED], and made arrangements for [name REDACTED] and [name REDACTED] be treated in [REDACTED]. The medical issues resulted in the closing of DETENTION SITE VIOLET in Country [REDACTED] in [five characters for the month REDACTED] 2006. The CIA then transferred its remaining detainees to DETENTION SITE BROWN. At that point, all CIA detainees were located in Country [REDACTED]. ... The lack of emergency medical care for detainees, the issue that had forced the closing of DETENTION SITE VIOLET in Country [REDACTED] was raised repeatedly in the context of the construction of the CIA detention facility in Country [REDACTED]. ... In early January 2006, officials at the Department of Defense informed CIA officers that Secretary of Defense Rumsfeld had made a formal decision not to accept any CIA detainees at the U.S. military base at Guantánamo Bay, Cuba. At the time, the CIA was holding 28 detainees in its two remaining facilities, DETENTION SITE VIOLET, in Country [REDACTED], and DETENTION SITE ORANGE, in Country [REDACTED]. In preparation for a meeting with Secretary of Defense Rumsfeld on January 6, 2006, CIA Director Goss was provided a document indicating that the Department of Defense’s position not to allow the transfer of CIA detainees to U.S. military custody at Guantánamo Bay ‘would cripple legitimate end game planning’ for the CIA.” 150. The applicant submitted that throughout his detention by the CIA he had been subjected to torture and other forms of ill-treatment prohibited by Article 3 of the Convention. In that regard he relied, among other things, on his own description of his experience in CIA custody and conditions of detention, as related in the 2007 ICRC Report. The report was based on interviews with the applicant and thirteen other high-value detainees, including Mr Al Nashiri, after they had been transferred to military custody in Guantánamo (for more details, see paragraphs 296-299 below). 151. Annex I to the 2007 ICRC Report contains examples of excerpts from some of the interviews conducted with the fourteen prisoners. These excerpts are reproduced verbatim. The verbatim record of the interview with the applicant gives details of his ill-treatment in the CIA custody “regarding his detention in Afghanistan where he was held for approximately nine months from May 2002 to February 2003”. The applicant’s account of the abuse that he endured in CIA custody as rendered in the 2007 ICRC Report reads, in so far as relevant, as follows: “I was then dragged from the small box, unable to walk properly, and put on what looked like a hospital bed, and strapped down very tightly with belts. A black cloth was then placed over my face and the interrogators used a mineral water bottle to pour water on the cloth so that I could not breathe. After a few minutes the cloth was removed and the bed was rotated into an upright position. The pressure of the straps on my wounds was very painful. I vomited. The bed was then again lowered to a horizontal position and the same torture carried out again with the black cloth over my face and water poured on from a bottle. On this occasion my head was in a more backward, downwards position and the water was poured on for a longer time. I struggled against the straps, trying to breathe, but it was hopeless. I thought I was going to die. I lost control of my urine. Since then I still lose control of my urine when under stress. I was then placed in the tall box again. While I was inside the box loud music was played again and somebody kept banging repeatedly on the box from the outside. I tried to sit down on the floor, but because of the small space the bucket of urine tipped over and spilt over me. ... I was then taken out and again a towel was wrapped around my neck and I was smashed into the wall with the plywood covering and repeatedly slapped in the face by the same two interrogators as before. I was then made to sit on the floor with a black hood over my head until the next session of torture began. The room was always kept very cold. This went on for approximately one week. During this time the whole procedure was repeated five times. On each occasion, apart from one, I was suffocated once or twice and was put in the vertical position on the bed in between. On one occasion the suffocation was repeated three times. I vomited each time I was put in the vertical position between the suffocations. During that week I was not given any solid food. I was only given Ensure to drink. My head and beard were shaved every day. I collapsed and lost consciousness on several occasions. Eventually the torture was stopped by the intervention of the doctor.” 152. A more detailed description of various methods of ill-treatment inflicted on the applicant as related in the 2007 ICRC Report and the 2004 CIA Report can be found in Husayn (Abu Zubaydah) v. Poland, cited above, §§ 102-107). 153. In connection with the fact-finding hearing, the applicant also produced an extract from partly declassified transcripts of hearings before the Combatant Status Review Tribunal in Guantánamo, held on 27 March 2007, during which he had related his treatment in CIA custody. That document was released on 13 June 2016. It reads, in so far as relevant, as follows: “In the name of God the Merciful. Mr. President and Members of the Tribunal, I would have liked to have spoken to you today on my own, but I have been having seizures lately which have temporarily affected my ability to speak and write without difficulty. Therefore, I asked my Personal Representative to speak on my behalf. I hope from you justice, and I know that is what you seek. Do not make the mistake the CIA has made when they first arrested me on 28 March 2002. After months of suffering and torture, physically and mentally, they did not care about my injuries that they inflicted to my eye, to my stomach, to my bladder, and my left thigh and my reproductive organs. They didn’t care that I almost died from these injuries. Doctors told me that I nearly died four times. Then they transferred me to a secret location. They transferred me in a way that a normal, ordinary person would be embarrassed to be treated. They even prevented me from going to the bathroom at least five times, and sometimes I was deprived from being able to go to the bathroom for 24 to 36 hours when we travelled. ... They did this to me because they thought I was the number three leader in al Qaida and a partner to USAMA BIN LADEN, as is mentioned in the unclassified Summary of Evidence against me. ... First thing, during I’m still – I was in – still in the hospital. They would ask me and I would answer. From the hospital, after, I don’t know how many months, how many times. They take me to their secret place. From that lime I was naked. And I think you know how much it is the bad for us as the Muslims, and I think it is problem for you as Christian or Jew. I don’t know but at least for us, it was very bad thing. I was too weak; they make me sleep in a metal bed, [via Language Analyst] a medical metal bed. It look like this. Naked and feel cold and this still bleeding [pointing to the inside of left thigh urea] from this area. ... So it take days and days, too cold place, naked and position sleeping. After this, they put me in the chair – same circumstance – naked, too much cold, no food, only Ensure [Language Analyst clarifies Ensure –Force feeding Ensure]. ... And they not give me chance, all this, maybe one-two week, I don’t know the time. No food, no sleep, not allowed to sleep. When I feel sleep, they shake me like this [shaking chair] or make me stand. But all that time I am sitting twenty-four hours, only sorry again, when I use the toilet, bucket, not real toilet, bucket near of me and in front of them, and from that time I feel shy ... So all that time they ask me, they talk. One person talk and they leave another two, another two another two, no sleeping, no food, nothing, and cold, cold. ... After time, I don’t know how many, it’s weeks and weeks, they give me chance to sleep once. Maybe once in the two months, two weeks. I don’t know exactly, once a month. I again make me sit on the floor. Also cold, naked, try to cover my private part, because the shackles even I can’t because kind of chair like this but it have [via President and Language Analyst arm rest]. So I tried to cover nothing and start makes me stand hours and hours. ... I request, I tell him, ‘do as you like; tell me the time I want to pray. No chance to pray. Give me the time and not need water. I need pray without cleaning. I should make some cleaning before I pray’. I make request number of time. Nothing. After this put me in the big box same my tall but it’s not and they put the bucket with me. Toilet bucket. I had no chance to sit, only in the bucket and because the bucket its not have cover or sometime they put cover I found myself inside the bucket like this [trying to move and show while in chair]. And the place too close; I take hours and hours ‘til he came and save me from the bucket, again and again sorry it full of urine. And start from that time-time and time put me in this and put me in small box. I can’t do anything. I can’t sit stay do anything and hours and hours. Start beat me in the wall ... Beat me badly in the back, in my back, in my head. Last thing, of course same thing use again and again, different time, plus they put me in the same [via Language Analyst] a medical bed. They shackle me completely, even my head; I can’t do anything. Like this and they put one cloth in my mouth and they put water, water, water. ... Last thing they do they – I am still shackled. I was naked; I am naked; they bring the [via Language Analyst] interrogator, female interrogator in front. I was naked, like this. ... But the truth after this after the second – or second – after one complete year, two year, they start tell me the time for the pray and slowly, slowly, circumstance became good. They told me sorry we discover that you are not number three, not a partner even not a fighter. ...” 154. At the fact-finding hearing Mr J.G.S. made the following statements concerning the treatment to which the applicant could be subjected during his alleged detention in Lithuania: “The bulk of the enhanced interrogation to which Mr Zubaydah was subjected is clearly documented as having taken place in Thailand. There he was waterboarded and there he was subjected to a grotesque form of experimentation whereby unauthorised and sometimes barely authorised techniques were practised upon him as the CIA developed its early rules and regulations as to how detainees could lawfully be interrogated. By the time he reached Poland, however, he had been declared compliant. So it is not possible to state with certainty which additional techniques were used on him in Europe.” In reply to the judges’ further question regarding that matter, he stated: “It is not possible to pronounce categorically on specific interrogation techniques or other forms of treatment or ill-treatment practised on Mr Zubaydah in Lithuania, because, again, they are not explicitly described in any of the reports available to us in the public domain. However, I would be prepared to state that the conditions of confinement in the ‘black site’ in Lithuania alone pass a threshold that in our human rights protection culture, signified by the European Convention on Human Rights, amounts to a violation of Article 3. There are, by routine and described in documents, practices such as sensory deprivation, sleep deprivation, denial of religious rights, incommunicado detention, indefinite detention on a prolonged basis, as well as a variety of conditioning techniques, as the CIA calls them, which in any other case would themselves be considered forms of ill-treatment. Here they do not even warrant mention in the reporting, because they had become commonplace, but I would not wish for the absence of explicit descriptions of waterboarding or other EITs to be taken as a sign that he was not ill-treated during his time in Lithuania. And I should also point out that, having been detained at that point for more than three years and even up to four years in the totality of his transfer through the sites, there must have been a cumulative effect to the ill-treatment which he underwent at the hands of his captors.” 155. Mr Black testified as follows: “... [I]t is true that relatively there is less information about treatment of prisoners in the CIA detention programme in 2005-2006 than there is in the previous years. There are a few exceptions to this. The recently declassified Memorandum from the CIA’s Office of Medical Services, which is part of the batch of the records declassified earlier this month, is dated December 2004. It comes into force directly prior to the time that – I take - Abu Zubaydah to have been rendered into Lithuania. This document describes basically the full range of enhanced interrogation techniques, in other words it makes clear that as of December 2004 and thus into 2005, that this full range of techniques is available, it is on the menu. In terms to what extent these techniques were used, we have relatively few indications but there are a couple that I think are worth mentioning. The Senate Report states that there are several occasions on which for example the CIA failed to adhere to his own guidelines in keeping naked prisoners in cold conditions. The guidelines are set out in the Memorandum that I just mentioned, the December 2004 Office of Medical Services Memorandum. The Senate Report says that after that Memorandum, going up until the last time it cites is December 2005, there were prisoners who were being held in colder conditions than what this Memorandum sanctioned. Likewise there were prisoners who were captured in 2005, including Abu Faraj al-Libbi, whom we know from the Senate Report was exposed to lengthy sleep deprivation. Beyond that I do not have any further information about precise conditions, although it is clear – it has been reiterated by the recent batch of declassified documents – that during this time 2005 – 2006, prisoners continued to be held in solitary confinement, that is clear. It is also clear that prior to their arrival in the last site in Afghanistan, which was in March 2006, they did not have any access to natural light. The first time they had access to natural light was following that arrival in March 2006. That is pretty much all I can say on the topic.” 156. The 2014 US Senate Committee Report states that “from Abu Zubaydah’s capture ... to his transfer to Department of Defense custody on September 5, 2006, information provided by Abu Zubaydah resulted in 766 disseminated intelligence reports”, of which ninety-five were produced during the initial phase of his detention in April and May 2002 (which included a period during which the applicant was on life support and unable to speak) and ninety-one during the months of August and September 2002. 157. In his initial submissions the applicant maintained that after he had been transferred by extraordinary rendition out of Lithuania, he had been detained in an undisclosed facility in a third country, from where he had later been transferred to US custody at Camp 7 at the US Naval Base at Guantánamo Bay, Cuba. 158. As stated above, according to the experts, on 25 March 2006 the applicant was transferred from Lithuania to Afghanistan via a double-plane switch in Cairo and was subsequently detained at the CIA’s only remaining detention facility – Detention Site Brown (see paragraphs 133-134, 138 and 140-144 above). 159. The 2014 US Senate Committee Report refers to Detention Site Brown in the context of rendition and secret detention of Khalid Sheikh Mohammed (referred to as “KSM”) as follows: “KSM was transferred to DETENTION SITE [REDACTED] on [day and month REDACTED] 2005, to DETENTION SITE BROWN on March [two-digit date REDACTED] 2006, and to U.S. military detention at Guantánamo Bay, Cuba, on September 5, 2006.” 160. The 2014 US Senate Committee Report states that the applicant “was transferred to U.S. military custody on September 5, 2006.” 161. Since 5 September 2006 the applicant has been detained in the US Guantánamo Bay Naval Base in the highest security Camp 7 in – as described by his lawyers – “extreme conditions of detention”. Camp 7 was established in 2006 to hold the high-value detainees transferred from the CIA to military custody. Its location is classified. It currently holds fifteen prisoners, including the applicant and Mr Al Nashiri. Visitors other than lawyers are not allowed in that part of the Internment Facility. The inmates are required to wear hoods whenever they are transferred from the cell to meet with their lawyers or for other purposes. The applicant is subjected to a practical ban on his contact with the outside world, apart from mail contact with his family. 162. The Inter-American Commission on Human Rights’ Report “Towards the Closure of Guantánamo”, published on 3 June 2015, describes general conditions in Camp 7 as follows: “120. Although progress has been made to improve conditions of detention at Guantánamo, there are still many areas of concern. The Inter-American Commission notes in this regard that detainees at Camp 7 do not enjoy the same treatment accorded to other prisoners; that health care faces many challenges, in particular given the ageing population at Guantánamo; and that religion is still a sensitive issue. Further, the IACHR is especially concerned with the suffering, fear and anguish caused by the situation of ongoing indefinite detention, which has led to several hunger strikes as a form of protest and, in some extreme cases, to the drastic decision by prisoners to end their lives. ... 122. The Inter-American Commission has received troubling information regarding prison conditions at Camp 7, a single-cell facility currently used to house a small group of special detainees, known as ‘high-value detainees’. These detainees are reportedly held incommunicado and are not subject to the same treatment accorded to other prisoners. On May 20, 2013, a group of eighteen military and civilian defense counsel representing the ‘high-value detainees’ sent a joint request to Secretary of Defense Charles Hagel to improve the conditions of confinement in Guantánamo. They pointed out that these detainees are not permitted to contact their families by telephone or video; that their access to religious materials has been restricted (such as the sayings and descriptions of the life of the Prophet Mohammed); that they have limited recreational opportunities; and that they are not permitted to participate in group prayer, contrary to the entitlements of other detainees. ... 136. The Inter-American Commission considers that the conditions of confinement described above constitute a violation of the right to humane treatment. Further, in order to guarantee that prisoners’ rights are effectively protected in accordance with applicable international human rights standards, the State must ensure that all persons deprived of liberty have access to judicial remedies. The IACHR notes with deep concern that prisoners at Guantánamo have been prevented from litigating any aspect of the conditions of their detention before federal courts, which constitutes per se a violation of one of their most fundamental human rights. This point, as well as some recent developments regarding this issue, will be assessed in the chapter on access to justice. Further, as it will be addressed below, detainees’ lack of legal protection and the resulting anguish caused by the uncertainty regarding their future has led them to take the extreme step of hunger strikes to demand changes in their situation.” 163. The applicant has not been charged with any criminal offence. The only review of the basis of his detention was carried out by a panel of military officials as part of the US military Combatant Status Review Tribunal on 27 March 2007 (see also paragraph 153 above). The panel determined that he could be detained. 164. The applicant is not listed for trial by military commission. He is one of the high-value detainees who remain “in indefinite detention” (see also paragraph 80 above). 165. According to the applicant, as a result of torture and ill-treatment to which he was subjected when held in detention under the HVD Programme, he is suffering from serious mental and physical health problems. The applicant’s US counsel have been unable to provide many of the details of his physical and psychological injuries because all information obtained from him is presumed classified. The lawyers have stated that publicly available records described how prior injuries had been exacerbated by his ill-treatment and by his extended isolation, resulting in his permanent brain damage and physical impairment. The applicant is suffering from blinding headaches and has developed an excruciating sensitivity to sound. Between 2008 and 2011 alone he experienced more than 300 seizures. At some point during his captivity, he lost his left eye. His physical pain has been compounded by his awareness that his mind has been slipping away. He suffers from partial amnesia and has difficulty remembering his family. 166. The experts heard by the Court identified the locations of the eight colour code-named CIA detention sites (see paragraph 24 above) as follows: Detention Site Green was located in Thailand, Detention Site Cobalt in Afghanistan, Detention Site Blue in Poland, Detention Site Violet in Lithuania, Detention Site Orange in Afghanistan, Detention Site Brown in Afghanistan, Detention Site Gray in Afghanistan, and Detention Site Black was identified as having been located in Romania (see also paragraphs 122 and 132-145 above; see also Al Nashiri v. Romania, cited above, § 159). 167. The facts set out below are based on the Annex to the Seimas’ Resolution No. XI-659 of 19 January 2010 – “Findings of the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the Central Intelligence Agency of the United States of America on the territory of the Republic of Lithuania” (“CNSD Findings”; see paragraph 173 below), a document which contains a comprehensive description of a parliamentary investigation conducted in Lithuania in 20092010 in the context of the alleged existence of a CIA secret detention facility in the country. 168. On 9 September 2009, in connection with various media reports and publicly expressed concerns regarding the alleged existence of a CIA secret detention facility in Lithuania, the Seimas Committee on National Security and Defence (“the CNSD” or “the Committee”) and the Seimas Committee on Foreign Affairs held a joint meeting at which they heard representatives of State institutions in relation to the media reports concerning the transportation and detention of CIA prisoners in the Republic of Lithuania. The committees did not receive any data confirming the existence of a CIA prison in Lithuania. Written replies submitted to them by State institutions denied that such a prison had ever existed. 169. On 20 October 2009, during his visit to Lithuania, the Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg urged the authorities to carry out a thorough investigation concerning the suspicions that a secret CIA prison had operated in the country. 170. On 20 October 2009, at a press conference, the President of the Republic, Ms Dalia Grybauskaitė, in reply to questions regarding the alleged existence of a CIA prison in Lithuania, said that she had “indirect suspicions” that it could have been in Lithuania. 171. On 5 November 2009 the Seimas adopted Resolution No. XI-459, assigning the CNSD to conduct a parliamentary investigation into the allegations of transportation and confinement of individuals detained by the CIA on Lithuanian territory. The following questions were posed to the CNSD: (1) whether CIA detainees were subject to transportation and confinement on the territory of the Republic of Lithuania; (2) whether secret CIA detention centres had operated on the territory of the Republic of Lithuania; (3) whether State institutions of the Republic of Lithuania (politicians, officers, civil servants) considered issues relating to activities of secret CIA detention centres or transportation and confinement of detainees in the Republic of Lithuania. 172. While conducting the parliamentary investigation, the CNSD interviewed, either orally or in writing, fifty-five individuals who might have been aware of information or who declared that they were aware of information relating to the issues under investigation. The Committee interviewed politicians, civil servants and officers who had held office between 2002 and 2005 or at the time of the investigation, including, among others, the Presidents of the Republic, the Speakers of the Seimas, the Prime Ministers, the Members of the European Parliament, the Ministers of National Defence, Foreign Affairs and the Interior, the Vice Minister of the Interior, the Commanders of the Armed Forces, the Chairmen and members of the Seimas Committee on National Security and Defence and the Seimas Committee on Foreign Affairs, the Directors and the Deputy Directors of the State Security Department (“SSD”), the Director and the Deputy Directors of the Second Investigation Department under the Ministry of National Defence, the Commanders and the Deputy Commanders of the State Border Guard Service at the Ministry of the Interior (“SBGS”), advisers to the Presidents of the Republic, the Director of the Civil Aviation Administration, the Director of Vilnius International Airport and the Aviation Security Director of Vilnius International Airport. 173. In addition, requests for submission of information in writing were addressed to the various ministries, the civil aviation administration, the SBGS, Vilnius International Airport, the Customs Department and other authorities. Requests were also submitted to the international organisation Amnesty International, Senator Dick Marty and, with the assistance of the Ministry of Foreign Affairs, the relevant authorities in the United States. The authorised representatives of the latter replied orally. In the course of the parliamentary investigation, some facilities and premises were inspected. 174. On 19 January 2010 the Seimas adopted Resolution No. XI-659, whereby it endorsed the CNSD Findings, which, in so far as relevant, read as follows: “1. Were CIA detainees subject to transportation and confinement on the territory of the Republic of Lithuania? According to the data of the state enterprise Oro navigacija [Air Navigation], in 2002-2005 the US aircraft referred to in the media and official investigations of the European Parliament as aircraft used to transport CIA detainees, i.e. N85VM (GLF4), N2189M (C-130), N8183J (C-130), N8213G (C-130), 510MG (GLF4), N313P (Boeing 737), No N379P, (GLF5), N1HC (GLF5), crossed Lithuania’s airspace on 29 occasions. These data were presented on 28 April 2006 when preparing a reply to an inquiry by Dick Marty, Chairman of the Committee on Legal Affairs and Human Rights of the Parliamentary Assembly of the Council of Europe, regarding the numbers of 41 aircraft indicated therein. In the course of the investigation, the Committee established that three occasions of crossing of Lithuania’s airspace were omitted in the mentioned reply to ... D. Marty ... and in the data provided by the state enterprise Oro navigacija: (1) CASA C-212 N96IBW, landed in Palanga on 2 January 2005; (2) Boeing 737 N787WH, landed in Palanga on 18 February 2005; (3) Boeing 737 N787WH, landed in Vilnius on 6 October 2005. In the course of the investigation, with a view to verifying whether the CIA-related aircraft indicated in the material of the Temporary Committee of the European Parliament landed at Lithuania’s airports and whether the enterprises referred to in the material made financial settlements for servicing of these aircraft, the Civil Aviation Administration was addressed and provided the information on the flights of the US aircraft, based on the data and financial documents of the companies and aircraft service enterprises operating at Vilnius, Kaunas, Šiauliai and Palanga airports. When comparing the submitted data with the material of the Temporary Committee of the European Parliament, it was established that: Two CIA-related aircraft landed at Vilnius International Airport: (1) ’C-130’, registration No N8213G (4 February 2003, route Frankfurt-Vilnius-Warsaw, landed at 6.15 p.m., departed at 7.27 p.m.); 2) ’Boeing 737’, registration No N787WH (6 October 2005, route Antalya-Tallinn-Vilnius-Oslo. A letter from Vilnius International Airport dated 7 December 2009 states that this aircraft arrived from Tirana at 4.54 a.m. and departed at 5.59 a.m. According to the documents of the SBGS, this aircraft arrived from Antalya and departed for Oslo). Three CIA-related aircraft landed at Palanga International Airport: (1) ’CASA C-212’, registration No N961BW (2 January 2005, operator Presidential Airways, route Flesland (Norway)-Palanga-Simferopol (Ukraine), departed on 5 January 2005 at 9 a.m.); (2) ’Boeing 737’, registration No N787WH (18 February 2005, operator Victory Aviation, route Bucharest-Palanga-Copenhagen, arrived at 6.09 p.m., departed at 7.30 p.m. It was recorded that the aircraft arrived carrying five passengers and three crew members); (3) ’Boeing 737-800’, registration No N733MA (25 March 2006, route Porto (Portugal)-Palanga-Porto, arrived at 10.25 p.m. and departed at 11.55 p.m.). In the course of the investigation, the Committee did not establish any cases of CIArelated aircraft landing at Kaunas and Šiauliai airports. Attention should be drawn to the fact that the Committee did not receive any data or documents from Vilnius International Airport or airport service companies confirming that on 20 September 2004 and in July 2005 (the exact date was not specified by the US television channel ABC News) presumable CIA-related aircraft landed at Vilnius International Airport. In the course of the parliamentary investigation, the SSD submitted information regarding its cooperation with the SBGS in 2002-2006. It is evident from the documents submitted to the Committee that there had been an intensive exchange of data (including data provided by partners regarding the search for persons suspected of terrorism) in the field of combating terrorism. A period of time from April 2004 until September 2005 during which the SSD did not provide any information on the suspected terrorists to the SBGS should be singled out. During the investigation, three occasions were established on which, according to the testimony of the SSD officers, they received the aircraft and escorted what was brought by them with the knowledge of the heads of the SSD: (1) ’Boeing 737’, registration No N787WH, which landed in Palanga on 18 February 2005. According to data submitted by the SBGS, five passengers arrived in that aircraft, none of whom was mentioned by the former Deputy Director General of the SSD Dainius Dabašinskas in the explanations he gave the Committee at the meeting. According to Customs data, no thorough customs inspection of the aircraft was carried out and no cargo was unloaded from it or onto it; (2) ’Boeing 737’, registration No N787WH, which landed in Vilnius on 6 October 2005. According to data submitted by the SBGS, its officers were prevented from inspecting the aircraft; therefore, it is impossible to establish whether any passengers were on board of the aircraft. No customs inspection of the aircraft was carried out; (3) ’Boeing 737-800’, registration No N733MA, which landed in Palanga on 25 March 2006. According to Customs data, no customs inspection was carried out. The documents of the SBGS contain no records of the landing and inspection of this aircraft. Persons providing explanations to the Committee indicated that in similar cases cooperation takes place in accordance with the provisions of the Law on Intelligence in relation to the provision of assistance to an intelligence service in getting unrestricted access to aircraft and access to/departure from the territory of the airport; however, as indicated by the information submitted by the SBGS, upon the landing of the unscheduled aircraft from Antalya at Vilnius International Airport at 5.15 am on 6 October 2005, civil aviation officers prevented the SBGS officer from approaching the aircraft. In his official report, the officer stated that a car drove away from the aircraft and left the territory of the airport border control point. Upon contacting the civil aviation officers, it was explained that the heads of the SBGS had been informed of the landing of the above mentioned aircraft and the actions taken by the civil aviation officers. The letter from the SSD marked as ‘CLASSIFIED’ regarding the mentioned event was received by the SBGS on 7 October 2005, i.e., post factum. It should to be noted that before the above mentioned event, the SSD had never issued any letters of similar content to other services. The explanations provided in the course of the investigation make it evident that oral arrangements had been made with representatives of the airport and aviation security. In the course of the investigation, another occasion was established on which the SSD applied to the SBGS with a similar letter (24 March 2006) in relation to the flight of an aircraft to Palanga airport on 25 March 2006. As explained by the heads of the SBGS, this is a common cooperation practice. According to Commander of the SBGS General S. Stripeika, had the SBGS received the letter from the SSD before 6 October 2005, the incident would have not occurred and officers of the SBGS would have not interfered with the activities of the SSD. In 2002-2005, the aircraft which official investigations link to the transportation of CIA detainees crossed the airspace of the Republic of Lithuania on repeated occasions. The data collected by the Committee indicate that CIA-related aircraft did land in Lithuania within the mentioned period of time. The Committee failed to establish whether CIA detainees were transported through the territory of the Republic of Lithuania or were brought into or out of the territory of the Republic of Lithuania; however, conditions for such transportation did exist. Deputy Director General of the SSD D. Dabašinskas, with the knowledge of Director General of the SSD A. Pocius, provided the US officers with opportunities to have unrestricted access to the aircraft on at least two occasions. In addition, at least on one occasion the opportunities for inspection of the aircraft by the SBGS officers were deliberately restricted. In all the above-mentioned cases, there was no customs inspection. Therefore, it was impossible to establish either the identity of the passengers or the purpose of the cargo. 2. Did secret CIA detention centres operate in the territory of the Republic of Lithuania? The cases of partnership cooperation which are of relevance to the parliamentary investigation, carried out by the SSD in 2002-2006 and involving the equipment of certain tailored facilities, may be referred to as Project No. 1 and Project No. 2. Based on the information received in the course of the parliamentary investigation, the implementation of partnership cooperation Project No. 1 was commenced by the SSD in 2002. In the course of the project, facilities suitable for holding detainees were equipped, taking account of the requests and conditions set out by the partners. Director General of the SSD M. Laurinkus and his deputy D. Dabašinskas both had knowledge of the project. When instructing the contractors to equip the facilities, the latter mentioned that the project ‘had been blessed by the top officials of the State’; however, according to the testimony of the then political leadership, they had not been informed of it. According to the data available to the Committee, the facilities were not used for the purpose of holding detainees. At present, they are used for other purposes. The SSD submitted information that based on the documents held by the SSD, these facilities were equipped for the purpose other than holding detainees. The implementation of Project No. 2, which was also examined in the course of the parliamentary investigation, was commenced by the SSD in the beginning of 2004. The necessary acquisitions were made for the purpose of implementation of the project, construction works were carried out to equip the facility, with the progress of works ensured by the partners themselves. The building was reconstructed to meet certain security requirements. The SSD officers participated in the implementation of this project together with partners and, according to the officers, had unrestricted access to all the premises of the facility, however, when representatives of the partners were present in the facility, they did not visit some of the premises. The time of such meetings and adequate arrangements were communicated to the SSD officers by Deputy Director General of the SSD D. Dabašinskas. According to the SSD officers, representatives of the partners were never left alone in the facility. They were always accompanied by either D. Dabašinskas or one of the SSD officers. According to the information received in the course of the investigation, it is evident that the SSD did not seek to control the activities of the partners in Project No. 2. The SSD did not monitor and record cargoes brought in and out and did not control the arrival and departure of the partners; in addition, the SSD did not always have the possibility to observe every person arriving and departing. The procedure for accounting and using monetary funds and material valuables intended for financing of joint actions is approved by internal regulations of the SSD, however, based on the explanation provided in the course of the parliamentary investigation regarding one of the implemented joint projects and monetary funds used for its implementation, the accounting of these funds was inappropriate. Explanations provided by individual persons in relation to the sources of financing of joint actions, amounts of monetary funds used for separate actions or accounting thereof are not consistent and therefore require further investigation. The Committee established that the SSD had received a request from the partners to equip facilities in Lithuania suitable for holding detainees. While implementing Project No. 1 in 2002, conditions were created for holding detainees in Lithuania; however, according to the data available to the Committee, the premises were not used for that purpose. The persons who gave testimony to the Committee deny any preconditions for and possibilities of holding and interrogating detainees at the facilities of Project No. 2; however, the layout of the building, its enclosed nature and protection of the perimeter as well as fragmented presence of the SSD staff in the premises allowed for the performance of actions by officers of the partners without the control of the SSD and use of the infrastructure at their discretion. 3. Did state institutions of the Republic of Lithuania (politicians, officers and civil servants) consider the issues relating to activities of secret CIA detention centres in the territory of the Republic of Lithuania, transportation and confinement of detainees in the territory of the Republic of Lithuania? The Committee received certain information about international cooperation of the SSD with partners and application of special measures provided for in the Law on Intelligence during joint operations. The legal basis of international cooperation of the SSD is laid down in the Law on Intelligence. ... When summarising [the relevant provisions of the Law on Intelligence], a conclusion should be drawn that legal acts do not directly require the directions (tasks) of international cooperation of the SSD to be approved at any specific political level (at the State Defence Council, the CNSD); such directions (tasks) used to arise from a general need for international cooperation and direct contacts of the SSD with secret services of other countries. However, in seeking to obtain recommendations of the State Defence Council concerning international cooperation, the SSD could submit to the State Defence Council (or the President of the Republic, who initiates sittings of the State Defence Council) the information necessary to draw up such recommendations. In 2002-2005, such issues were not considered at the State Defence Council and there were no recommendations. This is partially confirmed by the letter of the Secretary of the State Defence Council of 3 December 2009, stating that in 2001-2005 wide-scale direct cooperation between the SSD and CIA was mentioned only once - at a sitting of the State Defence Council (19 September 2001) when considering the issue on international terrorism and anti-terrorist actions and prevention, crisis management and the legal base. None of the country’s top officials, according to them, were informed about the purposes and content of partnership cooperation of the SSD in 2002. Only several officers of the SSD had knowledge of Project No. 1. According to the testimony of the former Director General of the SSD M. Laurinkus, in mid-2003 he informed the then President of the Republic R. Paksas about a possibility, after Lithuania’s accession to NATO, to receive a request to participate in the programme concerning the transportation of detainees. According to the testimony of R. Paksas, Lithuania was requested permission to bring into the country the persons suspected of terrorism. The information submitted to the President of the Republic did not contain any mention of a detention centre or a prison. In August of the same year, when President of the Republic R. Paksas enquired the then acting Director General D. Dabašinskas if there was any new information concerning Lithuania’s participation in the said programme, he was told that there was no new information. Although Director General of the SSD M. Laurinkus received a negative answer from President of the Republic R. Paksas regarding the bringing into the Republic of Lithuania of persons interrogated by the USA, neither the then President of the Republic R. Paksas nor acting President of the Republic A. Paulauskas was asked for political approval of activities under Project No. 2. M. Laurinkus had knowledge of launching the activities under Project No. 2 in MarchApril 2004. According to President of the Republic V. Adamkus, he was informed about cooperation with the USA in general terms and no information was provided to him about running of Project No. 2 in 2004-2006. According to A. Pocius, President of the Republic V. Adamkus and his advisors were adequately informed of the project. Several SSD officers, including M. Laurinkus, A. Pocius, D. Dabašinskas, had the knowledge of Project No. 2 at the time of launching and running thereof. On 18 August 2009, Head of the SSD P. Malakauskas informed President of the Republic D. Grybauskaitė (as well as former Presidents of the Republic V. Adamkus and A. M. Brazauskas) that ABC News was preparing articles about the CIA detainees who had allegedly been confined in Lithuania and planning to name one of the facilities owned by the SSD as a prison. P. Malakauskas could not deny the possibility of confinement in Lithuania of the persons detained by the CIA. Likewise, while considering the reports of the SSD, the CNSD was provided information about international cooperation in a fragmentary manner. For instance, when considering the SSD’s activity report of 2003, it was mentioned that ‘cooperation with NATO member states is in progress. A wish for more active cooperation with the SSD can already be perceived on the side of the Allies, which will require additional staff, investments.’ Decisions of the CNSD on the SSD’s reports never contained any proposals concerning international cooperation. Information gathered by the Committee and the explanations received by it show that the State Defence Council, the Government and the Seimas have not considered issues relating to any activities of secret CIA detention centres in the territory of the Republic of Lithuania, or to the transportation and confinement of detainees in the territory of the Republic of Lithuania. According to the country’s top officials (Presidents of the Republic, Prime Ministers, and Speakers of the Seimas), the members of the CNSD of the Seimas were informed about the international cooperation between the SSD and the CIA in a general fashion, without discussing specific operations or their outcomes. The mention of wide-scale direct cooperation between the SSD and CIA was made only once, at a sitting of the State Defence Council (19 September 2001) when considering the issue of international terrorism and anti-terrorist actions and prevention, crisis management and the legal bases for all these. Transportation and detention of detainees were not discussed at the sitting of the State Defence Council of Lithuania. The CNSD of the Seimas was not informed of the nature of the cooperation taking place. On the basis of the information received, the Committee established that when carrying out the SSD partnership cooperation Project No. 1 and Project No. 2, the then heads of the SSD did not inform any of the country’s top officials of the purposes and content of the said Projects.” 175. The final proposal was formulated as follows: “to propose to the Prosecutor General’s Office to investigate whether the actions of M. Laurinkus, A. Pocius and D. Dabašinskas had elements of abuse of office or exceeding authority”. 176. The findings were accompanied by eight recommendations, including, among other things, “enhancing coordination and control of activities of intelligence services”, “improving the provision of information to the country’s top officials” and “improving provisions of the Law on Intelligence”. 177. The applicant supplied a summary of the transcripts of the debates on the CNSD Findings held in the Lithuanian Parliament on 14 January 2010. 178. That documents reads, in so far as relevant, as follows: “MP A. Anušauskas, Chairman of the CNSD, is invited to present the draft Resolution on the Findings. ... During the investigation, the Committee obtained considerable amount of secret information, ranging from restricted to highly classified information marked as ‘Top Secret’. Because of the high amount of classified information, the preparation of the findings was not an easy task. The classified information was related to the activities of secret services and subtle options the services use in their work. Without these subtle options, neither intelligence nor cooperation with the special services of other states in such areas as fight with terrorism would be possible. Despite that, parliamentary control of secret services must nevertheless be exceptional and strong. Some of the data, gathered during the investigation, were not made public as it constitutes a state secret. To summarize the investigation, the Committee has established that CIA aircraft have landed in Lithuania. It has not established whether the persons detained by the CIA were transported to or transferred through the Lithuanian territory; the heads of the SSD at that time created conditions for the U.S. officers to access the planes unobstructed at least on two occasions. Moreover, at least once State Border Guard Service officers were prevented from performing border control checks. During all of the mentioned incidents, customs inspections were not carried out. The Committee has established that the SSD received a request from partners to install premises in Lithuania, suitable for keeping detainees. ... 423. As noted above, the Government dismissed the applicant’s allegations as being unsupported by any evidence and, consequently, lacking any factual basis. They also challenged the credibility of the evidence relied on by the applicant and denied that Lithuania had any knowledge of, or complicity in, the operation of the CIA HVD Programme on its territory at the material time (see paragraphs 398-405 above). The Government’s conclusions on the facts and evidence were as follows. 424. The Government contested the evidential value of the material produced by the applicant. They stressed that most of that material had originated in various public sources whose credibility had not been verifiable. The Government would not play down the significance of publicly available information about the CIA’s HVD Programme; indeed, in the El-Masri case (cited above) similar material on public record had been taken into account by the Court. However, in contrast to the present case, that material had constituted merely a supplementary source for the Court’s findings. In El-Masri the Court had relied first of all on the applicant’s description of the circumstances, which had been very detailed and, secondly, on indirect evidence obtained during the international inquiries and the investigation in Germany. The Court had had at its disposal scientific evidence, such as a test of the applicant’s hair follicles, geological records confirming the applicant’s recollection or sketches of the layout of the prison in Afghanistan that the applicant had drawn. Only in addition had the Court relied on the material available in the public domain. In the present case, the applicant had built his case the other way round, starting from publicly available information and, in fact, also finishing with it as he had been unable to produce any other evidence. 425. As regards the applicant’s reliance on the case of Richmor Aviation Inc. v. Sportsflight Air Inc. (see paragraphs 450-451 below), the Government saw little, if any, connection with his alleged detention in Lithuania. The case had concerned a commercial dispute between two aviation companies, where the plaintiff, Richmor Aviation, had submitted an invoice to Sportsflight Air demanding payment for unused flight time for thirty-two months between May 2002 and January 2005. It did not appear that the companies had exclusively carried out rendition flights. The aircraft mentioned in the case-file differed from those appearing in the present case. The events that had given rise to the litigation had occurred prior to the flights to Lithuania, before February 2005. Even if the witnesses in the Richmor case had given some fragmentary testimony to the effect that the flights contracted by the US Government through the companies at the material time (from May 2002 to January 2005) and performed by the Gulfstream IV aircraft could be used sometimes for the purposes of the rendition programme, this had nothing to do with the flights to and from Lithuania allegedly used for the applicant’s rendition. 426. The Government did not dispute the fact that during the relevant period, as well as earlier, there had been a number of CIA-linked aircraft landings in Lithuania at Palanga and Vilnius airports. The circumstances relating to those landings had been thoroughly analysed in the course of the pre-trial investigation and no links between the impugned aircraft and the CIA rendition programme had been established. In particular, all persons who had been present at the time of arrivals or departures of the planes, including the airports’ employees, officers of the SBGS and the SSD had been questioned and all relevant documents had been obtained from the SSD. From the totality of that material the prosecutor had concluded that no detained persons had ever been brought into or taken from the territory of Lithuania. Furthermore, no link had been found between the flights in question and any detainees of the CIA in general and the Projects No. 1 or No. 2 in particular. The prosecuting authorities had established that despite the fact that on some occasions Customs and SBGS inspections had not been carried out, it appeared from the documents provided by the SSD that in all instances the SSD officers had had access to the aircraft in accordance with the Law on Intelligence. It had also been established that the SSD officers, who had sought and obtained uninterrupted access to the airports’ sectors at which the CIA aircraft had landed, had acted in a lawful manner and had not abused their office or exceeded the limits of their authority. 427. As regards the flights N787WH of 18 February 2005 and N733MA of 25 March 2006 indicated by the applicant as those on which he had been brought into and taken out of Lithuania, the prosecution having investigated in detail both flights had established beyond any reasonable doubt that no CIA detainee (including the applicant) had been transported on them. The same applied to any other CIA-linked flights landings during the period in question. The evidence collected in the investigation had revealed the true purpose of the N787WH’s and N733MA’s landings. In that connection, twenty-six witnesses had been questioned and abundant documentary evidence had been obtained. 428. It had been established that the N787WH flight of 18 February 2005 had arrived with, in the Government’s words, “five foreign citizens of one State” and three crew members. Needless to say, the Government added, the applicant had not been among them. All of them had gone through a State border control for passengers between 20:05 and 20:15 and again between 20:30 and 20:50. Then the plane had left for Copenhagen. The purpose of the landing had been a carriage of some specific cargo, which explained why the vehicle had been seen next to the plane and then leaving. The carriage of the cargo had been related to the activities of the SSD, and the nature of the activities explained why the SSD had asked to be provided with access to the plane. Likewise, the N733MA flight of 25 March 2006 had brought cargo into Lithuania and had not been involved in the transportation of the CIA detainees. 429. Notwithstanding the fact that there was no data in the pre-trial investigation as to the purpose of the cargo, on the basis of the whole body of material collected it might be concluded that “some specific cargo” could have been communications equipment necessary for the technical maintenance of the implementation of a joint project of the SSD and the partners. Due to the particular importance of certain cargo, the Intelligence Services would request direct access to planes. For this purpose, as confirmed by witnesses M, O and N, classified letters used to be written to the airport and the SBGS. As regards the flight N787WH on 18 February 2005 it might be concluded that five persons, US citizens, had arrived at Palanga airport. As regards the cargo on the flight N733MA of 25 March 2006, it might be concluded that some equipment could have been carried on the flight at issue. It had been packed in boxes of not less than one metre in length, which, as V confirmed, had been carried by two persons. There was a record in the investigation file showing that the cargo could have been exported by the flight on 25 March 2006, as confirmed by officer O. According to the testimony of the witnesses, it might be concluded that the vehicles of partners used to enter and leave the airports escorted by the SSD officers. The officers used to escort them to the plane; officer V had stated that he had been fifty metres away from the plane. The investigation file included the SSD’s requests submitted in respect of both flights; both of them had been duly reasoned and indicated the purpose of the flights, which constituted a State secret. No customs control had been performed in either case, not because of the SSD’s requests but due to legal regulations under which it had not been obligatory and could be performed on an occasional basis. 430. The SSD had asked the administration of the airport in both instances to allow their officials to access the airport in order to carry consignments and parcels from the airport to their final destination and nothing else. The SSD had never asked for a customs or State border control not to be carried out. It had not interfered in any way with the functions of the State Border Security Service. According to testimonies of many SSD officials, these two flights had not been exceptional and they were not the only ones where the SSD had asked for permission to have access to certain aircraft. In general, over the years 2005-2006 there had been an enormous number of flights of various NATO States with military, official and non-official delegations. According to the testimony of the director of the Civil Aviation Authority, Palanga International Airport had mostly been used for those landings since it received less flights than Vilnius International Airport. 431. All the SSD officials involved in the reception and transport of the cargo had been questioned by the prosecutors in that connection and had described in detail what the cargo looked like, where it had been transported, whether anyone else had been able to see it and why special supervision of the SSD had been needed. All of them had testified that it had been only boxes which had been unloaded first from the aircraft and then other boxes and some parcels which had been loaded into the aircraft. There had been many of them, all of the same size, definitely too small to place any person inside. The loading itself had been carried out openly and could be seen by the employees of the airport. The boxes brought by the aircraft had been carried by the SSD officials to Vilnius, but not to Project No. 1 or Project No. 2. 432. At the public hearing, answering the judges’ questions as to the nature of the cargo, the Government further explained that the cargo had contained “special equipment that had been meant for a special investigation department” – and that the purpose had been “to equip this department and its personnel”. 433. The Government maintained that the pre-trial investigation had established conclusively that no secret prison run by the CIA had existed in Lithuania. In particular, the applicant’s allegation that a CIA secret detention facility had operated on the premises of Project No. 2 and that Project No. 1 had been designated for that purpose but not used as such had lacked any factual basis. 434. It was true that Project No. 1, which had been carried out in 2002 by the SSD and the CIA and the Project No. 2, which had been implemented by the same partners in 2004, had involved the reconstruction and fitting-out of certain premises. However, evidence gathered by the prosecutor had conclusively excluded the possibility of either of these premises having been used as a prison for CIA detainees. 435. In the course of the pre-trial investigation numerous persons had been questioned – not only those who had participated directly in the construction works on Project No. 1, but also those responsible for its subsequent use. Having analysed all relevant evidence, the prosecutor – contrary to the statement made by the CNSD that “conditions [had been] created for holding detainees” – had concluded that this building had been used exclusively by the SSD officers and that it had been absolutely unsuitable for holding detainees due to its geographical location (the city centre) and the facilities on the premises. In that regard, the Government also underlined that the CNSD Findings had to be seen in the light of its competence and the nature of parliamentary inquiries performed by it. According to the Constitutional Court’s ruling of 13 May 2004, “the Seimas [was] neither an institution of pre-trial investigation, nor a prosecutor’s office, nor the court” and therefore its conclusions were not “binding on institutions of pre-trial investigation, the prosecutor’s office or the court” (see also paragraph 219 above). 436. The premises referred to as Project No. 1 were situated in an auxiliary building in the yard next to the main building at Z. Sierakausko Street in Vilnius where the premises of the SSD had been located at the material time. In 2002 the auxiliary building had been in an emergency condition, and repair works had been needed. As all repair works had been documented, the documentation had been received and analysed by the prosecutor. The builders had confirmed that no wishes had been expressed by the SSD officers that the work be related to the detention of any persons. One of the witnesses, who, at the relevant time, had been in charge of the administration of both Projects No. 1 and No. 2, had described the purpose of the premises in the building referred to as Project No. 1 at Z. Sierakausko Street for which they had been fitted out, though he had testified that the premises had never been used since 2002 for that particular purpose. This purpose had been closely related with the structure and functions performed by the SSD, which in themselves constituted a State secret and therefore could not be declassified. Those statements had been corroborated by many other lower SSD officials and technical workers, who had testified that the premises had never been used for any other purposes that were not related to the needs of the SSD. 437. As regards Project No. 2, the Prosecutor General’s Office, based on witness testimony, had established that no special facilities suitable for holding detainees had ever been installed inside the building. In particular, there had been no premises fitted with bars or otherwise specifically adapted for detention purposes. Also, it had been established that access had been permanently controlled and the persons in charge of the building’s security had confirmed that no detainees had ever been present there. Thus, having regard to all the relevant evidence, the prosecution, contrary to the CNSD’s findings that the SSD officers had not always had the possibility of monitoring the arrival and departure of persons at Project No. 2, concluded that access to Project No. 2 had been under permanent control, thus ruling out the possibility of bringing detainees into the building. 438. Project No. 2 was located in Antaviliai. The building had been acquired for the needs of the SSD in accordance with the requirements of national law and the repair work on the premises had started in 2004. The work had been finished in January 2005. All the SSD officials involved in this project (Director General, Deputy Director General and other SSD officials of lower rank), had been questioned by the prosecutors. They had testified that the purpose of the premises in question could not have – and in fact had not had – anything to do with the detention of any persons. All witnesses had spoken of classrooms, living and meeting rooms, as well as sports rooms. The SSD officials of lower rank had been in charge of the repair work on the premises and the security of the building after its completion. Having been questioned several times, they had confirmed that no facilities suitable for holding detainees had ever been fitted in the building. The building had never been left without supervision of the SSD officials, who had testified that there had been no secret or closed zones inside it which would not be accessible to them. Also, in the Government’s view, the geographical location of the building had made it totally unsuitable for detention as it was situated in the village of Antaviliai and surrounded by residential houses. 439. According to the Director General of the SSD at the relevant time, the building had been used at the beginning of 2005 to a very limited extent – several meetings took place there. As the SSD officials in charge of the building’s security had testified, it had been used randomly and only for short-term meetings in which the SSD officials and their guests had participated. The visitors had been driven there exclusively by the authorised SSD officials. Thus, contrary to the findings of the CNSD, it had not been possible for any other persons save the SSD officials to use the building at their discretion. In the second half of 2005 the surveillance of the building had been taken over by the SSD’s section. At that time it had temporarily not been used at all but had remained open to the SSD employees. Since 2007 the SSD training centre had occupied the building. 440. All documents related to the Projects No. 1 and No. 2 had been collected from the SSD, including material containing State secrets. Part of those documents, for instance the records of the on-site inspection of Projects No. 1 and No. 2 together with annexes comprising the photos of the buildings, premises and their surroundings, had been declassified and submitted to the Court. The materials clearly showed that no prison could have been hosted on those premises. 441. In sum, the prosecutor had found that both premises had, at the relevant time, served other purposes, which had in no way been related to the holding or confinement of persons, although those purposes could not be declassified for the simple reason that the SSD’s partner would have to consent to such disclosure. 442. At the public hearing, the Government reiterated the above statements. They added that after analysing all the relevant circumstances it had been established that the flight N787WH on 18 February 2005 and the flight N733MA on 25 March 2006 had been used for transporting a specialpurpose cargo and that cargo could not contain the applicant or any other person. It had been the connection equipment for the SSD providing them and their partners with technical services in order to implement their joint project. That explained why they had asked for direct access to the aircraft. As regards the alleged locations of the CIA prison, Project No. 1 had been used for operational activities, Project No. 2 had been used for intelligence activities. The facilities of Project No. 2 had never been used for their original purpose and they had later been reconverted and used as the SSD’s training centre. Replying to the judges’ questions as to why the 2002 SSD Resolution and the 2002 SSD Action Plan referring to the purpose of the premises to be selected had spoken of the “extradition of secret intelligence collaborators”, the Government explained that this was due to the terminology used at that time – at present that term would correspond to “exfiltration” or “extraction”, meaning the relocation of special agents or secret agents into their normal life or natural environment. The added that, as regards the purposes served by the facilities, Project No. 1 had been meant for special officers and their “extraction”, while Project No. 2 had been the support centre for intelligence. 443. The Government argued that there had been no credible evidence confirming the applicant’s presence on the territory of Lithuania. The present case was built on some leaked information which had appeared in media in 2009 and which referred to the alleged existence of CIA secret detention facilities in Lithuania. That information had never been confirmed officially, either directly or indirectly. Moreover, the applicant’s lawyers had referred to unknown “public sources” indicating that the applicant had been moved from Morocco to Lithuania in early 2005, that the Lithuanian prison site had been closed in the first half of 2006 and that its occupants had been transferred to Afghanistan or other countries. In essence, the entire case rested on the routes of certain flights and their alleged links with the CIA. The applicant had described in detail the routes of N787WH on 15-19 February 2005 and N733MA on 23-27 March 2006, highlighting the stopovers of the first aircraft in Morocco and the second one in Cairo. He also referred to some invoices and contracts regarding those flights which, in his view, indicated their links with the CIA and the extraordinary rendition programme. Not a single direct or indirect piece of evidence had ever been produced that would reveal the slightest connection between the applicant and the flights in question. The Government said that in this regard they would appeal to pure common sense – the routes of the flights demonstrated nothing more than the fact that the aircraft had landed for a short while in Lithuania. Even if their links with the CIA were confirmed, this did not prove by itself Lithuania’s involvement in the HVD Programme, still less the applicant’s secret detention on its territory. 444. The Government regretted the suffering sustained by the persons, including the applicant, detained under that programme. However, they could not but emphasise that while this might have occurred somewhere in Europe, it had not happened in Lithuania. 445. In the Government’s submission, not a single high-level State politician or official had in any way admitted to knowing of or agreeing to the involvement of Lithuania in the CIA extraordinary rendition programme. It was true that the SSD officials had given some consideration to the possibility of having requests for assistance from the US authorities in the context of the war on terror but this possibility had proved to be purely theoretical because there had been no requests for the detention of any individuals. In that regard, the Government referred to the statements of the State officials and the SSD officers who had been questioned in the pre-trial investigation. They also relied on the letter of 26 November 2009 written by Mr Adamkus, the former President of Lithuania, to the CNSD in which he had stated that he had never been informed of any CIA prisons in the country (see also paragraph 367 above). Nor had any other former President of the Republic had had any such knowledge. In the investigation the Heads of State had testified that they had not known about any transfer of any detainees and had not given their consent to the transportation of any persons held by the CIA. 446. The Government said that they agreed with the Court’s conclusions in Husayn (Abu Zubaydah) v. Poland that without the knowledge of the State authorities and their assistance, the CIA HVD Programme could not have been executed, and that the running of the CIA prisons would have been impossible in the countries concerned. However, as stated above, Lithuania had not had any knowledge of such activities on its territory. The fact that in 2005-2006, as the applicant argued, there had been generalised knowledge of the HVD Programme owing to findings of international inquiries and public reports disclosing the nature of the CIA secret scheme, was irrelevant since Lithuania had not been included in any of the inquiries and there had been no CIA prison in the country. 447. The applicant maintained that the whole body of evidence from numerous sources, such as the international inquiries, recent research into the CIA rendition and secret detention operations, abundant aviation data confirming the CIA planes landings in Lithuania, declassified CIA documents, the 2014 US Senate Committee Report and evidence from the experts heard by the Court conclusively confirmed his allegations. In his submission, it was established beyond reasonable doubt that a CIA secret detention facility – referred to as “Detention Site Violet” in the 2014 US Senate Committee Report – had operated in Lithuania in 2005-2006 and that he had been detained at that facility from 17 or 18 February 2005 to 25 March 2006. 448. The applicant said that the Government’s objection to his reliance on public documents, reports and other material as evidence in this case was unfounded. The Court had on a number of occasions stated that it would freely evaluate all the evidence, and might draw “such inferences as may flow from the facts and the parties’ submissions”. The Court routinely relied on public source evidence; this was demonstrated, for instance, in El-Masri where the Court had taken into account publicly available information of a similar nature and evidence from a range of other sources, including reports from Amnesty International, Human Rights Watch, the International Helsinki Federation for Human Rights and the ICRC. It had also cited numerous media reports. Consequently, the Government’s objections to the nature of the evidence in the case was not based on the Court’s established approach to evidence. The Court would take into account all available sources of evidence and determine whether, in the circumstances of cases such as this, taken together they were sufficient to give rise to “strong and concordant inferences” of State responsibility. In the applicant’s view, the range of evidence submitted in his case considered as a whole more than satisfied the relevant test. 449. The applicant considered that the Government’s suggestion that the flights referenced in his submissions as being CIA rendition flights, even if chartered by the CIA, could have had other purposes or simply stopped at some places for technical reasons, lacked any support in the facts. While apparently plausible, this assertion had no merit in the context of the assembled data presented as evidence to the Court. A large number of international and regional bodies, human rights organisations and respected and credible media outlets, which had acknowledged the evidence disclosing that rendition flights flew into and out of Lithuania, disagreed. For example, on 11 September 2012 the LIBE Committee, following its April 2012 visit to Lithuania, had issued a resolution noting “new evidence provided by the Eurocontrol data showing that plane N787WH, alleged to have transported Abu Zubaydah, [had] stop[ped] in Morocco on 18 February 2005 on its way to Romania and Lithuania”. It had also noted that analysis of the Eurocontrol data had revealed new information through flight plans connecting Romania to Lithuania, via a plane switch in Tirana, Albania, on 5 October 2005, and Lithuania to Afghanistan, via Cairo, Egypt, on 26 March 2006. This was mirrored in the findings and reports of other international organisations. 450. In the light of the accumulated material before the Court it was evident that the planes passing through Lithuania in February 2005 and March 2006 had been chartered by the US Government in the context and for the purpose of the rendition programme. A clear line of evidence connected these flights to Lithuania. To begin with, all the flights involved in rendition into and out of Lithuania had been chartered by a US company, Computer Sciences Corporation on behalf of the US Government. This prime contract originated in 2002 with another US company, DynCorp Systems and Solutions LLC (DynCorp), and was then inherited by CSC through its purchase of DynCorp in 2004. The US Government’s initial contract with DynCorp had given rise to a succession of subcontracts, including the agreement with Capital Aviation of 17 June 2002 and a similar agreement between Sportsflight Air as authorised agent for DynCorp and plane operator Richmor Aviation on 18 June 2002. These companies, along with various other plane operators including Victory Aviation (operating N787WH) and Miami Air International (operating N733MA and N740EH), had thereby established a method and pattern of doing business which had lasted at least until 2006. 451. The February 2005 flights of N787WH and N724CL, travelling from the USA to Lithuania via Morocco, had been arranged under CSC’s subcontract with Sportsflight Air Inc. trading as Capital Aviation. These flights corresponded to the dates on which information indicated that the applicant had been transferred from Morocco to Lithuania in early 2005. The March 2006 flights of N733MA and N740EH had also been arranged under CSC’s successor subcontract with Sportsflight. Flights organised and billed by Sportsflight and CSC had been the subject of civil litigation in New York, concluding in 2011, between Sportsflight and Richmor Aviation. During this litigation, both parties had made clear that the flights had been part of the rendition programme and that the contractual arrangements under which these flights were provided had been set up to facilitate that programme. 452. Furthermore, all the flights connecting with Lithuania in February 2005 and March 2006, as well as flight N787WH in October 2005, exhibited a common pattern of behaviour designed for the sole purpose of disguising the true flight routes, the so-called “dummy” flight planning. Taking into account, on a cumulative basis, all the available evidence such as the contracts and invoices, the patterns of behaviour, the statements made in the litigation referred to above, the timing of the flights, and the overall context within which rendition flights had been shown to take place, there was a compelling basis on which to conclude that the sole purpose of the flights of N787WH, N724CL, N733MA and N740EH had been to interconnect the CIA’s various secret prison locations. In addition, these interconnections had been made at times when, according to authoritative news reports, prisoner transfers had been made between the respective countries. 453. Lastly, even if one were to leave aside the entire significance of the above evidence, in the applicant’s view a number of questions would remain. For instance, why, if these had been entirely innocent or “technical” stopovers had the SBGS been prevented from inspecting the planes? Why had the planes been cordoned off by the SSD? Why had a vehicle been seen leaving one of the planes, and the airport, if this had merely been a “technical” stop? 454. In the applicant’s submission, the evidence before the Court established beyond reasonable doubt, based on strong and concordant inferences of fact, that Lithuania had housed a CIA secret black-site, a site at which the applicant had been detained between 17 or 18 February 2005 and 25 March 2006. The 2014 US Senate Committee Report had referred to a detention site codenamed “Violet”, which multiple independent investigators had consistently and unequivocally identified as referring to Lithuania, as confirmed by the experts at the fact-finding hearing. The 2014 US Senate Committee Report stated that Detention Site Violet had specifically been developed to ensure that multiple detainees could be interrogated simultaneously, that the site had begun operating as a detention centre in 2005 and that it had been closed down in 2006 due to the lack of medical care for ailing detainees. The report’s categorical findings corresponded to and confirmed the credibility of a host of other evidence available at a much earlier stage. This included flight data and contracts, information collected by the Lithuanian Parliament’s own Committee on National Security and Defence, the Lithuanian prosecutor’s own investigation file, the statements and findings of multiple additional inquiries at the regional and international level and the work of nongovernmental organisations, journalists and investigators. 455. At the fact-finding hearing the Court had heard evidence from the experts of the highest calibre who, having investigated and analysed the CIA HVD Programme for many years, had confirmed that, consistent with a cyclical pattern of sudden site closures, Lithuania had undoubtedly set up a secret detention site in 2005 following the closure of the site in Morocco. Lithuania had become, as Mr J.G.S. had described it, the hub for detention of high-value detainees at that point. It had been the experts’ firm and consistent professional assessments as investigators, that the evidence had showed that Abu Zubaydah had been among those detained in Lithuania. Senator Marty had noted that if one had taken the trouble to reconstruct the story, one could only come to that conclusion. Mr J.G.S.’s work had definitively associated Abu Zubaydah with Lithuania and Mr Black had found that the detention of Abu Zubaydah in Lithuania had been beyond reasonable doubt. 456. One aspect of the evidence before the Court, considered in detail by the experts, included evidence from multiple sources that showed the landing of rendition flights in Lithuania on 17 and 18 February 2005, having followed a circuitous route, from the United States via Morocco, where the applicant was known to have been detained at the relevant time. Likewise it showed that on 25 March 2006 another rendition flight departed from Lithuania, en route to Afghanistan, where again it was known that the applicant had been detained in 2006. False flight plans had been filed for the Lithuanian leg of these journeys, showing alternative destinations in accordance with standard modus operandi for rendition flights. The Government had argued that there was no evidence that these had been rendition flights. Yet the pattern these flights displayed, the paths they had taken, and the contracts and invoices, combined with other corresponding details, had led to them being consistently identified by investigators, parliamentary and other inquiries, and by the experts of the Court, unequivocally as flights whose sole purpose had been extraordinary rendition. If any doubt remained about whether these had been rendition flights, it had been dispelled in the above-mentioned civil litigation between sub-contractors in US courts where the flight operators had themselves stated, in their pleadings, in clear and explicit terms that this contract had been for rendition flights carried out for the US Government. 457. The dates and routes of these rendition flights and the periods of operation of Detention Site Violet corresponded with the conclusive evidence of the applicant’s location prior to and after Lithuania. As the Court noted in Husayn (Abu Zubaydah) v. Poland, the applicant, after being captured in Pakistan, had been transferred to secret CIA detention in Thailand, from there to Poland, and then on to a secret CIA site in Guantánamo Bay. Expert testimony had confirmed earlier reports that in 2004 he had been moved out of Guantánamo Bay – in anticipation of the US Supreme Court ruling granting access to lawyers and habeas corpus review – and he had been transferred to Morocco. As the experts had explained, the Moroccan site had closed in February 2005, prompting the opening of the next site in the cycle, Lithuania, precisely when rendition flights had flown the route from Morocco to Lithuania. In March 2006, the Lithuanian site itself had closed, prompting the transfer of the applicant, like all of the remaining CIA detainees, to Afghanistan. It was from Afghanistan that he had ultimately been transferred back to Guantánamo Bay in September 2006. 458. Referring to the Government’s explanations as to the “special cargo” and the purposes served by Project No. 2 given at the public hearing, the applicant said these facts were entirely consistent with his statements and did not really provide any information that would counter his case. In particular, the transportation of the “cargo” was fully consistent with the expert testimony given by Mr J.G.S. in Husayn (Abu Zubaydah), stating that the high-value detainees had been treated as human cargo and that when they had been brought into a country they had not been registered – even if the passengers on the plane had been registered. Likewise, the Government’s claim that Project No. 2 had been for a special intelligence purpose was entirely consistent with the purpose of Detention Site Violet and the applicant’s submissions in that respect. 459. In conclusion, the applicant contended that multiple strands of corroborating evidence considered together, supportive of the first 2009 media accounts citing CIA insiders, led to the irresistible conclusion that, as confirmed by the experts, Lithuania had hosted Detention Site Violet. It had been set up by the Lithuanian authorities and had been operated with their assistance by the CIA and the applicant had been detained at that site between 17 or 18 February 2005 and 25 March 2006. 460. The applicant maintained that multiple sources, including the 2014 US Senate Committee Report, the CNSD Findings and press reports, mentioned high-level members of the Government and intelligence agencies as having approved the establishment of the CIA sites. The 2014 US Senate Committee Report made it clear that millions of dollars had been covertly transferred to show appreciation for the country’s support for the HVD Programme. 461. Furthermore, the applicant emphasised, for State responsibility to be engaged under the Convention it was not necessary for the highest level official of a State to have known and approved the setting up of the CIA secret “black site” in the country. It was sufficient for the relevant officials within the State to have approved and to have been responsible. In the applicant’s view, there was compelling evidence that the Lithuanian State had actively undertaken to facilitate and make possible his rendition to, and secret detention in, Lithuania. 462. The applicant reiterated that there had been no plausible room for doubt as to Lithuania’s knowledge of the nature of the secret detention system in 2005 and 2006. This had been clear from the vast publicly available information, including extensive media coverage which had reverberated around the globe, including in Lithuania, detailing the secret detention programme, specifically identifying Eastern European “black sites”, the nature of the enhanced interrogation techniques, and identifying Abu Zubaydah by name as one the missing “ghost prisoners”. The Marty Inquiry was already underway when the applicant had been detained in Lithuania. To suggest innocent ignorance on the part of the authorities as to what might have been going on in the secret site that they set up for the CIA by 2005 simply beggared belief. 463. In addition, evidence showed that high-level officials had had specific and direct knowledge. For example, the former President had publicly admitted having been asked by the head of intelligence whether he would be willing to bring accused terrorists into the country unofficially. The head of intelligence in response had noted that he had enquired as to the President’s position precisely on the basis that he had known what had been going on in the world. In another example, also from 2005, while the applicant was still detained in Lithuania, the Lithuanian Government attended a NATO-EU meeting with Ms Condoleezza Rice; Mr Fava’s testimony set out in Husayn (Abu Zubaydah) made it clear that all member States had known about the enhanced interrogation techniques. That had been clear from the records of the meeting. 464. As experts had testified, while not everyone would have known, just as in all other host countries, some certainly had known and had approved. It was beyond reasonable doubt that by 2005 Lithuania had known of the real risk of violations on its territory and evidence demonstrated that the authorities had taken no measures to prevent, to monitor or even to enquire. The parliamentary inquiry concluded that it had been evident that the SSD had not sought to control the CIA’s activities in the country and the premises placed at their disposal. It had not monitored or recorded cargoes brought in and out of the country, and it had not controlled the CIA’s arrival and departure. This lack of oversight was confirmed by the prosecution file. The Lithuanian authorities had not only failed to exercise due diligence to prevent violations but they had actively intervened to support and enable them. As the evidence showed, again including evidence from the prosecution file, the Lithuanian officials had agreed to, purchased and helped to equip the CIA’s secret sites. The Lithuanian officials had provided vital logistics and support for the site, keeping local inquiries at bay. The Lithuanian authorities had intervened to ensure that normal oversight of CIA flights had been lifted by the use of classified letters that had ensured that neither planes, nor passengers, nor cargo had been monitored or inspected. This had been true specifically of the rendition flights identified by the experts as bringing the CIA detainees into the country and taking them out again. 465. Referring to the knowledge of the US authorities’ practices in respect of suspected terrorists attributable to any Contracting State to the Convention at the material time, AI/ICJ pointed to, among other things, the following facts that had been a matter of public knowledge. 466. They stressed at the outset that already on 16 September 2001, in an interview, the US Vice President Richard Cheney had said that, in response to the attacks of 11 September, the US intelligence agencies would operate on “the dark side”, and had agreed that US restrictions on working with “those who [had] violated human rights” would need to be lifted. AI warned in November 2001 that the USA might exploit its existing rendition policy in the context of what it was calling the “war on terror” to avoid human rights protections. From early 2002 it became clear that nonUS nationals outside the USA suspected of involvement in international terrorism were at a real risk of secret transfer and arbitrary detention by US forces. 467. In that regard, AI/ICJ submitted that from January 2002 to 2003 the USA had transferred more than 600 foreign nationals to the US Naval Base in Guantánamo Bay, Cuba, with reports from the outset of ill-treatment during transfers, holding them without charge or trial or access to the courts, lawyers or relatives. By July 2005, there were more than 500 men held there. Cases of arbitrary detention and secret transfer continued to emerge during 2002. In April 2002, alongside the case of Abu Zubaydah, arrested in Pakistan and whose whereabouts after transfer to US custody remained unknown AI reported that “the US authorities had transferred dozens of people to countries where they [might] be subjected to interrogation tactics -including torture [...]. In some cases, it [was] alleged that US intelligence agents [had] remained closely involved in the interrogation”. Also, in December 2002, the Washington Post reported on a secret CIA facility at Bagram, Afghanistan, and the CIA’s use of “stress and duress” techniques, including sleep deprivation, stress positions and hooding, and the use of renditions by the CIA. Thus, as early as the end of 2002, any Contracting Party was or should have been aware that there was substantial credible information in the public domain that the USA was engaging in practices of enforced disappearance, arbitrary detention, secret detainee transfers, and torture or other ill-treatment. 468. In the years 2003 and 2004 information continued to emerge. In June 2003, for example, AI reported that the CIA had been involved in the arrest in Malawi of five men and their rendition out of that country to an undisclosed location. In August 2003, AI reported that Indonesian national Riduan Isamuddin, also known as Hambali, was being interrogated in US custody in incommunicado detention at an undisclosed location after his arrest in Thailand. In January 2004, the ICRC issued a press release stating that “[b]eyond Bagram and Guantánamo Bay, the ICRC [was] increasingly concerned about the fate of an unknown number of people captured as part of the socalled global war on terror and held in undisclosed locations”. Furthermore, a February 2004 confidential report of the ICRC on Coalition abuses in Iraq, leaked in 2004 and published in the media at that time, found that detainees labelled by the USA as “high-value” were at particular risk of torture and other ill-treatment and that “high value detainees” had been held for months in a facility at Baghdad International Airport in conditions that violated international law. In May 2004, AI publicly denounced as torture the interrogation technique known as “waterboarding” reportedly used against Khalid Sheikh Mohammed, a “high-value detainee” who had by then been held in secret US detention for more than a year following his arrest in Pakistan in March 2003. 469. In June 2004, the Washington Post published a leaked August 2002 memorandum written in the US Department of Justice’s Office of Legal Counsel. The memo advised, inter alia, that presidential powers or the doctrines of necessity or self-defence could override the criminal liability for torture under US law, and that a “significant range of acts” would not be punishable as they did not amount to torture. Another government memorandum leaked in 2004 asserted that not applying the Geneva Conventions to “captured terrorists and their sponsors” would reduce the threat of domestic prosecution of US interrogators for war crimes. In June 2004, a December 2002 memorandum signed by the US Secretary of Defense was declassified. It had authorized “counterresistance” techniques for use at Guantánamo, including stress positions, sleep deprivation, sensory deprivation, stripping, hooding, exploitation of phobias, and prolonged isolation. A 2003 Pentagon Working Group report on “detainee interrogations in the global war on terrorism”, declassified and published in June 2004 after an earlier draft of it was leaked, recommended the use of various techniques, including environmental manipulation, threat of rendition, isolation, sleep deprivation, removal of clothing, exploitation of phobias, prolonged standing, and hooding. 470. In October 2004, AI published a 200-page report on US human rights violations in the “war on terror”, including case details of secret transfers of detainees, the alleged existence of secret US detention facilities, and torture and other ill-treatment. The numerous rendition cases listed included detailed allegations made by Khaled el-Masri. In addition, in its annual reports covering each of the years from 2002 to 2005, AI made multiple references to human rights violations in the context of US counterterrorism operations, not only in the entries on the USA, but also in a number of other country entries. Paper copies of these reports were widely distributed, including to media and governments. For example, copies of the reports were mailed at the time of their publication directly to the President, the Prime Minister, the Minister of the Interior and the Minister of Justice in Vilnius, Lithuania. 471. In the AI/ICJ’s submission, by early 2005 it was beyond reasonable doubt that the USA was engaging in human rights violations against detainees, including holding individuals in secret custody at undisclosed locations, and that detainees labelled “high-value” were at particular risk as the USA pursued intelligence on al-Qaeda and associated groups. Consequently, by 2005, any Contracting Party agreeing to host a CIA “black site” on its territory would or should have known that such a site would be part of a programme that involved unlawful transfer, enforced disappearance, and torture or other ill- treatment. Further, any Contracting Party would or should have known that any US assurances that a detainee previously subjected to the US programme would be treated in a manner consistent with international law, in the case of further transfer, lacked credibility. Any State would or should have known that even if not transferred to further undisclosed detention, the alternative for a “highvalue” detainee would be indefinite arbitrary detention without charge or committal for trial by military commission with the power to hand down death sentences. 472. The HFHR focused on their experience regarding Poland’s involvement in the CIA extraordinary rendition programme. They produced a number of documents, including flight data, concerning eleven landings of the CIA-rendition aircraft in Poland, ten of which had occurred at Szymany military airfield between 5 December 2002 (the date of the applicant’s rendition to Poland) and 22 September 2003 (the date of the applicant’s rendition from Poland) and one landing of a plane from Kabul in Warsaw en route to Keflavik that occurred on 28 July 2005. 473. The parties expressed opposing views on the standard and burden of proof to be applied in the present case. 474. The Government reiterated that there was no evidence that the facts complained of had taken place in Lithuania. In their view, the applicant’s allegations could not be considered sufficiently convincing or established beyond reasonable doubt, as required by the Court’s case-law. In that regard, the Government referred to the standard of proof applied by the Court in El-Masri (cited above), emphasising that the present case was substantially different in several aspects. In the first place, in the ElMasri case the applicant himself had lodged the case and presented his statements; his account had been supported by a large amount of indirect evidence obtained during the international inquiries and the investigation by the German authorities. As the Court held, Mr El-Masri’s case had been “a case of documented rendition”. Secondly, there had been other relevant elements corroborating the applicant’s story. Thirdly, the circumstances described by the applicant had been verified and confirmed by other international investigations concerning the applicant, to mention only the Marty and Fava Inquiries. Lastly, the Court had before it a written statement made by one of the State’s top officials confirming the facts established in the course of the investigations and the applicant’s consistent and coherent description of events. All this material taken together satisfied the Court that there had been prima facie evidence in favour of the applicant’s version of events, and, consequently, it found the applicant’s allegations sufficiently convincing and established beyond reasonable doubt. In contrast, Mr Abu Zubaydah had failed to produce such evidence and to make a credible claim either before the domestic authorities or before the Court. In view of the foregoing, the Government were confident that the burden of proof should not be shifted to them. 475. The Government further stressed that the applicant’s allegations concerning rendition to and from Lithuania, and his secret detention and illtreatment in CIA secret facilities in Lithuania had been rejected in their entirety as unfounded following the pre-trial investigation carried out by the Prosecutor General’s Office. Those proceedings followed the Seimas inquiry. While it was true that the Seimas had come to conclusions that had left some doubt as to whether any CIA prisoners had been transported to and from the country and whether a CIA secret prison had operated on the premises of Project No. 1 and Project No. 2, all such doubts had been dispelled in the criminal investigation. In that context, the Government also drew the Court’s attention to the limited competence of the Seimas and the nature of its inquiry as defined in the Constitutional Court’s ruling of 13 May 2004, holding that “the Seimas [was] neither an institution of pre-trial investigation under the Constitution, nor the prosecutor’s office, nor the court” and that “the conclusions of the Seimas ... investigation ... may not be construed as legal qualification of the actions that [it had] investigated ... and of other circumstances ... elucidated by it”. Consequently, the Seimas findings had not been binding and remained subject to the verification in the prosecutor’s investigation. 476. The Government attached particular importance to the prosecutor’s conclusion that in the course of the pre-trial investigation no evidence concerning unlawful rendition by the CIA of any persons, including the applicant, to or from Lithuania had been obtained. That decision had been based on a wide range of evidence, including classified sources, conclusively refuting the applicant’s version of the events. Those findings, made as they were on a solid evidential basis could not, therefore, be undermined by the mere flight data or other information available in the public domain. 477. In conclusion, the Government asked the Court to hold that there was no prima facie evidence in support of the applicant’s version of events and that, accordingly, the burden of proof could not be shifted to them. 478. The applicant submitted that in his case against Poland, the Court had acknowledged the undeniable evidential challenges that arose in a case of this nature, and how the facts of the case, and the nature of the allegations, conditioned the Court’s approach to evidence and proof. As regards the “beyond reasonable doubt” standard, to which the Government referred, the Court had long been clear that this did not have the meaning commonly associated with that term in criminal law and domestic systems. Proof might flow from the existence of sufficiently strong, clear and concordant inferences of presumptions of fact. The Court must adopt an approach consistent with its purpose as a Human Rights Court. Where the events in issue lay wholly, or in large part, within the exclusive knowledge of the domestic authorities, strong presumptions of fact might arise. When prima facie evidence was presented, the burden of proof shifted to the authorities to provide a satisfactory and convincing explanation. 479. In the applicant’s view, the evidence in his case more than met the relevant standard of prima facie evidence and created, at a minimum, strong and concordant inferences of fact as to his secret detention on Lithuanian soil. The Government had failed to provide any satisfactory explanation in the face of overwhelming evidence that they had established a “black site” on their territory. Instead, they had engaged in a policy of denial and obfuscation, drawing categorical conclusions that there could not possibly have been detainees on Lithuanian soil. These conclusions were plainly at odds with the evidence before the Court. As the Court in the Polish case had noted, given the nature of the case, the fact that there was no document identifying Abu Zubaydah by name as a detainee on a specific flight or in a specific secret prison site was not surprising and could not determine the outcome in this case. As the evidence plainly showed and as all the three experts had concluded, Abu Zubaydah had been transferred to the Lithuanian “black site” on the relevant dates. 480. The Court is sensitive to the subsidiary nature of its role and has consistently recognised that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see Imakayeva v. Russia, no. 7615/02, § 113, ECHR 2006XIII (extracts); Aslakhanova and Others v. Russia, nos. 2944/06 and 4 others, § 96, 18 December 2012; and El-Masri, cited above, § 154; Al Nashiri v. Poland, cited above, § 393; and Husayn (Abu Zubaydah) v. Poland, cited above, § 393). 481. In assessing evidence, the Court has adopted the standard of proof “beyond reasonable doubt”. However, it has never been its purpose to borrow the approach of the national legal systems which use that standard. Its role is not to rule on criminal guilt or civil liability but on the responsibility of Contracting States under the Convention. The specificity of its task under Article 19 of the Convention – to ensure the observance by the Contracting States of their engagement to secure the fundamental rights enshrined in the Convention – conditions its approach to the issues of evidence and proof. In the proceedings before the Court, there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. It adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. According to the Court’s established case-law, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegation made and the Convention right at stake. The Court is also attentive to the seriousness that attaches to a ruling that a Contracting State has violated fundamental rights (see, among other examples, Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25; Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005VII; Creangă v. Romania [GC], no. 29226/03, § 88, 23 February 2012; and El-Masri, cited above, § 151; Georgia v. Russia (I) [GC], no. 13255/07, §§ 93-94, ECHR 2014 (extracts); Al Nashiri v. Poland, cited above, § 394; Husayn (Abu Zubaydah) v. Poland, cited above, § 394; and Nasr and Ghali v. Italy, no. 44883/09, § 119, 23 February 2016). 482. While it is for the applicant to make a prima facie case and adduce appropriate evidence, if the respondent Government in their response to his allegations fail to disclose crucial documents to enable the Court to establish the facts or otherwise provide a satisfactory and convincing explanation of how the events in question occurred, strong inferences can be drawn (see Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, § 184, ECHR 2009, with further references; Kadirova and Others v. Russia, no. 5432/07, § 94, 27 March 2012; Aslakhanova and Others, cited above, § 97; Al Nashiri v. Poland, cited above, § 395; and Husayn (Abu Zubaydah) v. Poland, cited above, § 395). 483. Furthermore, the Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio. According to the Court’s case-law under Articles 2 and 3 of the Convention, where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, for instance as in the case of persons under their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during that detention. The burden of proof in such a case may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Çakıcı v. Turkey [GC], no. 23657/94, § 85, ECHR 1999-IV; Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII; and Imakayeva, cited above, §§ 114-115; El-Masri, cited above, § 152; Al Nashiri v. Poland, cited above, § 396; Husayn (Abu Zubaydah) v. Poland, cited above, § 396; and Nasr and Ghali, cited above, § 220). In the absence of such explanation the Court can draw inferences which may be unfavourable for the respondent Government (see El-Masri, cited above, § 152). 484. The Court has already noted that it is not in a position to receive a direct account of the events complained of from the applicant (see paragraphs 15-16 above; also compare and contrast with other previous cases involving complaints about torture, ill-treatment in custody or unlawful detention, for example, El-Masri, cited above, §§ 16-36 and 156167; Selmouni v. France [GC], no. 25803/94, §§ 13-24, ECHR 1999V; Jalloh v. Germany [GC], no. 54810/00, §§ 16-18, ECHR 2006IX; and Ilaşcu and Others, cited above, §§ 188-211). 485. The regime applied to High Value Detainees such as the applicant is described in detail in the CIA declassified documents, the 2014 US Senate Committee Report and also, on the basis, inter alia, of the applicant’s own account, in the 2007 ICRC Report. That regime included transfers of detainees to multiple locations and involved holding them in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention. The transfers to unknown locations and unpredictable conditions of detention were specifically designed to deepen their sense of disorientation and isolation. The detainees were usually unaware of their exact location (see Al Nashiri v. Poland, cited above, §§ 397-398; Husayn (Abu Zubaydah) v. Poland, cited above, §§ 397398; and paragraphs 47-58, 85 and 299 above). 486. As held in Husayn (Abu Zubaydah) (cited above, § 397) and as emerges from the material cited above (see paragraphs 90-164 above), since 27 March 2002 the applicant has not had contact with the outside world, save the ICRC team in October and December 2006, the Combatant Status Review Tribunal’s members and his US counsel. It has also been submitted that the applicant’s communications with the outside world are subject to unprecedented restrictions and that his communications with his US counsel and his account of experiences in CIA custody are presumptively classified. In fact, for the last sixteen years, he has been subjected to a practical ban on communication with others, apart from mail contact with his family which was allowed at some point after his transfer to Guantánamo (see paragraphs 161-163 and 407 above). 487. The above difficulties in gathering and producing evidence in the present case caused by the restrictions on the applicant’s contact with the outside world and by the extreme secrecy surrounding the US rendition operations have inevitably had an impact on his ability to plead his case before the Court. Indeed, in his application and further written pleadings the events complained of were to a considerable extent reconstructed from threads of information gleaned from numerous public sources. In consequence, the Court’s establishment of the facts of the case is to a great extent based on circumstantial evidence, including a large amount of evidence obtained through the international inquiries, considerably redacted documents released by the CIA, the declassified 2014 US Senate Committee Report, other public sources and the testimony of the experts heard by the Court (see also Husayn (Abu Zubaydah) v. Poland, cited above, § 400; and Al Nashiri v. Poland, cited above, § 400). 488. Furthermore, it is to be noted that while the Government firmly denied the applicant’s allegations in so far as they concerned Lithuania, they refrained from making any comments on the facts relating to the circumstances preceding his alleged rendition to Lithuania on 17 or 18 February 2005 or following his alleged transfer from the country on 25 March 2006 (see paragraphs 423-446 above). However, the facts complained of in the present case are part of a chain of events lasting from 27 March 2002 to 5 September 2006 and concerning various countries. The examination of the case necessarily involves the establishment of links between the dates and periods relevant to the applicant’s detention and a sequence of alleged rendition flights to those countries. Accordingly, the Court’s establishment of the facts and assessment of evidence cannot be limited to the events that allegedly took place in Lithuania but must, in so far as is necessary and relevant for the findings in the present case, take into account the circumstances occurring before and after his alleged detention in Lithuania (see Al Nashiri v. Poland, cited above, §§ 401-417); and Husayn (Abu Zubaydah) v Poland, cited above, §§ 401-419). 489. The Court has already established beyond reasonable doubt the facts concerning the applicant’s capture, rendition and secret detention until 22 September 2003, the date of his rendition on plane N313P from Poland to another CIA secret detention facility (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 401-404 and 406-419). The relevant passages from Husayn (Abu Zubaydah) containing the Court’s findings of fact are cited above (see paragraphs 91 and 97 above). Some additional elements, which are all fully consistent with the Court’s establishment of the facts in that case, can also be found in the 2014 US Senate Committee Report (see paragraphs 92-96 and 98 above). 490. It is alleged that before being rendered by the CIA to Lithuania the applicant had been detained in Guantánamo from 23 September 2003 to Spring 2004 and, subsequently in Rabat, Morocco until 17 or 18 February 2005 (see paragraph 99 above). 491. In Husayn (Abu Zubaydah) Mr J.G.S. testified that on 22 September 2003 the plane N313P had taken the applicant from Szymany, Poland via Bucharest and Rabat to Guantánamo. The plane’s destinations to Romania and Morocco had been disguised by the so-called “dummy” flight planning, showing, among other things Constanţa, not Bucharest as the arrival airport in Romania (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 109 and 312; see also paragraphs 103-104 above). In the present case, Mr Black, having analysed the available evidence, testified that “Abu Zubaydah must have ... been taken to Guantánamo on that flight” (see paragraph 108 above). 492. The N313P rendition circuit of 20-24 September 2003 was analysed in detail in Husayn (Abu Zubaydah), where, as stated above, the Court held that on 22 September 2003 Mr Abu Zubaydah had been transferred by the CIA from Poland on board that plane to another CIA secret detention facility elsewhere. It also held that this flight had marked the end of CIA-associated aircraft landings in Poland and the closure of the CIA “black site” codenamed “Quartz” in that country (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414 and 419). The collation of data from multiple sources shows that the plane left Washington D.C. on 20 September 2003 and undertook a four-day flight circuit during which it landed in six countries. It arrived in Szymany from Kabul. It flew from Szymany to Bucharest, then to Rabat and from Rabat to Guantánamo on the night of 23 September 2003, landing there in the morning of 24 September 2003 (see paragraphs 103-104 and 108 above). 493. The 2014 US Senate Committee Report confirms that “beginning in September 2003” the CIA held its detainees at CIA facilities in Guantánamo and that by a – redacted but clearly two-digit – date in April 2004 “all five CIA detainees were transferred from Guantánamo to other CIA detention facilities” pending the US Supreme Court’s ruling in Rasul v. Bush which, as the US authorities expected, “might grant habeas corpus rights to the five CIA detainees”. The transfer was preceded by consultations among the US authorities in February 2004. It was recommended by the US Department of Justice (see paragraphs 61 and 110 above). 494. At the fact-finding hearing in the present case, Mr J.G.S. explained that the applicant had been transferred from Guantánamo on board the rendition plane N85VM on 27 March 2004. The flight was first part of the CIA double rendition circuit performed by that plane between 27 March and 13 April 2004. On the first circuit some prisoners, including the applicant, were transferred to Rabat directly (see paragraph 107 above). Mr Black confirmed that everyone who had been taken to Guantánamo had had to be moved out in March or April 2004 (see paragraph 108). The experts identified the country to which the applicant had been transferred from Guantánamo as Morocco on the basis of the correlation of the flight data and unredacted information in the 2014 US Senate Committee Report (see paragraphs 105-108 above). 495. Furthermore, both experts confirmed that the CIA, due to various disagreements with the Moroccan authorities, had been forced to take all its prisoners out of Morocco in early 2005. In that regard, the 2014 US Senate Committee Report relates “tensions” with a country whose name is redacted. Those tensions arose in connection with the “deterioration of intelligence cooperation” and the treatment of their prisoners by the local authorities, resulting in “cries of pain” being heard by CIA detainees kept in the same detention facility. It states that the CIA detainees were transferred out of the country concerned in 2005; the month was redacted but seems to have comprised eight characters (see paragraphs 105-110 above). Both experts indicated February 2005 as the month in question. Mr J.G.S., referring to the Moroccan detention facility, testified that “it [had been] in this site that Mr Zubaydah found himself in early 2005, specifically February 2005, when the aforementioned clear-out of Morocco [had taken] place” (see paragraph 105 above). Mr Black stated that “after a certain time in Morocco, the CIA [had] had too many disagreements with the Moroccan Intelligence Agencies with regard to treatment of prisoners in Morocco. ... And so everyone who [had been] in Morocco [had been] moved out at the latest in February 2005” (see paragraph 108). 496. In the light of the material in its possession – which has not been as such contested by the Government (see paragraph 488 above) – the Court finds no counter evidence capable of casting doubt on the accuracy of the experts’ conclusions regarding the above sequence of events, the places of the applicant’s secret detention and the dates of his transfers during the relevant period. 497. Accordingly, the Court finds it established beyond reasonable doubt that: (1) on 22 September 2003 on board N313P the applicant was transferred by the CIA from Szymany, Poland to Guantánamo, Cuba; (2) from 24 September 2003 to 27 March 2004 the applicant was detained in Guantánamo; (3) on 27 March 2004 on board N85VM the applicant was transferred by the CIA from Guantánamo to Rabat, Morocco; (4) from 27 March 2004 to an unspecified date in the month (redacted in the 2014 US Senate Committee Report), identified by the experts as February 2005, the applicant was detained in Morocco at a facility used by the CIA; and (5) on an unspecified date in February 2005 he was transferred by the CIA from Morocco to another detention facility elsewhere. 498. It is alleged that a CIA secret detention facility, codenamed “Detention Site Violet” operated in Lithuania from 17 or 18 February 2005, the dates on which either or both CIA rendition planes N724CL and N787WH brought CIA detainees to Lithuania, to 25 March 2006, when it was closed following the detainees’ transfer out of Lithuania on board the rendition plane N733MA (see paragraphs 111-117 and 449-459 above). The Government denied that a CIA detention facility had ever existed in Lithuania (see paragraphs 423-446 above). 499. The Court notes at the outset that although the Government have contested the applicant’s version of events on all accounts, they have not disputed the following facts, which were also established in the Seimas inquiry and confirmed in the course of the pre-trial investigation conducted in 2010-2011 (see paragraphs 174, 199, 307-349, and 367-370 above): (a) In 2002-2005 the CIA-related aircraft repeatedly crossed Lithuania’s airspace; according to the CNSD Findings, on at least twenty-nine occasions. (b) In the period from 17 February 2005 to 25 March 2006 four CIA-related aircraft landed in Lithuania: – planes N724CL and N787WH landed at Vilnius International Airport on, respectively, 17 February 2005 and 6 October 2005; – planes N787WH and N733MA landed at Palanga International Airport on, respectively, 18 February 2005 and 25 March 2006. (d) On three occasions the SSD officers received the CIA aircraft and “escorted what was brought by them” with the knowledge of the heads of the SSD: – on 18 February 2005 N787WH, which landed at Palanga airport with five US passengers on board, without any thorough customs inspection of the plane being carried out; according to the CNSD Findings, “no cargo was unloaded from it or onto it”; – on 6 October 2005 N787WH, which landed at Vilnius airport, where a certain R.R., the SBGS officer, was prevented from inspecting the aircraft and no customs inspection of the plane was carried out; and – on 25 March 2006 N733MA, which landed at Palanga airport, but the SBGS documents contained no records of the landing and inspection of the plane, and no customs inspection was carried out. (e) In connection with the landing of N787WH in Vilnius on 6 October 2005 and of N733MA in Palanga on 25 March 2006 the SSD issued classified letters to the SBGS, but the letter regarding the landing on 6 October 2005 was delivered ex post facto, and before that event the SSD had never issued such letters. (f) The SSD high-ranking officers provided the US officers with unrestricted access to the aircraft at least on two occasions, including on 6 October 2005. (g) In 2002-2006 the SSD and the CIA were in “partnership cooperation”, which involved the “equipment of certain tailored facilities”, i.e. Project No. 1 and Project No. 2. (h) The facilities of Project No. 1 were installed in 2002. (i) The SSD started the implementation of Project No. 2 in cooperation with the CIA at the beginning of 2004; this involved assisting the CIA in the acquisition of the land and building in Antaviliai and carrying out construction work in order to equip the facility; the work was carried out by contractors brought by the CIA to Lithuania; the materials and equipment for the facility were brought to Lithuania by the CIA in containers. (j) Project No. 1 and Project No. 2 were fully financed by the CIA. (k) Witnesses A and B2, politicians questioned in the criminal investigation, were addressed in connection with “the temporary possibility of holding persons suspected of terrorism” and “as regards the transportation and holding [of] people in Lithuania”. 500. The Court further notes that, according to the material in the case file, the first public disclosure of Lithuania’s possible participation in the CIA secret detention scheme appeared on 20 August 2009 in the ABC News report. The report was followed by a more detailed publication of 18 November 2009. The reports mentioned “CIA officials directly involved in or briefed on the highly classified [HVD] programme”, “a former US intelligence official”, “one of the former CIA officers involved in the secret prison program”, “Lithuanian officials” and “a current Lithuanian government official” as their sources. The August 2009 ABC News report stated that “Lithuanian officials [had] provided the CIA with a building on the outskirts of Vilnius ... where as many as eight suspects [had been] held for more than a year until late 2005 when they [had been] moved because of public disclosures”. The reporters said that they had viewed flight logs – shown to them by “one of the former CIA officers involved in the secret prison program”, confirming that CIA planes made “repeated flights into Lithuania during that period” and that the purpose of the flights had been “to move terrorist suspects”. The officer told the reporters that the CIA had “arranged for false plans to be submitted to European aviation authorities”. It was also reported that “the prison in Lithuania [had been] one of eight facilities the CIA set up after 9/11 to detain and interrogate al Qaeda operatives captured around the world” (in this connection, see also paragraph 166 above). In November 2009 ABC News reported that a current Lithuanian government official and a former US intelligence official had told them that the CIA had “built one of its secret European prisons inside an exclusive riding academy outside Vilnius”. ABC News stated that “the CIA [had built a thick concrete wall inside the riding area. Behind the wall, it [had] built what one Lithuanian source [had] called a ‘building within a building’. On a series of thick concrete pads, it [had] installed what a source called ‘prefabricated pods’ to house prisoners, each separated from another by five or six feet. Each pod included a shower, a bed and a toilet. Separate cells were constructed for interrogations. ... Intelligence officers working at the prison [had been] housed next door in the converted stable ... Electrical power for both structures [had been] provided by a 2003 Caterpillar autonomous generator. All the electrical outlets in the renovated structure [had been] 110 volts, meaning that they [had been] designed for American appliances” (see paragraphs 258-259 above). 501. The Government have contested the evidential value of the above publications and, in general terms, expressed reservations as to the evidential value of media and other reports in the public domain (see paragraphs 423-424 above). However, at the material time the Lithuanian authorities apparently considered the August 2009 ABC News disclosure sufficiently credible, given that the report prompted the joint meeting of the CNSD and Committee on Foreign Affairs on 9 September 2009 and the further parliamentary inquiry, which was opened on 5 November 2009. In the course of the inquiry the CNSD interviewed fifty-five persons, including the highest authorities of the State, and obtained various evidence, including classified information (see paragraphs 167-176 above). The CNSD, made the following findings: (a) In 2002-2005 the aircraft that had been linked in official investigations to the transportation of CIA detainees had crossed Lithuania’s airspace on repeated occasions. (b) It had not been established whether CIA detainees had been transported through Lithuania; however, conditions for such transportation had existed. (c) The SSD had received a request from the CIA to equip facilities suitable for holding detainees. (d) The SSD, in Project No. 1, had created conditions for holding detainees in Lithuania; ”facilities suitable for holding detainees [had been] equipped, taking account of the requests and conditions set out by the partners”; however, according to evidence in the CNSD’s possession the premises had not been used for that purpose. (e) While persons who had given evidence to the CNSD had denied that there existed any preconditions for holding and interrogating detainees at Project No. 2, the layout of the building, its enclosed nature and protection of the perimeter, as well as the fragmented presence of the SSD staff at the premises allowed the CIA officers to carry out activities without the SSD’s control and to use the infrastructure at their discretion. The above Findings were endorsed by the Seimas in its Resolution of 19 January 2010 (see paragraph 174 above). 502. The Government submitted that the CNSD Findings had been subsequently verified in the pre-trial investigation conducted in 2010-2011. According to the Government, the investigation, based on the testimony of witnesses who had been directly involved in the implementation of Project No. 1 and Project No. 2, and in the landing and departure procedures for CIA flights, had conclusively established that there had been no CIA secret detention centre in Lithuania, that the facilities of Project No. 1 and Project No. 2 had not been, and could not have been, used for holding detainees and that there had been no evidence of CIA detainees ever being held in the country. The sole purpose of the CIA planes landing was, in the Government’s words, the delivery of a “special cargo”, described as a “connection” or “communication” equipment providing the SSD and the CIA “with technical services in order to implement their joint project”. The Government also attached importance to the fact that Lithuania had not been the object of any international inquiries conducted into the European countries’ collusion in the CIA HVD Programme (see paragraphs 426-446 above). 503. As regards the latter argument, the Court observes that it is true that, on account of the fact that the allegations of the CIA secret prison being run in Lithuania emerged only in August 2009 (see paragraphs 258 and 500 above), Lithuania had not been included in any of the inquiries carried out by the Council of Europe and the European Parliament in 2005-2007 (see paragraphs 269-286 above). Nor were any international investigations of a scale comparable to the Marty Inquiry and the Fava Inquiry subsequently conducted into the allegations concerning Lithuania. 504. However, the investigative work of the experts involved in the 2010 UN Joint Study encompassed Lithuania’s possible involvement in the CIA scheme of secret prisons. According to the UN experts, research for the study, including data strings relating to the country, appear to confirm that it was integrated into the CIA extraordinary rendition programme in 2004 (see paragraph 303 above). 505. The CPT delegation visit to Lithuania on 14-18 June 2010 and the 2011 CPT Report involved the issue of alleged CIA secret prisons. While the central focus for the delegation was to try to assess the effectiveness of the pre-trial investigation which was at that time pending, the CPT considered it important to visit the “two tailored facilities” identified in the CNSD Findings as Project No. 1 and Project No. 2. The 2011 CPT Report, referring to Project No. 2, described the facilities as “far larger than” Project No. 1” and consisting of “two buildings ... connected and divided into four distinct sectors”. In one of the buildings, “the layout of premises resembled a large metal container enclosed with a surrounding external structure”. The CPT refrained from providing a more detailed description of the facilities but concluded that even though when visited by the delegation the premises did not contain anything that was “highly suggestive of a context of detention”, both Project No. 1 and Project No. 2 could be adapted for detention purposes “with relatively little effort” (see paragraphs 350-352 above). 506. It is also to be noted that since at least early 2012, the European Parliament, through the LIBE Committee, has conducted an inquiry into allegations concerning Lithuania’s complicity in the CIA extraordinary rendition scheme. As part of the inquiry, the LIBE delegation visited Lithuania and carried out an inspection of Project No. 2 which, in the words of the LIBE Rapporteur, Ms Flautre, was described as a “kind of building within the building, a double-shell structure” equipped with an “enormous air-conditioning system and a water-pumping system, the purpose of which [was] not evident” (see paragraph 289 above). That visit gave rise to concerns subsequently expressed in the 2012 EP Resolution, which stated that “the layout [of Project No. 2] and installations inside appear[ed] to be compatible with the detention of prisoners” (see paragraph 290 above). 507. Furthermore, the conclusions of the pre-trial investigation relied on by the Government and the Government’s explanation of the purpose of the CIA planes landing seem to have been contradicted by other evidence in the Court’s possession, including material available in the public domain and the experts’ testimony. To begin with, as regards the purpose of the CIA-linked planes landing in Lithuania at the material time, the extensive flight data produced by the applicant, including the data in the 2015 Reprieve Briefing, and expert evidence show that in respect of three out of four planes that landed in and departed from Vilnius and Palanga airports during the period from 17 February 2005 to 25 March 2006 the CIA used its methodology of “dummy” flight planning, that is to say, a deliberate disguise of their true destinations by declaring in the flight plans the route that the planes did not, nor even intended to, fly (see paragraphs 123-125 and 130-133 above). According to expert evidence obtained by the Court in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, as well as in the present case, the methodology of disguising flight planning pertained primarily to those renditions which dropped detainees off at the destination – in other words, at the airport connected with the CIA secret detention facility (see Al Nashiri v. Poland, cited above, §§ 316-318; and Husayn (Abu Zubaydah) v. Poland, cited above, § 310-312; see also paragraph 127 above). (a) Significantly, the N787WH’s circuit executed on 15-19 February 2005 included two disguised – undeclared – destinations on the plane’s route from Rabat to Palanga. The first disguised destination was Bucharest, whereas the flight plan was filed for Constanţa; the second one was Palanga, whereas the flight plan was filed for Gothenburg (see paragraph 123 above). (b) The N787WH’s circuit on 1-7 October 2005 was disguised by both the “dummy” flight planning and switching aircraft in the course of the rendition operation, also called a “double-plane switch” – that is to say, another CIA method of disguising its prisoner-transfers, which was designed, according to expert J.G.S., to avoid the eventuality of the same aircraft appearing at the site of two different places of secret detention (see paragraph 129 above; see also Al Nashiri v. Romania, cited above, § 135). The experts testified that the “double-plane switch” operation had been executed on 5-6 October 2005 in Tirana by two planes – N308AB, which arrived there from Bucharest after collecting detainees from the CIA “black site” in Romania, and N787WH. The CIA detainees “switched” planes in Tirana and they were transferred from N308AB onto N787WH for the rendition flight. On its departure from Tirana, N787WH filed a false plan to Tallinn in order to enable the flight to enter Lithuanian airspace, but its true destination was Vilnius, where it landed on 6 October 2005 in the early hours (see paragraphs 114, 130-131 and 140 above). In relation to this flight it is also noteworthy that the flight data submitted by the Lithuanian aviation authorities to the CNSD in the course of the Seimas inquiry indicated that N787WH had arrived from Antalya, Turkey (see paragraph 174 above). Witnesses questioned in the pre-trial investigation gave inconsistent indications as to where the plane arrived from. For instance, Witness B3 spoke of an “unplanned aircraft from Antalya” (see paragraph 315 above). Witness B4 (“person B”) said that it had “arrived from Tallinn without passengers” and that it had “arrived in Tallinn from Antalya” (see paragraph 316 above). The Administration of Civil Aviation, for its part, informed the prosecutor that “they could [have] confuse[d] the code of Antalya and Tirana due to their similarity” (see paragraph 183 above). (c) According to the experts, a combination of “dummy” flight planning and aircraft switching methodologies was likewise used in connection with the N733MA flight on 25 March 2006 (see paragraphs 134 and 140 above). The Palanga airport records indicated that on that date the plane had arrived in Palanga from Porto and that it had left for Porto on the same day (see paragraphs 125 and 174 above). However, as stated in the 2015 Reprieve Briefing and confirmed by the experts at the fact-finding hearing, a false plan was filed for Porto, whereas the plane flew to Cairo where it made connection with N740EH, another CIA rendition plane. The 2015 Reprieve Briefing also states that the documents relating to the planning of these two trips showed complex attempts to disguise the fact that the purpose of the trips was to provide a connection between Lithuania and Afghanistan (see paragraph 125 above). In the Court’s view, the CIA’s above repeated, deliberate recourse to the complex flight-disguising methodologies typical of rendition flights transporting detainees to “black sites” does not appear to be consistent with the stated purpose of the CIA-linked planes landing in Lithuania, which according to the Government had been merely the delivery of “special cargo”, described as “communication” or “connection” equipment”, in the context of the routine intelligence cooperation (see paragraphs 427-432 above). 508. The Court further observes that in respect of the above planes the authorities applied a distinct practice, which resembles the special procedure for landings of CIA aircraft in Szymany airport followed by the Polish authorities in December 2002-September 2003 and found by the Court to have been one of the elements indicative of the State’s complicity in the CIA HVD Programme (see Al Nashiri v. Poland, cited above, §§ 418 and 442; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 420 and 444). In particular, as in Poland, the planes were not subject to any customs or the border guard control. On 6 October 2005 the SBGS officer R.R. was prevented from carrying out the N787WH plane inspection (see paragraphs 174 and 366 above). In connection with the arrivals of the “partners’” and the SSD officers at the airports, classified letters asking for access to the aircraft were issued to the SBGS at least on two occasions – one ex post facto, following the above incident with the SBGS officer on 6 October 2005 and one in connection with the N733MA landing in Palanga on 25 March 2006. Also, the rendition planes landing involved special security procedures organised by the CIA’s counterpart in Lithuania. As confirmed by the SSD officers questioned in the course of the pre-trial investigation, they used to escort “the partners”, that is to say, the CIA teams to and from Vilnius and Palanga airports. In that connection, the CIA asked the SSD to make security arrangements. In the airport, the CIA vehicles approached the aircraft, whereas the SSD’s escorting vehicles remained at some distance (see paragraphs 174, 184, 315, 329, 337, 346, 366, 370-371 above). 509. At the fact-finding hearing held in the present case the experts, Mr J.G.S. and Mr Black, confirmed categorically that – beyond reasonable doubt – a CIA secret detention facility had operated in Lithuania in the period indicated by the applicant. In the same categorical terms they identified Lithuania as a country hosting the CIA secret detention facility codenamed “Detention Site Violet” in the 2014 US Senate Committee Report (see paragraphs 128-145 above). The 2015 Reprieve Briefing, relying on research into the CIA rendition operations, the analysis of the public data regarding the CIA prisoners’ transfers and the unredacted parts of the report, likewise concluded that it had been established beyond reasonable doubt that one of the facilities adapted by the CIA in Lithuania had been used to hold prisoners and that Detention Site Violet had been located in Lithuania (see paragraphs 120-122 above). 510. The experts and the Briefing gave the same time-frame – February 2005-March 2006 – for the CIA’s secret prison operation. The Briefing stated that the opening of the site had been marked by the transfer of prisoners which could have been effected on either or both of two CIA rendition aircraft – N724CL, which landed in Vilnius on 17 February 2005, or N787WH, which landed in Palanga on 18 February 2005 (see paragraph 123 above). Both experts stated that the opening of the CIA “black site” in Lithuania had been prompted by the disagreements with the Moroccan authorities in the administering of a secret detention site used by the CIA in Rabat, which had led to the transfer of the CIA detainees out of Morocco (see paragraphs 129, 132-133 and 139-141 above). 511. In that regard, Mr J.G.S. referred to the “cyclical nature” of the CIA detention sites and explained that the CIA HVD Programme had included several junctures “at which one detention close[d] abruptly and another open[ed] in its place”. In his view, “17-18 February 2005 had been the critical juncture at which CIA detention operations overseas had been dramatically overhauled”. In the light of the flight data of February 2005, there were only two destinations for detainees being taken from Morocco –Romania and Lithuania. Mr J.G.S. reached the “incontrovertible conclusion” that when the facility in Morocco had been finally closed, the only possibility was that Detention Site Violet in Lithuania then took the detainees from Morocco in conjunction with Detention Site Black in Romania (see paragraphs 129-137 above). He further stated that references in the 2014 US Senate Committee Report had “accorded completely with the timings, with the character and with the chronological progression of detention operations in respect of Lithuania”. He referred to the report’s sections stating that Detention Site Violet had been created in a “separate country” from any of the other detention sites mentioned therein. This, in his view, had opened a new territory in the CIA HVD Programme and referred to a site that had endured beyond the life span of Detention Site Black in Romania which, according to report, was closed shortly after the Washington Post publication of 2 November 2005. In that connection, Mr J.G.S. also testified that the two projects in Lithuania aimed at providing support to the CIA detention operations, referred to in the Seimas inquiry as Project No. 1 and Project No. 2, corresponded to the description of two facilities in the country hosting Detention Site Violet. In particular, the report stated that by mid-2003 the CIA had concluded that its completed but still unused holding cell in the country – by which it had meant Project No. 1 – had been insufficient. It further stated that the CIA had thus sought to build a new expanded facility in the country. This corresponded precisely with the description of the provenance of Project No. 2 as given in the CNSD Findings (see paragraph 133 above). 512. Mr Black said that the report clearly indicated that Detention Site Violet had operated from February 2005 to March 2006. The site had been in a country where there had previously been another site that had never been used. This detail of there having been two sites, one never used and one that had been used between February 2005 and March 2006 corresponded accurately with the parliamentary inquiry’s findings, stating that “partners” – the CIA – had equipped two sites. His research established that flights went into and out of Lithuania precisely at the time that the prisoners were said to have been moved into and out of Detention Site Violet. This corresponded with flights into and out of Lithuania in, firstly, February 2005, then in October 2005 and lastly in March 2006 (see paragraph 140 above). Mr Black added that, taking into account the whole weight of various indicators, “the only solution that ma[d]e any sense is that the solution that indeed the site in Lithuania [had] operated at the times that we [had] stated and [had been] serviced by the flights that we [had] stated” (see paragraph 144 above). 513. In that context the Court would also note that, as shown by the evidence referred to above, the 17-18 February 2005 flights were followed by the landing on 6 October 2005 of the plane N787WH, which, according to the experts, transferred CIA detainees, via a “double-plane switch” operation in Tirana, from the CIA facility codenamed “Detention Site Black” in the 2014 US Senate Committee Report and located in Bucharest. Mr Black added that Khalid Sheikh Mohammed had been transferred from Romania to Detention Site Violet in Lithuania on that plane (see paragraphs 130-131 and 143-144 above). 514. The experts were not in complete agreement as to which date – 17 or 18 February 2005 – was the one definitely marking the opening of the CIA “black site” in Lithuania. Mr J.G.S. considered that it was more likely that the flight of N734CL on 17 February 2005 signified the opening of the “black site”, since it had landed in Vilnius and Vilnius was the airport physically associated with Antaviliai, the location of the CIA facility. However, he did not rule out the possibility that another airfield, Palanga, may have been used in conjunction with Vilnius (see paragraphs 130, 134 and 137 above). Mr Black, for his part, was categorical in stating that the transfer of detainees from Morocco to Lithuania had been executed by the N787WH flight into Palanga on 18 February 2005 (see paragraphs 141-142 above). However, the Court does not find it indispensable to rule on which specific date the CIA site in Lithuania opened given that, according to the evidence before it, there were only these two, closely situated, dates on which it could have happened. 515. As regards the date marking the end of Detention Site Violet’s operation, both Mr J.G.S. and Mr Black stated that it had been closed as a result of medical issues experienced by CIA detainees, who had been refused medical treatment in the country, as described in the 2014 US Senate Committee Report. The experts linked the closure to the rendition mission executed by the plane N733MA, which had landed in Palanga on 25 March 2006. They stated that it had taken the CIA prisoners via Cairo by means of an aircraft switching operation to another detention facility, which they unambiguously identified as “Detention Site Brown” located in Afghanistan. The 2015 LIBE Briefing likewise stated that the above transfer had matched the closure of Detention Site Violet. In that regard, it also referred to the passages in the 2014 US Senate Committee Report, stating that the site had been closed as a result of lack of available medical care in the “five-character redacted” month in 2006 – the redacted month could only be “March” or “April” on account of the length of the redaction (see paragraphs 122-125 and 128-145 above). 516. As regards the physical location of Detention Site Violet, both Mr J.G.S. and Mr Black stated that, beyond reasonable doubt, it had been located in Antaviliai, a neighbourhood of Vilnius, in the former horse-riding academy converted into a customised CIA detention facility, the construction of which had been supervised by the CIA “afresh”. Mr Black, who in 2011-2012 had made several trips to Antaviliai to interview local people, said it was clear from those interviews that the Americans had been there, had been fitting the site out, had been guarding the place and that vehicles with tinted windows had been coming and going (see paragraphs 137 and 140 above). 517. Lastly, the experts, on the analysis of the 2014 US Senate Committee Report and recently declassified CIA material, also established that at least five CIA prisoners were held at Detention Site Violet and conclusively identified three of them – Mustafa al-Hawsawi, who was explicitly mentioned in the report in connection with medical issues experienced at that site, Khalid Sheikh Mohammed and the applicant (see paragraphs 133, 135 and 141 above). 518. The Court observes that the 2014 US Senate Committee Report includes several references to Detention Site Violet. It clearly refers to two detention facilities in the country hosting that site: one completed but, “by mid-2003”, still unused and considered by the CIA as insufficient “given the growing number of CIA detainees in the program and the CIA’s interest in interrogating multiple detainees at the same detention site” and one “expanded” which the CIA “sought to build”. In that connection, the CIA offered some redacted sum of USD million “to ‘show appreciation’ ... for the ... support” for the CIA HVD Programme (see paragraph 147 above). That information is consistent with evidence from witnesses M, N, O and P, who were questioned in the criminal investigation. They confirmed that in 2003 N and O had been assigned to assist their CIA partners in finding suitable premises for a joint project – an “intelligence support centre”– in respect of which the partners had “used to cover all expenses”. According to Witness P, in 2002-2003 the “partners” had come and proposed to organise a joint operation, “to establish the premises in Lithuania for the protection of secret collaborators”. Witness O said that the CIA partners had chosen the premises which had then become Project No. 2 and that they had started to come in Spring 2004, had carried out the work themselves and had brought material and the equipment in the containers (see paragraphs 333337 above). 519. The 2014 US Senate Report further states that Detention Site Violet “opened in early 2005” (see paragraph 148 above). This element corresponds to the dates of the landings of the rendition planes N724CL and N787WH – 17 and 18 February 2005. It also corresponds to the statement of Witness S, who testified that Project No. 2 had been “established at the beginning of 2005” (see paragraph 341 above). The closure of Detention Site Violet is mentioned in the report in a specific context and chronology, namely “press stories”, in particular the Washigton Post publication of 2 November 2005 that led to the closure of Detention Site Black and “the CIA’s inability to provide emergency medical care” due to the refusal of the country hosting Detention Site Violet to admit Mustafa al-Hawsawi, one of the CIA detainees, to a local hospital. This refusal, according to the report, resulted in the CIA’s having sought assistance from third-party countries in providing medical care to him and “four other CIA detainees with acute ailments”. In relation to the Washington Post publication, the report gives a fairly specific time-frame for the closure of Detention Site Black, which occurred “shortly thereafter”. However, Detention Site Violet still operated in “early January 2006”. At that time “the CIA was holding twenty-eight detainees in its two remaining facilities, Detention Site Violet ... and Detention Site Orange”. Detention Site Violet was closed in 2006, in the month whose name comprised five characters which were redacted in the report (see paragraph 149 above). As noted in the 2015 Reprieve Briefing, there are only two possibilities: the relevant month could be either “March” or “April” 2006. 520. Considering the material referred to above as whole, the Court is satisfied that there is prima facie evidence in favour of the applicant’s allegation that the CIA secret detention site operated in Lithuania between 17 or 18 February 2005 and 25 March 2006. Accordingly, the burden of proof should shift to the respondent Government (see El-Masri, cited above, §§ 154-165 and paragraph 482 above). 521. However, the Government have failed to demonstrate why the evidence referred to above cannot serve to corroborate the applicant’s allegations. Apart from their reliance on the conclusions of the criminal investigation of 2010-2011 and, in particular, the testimony of witnesses who, as the Government underlined, had all consistently denied that any transfers of CIA detainees had taken place or that a CIA had run a secret detention facility in Lithuania, they have not offered convincing reasons for the series and purpose of the CIA-associated aircraft landings at Vilnius and Palanga between 17 February 2005 and 25 March 2006, the special procedures followed by the authorities in that connection and the actual purpose served by Project No. 2 at the material time (see paragraphs 424443 above). 522. The witness testimony obtained in the criminal investigation is the key evidence adduced by the Government in support of their arguments (see paragraphs 307-349 above). The Court has not had the possibility of having access to full versions of the testimony since the relevant material was and still is classified. It has nevertheless been able to assess that evidence on the basis of a summary description produced by the Government (see paragraphs 304-306 above). Having considered the material submitted, the Court finds a number of elements that do not appear to be consistent with the version of events presented by the Government. 523. First, the Government asserted that both Project No. 1 and No. 2 were found to have been completely unsuitable for secret detention (see paragraphs 433-442 above). The Court does not find it necessary to analyse in detail the purposes actually served by Project No. 1 or determine whether or not that facility was used, as the Government argued at the oral hearing, for “extraction” or “exfiltration” of secret agents or otherwise, since in the present case it is not claimed that CIA detainees were held in that facility. It thus suffices for the Court to take note of the CNSD’s conclusion that in Project No. 1 “conditions were created for holding detainees in Lithuania” (see paragraph 174 above). 524. Secondly, as regards Project No. 2, the Government submitted that while the exact purpose served by the premises at the material time could not be revealed since it was classified, the witnesses had unequivocally confirmed that no premises suitable for detainees had been located there. Moreover, access to the premises had been under the permanent surveillance of the SSD and there had been no secret zones inaccessible to the SSD officers in the building. This excluded any possibility of unauthorised access or holding detainees in the premises (see paragraphs 436-441 above). However, the Court notes that Witnesses N and O, the SSD officers assigned to assist the CIA partners, who escorted them to and from the airports and who were also responsible for supervision of the premises, said that they had not visited all the rooms. Witness N said that he had not had access to the “administration area”. O was not given access to all the premises. Moreover, the building was apparently not used for the purpose of the declared “joint operation” of an intelligence support centre. The only Lithuanian intelligence personnel present in the building were the three SSD officers M, N and O, who supervised the building on changing shifts even if nobody was there. Witness O stated that he had not known who had arrived at the premises or “with what they had been occupied with”. Witness N “was not aware of the contents of the operations” that were carried out in Project No. 2. Witnesses N and O “actively supervised” the building until the second half of 2005 but then the number of the CIA partners’ visits decreased (see paragraphs 333-337 above). 525. As regards the Government’s explanation that the premises were acquired for the SSD’s needs and used for “short-term meetings” with “their guests” (see paragraph 439 above), the layout of one of the buildings at Project No. 2, depicted by the CPT as “a large metal container enclosed within a surrounding external structure” and by the LIBE delegation as “a kind of building within the building” (see paragraphs 289 and 352 above) does not strike the Court as being a structure typical for the declared purpose. Also, no convincing explanation has been provided as to why Project No. 2, claimed to have been designated for an “intelligence support centre” and reconstructed with evidently considerable effort and expense on the part of the CIA had – according to the witnesses – been virtually unused by the SSD or their partners throughout 2005 (see paragraphs 333-338 and 341 above). 526. The Government further argued that in the light of abundant evidence it had been established in the criminal investigation that the purpose of two CIA-linked flights into Palanga, alleged to have transported the applicant to and out of Lithuania, namely N787WH and N733MA, which had taken place on, respectively, 18 February 2005 and 25 March 2006 had been the delivery of a “special cargo”. The object of the delivery was “special equipment for a special investigation department” in a number of boxes, which had all been of the same size, one metre long (see paragraphs 427-432 above). 527. However, the witness statements relied on are not only partly inconsistent with each other but they also do not fully support the Government’s account. Furthermore, the Government’s account is at variance with evidence collected in the course of the parliamentary inquiry. In this regard, the Court would refer to testimony given by the SSD officers involved in escorting “cargo” and the CIA partners to and from the Lithuanian airports and to the CNSD Findings. 528. As regards the Government’s submission that the purpose of the flight N787WH which landed in Palanga on 18 February 2005 was the delivery of cargo containing the “connection” or “communication” equipment (see paragraphs 428-432 above), the Court notes that none of the witnesses heard in the criminal investigation referred to any “delivery of cargo” to Lithuania in relation to the plane in question (see paragraphs 333337 and 346 above). It further notes that the Government’s contention stands in contrast with the CNSD Findings, which in the light of the evidence gathered in the inquiry, established that “no cargo was unloaded from it or onto it” (see paragraph 174 above). However, as confirmed by the 2010 SBGS letter, “five US citizens arrived in the Republic of Lithuania on that plane” (see paragraph 371 above). 529. Moreover, the statements made by witnesses V and O do not support the Government’s contention that the purpose of the flight N733MA into Palanga on 25 March 2006 was likewise “to deliver equipment” for the Lithuanian “special investigation department”. On the contrary, the two escorting officers clearly related the loading of a “cargo” onto the CIA aircraft from the CIA partners’ vehicles (see paragraphs 333-337 and 346 above). This happened in the course of what was called an “operation”, which suggests that the activities involved in the aircraft landing and loading were not quite of a routine nature. As in respect of the other CIA aircraft landings referred to above (see paragraphs 507-508 above), the special procedure, without any customs or SBGS control, had been applied. 530. Having regard to the inconsistency of the Government’s version with the witness statements and the factual findings made by the Lithuanian Parliament and in the light of the documentary and expert evidence analysed in detail above, the Government’s explanations as to the purposes served by the CIA rendition flights landing in Lithuania between 17 February 2005 and 25 March 2006 and the facility Project No. 2 cannot be regarded as convincing. 531. In view of the foregoing and taking into account all the elements analysed in detail above, the Court concludes that the Government have not produced any evidence capable of contradicting the applicant’s allegations. In particular, they have not refuted the applicant’s argument that the planes N724CL, N787WH and N733MA that landed in Lithuania between 17 February 2005 and 25 March 2006 served the purposes of the CIA rendition operations and the conclusions of the experts heard by the Court, categorically stating that the aircraft in question were used by the CIA for transportation of prisoners into Lithuania. Nor have they refuted the applicant’s assertion that the above rendition flights marked the opening and the closure of a CIA secret prison referred to in the 2014 US Senate Report as “Detention Site Violet”, which was conclusively confirmed by expert evidence to the effect that Detention Site Violet was located in Lithuania and operated during the period indicated by the applicant (see also and compare with Al Nashiri v. Poland, cited above, §§ 414-415; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 414-415). 532. Consequently, the Court considers the applicant’s allegations sufficiently convincing and, having regard to the above evidence from various sources corroborating his version, finds it established beyond reasonable doubt that: (a) a CIA detention facility, codenamed Detention Site Violet according to the 2014 US Senate Committee Report, was located in Lithuania; (b) the facility started operating either from 17 February 2005, the date of the CIA rendition flight N724CL into Vilnius airport, or from 18 February 2005, the date of the CIA rendition flight N787WH into Palanga airport; and (c) the facility was closed on 25 March 2006 and its closure was marked by the CIA rendition flight N733MA into Palanga airport, which arrived from Porto, Portugal and, having disguised its destination in its flight plan by indicating Porto, on the same day took off for Cairo, Egypt. 533. It is alleged that the applicant was transferred to Lithuania from Rabat, Morocco either on 17 February 2005 on board N724CL or on 18 February 2006 on board N787WH and that he had been secretly detained at Detention Site Violet in Lithuania until 25 March 2005, when he had been transferred out of Lithuania on board N733MA (see paragraphs 112117 above). 534. The Court is mindful of the fact that, as regards the applicant’s actual presence in Lithuania, there is no direct evidence that it was the applicant who was transported on 17 or 18 February 2005, the two possible dates indicated by the experts (see paragraphs 130-135 above) from Rabat to Lithuania or that he was subsequently transferred on 25 March 2006 from Lithuania to another CIA secret detention facility on board the plane N733MA. The applicant, who for years on end was held in detention conditions specifically designed to isolate and disorientate detainees by transfers to unknown locations, even if he had been allowed to testify before the Court, would not be able to say where he was detained. Nor can it be reasonably expected that he will ever, on his own, be able to identify the places in which he was held. No trace of the applicant can, or will, be found in any official flight or border police records in Lithuania or in other countries because his presence on the planes and on their territories was, by the very nature of the rendition operations, purposefully not to be recorded. As confirmed by expert J.G.S. in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, in the countries concerned the official records showing numbers of passengers and crew arriving and departing on the rendition planes neither included, nor purported to include detainees who were brought into or out of the territory involuntarily, by means of clandestine HVD renditions. Those detainees were never listed among the persons on board in documents filed with any official institution (see Al Nashiri v. Poland, cited above, §§ 410-411; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 410-411). 535. In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained at Detention Site Violet in Lithuania at the relevant time, the Court will take into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 489-532 above) and analyse all other material in its possession, including, in particular, the 2014 US Senate Committee Report and expert evidence reconstructing the chronology of the applicant’s rendition and detention in 2002-2006 (see paragraphs 102-156, 159, 167-200 and 264-395 above). 536. As noted above, the facts of the present case form an integral part of a chain of events lasting from the applicant’s capture on 27 March 2002 to his transfer by the CIA into the custody of the US military authorities in the Guantánamo Bay Naval Base on 5 September 2006. Those events took place in multiple countries hosting the CIA secret detention facilities that operated under the HVD Programme during that period. They involve a continuing sequence of the applicant’s renditions from one country to another, with the periods of his detention at each country’s “black site” being marked by the movements of the CIA’s rendition aircraft corresponding to locations within the network of secret prisons (see paragraphs 485-488 above). 537. The Court further notes that the facts concerning the applicant’s secret detention and continuous renditions from the time of his capture in Faisalabad, Pakistan, on 27 March 2002 to his rendition from Rabat, Morocco, in February 2005, including the names of the countries in which he was detained, the exact dates on which he was transferred by the CIA to and out of each country and the identities of all the rendition planes on which he was transferred have already been established conclusively and to the standard of proof beyond reasonable doubt in Husayn (Abu Zubaydah) v. Poland and in the present case (see Husayn (Abu Zubaydah) v. Poland, cited above, §§ 404 and 419; and paragraphs 489-532 above). 538. In particular, it has been established beyond reasonable doubt that until an unspecified date in February 2005 the applicant was held in secret detention in Morocco, at a facility used by the CIA and that on that date he was transferred by the CIA from Morocco to another detention facility elsewhere (see paragraph 497 above). It has also been established to the same standard of proof, beyond reasonable doubt, that: (a) The CIA secret detention facility codenamed “Detention Site Violet” in the 2014 US Senate Committee Report became operational in Lithuania either on 17 February 2005, the date of the CIA rendition flight N724CL from Rabat via Amman, which landed at Vilnius airport or on 18 February 2005, the date of the CIA rendition flight N787WH from Rabat via Bucharest, which landed at Palanga airport. (b) The Detention Site Violet operated in Lithuania until 25 March 2006, the date of the CIA rendition flight N733MA from Palanga airport to Cairo (see paragraph 532 above). 539. It accordingly remains for the Court to determine whether it has been adequately demonstrated to the required standard of proof that the applicant was transferred from Morocco to Lithuania on either of the February 2005 CIA flights and whether he was secretly detained in Lithuania over the subsequent period, until 25 March 2006. 540. The Court observes that the main argument put forward by the Government is that there is no credible evidence confirming the applicant’s presence in Lithuania during that period and no link between the impugned flights and the applicant. In the Government’s submission, even if the flights had been linked with the CIA and landed in Lithuania, it could not constitute a proof of his detention in the country (see paragraphs 426 and 443 above). It has already been reiterated above that, given the veil of secrecy surrounding the CIA rendition operations, it cannot be expected that any traces of the applicant are to be found in any official flight or border control records in Lithuania or elsewhere. As in other cases concerning the CIA HVD Programme the fate of the applicant can be reconstructed only by an analysis of strings of data from various sources available in the public domain and expert evidence (see paragraph 487 above). The fact that the applicant’s name does not appear in the official record with reference to his alleged secret detention in Lithuania is not therefore decisive for the Court’s assessment. 541. In that regard, the Court notes that the 2014 US Senate Committee Report contains a number of often extensive references to the applicant, in particular in relation to the EITs inflicted on him during the series of interrogations, including the use of waterboarding, in the early stages of his secret detention at Detention Site Green located in Thailand and “debriefing” that he underwent at Detention Site Blue located in Poland (see paragraphs 92-96 above). Yet, as also confirmed by the experts, the report does not mention the applicant explicitly by name in connection with Detention Site Violet (see paragraphs 135, 137 and 141 above). 542. Nonetheless, the experts, following a comprehensive analysis of the entirety of the available documentary evidence concerning the CIA’s extraordinary rendition operations at the material time, were able to conclude that he had been detained at that site on the basis of a number of other elements consistently demonstrating that there is no – and there could not be any – alternative account of the applicant’s fate following his February 2005 rendition from Morocco. The Court would reiterate that the experts started by determining, beyond reasonable doubt, that Morocco was the only place in which the applicant could have been detained in February 2005 and that, according to the rendition aircraft schedules at that time he could only have been transferred from there either to Detention Site Black in Romania or to Detention Site Violet in Lithuania. On the basis of evidence indicating his absence from Detention Site Black in the relevant period, the one and only remaining destination of the applicant’s transfer from Rabat was Detention Site Violet. They further went on to infer information relevant for the applicant from unredacted passages of the report concerning other HVDs in CIA custody, Khalid Sheikh Mohammed and Mustafa al-Hawsawi, simultaneously being detained in the country hosting Detention Site Violet. The experts correlated this information with the data relating to the CIA detainee transfers in the period of the operation of the Lithuanian site, including the transfer from Detention Site Black to Detention Site Violet on 6 October 2005 and the transfer from Detention Site Violet, via Cairo and an aircraft switching operation, to Detention Site Brown (see paragraphs 132, 134-135, 137 and 141143 above). 543. The Court would refer, in particular, to the following statements made by the experts. Mr J.G.S. stated that “through an intimate familiarity with the chronology of [the applicant’s] detention” he had reached the conclusion that “there [was] only one place he could have been in the early part of 2005 and that that place was indeed Morocco”. He knew that “the transfers out of Morocco in 2005 went to other active ‘black sites’ that that one of these was ‘Detention Site Black’ in Romania, but that there was also another one in a separate country ... and ... this other country was Lithuania”. He added that “because [the applicant] did not arrive in Romania, ‘Detention Site Black’” – which he knew based on his “years’ long investigations into the operations of that site ... the only other destination to which he could have been transferred was the active site in Lithuania and this transfer took place in accordance with the flights ... in February 2005” (see paragraph 137 above). Mr Black testified that, based on the overall effect of the evidence, he was satisfied “that beyond reasonable doubt Abu Zubaydah was held in Lithuania starting from February 2005”. He said that while prima facie it was possible that the applicant, being in Morocco in February 2005, had been moved either to Romania or to Lithuania, there was evidence indicating, first, that he was not in Romania in or prior to the Summer 2005 and, second, that he was in Lithuania in March 2005 (see paragraphs 141144 above). 544. The experts attributed a different threshold of proof to their conclusions. Mr J.G.S. stated that on the “balance of probabilities”, he believed it was established that the applicant had been secretly detained at Detention Site Violet (see paragraph 137). He was nevertheless satisfied as to “the presence of Mr Zubaydah, respectively in early 2005 in Morocco up to the point where the CIA detention [facility] [had been] cleared, thereafter on the territory of Lithuania in Detention Site coded as ‘Violet’ and thereafter on the territory of Afghanistan in the Detention Site coded as ‘Brown’” (see paragraph 139 above). Also, he said that there was a “categorical certainty” that the applicant had been brought to Lithuania on one of the February 2005 flights from Morocco to Lithuania – N724CL or N787WH – either on 17 or on 18 February 2005 and that “beyond reasonable doubt he [had been] taken to Afghanistan when he [had] left Lithuania” (see paragraphs 134, 137 and 139 above). Mr Black categorically stated that the applicant, beyond reasonable doubt, had been held in Lithuania from February 2005 onwards and that he believed that the applicant had been “flown into Lithuania on N787WH on 18 February 2005 and flown out of Lithuania on N733MA and N70EH on 25 March 2006” (see paragraphs 142-143 above). 545. The Court does not consider that this difference in terminology used by the experts has a direct and dispositive bearing on its own assessment of the evidence. It reiterates that, while in assessing evidence it applies “the standard of proof beyond reasonable doubt”, that concept is independent from the approach of the national legal systems which use that standard. The Court is not called upon to rule on criminal guilt or civil liability based on “beyond reasonable doubt” or “balance of probabilities” standards as applied by the domestic courts but on the responsibility of the respondent State under the Convention (see paragraph 481 above, with references to the Court’s case-law). 546. Based on its free evaluation of all the material in its possession, the Court considers that there is prima facie evidence corroborating the applicant’s allegation as to his secret detention in Lithuania, at Detention Site Violet, from 17 or 18 February 2005 to 25 March 2006. Consequently, the burden of proof should shift to the respondent Government. 547. However, the Government, apart from their above contention that there is no credible evidence confirming the applicant’s detention in Lithuania, in particular in any border control records, and their general denial that any CIA secret detention facility had operated in the country, have not adduced any counter-evidence capable of refuting the experts’ conclusions. Having regard to the very nature of the CIA secret detention scheme, the Government’s argument that there is no indication of the applicant’s physical presence in Lithuania – which they sought to support by the fact that his name had not been found in the records of passengers on the flights in February 2005-March 2006 (see paragraphs 426-428 above) – cannot be upheld. In the Court’s view, it would be unacceptable if the Government, having failed to comply with their obligation to register duly and in accordance with the domestic law all persons arriving on or departing from Lithuanian territory on the CIA planes and having relinquished any border control in respect of the rendition aircraft (see paragraphs 508 above), could take advantage of those omissions in the fact-finding procedure before the Court. When allowing the CIA to operate a detention site on Lithuanian soil the Government were, by pure virtue of Article 5 of the Convention, required to secure the information necessary to identify detainees brought to the country (see paragraphs 652-654 below, with references to the Court’s case-law). The Court cannot accept that the Government’s failure to do so should have adverse consequences for the applicant in its assessment of whether it has been adequately demonstrated by the Government, against the strong prima facie case made by the applicant, that his detention in Lithuania did not take place. 548. In view of the foregoing, the Court considers the applicant’s allegations sufficiently convincing. For the same reasons as stated above in regard to the date marking the opening of Detention Site Violet (see paragraph 514 above), the Court does not find it indispensable to rule on which of the two dates indicated by the applicant – 17 or 18 February 2005 – and on which of the two planes – N724CL or N787WH – he was brought to Lithuania. Consequently, on the basis of strong, clear and concordant inferences as related above, the Court finds it proven to the required standard of proof that: (a) on 17 or 18 February 2005 the applicant was transferred by the CIA to from Rabat, Morocco to Lithuania on board either the rendition plane N724CL or the rendition plane N787WH; (b) from 17 or 18 February 2005 to 25 March 2006 the applicant was detained in the CIA detention facility in Lithuania codenamed “Detention Site Violet” according to the 2014 US Senate Committee Report; and (c) on 25 March 2006 on board the rendition plane N733MA and via a subsequent aircraft-switching operation the applicant was transferred by the CIA out of Lithuania to another CIA detention facility, identified by the experts as being codenamed “Detention Site Brown” according to the 2014 US Senate Committee Report. 549. The applicant stated that, as in Husayn (Abu Zubaydah) v. Poland on account of the secrecy of the HVD Programme and restrictions on his communications with the Court, he could not present specific evidence of what had happened to him in Lithuania. However, as the Court found in the above case, at an absolute minimum detainees in CIA custody, whether in Lithuania or elsewhere, would have been subjected to the applicable standard conditions of detention at the relevant time, including solitary confinement, shackling, exposure to bright light, low and loud noise on a constant basis and the standard conditions of transfer, stripping, shaving, hooding, diapering and strapping down into painful crammed positions. The Government have not addressed this issue. 550. The Court observes that, in contrast to treatment inflicted on the applicant during an early period of his secret detention, which is often documented in detail in various material (see paragraphs 92-97 above), there is no evidence demonstrating any instances of similar acts at Detention Site Violet. According to the 2014 US Senate Committee Report, the applicant from his capture to his transfer to US military custody on 5 September 2006 “provided information”, which resulted “in 766 disseminated intelligence reports”. The fact that nearly 600 such reports were produced between September 2002 and September 2006 indicates that he was continually interrogated or “debriefed” by the CIA during the entire period of his secret detention (see paragraph 156 above). However, in the light of the material in the Court’s possession, it does not appear that in Lithuania the applicant was subjected to the EITs in connection with interrogations (see paragraphs 48-55 above). As regards recourse to harsh interrogation techniques at the relevant time, the 2014 US Senate Committee Report states in general terms that in mid-2004 the CIA temporarily suspended the use of the EITs. While their use was at some point resumed and they were apparently applied throughout the most part of 2005, such techniques were again temporarily suspended in late 2005 and in 2006. However, the applicant’s name is not mentioned in that context (see paragraph 86 above). 551. According to the experts, it was not possible to pronounce categorically on specific interrogation techniques or other forms of treatment or ill-treatment practised on the applicant in Lithuania, as in 20052006 there was less information about the treatment of prisoners in the HVD Programme than there had been in the previous years. However, the CIA documents and the 2014 US Senate Committee Report described the routine conditions of detention at “black sites”, which included such practices as sensory deprivation, sleep deprivation, denial or religious rights and incommunicado detention. Those conditions alone passed the threshold of treatment prohibited by Article 3 of the Convention (see paragraphs 154155 above). 552. As regards the Court’s establishment of the facts of the case, detailed rules governing conditions in which the CIA kept its prisoners leave no room for speculation as to the basic aspects of the situation in which the applicant found himself from 17 or 18 February 2005 to 25 March 2006. The Court therefore finds it established beyond reasonable doubt that the applicant was kept – as any other high-value detainee – in conditions described in the DCI Confinement Guidelines, which applied from the end of January 2003 to September 2006 to all CIA detainees (see paragraphs 54-56 above; see also Husayn (Abu Zubaydah) v. Poland, cited above, §§ 418-419 and 510). While at this stage it is premature to characterise the treatment to which the applicant was subjected during his detention at Detention Site Violet for the purposes of his complaint under the substantive limb of Article 3 of the Convention, the Court would point out that that regime included at least “six standard conditions of confinement”. That meant blindfolding or hooding the detainees, designed to disorient them and keep from learning their location or the layout of the detention facility; removal of hair upon arrival at the site; incommunicado, solitary confinement; continuous noise of high and varying intensity played at all times; continuous light such that each cell was illuminated to about the same brightness as an office; and use of leg shackles in all aspects of detainee management and movement (see paragraphs 55-56 above). 553. The Government firmly denied that the State authorities had received any CIA request that would even vaguely imply the running of a secret detention facility on Lithuanian territory. The prospects of receiving from the US authorities a request for assistance in the “war on terror” had been considered by the SSD on a purely theoretical basis. Moreover, in the criminal investigation all the Heads of State in office at the material time had consistently testified that they had not known about any detainees transfers and had not given their consent to the transportation of any persons held by the CIA (see paragraph 445 above). 554. However, the above contention does not seem to be supported by the CNSD Findings, which established that the SSD had received a request from the CIA “to equip facilities in Lithuania suitable for holding detainees”. In that connection, the CNSD referred to the testimony of the former Head of State, Mr Rolandas Paksas who had confirmed that Lithuania had been asked for permission to bring into the country persons suspected of terrorism; however, the information that he had received had not mentioned a detention centre or prison. The former Director General of the SSD, Mr Mečys Laurinkus testified that in mid-2003 he had informed Mr Paksas about a possibility of receiving a “request to participate in the programme concerning the transportation of detainees” after Lithuania’s accession to NATO (see paragraph 174 above). In that context, the Court would refer to the 2014 US Senate Report, which states, in relation to Detention Site Violet, that at the same time, that is “by mid-2003”, the CIA “had concluded that its completed but still unused holding cell in Country ... [had been] insufficient” and had “sought to build a new, expanded detention facility in the country” (see paragraph 147 above). The Court would also note that Lithuania’s accession to NATO took place on 29 March 2004 (see paragraph 364 above). The CNSD further established that, “when carrying out the SSD partnership cooperation Project No. 1 and Project No. 2, the ... heads of the SSD [had] not inform[ed] any of the country’s officials of the purposes and content of the said projects”. On the basis of the material in its possession, it related that although Mr Laurinkus had received a negative answer from Mr Paksas in respect of the “bringing into the Republic of Lithuania of persons interrogated by the USA”, he had not asked either Mr Paksas or acting Head of State, Mr Artūras Paulauskas, for “political approval of activities under Project No. 2”. Mr Laurinkus had “had knowledge of launching the activities under Project No. 2” in MarchApril 2004 – which, the Court would note, was around the same time as Lithuania’s accession to NATO. Several SSD officers, including the Director General, Mr Arvydas Pocius, and acting Director General, Mr Dainius Dabašinskas had “had knowledge of Project No. 2 at the time of launching” (see paragraph 174 above). Mr Valdas Adamkus, the former Head of State stated that “no information [had been] provided to [him] about running Project No. 2 in 2004-2006”. However, according to Mr Pocius, Mr Adamkus had been “adequately informed” of Project No. 2 (see paragraphs 174, 177-178 and 367 above). In the Seimas public debate on the CNSD Findings it was again confirmed that the SSD had received a request from the CIA “to install premises ... suitable for keeping detainees” (see paragraphs 177-178 above). 555. Witness evidence obtained in the criminal investigation also confirms that fact. Witness A, an important political post-holder at the relevant time, testified that Mr Laurinkus had addressed Mr Paksas in connection with a “temporary possibility to hold persons suspected of terrorism” and received a negative answer (see paragraph 307 above). Witness B2, an another important political post-holder, confirmed that he had been addressed “as regards the transportation and holding [of] people in Lithuania” and that he had not approved the idea (see paragraph 314 above). 556. Moreover, referring to the availability of information of the establishment of the CIA clandestine detention sites, the 2014 US Senate Committee Report clearly confirms that the “political leaders of host countries were generally informed of their existence” (see paragraph 79 above). The report further confirms that an approval for the CIA detention facility corresponding to Project No. 2 was received from the authorities. Although the relevant section specifying a person or authority is heavily redacted, it clearly states that “the plan to construct the expanded facility was approved by the [redacted] of the Country” – which, however, required “complex mechanisms” in order to provide an unspecified amount of USD million to the country’s authorities. The money was offered to “show appreciation” for the support for the CIA programme. It may be inferred from the report that certain national authorities “probably [had] an incomplete notion” as to the CIA facility’s “actual function”. Also, the report refers to a certain official who, when he became aware of the facility, was described as “shocked” but “nonetheless approved” it (see paragraph 147 above). 557. As regards the money paid by the CIA to the authorities, the Court would note that the fact that such financial rewards were, as a matter of general policy and practice, offered to the authorities of countries hosting CIA “black sites” is confirmed in Conclusion 20 of the 2014 US Senate Committee Report. The conclusion states that “to encourage governments to clandestinely host CIA detention sites, or to increase support for existing sites, the CIA provided millions of dollars in cash payments to foreign government officials” and that “the CIA Headquarters encouraged CIA Stations to construct ‘wish lists’ of proposed financial assistance” and “to ‘think big’ in terms of that assistance” (see paragraph 89 above). 558. It is undisputed and has been confirmed by the CNSD Findings and in the criminal investigation that Project No. 1 and Project No. 2 were implemented in cooperation with the CIA. Nor has it been contested that in the framework of that cooperation the SSD adapted the premises of Project No. 1 according to the CIA’s requests, assisted the CIA in acquiring the premises of Project No. 2 and adapting and reconstructing the premises for the CIA’s needs (see paragraphs 174 and 199 above). The cooperation dated back to 2002 and started from the adaptation of Project No. 1. Later, in 2003 several officers of the SSD were assigned to assist the CIA in finding a suitable location for Project No. 2 and purchasing the land and buildings in Antaviliai. Both projects were fully financed by the CIA. Starting from the beginning of 2005 when the Project No. 2, according to Witness S, was “established”, the SSD officers ensured the security and surveillance of the premises (see paragraphs 333-338 and 341 above). 559. In Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland the fact that the national authorities had cooperated with the CIA in disguising the rendition aircraft’s actual routes and validated incomplete or false flight plans in order to cover up the CIA’s activities in the country was considered relevant for the Court’s assessment of the State authorities’ knowledge of, and complicity in, the HVD Programme (see Al Nashiri v. Poland, cited above, §§ 419-422; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 421-424). The Court will follow that approach in analysing the facts of the present case. 560. It has already been established that in respect of three rendition flights – N787WH on 18 February 2005, N787WH on 6 October 2005 and N733MA on 25 March 2006 the CIA used the methodology of “dummy” flight planning – an intentional disguise of flight plans for rendition aircraft applied by the air companies contracted by the CIA (see paragraph 507 above). As the Court found in the judgments referred to above, the “dummy” flight planning, a deliberate effort to cover up the CIA flights into the country, required active cooperation on the part of the host countries through which the planes travelled. In addition to granting the CIA rendition aircraft overflight permissions, the national authorities navigated the planes through the country’s airspace to undeclared destinations in contravention of international aviation regulations and issued false landing permits (ibid.). 561. Consequently, the fact that the Lithuanian aviation authorities participated in the process demonstrated that Lithuania knowingly assisted in the CIA scheme disguising the rendition planes. 562. The Government acknowledged that the CIA planes on two occasions had not been subject to the customs and SBGS control, in connection with the delivery of a “special cargo” for the Lithuanian services (see paragraph 429 above). To this end, the SSD addressed classified letters to the relevant authorities. The purpose was to obtain unrestricted access to the aircraft for the SSD and the CIA partners. As described by the witnesses questioned in the criminal investigation, the CIA teams were escorted to the area in the airport and drove in their vehicles to the aircraft, whereas the SSD officers escorting them remained in their vehicles at some distance. As noted above, that practice resembled the special procedure followed by the Polish authorities in respect of the CIA rendition planes landings in Szymany in December 2002-September 2003 (see paragraph 508 above, with references to Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland). 563. The Court considers, as it did in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, that the circumstances and conditions in which HVDs were routinely transferred by the CIA from rendition planes to the CIA “black sites” in the host countries should be taken into account in the context of the State authorities’ alleged knowledge and complicity in the HVD Programme (see Al Nashiri v. Poland, cited above, § 437; and Husayn (Abu Zubaydah) v. Poland, cited above, § 439). It follows from the Court’s findings in the above cases and the CIA material describing the routine procedure for transfers of detainees between the “black sites” (see paragraphs 47-48 above) that for the duration of his transfer a HVD was “securely shackled” by his hands and feet, deprived of sight and sound by the use of blindfolds, earmuffs and a hood and that upon arrival at his destination was moved to the “black site” under the same conditions. 564. The Court finds it inconceivable that the transportation of prisoners over land from the planes to the CIA detention site could, for all practical purposes, have been effected without at least minimal assistance by the host country’s authorities, to mention only securing the area near and around the landing planes and providing conditions for a secret and safe transfer of passengers. Inevitably, the Lithuanian personnel responsible for security arrangements, in particular the reception of the flights and on-land transit, must have witnessed at least some elements of the detainees’ transfer to Detention Site Violet, for instance the loading or unloading of blindfolded and shackled passengers from the planes (see also Al Nashiri v. Poland, cited above, §§ 330 and 437; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 322 and 439). Consequently, the Court concludes that the Lithuanian authorities which received the CIA personnel in the airport could not have been unaware that the persons brought by them to Lithuania were the CIA prisoners. 565. The Court also attaches importance to various material referring to ill-treatment and abuse of terrorist suspects captured and detained by US authorities in the “war on terror”, which was available in the public domain at the relevant time (see El Masri, cited above, § 160; Al Nashiri v. Poland, cited above, § 439; Husayn (Abu Zubaydah) v. Poland, cited above, § 441; and Nasr and Ghali, cited above, § 234). 566. Before analysing that material, the Court would refer to President Bush’s memorandum of 7 February 2002, stating that neither al-Qaeda nor Taliban detainees qualified as prisoners of war under the Geneva Conventions and that Common Article 3 of the Geneva Conventions, did not apply to them (see paragraph 226-231 above). The White House Press Secretary announced that decision at the press conference on the same day. It was widely commented in the US and international media. That decision, however, included a disclaimer that even detainees “not legally entitled” to be treated humanely would be so treated, and also spoke of respecting the principles of the Geneva Conventions “to the extent appropriate and consistent with military necessity” (see paragraphs 29-30 above). Consequently, already at this very early stage of the “war on terror” it was well known that “military necessity” was a parameter for determining the treatment to be received by the captured terrorist suspects. 567. The Court would further note that from at least January 2002, when the UN High Commissioner for Human Rights issued a statement relating to detention of Taliban and al-Qaeda prisoners in Guantánamo, strong concerns were expressed publicly as to the treatment of detainees, in particular the use of “stress and duress” methods of interrogations and arbitrary and incommunicado detention. From January 2002 onwards the international governmental and non-governmental organisations regularly published reports and statements disclosing ill-treatment and abuse to which captured terrorist suspects were subjected in US custody in various places, for instance in Guantánamo and the US Bagram military base in Afghanistan. The material summarised above and cited in the AI/ICJ’s amicus curiae brief include only some sources selected from a large amount of documents available in the public domain throughout the above period (see paragraphs 234-250 and 465-471 above). Moreover, in the 2003 PACE Resolution of 26 June 2003 – of which Lithuania, one of the Council of Europe’s member States, must have been aware – the Parliamentary Assembly of the Council of Europe was “deeply concerned at the conditions of detention” of captured “unlawful combatants” held in the custody of the US authorities (see paragraph 238 above). 568. At the material time the ill-treatment, use of harsh interrogation measures, and arbitrary detention of al-Qaeda and Taliban prisoners in US custody, as well as the existence of “US overseas centres” for interrogations was also often reported in the international media from early 2002 (see paragraphs 251-255 above). Following the Washington Post report on 2 November 2005, which disclosed the complicity of the “Eastern European countries” in the CIA HVD Programme and prompted the closure of “black sites” in Europe, as well as the ABC News disclosure and the 2005 HRW Statement naming Poland and Romania as CIA accomplices, there could be no doubt as what kind of activities had been carried out by the CIA in the countries concerned (see paragraphs 248-249 and 256-257 above). At that time, Detention Site Violet in Lithuania was still active. The issue of the CIA renditions and abusive detention and interrogation practices used against the captured terrorist suspects in their custody was also present, reported and discussed in the Lithuanian media. In particular, between June 2004 and November 2005 the Lithuanian press published a number of articles concerning secret renditions, ill-treatment of prisoners and the abusive conditions under which detainees were held and interrogated (see paragraph 263 above). 569. As in Al Nashiri v. Poland (cited above, § 434) and Husayn (Abu Zubaydah) v. Poland (cited above, § 436) the Court considers the informal transatlantic meeting of the European Union and North Atlantic Treaty Organisation foreign ministers with the then US Secretary of State, Ms Condoleezza Rice, held on 7 December 2005, to be one of the elements relevant for its assessment of the respondent State’s knowledge of the CIA rendition and secret detention operations in 2003-2005. 570. In his testimony in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland, Mr Fava stated that the meeting had been convened in connection with recent international media reports, including disclosures by the Washington Post and ABC News of, respectively, 2 November 2005 and 5 December 2005, naming European countries that had allegedly had CIA “black sites” on their territories (see Al Nashiri v. Poland, cited above, §§ 306 and 434; and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 300 and 436). He also described the content of the “debriefing” of that meeting, a document that the TDIP obtained from a credible confidential source in the offices of the European Union. He stated that it had appeared from Ms Rice’s statement “we all know about these techniques” made in the context of the CIA operations and interrogations of terrorist suspects, which had been recorded in the debriefing that there had been an attempt on the USA’s part to share the “weight of accusations” (ibid., see alsp paragraph 359 above)). As pointed out by the applicant (see paragraph 460 above), Lithuania, an EU and NATO member must have participated in that meeting and been aware of the issues discussed. At that time, the CIA detention site in Lithuania was still active. 571. The Court is mindful of the fact that knowledge of the CIA rendition and secret detention operations and the scale of abuse to which high-value detainees were subjected in CIA custody has evolved over time, from 2002 to the present day. A considerable part of the evidence before the Court emerged several years after the events complained of (see paragraphs 22-24, 34-56, 287-294 and 296-303 above; see also Al Nashiri v. Poland, cited above, § 440; and Husayn (Abu Zubaydah) v. Poland, cited above, § 442). Lithuania’s alleged knowledge and complicity in the HVD Programme must be assessed with reference to the elements that its authorities knew or ought to have known at or closely around the relevant time, that is to say, between 17 or 18 February 2005 and 25 March 2006. However, the Court, as it has done in respect of the establishment of the facts relating to the applicant’s secret detention in Lithuania, will also rely on recent evidence which, as for instance the 2014 US Senate Committee Report and expert evidence obtained by the Court, relate, explain or disclose facts occurring in the past (see Al Nashiri v. Poland, cited above, § 440 and Husayn (Abu Zubaydah) v. Poland, cited above, § 442). 572. In its assessment, the Court has considered all the evidence in its possession and the various related circumstances referred to above. Having regard to all these elements taken as a whole, the Court finds that the Lithuania authorities knew that the CIA operated, on Lithuanian territory, a detention facility for the purposes of secretly detaining and interrogating terrorist suspects captured within the “war on terror” operation by the US authorities. This finding is based on the material referred to extensively above, in particular the evidence deriving from the 2014 US Senate Committee Report and, to a considerable extent, the evidence from experts. The passages of the report relating the approval for the plan to construct the expanded detention facility given by the Detention Site Violet host country leave no doubt as to the Lithuanian high-office holders’ prior acceptance of hosting a CIA detention site on their territory. Nor can there be any doubt that they provided “cooperation and support” for the “detention programme” and that, in appreciation, were offered and accepted a financial reward, amounting to some redacted sum of USD million (see paragraphs 554-557 above). 573. Furthermore, the experts, who in the course of their inquiries also had the benefit of contact with various sources, including confidential ones, unanimously and categorically stated that Lithuania not only ought to have known but actually did know of the nature and purposes of the CIA activities in the country. Senator Marty stated that since the operation had been governed by the “need-to-know” secrecy principle, only those few people who had absolutely needed to know had known about it. As in other countries, there had been persons at the highest level of the Lithuanian State who had had certain knowledge of what had been going on but even those who had come to know had not necessarily known all the details. Yet somebody had allowed the CIA to move about freely and have access to premises where they had been allowed to do what they had wanted without any control whatsoever. He described the national authorities’ conduct as complicity which had not been active; the national authorities had not participated in the CIA interrogations (see paragraph 382 above). Mr J.G.S. testified that the authorities of Lithuania had known about the existence of the detention facility and that through the highest levels of their government had approved and authorised its presence on their territory. In his view, they certainly should have known the purpose which the facility had served because its nature and purpose was part of a systematic practice, which had already been implemented by the CIA across multiple other countries and had been widely reported by the time the site in Lithuania had become active. There had been different degrees of knowledge in different sectors of Lithuania’s authorities. At the operational level the details had been known to a very small number of trusted counterparts, primarily within the secret services. He added that he was not aware of any single instance of a CIA detention site having existed anywhere in the world without the express knowledge and authorisation of the host authorities (see paragraph 387 above). Mr Black stated that it had been clear from the 2014 US Senate Committee Report that the Lithuanian officials had been aware of the CIA programme operating on their territory. He added that, as he could say from his accumulated knowledge of the CIA HVD Programme and close reading of the 2014 US Senate Committee Report, some host country officials had always known that there had been prisoners held in the facilities. That did not imply that every single host country official had known but in Lithuania’s case it was evident that at least some had known that the prisoners had been held on their territory and they had known that they had been receiving money to facilitate this (see paragraphs 392-393 above). 574. The Court, as in previous similar cases, does not consider that the Lithuanian authorities necessarily knew the details of what exactly went on inside the CIA secret facility or witnessed treatment or interrogations to which the CIA prisoners were subjected in Lithuania. As in other countries hosting clandestine prisons, the operation of the site was entirely in the hands of the CIA and the interrogations were exclusively the CIA’s responsibility (see paragraph 272 above; see also Al Nashiri v. Poland, cited above, § 441; and Husayn (Abu Zubaydah) v. Poland, cited above, § 443). 575. However, in the Court’s view, even if the Lithuanian authorities did not have, or could not have had, complete knowledge of the HVD Programme, the facts available to them through their contacts and cooperation with their CIA partners, taken together with extensive and widely available information on torture, ill-treatment, abuse and harsh interrogation measures inflicted on terrorist-suspects in US custody which in 2002-2005 circulated in the public domain, including the Lithuanian press (see paragraphs 565-568 above), enabled them to conjure up a reasonably accurate image of the CIA’s activities and, more particularly, the treatment to which the CIA was likely to have subjected their prisoners in Lithuania. In that regard the Court would reiterate that in Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland it has found that already in 2002-2003 the public sources reported practices resorted to, or tolerated by, the US authorities that were manifestly contrary to the principles of the Convention. All the more so did the authorities, in 2005-2006, have good reason to believe that a person detained under the CIA rendition and secret detention programme could be exposed to a serious risk of treatment contrary to those principles on their territory. It further observes that it is – as was the case in respect of Poland – inconceivable that the rendition aircraft could have crossed the country’s airspace, landed atand departed from its airports, or that the CIA could have occupied the premises offered by the national authorities and transported detainees there, without the State authorities being informed of or involved in the preparation and execution of the HVD Programme on their territory. Nor can it stand to reason that activities of such character and scale, possibly vital for the country’s military and political interests, could have been undertaken on Lithuanian territory without the Lithuanian authorities’ knowledge and without the necessary authorisation and assistance being given at the appropriate level of the State (see Al Nashiri v. Poland, cited above, §§ 441-442 and Husayn (Abu Zubaydah) v. Poland, cited above, §§ 443-444). 576. The Court accordingly finds it established beyond reasonable doubt that: (a) the Lithuanian authorities knew of the nature and purposes of the CIA’s activities on its territory at the material time; (b) the Lithuanian authorities, by approving the hosting of the CIA Detention Site Violet, enabling the CIA to use its airspace and airports and to disguise the movements of rendition aircraft, providing logistics and services, securing the premises for the CIA and transportation of the CIA teams with detainees on land, cooperated in the preparation and execution of the CIA rendition, secret detention and interrogation operations on its territory; and (c) given their knowledge of the nature and purposes of the CIA’s activities on their territory and their involvement in the execution of that programme, the Lithuanian authorities knew that, by enabling the CIA to detain terrorist suspects – including the applicant – on their territory, they were exposing them to a serious risk of treatment contrary to the Convention. | 1 |
test | 001-145230 | ENG | RUS | CHAMBER | 2,014 | CASE OF DUBINSKIY v. RUSSIA | 3 | Remainder inadmissible;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 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);Non-pecuniary damage - award | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1975 and lives in Velikiye Luki, Pskov Region. 6. On an unspecified date the regional police department for combating organised crime opened a criminal investigation into the activities of an organised group involved in a series of residential burglaries and car thefts in Pskov Region. The applicant was suspected of acting as a coordinator and go-between for the group. In the course of the investigation of the group’s activities, on 25 June 2007 the Pskov Regional Court authorised the tapping of the applicant’s telephone, a search of his home and the interception of his communications for a period of six months. 7. On 10 August 2007 the police intercepted the applicant’s mobile phone communications with T. which they conducted while they were stealing a Lada car in the settlement of Dedovichi, Pskov Region. The car belonged to the President of the Dedovichi District Court. An official investigation into the car theft was opened on 13 August 2007. On 8 December 2007 the investigation was suspended, as the perpetrator(s) could not be found. 8. On 27 March 2008 the police intercepted another mobile phone communication between the applicant and T. which they conducted while they were stealing a Lada car in the town of Opochka, Pskov Region. Police officers were at the scene. They observed T. driving a Volkswagen car and the applicant driving the stolen Lada car. Then they followed the applicant to a garage in Velikiye Luki. 9. In the morning of 28 March 2008 the police arrested the applicant while he was taking the stolen Lada car out of the garage. 10. The applicant was charged with a car theft (theft causing serious financial detriment). On 30 March 2008 he was brought before the Opochka District Court, Pskov Region, where investigator B., arguing that the applicant might (1) abscond, (2) continue criminal activities, or (3) put pressure on witnesses, other parties to the proceedings, destroy evidence or otherwise interfere with the administration of justice, asked for the applicant’s remand in custody during the investigation. The court, however, dismissed the investigator’s motion. In particular, the court noted as follows: “Investigator B. submitted that he had no factual information substantiating the fact that [the applicant] might abscond, that he put or might put any pressure on the witnesses by way of threatening them or [that he might] otherwise interfere with the establishment of the truth in the case. There is no evidence that would allow the court to conclude that another car or the car plates discovered in the [applicant’s] garage had anything to do with the criminal activities involving car thefts. The court was not provided with any information about the nature of the equipment found [in the garage] or confirmation that it had been used to modify the registration numbers on the vehicle’s parts or to perform other work on the vehicles.” 11. After the court hearing, the applicant was taken back to the Opochka police station, where he signed an undertaking not to leave his place of residence during the investigation. However, he was not released. It appears that on the same date, the Dedovichi Department of the Interior reopened the criminal investigation of the car theft of 10 August 2007 (see paragraph 7 above). At 5:40 p.m. police officers from the Dedovichi police station showed up at the Opochka police station and rearrested the applicant on suspicion of involvement in the car theft of 10 August 2007. He was taken to the Dedovichi police station at 8:15 p.m. and booked in. 12. On 31 March 2008 investigator I. from the Dedovichi Department of the Interior indicted the applicant on a charge of car theft (theft causing serious financial detriment committed in concert with one or more persons) concerning the theft of the Lada that took place on 10 August 2007. 13. On 1 April 2008 investigator I. applied to the Dedovich District Court, Pskov Region seeking the applicant’s remand in custody during the investigation. Referring to the gravity of the charges, the investigator argued that the applicant might continue criminal activities, abscond, put pressure on witnesses, destroy evidence and interfere with the establishment of the facts of the case. 14. On the same date the Dedovichi District Court examined the investigator’s application. According to the applicant, he argued before the District Court that the application, being a repeated attempt to remand him in custody, was contrary to the rules of criminal procedure. The District Court authorised the applicant’s detention during the investigation. Referring to the car theft which took place on 10 August 2007, the court noted as follows: “It is evident from the materials submitted to the court that [the applicant] is accused of a premeditated serious crime which entails a custodial sentence exceeding 2 years’ imprisonment. He does not have a criminal record. He has a permanent place of residence, is in employment and has a family. It is evident from the materials submitted to the court that [the applicant] has been involved in car theft for a long time. It is so noted in the information provided by [the regional department for combating organised crime], the investigator’s decision of 28 March 2008 to open a criminal investigation against the applicant and the report on the search of the [applicant’s] garage of 28 March 2008. These facts confirm the investigator’s argument that [the applicant] might continue his criminal activity, [and] interfere with the administration of justice by the destruction or concealment of stolen property. The [applicant’s and his lawyer’s] arguments that [the applicant] has a permanent place of residence, [is in] employment and [has] a family, [and] that he undertakes not to abscond, cannot be regarded as sufficient to dismiss the investigator’s application to remand [the applicant] in custody. ... Having regard to the above, the court accepts the investigator’s and prosecutor’s arguments that the applicant should be remanded in custody. The court considers that the use of a less strict measure of restraint is not possible.” 15. The applicant appealed against the court order of 1 April 2008. He reiterated that the decision to remand him in custody had not been compatible with the rules of criminal procedure and indicated, inter alia, that the judge of the Dedovichi District Court had not been impartial or independent, given that the applicant had been charged with the theft of a car belonging to the President of the court in question. 16. On 23 April 2008 the Pskov Regional Court upheld the order of 1 April 2011 on appeal, noting that the applicant’s doubts as to the impartiality and independence of the judge who had delivered the decision in question were unfounded. 17. On 23 May 2008 the Dedovichi District Court further extended the applicant’s detention until 24 July 2008, relying on the following reasoning: “[The applicant] is accused of a premeditated serious crime which entails a custodial sentence exceeding 2 years’ imprisonment. If released, he might put pressure on witnesses and other parties to the proceedings, destroy evidence or otherwise interfere with the establishment of the facts of the case. There are grounds to believe that [the applicant], if released, might abscond or continue his criminal activity.” 18. On 11 June 2008 the Regional Court upheld the order of 23 May 2008 on appeal. 19. On 15 July 2008 the Dedovichi District Court further extended the applicant’s detention until 30 August 2008. The court repeated verbatim the reasoning of its previous order of 23 May 2008. On 6 August 2008 the Regional Court upheld the decision of 15 July 2008 on appeal. 20. On 30 June 2008 the applicant was indicted on a charge of a car theft committed by an organised group and on 21 July 2008 the pending criminal cases against the applicant concerning the car thefts of 10 August 2007 and 27 March 2008 were joined and transferred to the Pskov Regional Department of the Interior for investigation. 21. Following the transfer of the applicant’s case to the Pskov Regional Department of the Interior, the question of the applicant’s pre-trial detention fell to be examined by the Velikiye Luki Town Court, Pskov Region. 22. On 21 August 2008 the Town Court extended the applicant’s detention until 17 November 2008. The court reasoned as follows: “The circumstances underlying the [applicant’s] remand in custody have not ceased to exist. He is charged with serious offences. ... Regard being had to the circumstances of the crimes [the applicant] is charged with, there are grounds to believe that, if at large, [the applicant] may put pressure on witnesses or other parties to the proceedings, destroy evidence or otherwise interfere with the establishment of the facts of the case, abscond, [or] continue his criminal activity.” 23. On 10 September 2008 the Regional Court upheld the decision of 21 August 2008 on appeal. 24. On 29 September 2008 investigator B. from the regional department of the interior indicted the applicant on two charges of car theft committed by an organised group, forgery of car plate numbers and vehicle identification numbers and handling stolen property. 25. On 7 November 2008 the Town Court extended the applicant’s detention until 30 December 2008. The court reasoned as follows: “[The applicant] is charged with four premeditated crimes, two of which are classified as serious. There are grounds to believe that, if at large, [the applicant] might interfere with administration of justice, put pressure on victims and witnesses, abscond, [or] continue criminal activities. These [grounds] are supported by the materials provided by the regional department for combating organised crime ... and other materials submitted by the investigator.” 26. On 26 November 2008 the Regional Court upheld the decision of 7 November 2008 on appeal. 27. On 29 December 2008 the Town Court fixed the hearing of the case against the applicant and four other defendants for 12 January 2009. Referring to the gravity of the charges against the applicant and three of the other defendants and the risk that they might continue their criminal activity or interfere with the administration of justice, the court ordered that they remain in custody pending trial. The decision remained silent as to the grounds on which such conclusions were based and also as to the period of such authorised detention or the date of its next review. 28. On 3 June 2009 the Town Court reclassified the charges against the applicant and found him guilty of the theft of two cars committed by a group of persons and causing significant financial detriments to the car owners and forgery of car licence plates and sentenced him to three and a half years’ imprisonment. 29. On 26 August 2009 the Regional Court quashed the applicant’s conviction on appeal and remitted the matter for fresh consideration. The court found that the trial court had failed to correctly establish the facts of the case. It further noted, without specifying the grounds or the time frame that the applicant should remain in custody pending retrial. 30. On 21 September 2009 the Town Court scheduled the retrial for 29 September 2009 and authorised the applicant’s release on an undertaking not to leave his place of residence. The court took into account the fact that the applicant had no previous convictions, that he had a permanent job and a place of residence, and that he had a family and a minor child. 31. On 31 August 2010 the Town Court found the applicant guilty of the theft of two cars and sentenced him to one year and five months’ imprisonment. The court applied the prescription rule and discontinued the criminal proceedings against the applicant in part concerning the charge of forgery of car licence plates. The applicant was relieved from serving the sentence in view of the time he had already spent in detention. 32. On 10 November 2010 the Regional Court upheld the applicant’s conviction on appeal. | 1 |
test | 001-142398 | ENG | MDA | CHAMBER | 2,014 | CASE OF RADU v. THE REPUBLIC OF MOLDOVA | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 5. The applicant was born in 1969 and lives in Chişinău. At the time of the events she was thirty-four years old and married. She was a lecturer at the Police Academy. 6. It appears from the case-file materials that at the time of the events the relationship between the applicant and her superiors at the Police Academy were tense and that there had been a set of employment-related civil proceedings between them. 7. On an unspecified date in 2003 the applicant underwent artificial insemination at a fertility clinic and became pregnant with twins. On 3 August 2003 she was seen by a doctor from the No. 7 Centre for Family Doctors (“the CFD)”, an institution belonging to the Ministry of Health, who ordered her hospitalisation on account of an increased risk of miscarriage. The applicant was hospitalised between 4 and 20 August 2003 and was later closely supervised by a doctor from the CFD. It would appear that the applicant’s absence from work during her hospitalisation was certified by a sick note referring to her pregnancy and an increased risk of miscarriage as the reasons for her absence. 8. On 5 November 2003 the President of the Police Academy requested information from the CFD in connection with the applicant’s medical leave in August 2003. In particular, he asked who had ordered her hospitalisation, when she had been hospitalised, what had been the initial and final diagnoses, and what treatment she had received. 9. In a letter dated 7 November 2003 the CFD informed the applicant’s employer that the applicant had been hospitalised between 4 and 20 August 2003 on account of an increased risk of miscarriage. The letter also stated that this was the applicant’s first pregnancy and that she was carrying twins; that the pregnancy had resulted from artificial insemination and that the applicant had hepatitis B. The letter further mentioned that the applicant had obstetrical complications and that she had a negative blood type. A copy of the applicant’s medical file from the hospital where she had been hospitalised, containing a detailed description of all the medical procedures she had undergone and of all the medical analyses, was annexed to the letter. 10. On an unspecified date the applicant suffered a miscarriage. According to the medical report, one of the factors which had led to the miscarriage was the stress to which she had been subjected. 11. In January 2004 the applicant initiated civil proceedings against the CFD and the Police Academy and claimed compensation for a breach of her right to private life. She argued, inter alia, that her employer had had sufficient information as to the reasons for her medical leave and had not been entitled to seek further details of such a private nature. Moreover, after the information had been obtained it had not been kept confidential but had been disclosed to everybody at the Police Academy. According to the applicant, the disclosure had caused her serious stress and anxiety. Everyone at her workplace, including her students, had learned details about her private life, and different rumours had begun to circulate. Only two days after the disclosure, she had suffered a miscarriage due to the stress to which she had been subjected. Her husband, who had also been an employee of the Police Academy, had had to resign from his post and accept a less well-paid job. 12. On 6 July 2004 the Centru District Court dismissed the applicant’s action on the grounds, inter alia, that the disclosure of information by the fertility clinic had been lawful in view of the ongoing investigation being conducted by the applicant’s employer. As to the contention that the employer had disclosed the information to other employees, the court found it to be ill-founded. The applicant appealed. 13. On 2 November 2006 the Chişinău Court of Appeal upheld the applicant’s appeal and quashed the above judgment. The court found the applicant’s action well-founded and ordered the CFD to pay her 20,000 Moldovan lei (MDL) (EUR 1,124) and the Police Academy to pay her MDL 15,000 (EUR 843). The Court of Appeal found that the CFD had disclosed to the applicant’s employer more information than had actually been requested. 14. On 10 May 2007 the Supreme Court of Justice upheld the appeal on points of law lodged by the CFD and dismissed the applicant’s claims against it. The Supreme Court held that the CFD had acted in accordance with the law when providing the applicant’s employer with medical information about her. The CFD had been under an obligation to provide the Police Academy with such information in the context of the latter’s legal relationship with its employee. According to the Supreme Court, at the time of the events there were relations of an employment-law and of a criminal-law nature between the Police Academy and the applicant. The Supreme Court considered that the provisions of the laws on reproductive health and on the rights and obligations of the patient were not pertinent to the case. | 1 |
test | 001-173500 | ENG | ARM | COMMITTEE | 2,017 | CASE OF NIKOGHOSYAN v. ARMENIA | 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) | Armen Harutyunyan;Ledi Bianku | 4. The applicant was born in 1953 and lives in Yerevan. 5. The applicant is a former employee of a State Revenue Committee (hereinafter “the Committee”). By an order of the Head of the Committee of 27 February 2009 the applicant was dismissed from his job. 6. On 20 March 2009 the applicant brought an action against the Committee, requesting reinstatement in his job and payment for forced absence up to the day of his reinstatement. 7. On 11 August 2009 the Kentron and Nork-Marash District Court of Yerevan found in the applicant’s favour. In particular, it decided to declare the order of 27 February 2009 void. Moreover, it ordered the applicant’s reinstatement in his previous position and awarded him compensation for lost earnings. 8. On 2 September 2009 the Committee appealed against the District Court’s judgment. By a decision of 7 October 2009 the Civil Court of Appeal rejected the appeal and upheld the District Court’s judgment. 9. On 2 November 2009 the Committee lodged an appeal on points of law against the decision of 7 October 2009 with the Court of Cassation. 10. On 9 December 2009 the Court of Cassation decided to declare the appeal inadmissible for lack of merit, so the judgment of 11 August 2009 became final. 11. On 27 January 2010 the Kentron and Nork-Marash District Court of Yerevan issued a writ of execution in respect of its judgment of 11 August 2009. 12. On 5 February 2010 the bailiff instituted enforcement proceedings. On the same date he decided to oblige the Committee to comply with the requirements of the writ within two weeks. 13. By a letter dated 11 February 2010 the bailiff requested that the Committee comply with the requirements of the writ. 14. On 23 March 2010 the bailiff received a response from the Committee, stating that it was impossible to reinstate the applicant in his job, since the structure of the Committee had been modified and the applicant’s former position did not exist anymore. 15. On 20 April 2010 the applicant was paid 937,114 Armenian drams (AMD) for his forced absence, calculated from 27 February 2009 until 9 December 2009, the date on which the judgment in his favour became final. 16. The applicant sent several letters to the Committee and to different officials, complaining that no measures had been taken to enforce the final judgment of 11 August 2009 and requesting that the Committee be compelled to comply with that judgment. 17. On 18 July 2011 the bailiff decided to terminate the enforcement proceedings on the grounds that it was impossible to enforce the judgment of 11 August 2009. In particular, the applicant could not be reinstated because his previous position was no longer vacant. 18. On 25 July 2011 the applicant contested the bailiff’s decision before the Administrative Court. 19. On 5 December 2011 the Administrative Court found in favour of the applicant and cancelled the bailiff’s decision of 18 July 2011. 20. On 20 January 2012 the supervising bailiff decided to set aside the bailiff’s decision of 18 July 2011 and reopen the enforcement proceedings. 21. By a letter dated 5 March 2012 the bailiff again requested that the Committee reinstate the applicant in his previous position and award him compensation for lost earnings until the date of his reinstatement. The Committee replied that the applicant’s former position had ceased to exist as a result of the Governmental decree of 15 December 2011. 22. On 26 April 2012 the bailiff again decided to terminate the enforcement proceedings on the grounds that it was impossible to enforce the judgment of 11 August 2009, since the structural unit of the Committee where the applicant had been working had ceased to exist. 23. On 7 May 2012 the applicant contested that decision before the Administrative Court. He alleged, in particular, that the judgment of 11 August 2009 had not been enforced: firstly, he had not been awarded the full sum for his forced absence, and secondly, he had not been reinstated in his previous position. 24. By a judgment of 16 October 2012 the Administrative Court decided to grant the applicant’s claim in respect of the payments for his forced absence, stating that the period should be calculated up to 15 December 2011, the day on which that particular unit of the Committee had ceased to exist. As to the applicant’s second claim, the Administrative Court stated that the bailiff’s decision in this respect was lawful, since the applicant’s reinstatement had been impossible. 25. On 9 November 2012 the applicant lodged an appeal against the judgment of the Administrative Court. 26. On 21 February 2013 the Administrative Court of Appeal dismissed the applicant’s claim and upheld the Administrative Court’s decision of 16 October 2012. 27. On 11 March 2013 the applicant lodged an appeal on points of law against the decision of 21 February 2013 with the Court of Cassation. 28. On 27 March 2013 the Court of Cassation decided to declare the appeal inadmissible for lack of merit. 29. On 19 April 2013 the bailiff decided to reopen the enforcement proceedings. 30. On 4 November 2013 the applicant was invited to the Committee and the Committee made him a verbal offer of a similar position in another tax inspectorate unit, but this offer was later turned down by the applicant. 31. Three days later, via telephone, the applicant was again invited to the Committee, but he failed to appear. 32. On 8 November 2013 the Head of the Human Resources Department of the Committee sent a letter to the applicant, offering to reinstate him in a position similar to his previous one, that is, the position of a tax inspector in Current Control Division no. 2 of the Shengavit Tax Inspectorate. The letter also stated that the compensation for the applicant’s forced absence up to that date amounted to AMD 4,017,860. 33. On the same day the applicant refused to accept the Committee’s offer. He claimed that the compensation for his forced absence should amount to AMD 9,975,970. In response, the Committee informed the applicant that it would consider the above-mentioned sum if the applicant submitted substantiating calculations. 34. On 9 June 2015 the amount of AMD 4,017,860 was transferred by the Committee to the bailiff’s account. On 18 June 2015 the enforcement proceedings were terminated by the bailiff as this amount had been further transferred to the applicant’s bank account. 35. On 22 July 2015 the applicant appealed to the Administrative Court, requesting that the bailiff’s decision be quashed. 36. On 22 May 2016 the Administrative Court allowed the applicant’s appeal and quashed the bailiff’s decision of 18 June 2015. That judgment became final on 26 May 2016. | 1 |
test | 001-142434 | ENG | BGR | ADMISSIBILITY | 2,014 | ATEV v. BULGARIA | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 1. The applicant, Mr Krasimir Milchev Atev, is a Bulgarian national, who was born in 1962 and lives in Troyan. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was born in 1962 and lives in Troyan. He is a sole trader, registered on an unspecified date under the name ET Atev – Krasimir Atev, with an office in Letnitsa. He is engaged in various commercial activities. Under Bulgarian law his business does not have a distinct legal personality. 5. In 1994 the applicant registered his business for value-added tax (“VAT”). 6. In December 1998 and December 1999 the applicant purchased electrical devices from another sole trader (“the supplier”). The supplier issued the relevant invoices and, as it appears, indicated on them the VAT charged. In 2000 the tax authorities conducted a VAT audit of the supplier. On 15 May 2000 he was issued with a tax assessment which made no mention of the goods supplied in December 1998 and December 1999. 7. In June 2003 the Lovech Territorial Tax Directorate conducted a VAT audit of the applicant for the periods, in particular, from 1 to 31 December 1998 and from 1 to 31 December 1999. On 18 July 2003 it issued him with a tax assessment whereby it refused him the right to deduct the VAT of 19,570.78 Bulgarian levs (BGN), (9,980 euros (EUR)), which the supplier had charged him in December 1998 and December 1999. It also ordered that interest be paid in the amount of BGN 12,312.02 (EUR 6,278). 8. The applicant appealed against the 2003 tax assessment. On 17 September 2003 the director of the Veliko Turnovo Territorial Tax Directorate upheld the 2003 tax assessment in its entirety. The authorities stated that in order to recognise the applicant’s entitlement to have the input VAT deducted, the VAT had to be entered in the accounting records of the supplier (see paragraph 13 below). Therefore, they would have to crosscheck those records and verify that the VAT had been properly reflected as an obligation to the State budget. When the cross-check was carried out, however, the supplier declared that the relevant accounting records had been lost. Since the authorities could not verify whether the VAT had been reflected accordingly, they refused to deduct it. As for the applicant’s argument that his supplier’s 2000 tax assessment did not contain any irregularities regarding the said supplies, the authorities dismissed it as being irrelevant for the proceedings at issue. 9. The applicant sought judicial review. During the proceedings and following a request on the part of the applicant, the Veliko Turnovo Regional Court ordered an expert report. The applicant put questions to the expert. In a judgment of 30 July 2004 the court dismissed the applicant’s appeal and upheld the 2003 tax assessment. The court found that the tax authorities’ refusal to recognise the applicant’s right to have the VAT he had paid deducted was correct because the supplier’s accounting records had been lost, making it objectively impossible to verify whether the VAT had been properly charged and reflected as an obligation to the State budget. The court also noted that although the applicant had had an opportunity to do so, he had not questioned the expert about those supplies and had failed to rebut the statements of the tax authorities in the tax assessment. 10. The applicant lodged a cassation appeal, and in a final judgment of 10 May 2005 the Supreme Administrative Court upheld the tax assessment. The court found that during the proceedings the applicant had submitted only documents originating from his own accounting records. Those documents, however, could not have served as evidence given the subject matter of the case. The court further noted that the applicant had failed to question the expert about the contested supplies. Having regard to the applicant’s failure to rebut the authorities’ findings and in the absence of the supplier’s accounting records, the court concluded that it had been impossible to establish whether the VAT had been entered in them, which was one of the pre-conditions sine qua non for allowing the applicant to have the input VAT deducted. 11. It is unclear whether the supplier was penalised for his failure to keep his accounting records diligently and in line with the relevant domestic provisions (see paragraph 16 below). 12. On an unspecified date the applicant paid part of the debt under the 2003 tax assessment, namely BGN 5,132.63 (EUR 2,624). In 2005 enforcement proceedings were instituted against the applicant for the collection of the remaining debt. It is unclear how the proceedings unfolded until 2010, when they were apparently resumed. The proceedings were still pending at the time of the latest information from the applicant. 13. Under the VAT Act 1993, input VAT, referred to as “tax credit” in domestic legislation, was the amount of VAT which a taxable person had been charged on goods or services received under a chargeable transaction or from the importing of goods or services (section 24(1)). The VAT was to be charged by the supplier (section 24(2)(2)). The recipient should have been in possession of a VAT invoice which met the statutory requirements (section 24(2)(6)). In order for the recipient to have the right to deduction of VAT, it was mandatory for the supplier to have reflected the VAT charged to the recipient in his accounting records as an obligation to the State budget (section 24(2)(2) with reference to paragraph 3(e) of the Additional Provisions of the VAT Act 1993). 14. The relevant provisions of the VAT Act 1999, which replaced the 1993 Act, are summarised in the case of Bulves AD v. Bulgaria (no. 3991/03, §§ 20-28, 22 January 2009). In particular, the supplier’s obligation to reflect the VAT that he has charged in his accounting records remained unchanged (section 64(1)(2) in relation to section 55(6) of the 1993 Act). 15. The VAT Act 2007 replaced the 1994 Act to include in national legislation the latest EU legislation in the sphere of VAT. The explicit requirement that, in order for the right to have input VAT deducted to arise, the supplier had to have reflected it in his accounting records, was abandoned. 16. Pursuant to the Accountancy Act 2001, accounting documents relating to tax obligations must be maintained by the trader for a period of up to five years after the expiry of the statutory time-limit for the relevant obligation (section 42(1)(3)). Failure to observe that obligation is sanctioned by an administrative penalty (section 47(4)). 17. The general rules of the law of tort are set out in sections 45 to 54 of the Obligations and Contracts Act 1951 (“the 1951 Act”). Section 45(1) provides that everyone is obliged to make good the damage which they have, through their fault, caused to another. Under section 45(2), fault is presumed until proved otherwise. 18. In that connection, a recipient may successfully seek pecuniary damages from a supplier when the latter has acted in violation of the relevant VAT provisions, resulting in the authorities’ refusal to deduct the input VAT (for example, if the supplier has failed to issue an invoice and to enter the tax in its accounting records, issued invoices but failed to enter the tax in its monthly declaration to the authorities, or failed to submit the relevant documents proving that he has discharged his VAT reporting obligations to the authorities) (реш. № 1158 от 5 ноември 2008 г. на ВКС по гр. д. № 3225/2007 г., IV г. о.; опр. № 55 от 3 февруари 2009 г. на ВКС по т. д. № 742/2008 г., II т. о.; опр. № 170 от 30 декември 2008 г. на ВКС по т. д. № 480/2008 г., II т. о.; реш. № 304 от 20 октомври 2005 г. на АС-Велико Търново по гр. д. № 151/2005 г.; реш. № 110 от 9 юли 2010 г. по в. т. д. № 41/2009 г. на АС-Варна; реш. от 10 юни 2010 г. на ОС-Стара Загора по гр. д. № 1164/2009 г.; реш. № 476 от 9 май 2011 г. на РС-Велико Търново по гр. д. № 4230/2010 г.). The compensation granted for the pecuniary damage suffered is usually in the amount of the paid VAT plus the relevant interest. 19. Section 1 of the State and Municipalities Responsibility for Damage Act 1988 (Закон за отговорността на държавата и общините за вреди – “the 1988 Act”) provides that the State and municipalities are liable for damage suffered by individuals (and since 1 January 2006 also legal persons) as a result of unlawful decisions, actions or omissions by their organs and officials committed in the course of, or in connection with, the carrying out of administrative action. | 0 |
test | 001-141632 | ENG | UKR | CHAMBER | 2,014 | CASE OF ANDREY YAKOVENKO v. UKRAINE | 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) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano | 5. The applicant was born in 1969 and lived in Odessa. He is currently serving a prison sentence in Ukraine. 6. In summer 2002 the applicant, who was the president of the Odessa Komsomol (Young Communist League) at the material time, unsuccessfully ran for the Odessa Regional Council. According to him, following the election campaign, the State Security Service of Ukraine (“SSU”) put in place secret surveillance measures against him. 7. On 15 December 2002 the SSU arrested the applicant in Odessa on suspicion of having organised a criminal group formed of Komsomol members and having planned and directed several violent crimes committed by its members. 8. On 16 December 2002 the applicant was taken for questioning to Mykolayiv, where several other individuals implicated in membership of the same group had been arrested and detained some time before. 9. On the afternoon of 16 December 2002 the applicant signed a notice that he had been informed of his rights as a suspect and expressed the wish to have a lawyer. On the same date the applicant was appointed a legal-aid lawyer, A.S. In his presence, the applicant terminated the appointment and stated that he agreed to be questioned without a lawyer, until his wife hired one privately. 10. On the same date the applicant was questioned and acknowledged his affiliation with the communist party and the Komsomol, a number of whose activists named by the investigator he knew in person. At the same time, the applicant denied having taken part or having been aware of any criminal activity by these individuals. The record of the applicant’s questioning was preceded by his signature, which was underneath a note summarising his rights as a suspect and stating that he had given his consent to take part in the questioning session without legal representation. 11. On the same date the applicant was placed in Mykolayiv temporary detention centre (ITT), which, according to him, had unsuitable living conditions. The applicant was subsequently remanded in custody and transferred to Mykolayiv pre-trial detention centre (SIZO). 12. On 17 December 2002 a confrontation was conducted between the applicant and A., one of the individuals implicated in membership of the applicant’s criminal group. The record of the confrontation notes that before the questioning, the investigator informed the parties of their procedural rights and asked the applicant whether, regard being had to the fact that he had no legal representation, he agreed to take part in the confrontation. The applicant expressed his willingness to take part in the confrontation, stating that he felt capable of representing himself at that point. Following this introduction, A., who was represented by a lawyer, testified that the applicant had planned and organised several robberies, in which A. and some other individuals from the Komsomol had been involved. Having heard A.’s statement, the applicant refused to take any further part in the confrontation without a lawyer and the confrontation was discontinued. 13. On 21 December 2002 lawyer A.A., hired by the applicant’s spouse, was admitted to the proceedings as the applicant’s representative. 14. On 25 December 2002 the applicant was indicted on a number of charges including organising and directing a terrorist group with a view to re-establishing a communist state by violent means and being in charge of several robberies (“expropriations”) committed in order to raise funds for the group. Following his indictment, the applicant was questioned in A.A.’s presence. During questioning, the applicant reiterated his previous position and denied involvement in any criminal activity. Asked whether he had been subjected to any psychological or physical ill-treatment by the investigative authority, the applicant stated that he had not been subjected to any ill-treatment. 15. On 21 February 2003 the applicant terminated A.A.’s appointment, as the further investigation of his case had been transferred to the Odessa branch of the SSU, whereas A.A. practiced in Mykolayiv. 16. On 3 March 2003 the applicant was transported to Odessa no. 21 pre-trial detention facility (“the Odessa SIZO”), where he was detained until November 2005. 17. On 19 March 2003 the applicant was further questioned as a criminal defendant. Before the questioning session began, he signed a waiver of his right to legal representation, having indicated that he was capable of defending his own interests. During questioning, the applicant refused to answer any questions, referring to his constitutional right to remain silent. Questioned several more times in spring 2003, the applicant signed further waivers of his right to legal representation and chose to remain silent. 18. On 18 April 2003, referring to his ability to represent his own interests, the applicant refused to accept the appointment of legal-aid lawyers D. and R., who had been selected by the authorities, and asked for no further legal-aid lawyers to be appointed during the investigation stage. 19. On 21 May 2003 lawyer A. K., engaged by the applicant’s wife, was admitted to the proceedings as the applicant’s new representative. The applicant, questioned in her presence, refused to testify and chose to remain silent. 20. On 27 May 2003 the investigation was finished and the applicant, along with ten other individuals implicated in membership of the same criminal group, was committed to stand trial before the Odessa Regional Court of Appeal (“Regional Court”), acting as a first-instance court. 21. On 24 July 2003 the applicant and his lawyer A.K. both signed an affidavit that they had familiarised themselves with the forty-four volume case file. 22. In the beginning of September 2003 the Regional Court held a preparatory hearing in the applicant’s case and allowed requests made by the applicant’s co-defendants R., S. and D. for additional time to study the case-file materials. 23. On 3 September 2003 the applicant’s spouse terminated A. K.’s appointment, referring to financial difficulties, and the applicant asked the court to appoint a lawyer to represent him. 24. At the next court hearing (on 24 September 2003) the Regional Court appointed O.K. as the applicant’s new lawyer and granted her time to study the case file. On the same date the court rejected the applicant’s request for additional time to study the case file, referring, in particular, to his affidavit that he had studied it in full, to his failure to lodge this request before the beginning of the trial, and to the fact that the applicant would be able to seek to have case-file documents that were to be examined at a particular hearing read out in full or in part by the court before their examination. 25. On an unspecified date the Regional Court rejected the applicant’s request to appoint his father, who was not a lawyer, as his lay defender, referring to a conflict of interests that would arise if this was allowed. In particular, the applicant’s father had been summoned for questioning as a witness in the case. According to the applicant, his father was never questioned in the end and never even received an official summons. 26. On 17 November 2003 the applicant’s lawyer, O.K., did not attend the hearing. 27. On 24, 25 and 26 November 2003 the applicant asked for O.K. to be excluded from the proceedings, alleging that she had been passive in representing his interests, had not been supportive of his chosen defence strategy, and that he would prefer to be represented by a privately-funded lawyer. On 26 November 2003 the applicant’s request was allowed and he was given until 1 December 2003 to engage a privately-funded lawyer. 28. On 1 December 2003, the applicant still not having engaged a privately-funded lawyer, the court appointed A.B. as his new legal-aid lawyer. 29. On 26 January 2004 the applicant sought the replacement of his court-appointed lawyer A.B. with O.K., who had previously represented him as a court-appointed lawyer but who had now been privately engaged by his wife. This request was allowed and O.K. represented the applicant until the end of the trial. 30. During the trial, the applicant acknowledged that he had supported communist ideas and had taken part in publishing and distributing propaganda. However, he denied having been involved in any violent crimes. The applicant also complained that the investigative authorities had subjected his co-defendants and himself to ill-treatment with a view to breaking their moral resistance. In particular, upon the applicant’s arrest in December 2002, the officers had threatened him with physical ill-treatment and had made inappropriate remarks concerning his wife and family life. He had also been transported to Mykolayiv lying handcuffed on the floor of the prison van and blindfolded with a dark hat, which had made him suffocate and caused him to suffer a heart attack. 31. After the death of B., one of the applicant’s co-defendants, during the trial proceedings, the applicant and his co-defendants demanded an investigation into the circumstances of his death, alleging that it had resulted from torture and that they had also been subjected to ill-treatment at the investigation stage. Following the investigation, the prosecutor’s office reported to the Regional Court that B. had died of cancer and there had been no evidence of ill-treatment of the other co-defendants. 32. According to the applicant, it was very difficult for him to concentrate during the trial. In particular, his health was adversely affected by the conditions of his detention and the lack of medical assistance for his heart problems available to him in Odessa SIZO. 33. He noted, in particular, that between March and November 2003 he was detained in cell no. 187 in block 2 of Odessa SIZO, which was about eight square metres in size, had four beds and, at the time of his arrival, accommodated five detainees. The sanitary facilities were not separated from the living quarters. The wardens thwarted all the inmates’ attempts to gain some privacy by separating them with a curtain. The applicant’s inmates were repeat offenders. Some of them suffered from contagious diseases, such as HIV and tuberculosis. The administration ignored the applicant’s demands to be moved, as a healthy person with no criminal record, to a different cell. In November 2003 the applicant was relocated to a different cell, which was very similar in terms of physical and sanitary conditions. In addition, access to bathing facilities was very irregular. Furthermore, on various occasions the detainees were arbitrarily and brutally searched and beaten by special detachments of the armed forces. 34. The applicant further noted that he suffered from hypertension, vegetative-vascular dystonia, coronary artery disease and arrhythmia, for which he received no proper care in Odessa SIZO. The applicant’s family sent him medicines, which on some occasions were unreasonably withheld. 35. The applicant also submitted that on court days he and his co-defendants were routinely taken out of their cells at about 6 a.m. and placed with some 20-30 other inmates scheduled to be transported on that day in a special transit box, which measured some 15-20 square metres, had no windows and no heating. In such conditions the applicant and his co-defendants had to wait several hours for a prison van to come. Upon their return from court, they also routinely had to wait for several hours in the same holding area before being escorted to their regular cells. As a result, they missed meal time and were often left hungry. The “packed lunches” provided to them consisted solely of bread. Sometimes hot lunches were made available at court, but their provision was irregular. 36. The applicant also maintained that he had raised complaints about these issues in court, but to no avail. He presented unofficial copies of court transcripts, according to which on 22 December 2003 the applicant asked for a hearing to be adjourned as he felt unwell. On 9 January 2004 the applicant asked for a medical appointment in a cardiology clinic. On 10 January 2004 he complained in court that on that day the convoy officers had made the defendants run, while handcuffed and bent over, up to the courtroom located on the sixth floor and had beaten his co-defendant P., who had stumbled and fallen. On 3 February 2004 the applicant complained that he was only allowed to have one-hour daily outdoor walks, while his heart conditions called for him to walk for two hours a day. On 12 February 2004 the applicant asked the court to investigate the conditions of detention in Odessa SIZO, alleging that his and his co-defendants’ health had been deteriorating. On 15 April 2004 the applicant complained to the Regional Court that on 14 April 2004 he and his co-defendants had been taken out of their cells at 8 a.m. and they had been held in the transit box, which had been cold, until 2 p.m. without lunch. Finally on 16 April 2004 the applicant supported a complaint lodged by his co-defendant S., according to whom on the preceding day he and his co-defendants had had to spend five hours in the cold transit box. As can be seen from the same transcript, the presiding judge advised the applicant and S. to address their complaints to the SIZO governor, which advice they rejected as futile. 37. According to the Government, the conditions of the applicant’s detention were sufficient to meet his basic needs and compatible with his state of health. While the records enabling the identification of the applicant’s inmates and their health status had not been preserved, inmates suffering from contagious diseases were segregated from other detainees in accordance with the applicable rules. The Government provided numbers of various cells in which the applicant was held throughout his time in Odessa SIZO and indicated that these cells measured from 7.6 to 8.5 square metres and were designed to accommodate four inmates each and had not been overcrowded. They were equipped with windows giving sufficient access to natural light, had functioning sanitary facilities, tap water, heating, electric light and ventilation. Detainees were provided with three meals per day, one-hour daily walks and weekly access to bathing facilities. 38. The Government further maintained that the applicant’s state of health had been regularly monitored by the SIZO medical staff on account of his pre-existing conditions (hypertension, vegetative-vascular dystonia, coronary artery disease and arrhythmia). In December 2003 the applicant underwent inpatient treatment in the SIZO medical unit for his premature ventricular contractions (arrhythmia). In addition, on several occasions the applicant also had consultations with civilian specialist doctors. In particular, on 15 January 2004, following the applicant’s request for a consultation with a civilian cardiologist, he was examined by the Odessa Emergency Clinic’s cardiologist, who confirmed his previous diagnoses and gave recommendations as to his further outpatient treatment, which was administered in the SIZO. In March 2004 the applicant underwent a medical assessment by a panel of civilian doctors and was certified to be in satisfactory health and fit for detention and trial. The Government presented a copy of a medical certificate, according to which on 12 March 2004 the applicant had been examined by an ophthalmologist, a urologist, a physician, a pulmonologist, a cardiologist and a neurologist from the Odessa Regional Hospital. 39. The Government also maintained that the applicant and his co-defendants had always been promptly transported to and from the courthouse and had received breakfast and dinner in the SIZO. They had also been provided with either a packed lunch or hot lunch delivered to the court on hearing days. The catering had been organised by officer K., and, while copies of the available menus had not been kept, there was no record of any irregularity in the catering arrangements, which had been regulated by law. 40. The Government also maintained that there was no record of any complaints by the applicant or his co-defendants, either with the SIZO administration or with the Odessa Prosecutor’s Office, concerning the conditions of their detention, transportation, catering or medical treatment. They presented affidavits by the Odessa SIZO governor and on behalf of the Odessa Prosecutor’s Office in this respect. 41. On 19 July 2004 the Regional Court convicted the applicant of propagating a violent revolt against the constitutional order and attempting to undermine the territorial integrity of Ukraine; organising and running a criminal group; participating in a terrorist act (detonation of an explosive in a rubbish bin near the SSU headquarters in Kyiv); smuggling goods across the Russian border; unlawful handling of firearms and explosives; several armed robberies; and engagement of a minor in criminal activity. The applicant was sentenced to fourteen years’ imprisonment. The court also dismissed allegations of ill-treatment raised in respect of the applicant and some of his co-defendants as unsubstantiated. Finally, it noted that, insofar as the complaints of inadequate medical assistance in Odessa SIZO were concerned, the applicant had been examined by civilian medical specialists in March 2004 and had been found to be in a satisfactory state of health and fit to take part in the court proceedings. 42. On 18 August 2004 the applicant lodged a cassation appeal against this judgment. In his statement of appeal, the applicant reiterated his innocence and his allegations of ill-treatment advanced during the trial. He also reiterated that no medical assistance necessitated by his chronic conditions had been made available to him in Odessa SIZO and that the conditions of his and his co-defendants’ transport to the court premises had been inhuman. In this respect he noted that on 10 January 2004 the convoy had made him and his co-defendants run to the sixth-floor courtroom while handcuffed and bent over and that on 10 March 2004 the detainees had been arbitrarily held in the prison van for an extra two hours on the way back to the SIZO. The applicant further complained in his cassation appeal of a breach of his right to mount a defence. He noted in this respect that he had not been provided with a lawyer upon his arrest; his request to have his father appointed as his lay defender had been rejected; and his lawyer O.K. had not attended the hearing of 17 November 2003. Finally, the applicant complained that his right to have sufficient time and facilities for the preparation of his defence had been breached, as the Regional Court had rejected his request for an extension of time in which to study the case-file materials in preparation for the trial. The applicant also mentioned that he was intending to supplement his statement of appeal with further submissions. No copies of any such submissions were provided to the Court. 43. On 26 July 2005 the Supreme Court of Ukraine re-qualified the applicant’s conviction for smuggling as aiding and abetting smuggling and otherwise upheld the first-instance court’s judgment. The conviction for distribution of propaganda and attempting to undermine the territorial integrity of Ukraine was not reviewed, as the applicant had not lodged an appeal against it. In its decision, the Supreme Court noted, in particular, that the evidence of the applicant’s guilt included the testimony of his co-defendants and victims of his crimes given during the trial and that there was no evidence that any statements obtained during the pre-trial investigation had been extracted through ill-treatment or in breach of the applicant’s or his co-defendants’ right to mount a defence. Finally, it noted that the Regional Court had properly rejected the applicant’s request for further time in which to study the case-file materials, as it was unsubstantiated. 44. In November 2005 the applicant was transferred to Sokyriany no. 67 Correctional Colony (“Sokyriany Colony”) to serve his sentence. 45. In February 2009 the applicant’s lawyer, based in Moscow, Russia, asked the Regional Court to send him a number of documents from the applicant’s case file by post. 46. On 25 June 2009 the court denied this request, noting, in particular, that it had no facilities with which to prepare and send the copies and that the lawyer could study the case file on the court’s premises. 47. Between 17 June and 2 August 2005 the applicant was detained in Kyiv pre-trial detention facility (“Kyiv SIZO”) awaiting the review of his conviction in the cassation proceedings. 48. According to the applicant, the conditions of his detention were detrimental to his health and incompatible with human dignity. In particular, the facility was extremely overcrowded. A cell which contained eleven sleeping places was occupied by twenty-two inmates. The window was covered with metal shutters, barely letting in air and light. The electric light provided in the evenings was so dim that reading or writing could hurt the eyes. The sanitary facilities were not separated from the living quarters. The cell was not ventilated, the metal shutters overheated and the temperature often reached forty degrees. The air, mattresses and pillows were very damp. The provision and change of bedding was irregular. During the one-and-a-half months in which he was held there, the applicant only once had access to the bathing facility. He also received no medical help for his heart problems, which were bothering him because of the unsuitable physical conditions of his detention. 49. According to the Government, the conditions of the applicant’s detention were reasonably adapted to his needs. The applicant stayed in cells nos. 101, 103 and 110, measuring 60.9 square metres, 31.4 square metres and 9.7 square metres respectively. At the material time cell 101, which was designed to accommodate thirty-eight inmates, was occupied by thirty-four; cell 103, which was designed to accommodate twenty inmates, was occupied by fourteen; and cell 110, which was designed for four inmates, was filled to its capacity. All of the cells were equipped with windows letting in natural light and fresh air, sanitary facilities, sinks, artificial ventilation, refrigerators and televisions. The average temperature in the cells was 20-23 degrees Celsius. The detainees were supplied with soap and bedding, which was regularly changed, and could also buy toiletries in the SIZO shop, if they so wished. They were also provided with three meals a day, and were allowed daily one-hour walks and weekly access to the bathing facility. 50. On 7 November 2005 the applicant was transferred to Sokyriany Colony, where he served his sentence until July 2006. 51. According to the applicant, upon his arrival on 7 November 2005 and until 15 November 2005 he was detained in the intake area (quarantine cell), which was very damp and unheated. His warm civilian clothes were seized and he was provided with a prison uniform in a size too small for him. This was not remedied until December 2005, when his mother brought warm clothes, which he was allowed to keep. During his mother’s visit, the applicant was allowed to stay with her in the colony’s visitor hostel, which was also barely heated. On various occasions the administration blocked or delayed the applicant’s correspondence and the delivery of communist newspapers to which the applicant subscribed. The applicant was not provided with appropriate medical care and treatment. In addition, the colony administration exerted arbitrary psychological pressure on him by subjecting him to special supervision (for example, the administration placed his bed by the entrance door to the cell in order to be able to supervise him more effectively). 52. According to the applicant, he and his mother (on his behalf) brought the aforementioned matters to the attention of the colony administration and the prosecutor’s office. However, their complaints were either not dispatched, ignored, or poorly investigated into. 53. As is evident from the case file, in 2006 the applicant’s mother lodged several complaints with various authorities, in which she referred to irregularities in the colony postal unit’s handling of the applicant’s correspondence and periodical subscriptions, a prohibition on the detainees keeping sugar in the cells, the poor heating of the colony’s visitor hostel and the disappearance of 200 hryvnias (UAH) transferred by her to the applicant’s account. 54. On 31 March and 25 May 2006 the Chernivtsi Regional Prosecutor’s Office acknowledged certain irregularities in the operation of the colony’s postal unit in their responses to the applicant’s mother and notified her that disciplinary proceedings had been instituted against the officer responsible, while the colony governor had been instructed to improve the oversight of the postal service operation. They further noted that the detainees were forbidden to keep sugar in the cells to prevent alcohol production by them and that in winter 2006 the visitor accommodation had been equipped with movable radiators. Finally, they assured the applicant’s mother that the money purportedly lost had been duly credited to the applicant’s account. 55. On 6 June 2006 the applicant’s mother wrote a letter to the Chernivtsi Prosecutor’s Office acknowledging an improvement in the delivery of the applicant’s correspondence and thanking them for their intervention. 56. In June 2006 the applicant’s mother complained on the applicant’s behalf of deterioration in his health. 57. On 11 July 2006 the applicant lodged a declaration with the colony governor, according to which he had developed skin and liver problems in spring 2006, but stating that he was now satisfied with the treatment he was receiving and had no further requests in this respect or complaints against colony medical staff. 58. In summer 2006 the applicant was transferred to Torez no. 28 Correctional Colony in the Donetsk Region (“Torez Colony”), which operated under a lower-security regime, to continue serving his sentence. 59. Having left Sokyriany Colony on 18 July, the applicant arrived in the Torez Colony in September 2006. 60. According to the applicant, the conditions of his transport were incompatible with his state of health and with human dignity. Long distances were covered in prison trains and shorter ones in prison vans. The transit took several months because he was made to join various groups of prisoners making various shorter connections. The prison train carriages had compartments designed for four to six passengers, which were occupied by eleven or more detainees and their belongings. The overcrowded compartments were not ventilated and in the summer heat (above 30 degrees Celsius) the metal carriages overheated, making it hard to breathe. Reaching a destination took very long time, as upon arrival at an intermediate stop the cars often waited for hours for additional prisoners to be brought to the station or for a new locomotive to be connected to the train. A distance that would be covered in four hours in a regular train could take twenty-four hours or more. The guards escorted the detainees to the bathroom only once every four hours and there was no opportunity to go otherwise. The conditions of transport in the vans were also very uncomfortable. The vans had no windows and largely no ventilation. On many occasions they also took long stops and became overheated in the summer sun, aggravating the symptoms of the applicant’s heart and vascular problems and causing him to suffer intolerably. 61. The applicant further maintained that the physical conditions in the detention facilities which accommodated him as a detainee in transit between various train and van rides were likewise not suitable for habitation. For instance, the cell in Lviv SIZO had a window facing the inner corridor with no access to natural light. Cell no. 1607 in Donetsk SIZO was located in the basement. It was damp with water dripping from the ceiling and walls covered in mould. Both facilities were heavily overcrowded, with detainees taking turns to sleep, were poorly lit, ventilated and infested with insects. The sanitary facilities in them were not separated from the living quarters. 62. In addition to the poor physical conditions of detention and transport, the detainees in transit were also subjected to cruel and arbitrary practices by the convoy officers and prison guards. In particular, upon arrival and before departure they often had to spend an hour or so in overcrowded holding areas sitting in squat positions with their hands behind their heads. Guards also often made detainees assume a squat or other unnatural positions when moving somewhere, shouted, insulted, pushed and beat the prisoners, and performed unnecessary and degrading searches. The status of a prisoner in transit not having been sufficiently addressed in law and regulations, the administrative practice was not to provide them with bedding, not to segregate inmates sick with contagious diseases, and deny appropriate medical assistance or any communication with the outside world, including correspondence and visits. 63. According to the Government, the travel journals containing the particulars of the conditions of the applicant’s transit had been destroyed. However, they asserted that the conditions of the applicant’s transport and detention in transit points had been reasonably adapted to meeting his needs. Prison train carriages were designed to accommodate up to eighty people. They contained large compartments measuring three and a half square metres designed to accommodate twelve people and smaller compartments of two and a half square metres designed to accommodate five people. It was permissible to put sixteen and six people in large and smaller compartments respectively during trips that took less than four hours. All train cars were supplied with artificial ventilation and it was also possible to open a window. Prison vans measured eight square metres inside and were designed to accommodate twenty-two people in three compartments (two larger ones designed for ten passengers each and one small compartment for two passengers). The vans had no windows, but they were equipped with vents and benches for sitting on. 64. Upon the applicant’s arrival at Torez Colony in September 2006, his medical file was found to be missing. 65. On 29 September 2006 the applicant’s mother complained to the Sokyriany District Prosecutor’s Office concerning the Sokyriany Colony’s administration’s decision to allow the applicant’s transfer in the summer heat and its failure to include his medical file in his travel documents. 66. On 1 November 2006 the prosecutor’s office notified the applicant’s mother that according to Sokyriany Colony’s records, the applicant’s medical file had been properly handed over to the convoy officers escorting him out of the colony. | 1 |
test | 001-179547 | ENG | ITA | CHAMBER | 2,017 | CASE OF ORLANDI AND OTHERS v. ITALY | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;Guido Raimondi;Kristina Pardalos;Krzysztof Wojtyczek;Pauliine Koskelo;Ksenija Turković | 10. The applicants’ details can be found in the Annex. 11. These two applicants met in February 2007, and in 2009 they entered into a stable and committed relationship with each other. 12. On 11 October 2009 Ms Mortagna moved to Toronto, Ontario, Canada for work purposes. A month later the two applicants decided to get married and on 27 August 2010 they married in Toronto. 13. In the meantime, on 2 April 2010, Ms Mortagna’s employment came to an end and as a result she was no longer entitled to a residence permit. She therefore returned to Italy and since then has been cohabiting with Ms Orlandi. 14. On 18 April 2011 their physical cohabitation was registered and since then they have been considered as a family unit for statistical purposes. 15. On 9 September 2011 the two applicants asked the Italian Consulate in Toronto to transmit to the Civil Status Office in Italy the relevant documents for the purposes of registration of their marriage. 16. On 8 November 2011 the relevant documents were transferred. 17. On 13 December 2011 the Commune of Ferrara informed the two applicants that it was not possible to register their marriage. The decision noted that the Italian legal order did not allow marriage between same-sex couples, and that although the law did not specify that couples had to be of the opposite sex, doctrine and jurisprudence had established that Article 29 of the Constitution referred to the traditional concept of marriage, understood as being a marriage between persons of the opposite sex. Thus, the spouses being of different sex was an essential element to qualify for marriage. Moreover, according to Circular no. 2 of 26 March 2001 of the Ministry of Internal Affairs, a marriage contracted abroad between persons of the same sex, one of whom was Italian, could not be registered in so far as it was contrary to the norms of public order. 18. These two applicants, who live in Italy, met in 2007 and entered into a stable and committed relationship with each other. 19. On 9 January 2008 they started cohabiting in G.P.’s apartment, although D.P. maintained formal residence in his own apartment. In 2009 G.P. purchased a second property which, in the absence of any legal recognition, for practical and fiscal reasons remained in his name only. In 2010 G.P. purchased, through a mandate in the name of D.P (for the purposes of purchasing such property), a garage. In June 2011 the couple moved into D.P.’s apartment and established their home there. They have since been considered as a family unit for statistical purposes. 20. On 16 August 2011 the two applicants got married in Toronto, Ontario, Canada. On 10 October 2011 they opened a joint bank account. On 12 January 2012, before a notary, the two applicants appointed each other reciprocally as guardians in the event of incapacitation (amministratore di sostegno). 21. Following the applicants’ request, on 7 January 2012, the Italian Consulate in Toronto transmitted to the Civil Status Office in Italy the relevant documents for the purposes of registration of their marriage. 22. On 20 January 2012, the Commune of Peschiera Borromeo informed the two applicants that it was not possible to register their marriage. The decision noted that the Italian legal order did not allow marriage between same-sex couples. Moreover, according to Circular no. 2 of 26 March 2001 of the Ministry of Internal Affairs, a marriage contracted abroad between persons of the same sex, one of whom was Italian, could not be registered in so far as it was contrary to the norms of public order. 23. Following the entry into force of the new law (see paragraph 97 below), on 12 September 2016 the two applicants requested that their marriage be transcribed as a civil union. According to the applicants’ submissions of 30 January 2017 their request was still pending and no reply had yet been received. 24. According to documents dated 31 March 2017 submitted to this Court in June 2017, by the Government, the applicants’ marriage was transcribed as a civil union on 21 November 2016. A certification of this registration, submitted by the Government, is dated 16 May 2017. 25. The two applicants met in Italy in 2002 and entered into a stable and committed relationship with each other. Mr Bray, who is Canadian, did not have a residence permit in Italy at the time, Mr Isita therefore travelled repeatedly to Canada. 26. On 18 July 2005 the couple married in Vancouver, Canada. In the same year Mr Isita designated Mr Bray as his heir. In 2007 Mr Isita retired and moved to Canada permanently, although he maintained formal residence in Italy. 27. In 2004 the two applicants had purchased some land together; in 2007 the couple purchased a further piece of land, and in 2008 they purchased a house and in 2009 a commercial property with an annexed cottage. In 2009 they also opened a joint bank account. 28. On 10 October 2011 they asked the Civil Status Office to register their marriage contracted in Canada. 29. On 25 November 2011 the Commune of Naples informed the two applicants that no such registration was possible. The decision noted that the Italian legal order did not allow marriage between same-sex couples as reiterated in Circular no. 55 of 2007 issued by the Ministry of Internal Affairs. 30. Following guidance from the Mayor of Naples, directing the Civil Status Office of the commune to register such marriages (see below), Mr Mario Isita and Mr Grant Bray re-submitted an application to have their marriage registered. According to information sent to the applicants by email, their request was granted on 6 August 2014. However, further to the circular issued on 7 October 2014 by the Ministry of Internal Affairs (see paragraph 89 below) the registration was cancelled on an unspecified date. 31. On an unspecified date, following the entry into force of the new law, the two applicants requested that their marriage be transcribed as a civil union. According to the applicants’ submissions of 30 January 2017 their request was still pending and no reply had yet been received. 32. According to undated documents submitted to this Court in June 2017, by the Government, the applicants’ marriage was transcribed as a civil union on 27 October 2016. A certification of this registration, submitted by the Government, is dated 29 March 2017. 33. These two applicants met in October 1995, and a month later entered into a stable and committed relationship with each other. 34. In 1996 Mr Giartosio purchased a house in Rome, Italy and in spring 1998 the two applicants started to cohabit there. There they established their common residence. 35. In 1998 the two applicants symbolically celebrated their union before their friends and family. In 2001 Mr Giartioso allowed limited access to his bank account in favour of Mr Goretti. In 2005 the two applicants drafted wills nominating each other as each other’s heirs. 36. On 9 September 2008 the two applicants got married in Berkeley, California. 37. In 2009 the applicants purchased property together and opened a joint bank account. 38. Following their request of the same day, on 29 September 2011 the Commune of Rome informed the applicants that the registration of their marriage was not possible, as it was contrary to the norms of public order. 39. On 1 October 2011 the couple filed a declaration with the Rome “Registry of civil unions” to the effect that they were entering into a civil union and constituting a de facto couple. The declaration is acknowledged by the relevant authorities, but has only symbolic value (see relevant domestic law and practice below). 40. Following guidance from the Mayor of Rome directing the Civil Status Office of the commune to register such marriages (see below), on 15 October 2014 Mr Gianfranco Goretti and Mr Tommaso Giartosio resubmitted an application to have their marriage registered. Their request was also granted and the marriage was registered. However, further to the circular issued on 7 October 2014 by the Ministry of Internal Affairs (see paragraph 89 below) by a decision of the Prefect of Rome of 31 October 2014 the above-mentioned registration was cancelled. 41. On 23 November 2016, following the entry into force of the new law and their request to that effect, the applicants’ marriage was transcribed as a civil union. 42. These two applicants met in July 1993 and immediately entered into a committed and stable relationship with each other. A few weeks later Mr Dal Molin moved in with Mr Rampinelli in La Spezia, Italy. 43. In 1997 the couple moved to Milan, Italy. 44. In 1998 Mr Rampinelli moved to Germany for employment purposes, maintaining a long-distance relationship with Mr Dal Molin; however they met every week. 45. In 1998 Mr Dal Molin purchased a property in Milan with financial assistance from Mr Rampinelli. 46. In 2000 Mr Rampinelli returned to Italy; the couple moved to Mediglia and continued cohabiting. 47. In 2007 Mr Rampinelli moved to the Netherlands, again for work purposes, maintaining however, a long-distance relationship with regular weekly visits to Italy. 48. After being in a relationship for fifteen years, on 12 July 2008 the couple got married in Amsterdam, the Netherlands. In November 2008 the couple opened a joint bank account. 49. In 2009 Mr Dal Molin left his job in Italy and moved to the Netherlands. As he was unemployed, he was totally dependent on his spouse. Mr Rampinelli also supported financially Mr Dal Molin’s mother, a victim of Alzheimer’s disease. They are under a system of separation of estates; however, their accounts are in joint names and their wills indicate each other as heirs. 50. On 28 October 2011 the applicants requested the General Consulate in Amsterdam to transmit to the respective Civil Status Offices in Italy the relevant documents for the purposes of registration of their marriage. 51. On 29 November 2011 the Commune of Mediglia informed the applicants that the registration of their marriage was not possible, as it was contrary to the norms of public order. No reply was received from the Commune of Milan. 52. Following the guiding decision by the Mayor of Milan, mentioned above, the applicants also re-submitted an application to have their marriage registered. According to the information provided by the applicants on 30 January 2017, their marriage was never registered. 53. However, on 4 October 2016, following the entry into force of the new law and their request to that effect, the applicants’ marriage was transcribed as a civil union. 54. The two applicants married in The Hague on 1 June 2002. 55. On 12 March 2004, the applicants being resident in Latina, Italy, they requested the Civil Status Office to register their marriage contracted abroad. 56. On 11 August 2004 their request was rejected in accordance with the advice of the Ministry of Internal Affairs of 28 February 2004. The decision noted that the Italian legal order did not provide for the possibility of two Italian nationals of the same sex contracting marriage; this was a matter contrary to internal public order. 57. On 19 April 2005 the applicants lodged proceedings before the competent Tribunal of Latina, requesting the registration of their marriage in the light of DPR 396/2000 (see relevant domestic law below). 58. By a decision of 10 June 2005 the Latina Tribunal rejected the applicants’ claim. It noted that the registration of the marriage was not possible, because if such a marriage had been contracted in Italy it would not have been considered valid according to the current state of the law, as it failed to fulfil the most basic requirement, that of having a female and a male. In any event, the marriage contracted by the applicants had no consequence in the Italian legal order in so far as a marriage between two persons of the same sex, although validly contracted abroad, ran counter to international public order. Indeed same-sex marriage was in contrast with Italy’s history, tradition and culture, and the fact that so few European Union (EU) countries had provided such legislation went to show that it was not in line with the common principles of international law. 59. An appeal by the applicants was rejected by a decision of the Rome Court of Appeal, filed in the relevant registry on 13 July 2006. The Court of Appeal noted that such registration could not take place, given that their marriage lacked one of the essential requisites to amount to the institution of marriage in the domestic order, namely the spouses being of different sexes. 60. On 17 July 2007 the two applicants appealed to the Court of Cassation. In particular they highlighted, inter alia, that public order referred to in Article 18 of Law no. 218/95, had to be interpreted as international public order not national public order, and thus it had to be established whether same-sex marriage was against that order, in the light of international instruments. 61. By a judgment of 15 March 2012 (no. 4184/12) the Court of Cassation rejected the appeal and confirmed the previous judgment. Noting the Court’s case-law in Schalk and Kopf v. Austria, (no. 30141/04, ECHR 2010) it acknowledged that a marriage contracted abroad by two persons of the same sex was indeed existent and valid, however, it could not be registered in Italy in so far as it could not give rise to any legal consequence. 62. The Court of Cassation referred to its case-law, to the effect that civil marriages contracted abroad by Italian nationals had immediate validity in the Italian legal order as a result of the Civil Code and international private law. This would be so in so far as the marriage had been contracted in accordance with the laws of the foreign state in which it had been contracted, and that the relevant substantive requirements concerning civil status and the capacity to marry (according to Italian law) subsisted, irrespective of any non-observance of Italian regulations regarding the issuing of the banns or the subsequent registration. The former were subject solely to administrative sanctions and the latter were not conducive of any legal effects – since registration had the mere significance of giving publicity to a deed or act which was already valid on the basis of the locus regit actum principle. Thus, had the marriage been contracted by persons of the opposite sex, in the absence of any other fundamental requirements it would have been valid and conducive of legal effects in the Italian legal order. In that case the Civil Status Officer would have no option but to register the marriage. However, the case-law had shown that the opposite sex of the spouses was the most indispensable requirement for the “existence” of a marriage as a legally relevant act, irrespective of the fact that this was not stated anywhere explicitly in the relevant laws. Thus, the absence of such a requirement placed in question not only the validity of the marriage, but its actual existence, meaning that it would not be conducive to any legal effects (as opposed to a nullity). It followed that according to the ordinary law of the land, two same-sex spouses had no right to have their marriage contracted abroad registered. 63. The Court of Cassation considered that the said refusal could not be based on the ground that such a marriage ran counter to public order (as dictated by the relevant circulars), but that the refusal was simply a consequence of the fact that it could not be recognised as a marriage in the Italian legal order. 64. The Court of Cassation went on to note that the social reality had changed, yet the Italian order had not granted same-sex couples the right to marry as concluded in the Court of Cassation judgment no. 358/10 (which it cited extensively). Indeed the question whether or not to allow same-sex marriage, or the registration thereof, was not a matter of EU law, it being left to regulation by Parliament. However, the Italian legal order was also made up of Article 12 of the Convention as interpreted by the European Court of Human Rights in Schalk and Kopf (cited above); in that case the Court considered that the difference of sex of spouses was irrelevant, legally, for the purposes of marriage. It followed that, irrespective of the fact that it was a matter to be dealt with by the national authorities, it could no longer be a prerequisite for the “existence” of marriage. Moreover, the Court of Cassation noted that persons of the same sex living together in a stable relationship had the right to respect for their private and family life under Article 8 of the Convention; therefore, even if they did not have the right to marry or to register a validly contracted marriage abroad, in the exercise of the right to freely live with the inviolable status of a couple, they could bring actions before the relevant courts to claim, in specific situations related to their fundamental rights, treatment which was uniform with that afforded by law to married couples. 65. In conclusion, the Court of Cassation found that the claimants had no right to register their marriage. However, this was so not because the marriage did not “exist” or was “invalid” but because of its inability to produce (as a marriage deed) any legal effect in the Italian order. | 1 |
test | 001-178097 | ENG | AUT | ADMISSIBILITY | 2,017 | THOR v. AUSTRIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 1. The applicant, Mr Richard Thor, is a Swedish national who was born in 1971 and lived in Tulln. He is represented before the Court by Mr W. Kunert, a lawyer practising in Stockerau. 2. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for Europe, Integration and Foreign Affairs. The Swedish Government did not make use of their right to intervene under Article 36 § 1 of the Convention. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant and G.T. are the parents of E.T., born on 13 October 2005 out of wedlock. The parents were married on 12 May 2006 and E.T. thereby acquired the status of having been born in wedlock with both parents having joint custody of him. On 9 December 2010 G.T. applied to the Tulln District Court for sole custody of E.T. and announced that she was planning a divorce. She stated that the child’s best interests would not be guaranteed if she stayed with the applicant. G.T. then moved out of the flat, together with E.T. The parents were divorced on 17 February 2011. After the divorce the parents maintained joint custody of their child, even though E.T. was living with his mother. 5. On 25 February 2011 the applicant lodged an application seeking that he be awarded sole custody of E.T. He argued that G.T. tried to alienate the child from him and that she actually failed to fulfil her parental duties. On 28 February 2011 the District Court appointed an expert in respect of the question of custody. 6. On 18 May 2011 the expert submitted her report. She concluded that, provided that adequate contact between E.T. and the applicant was ensured, it was in the interests of the well-being of E.T. that custody of him be awarded to G.T. In the event that the court were to grant joint custody, the principal residence of E.T. should be with his mother. 7. On 10 June 2011 the applicant and G.T. reached an agreement on the applicant’s contact rights in respect of E.T. before the District Court. That agreement was modified on 1 September 2011. 8. On 8 September 2011 G.T. reiterated her application for sole custody, stating that the applicant avoided any communication with her and that she could not see how – given this fact – joint custody was practicable or feasible. 9. On 29 December 2011 the District Court awarded G.T. sole custody and based this decision on the recommendation of a psychological expert. Moreover, the court referred to the fact that E.T., who was living with his mother, had stated that he wished to continue to do so and had shown a strong emotional link to her. The District Court furthermore noted that the applicant had not respected the agreement on contact rights and had on various occasions visited E.T. at his kindergarten – conduct which could increase the psychological strain on E.T. and could entail a risk to the wellbeing of the child if joint custody were to be maintained. Since it was not possible under Article 177a of the Civil Code to maintain joint custody after a divorce if the parents did not agree on it the court had to award sole custody, which, for the reasons set out above, had to be granted to G.T. 10. On 11 January 2012 the applicant appealed. He argued that the proceedings had been defective because an additional expert report should have been ordered. He furthermore argued that Article 177a of the Civil Code was unconstitutional and in violation of his Convention rights and asked the Regional Court to apply to the Constitutional Court for judicial review of the constitutionality of this provision. 11. On 15 February 2012 the St. Pölten Regional Court dismissed the applicant’s appeal and upheld the reasoning of the District Court. It held in particular that there was no indication of a risk to the child’s best interests if G.T. were to hold sole custody of E.T. The applicant had not submitted sufficient reasons for custody not to be granted to G.T., as the mere fact that she was assisted in caring for E.T. by her mother and the fact that E.T. was having difficulties in adapting to his new kindergarten did not cast any doubt on the capacity of G.T. to care for E.T. In so far as the applicant made further allegations of misconduct on the part of the mother without offering any evidence, such allegations were not sufficient to necessitate the supplementing of the expert report in the file. The court furthermore held that there were no concerns in terms of constitutional law regarding the fact that it was not possible to maintain joint custody after a divorce if the parents did not agree on it; thus, it held that the transfer of custody rights was only possible in the event that the child’s best interests were at risk. The court noted, moreover, that the present case was not comparable with the case of Sporer v Austria (no. 35637/03, 3 February 2011), since E.T. had been born in wedlock and the parents had held joint custody in the past. In such a case neither of the parents held a privileged position as regards the award of custody, and Article 177 of the Civil Code was therefore not discriminatory. In any event there was no room for dismissing the application for sole custody lodged by G.T., as the applicant himself had also lodged an application for sole custody and the court therefore had to decide. 12. On 25 April 2012 the Supreme Court rejected the applicant’s extraordinary appeal since it did not raise any important questions of law. Moreover, the Supreme Court found that the Court’s judgment in the case of Sporer v Austria had to be distinguished from the present case because the underlying facts were fundamentally different. Sporer had concerned custody of a child born out of wedlock (in which case Article 176 of the Civil Code did not provide for joint custody but granted sole custody of the child to the mother); in the present case, E.T. had been born in wedlock, so the parents had initially had joint custody, but that arrangement had failed and as a consequence the courts had had to grant sole custody to one of the parents. That decision was served on the applicant on 18 May 2012. 13. Following the 2013 amendment to the Civil Code, which entered into force on 1 February 2013, the applicant did not lodge an application for joint custody of E.T. According to a statement by the local youth office (Jugendamt) of 17 July 2013, the applicant no longer availed himself of his right to visit E.T. as he had moved to Russia on an unspecified date. 14. Article 177 and 177a of the Civil Code, as in force at the material time, read as follows: “(1) If the marriage of the parents of a minor legitimate child is dissolved or annulled, the custodial rights of both parents remain intact. However, they may present an agreement to the court – even modifying an existing agreement – regarding custodial responsibility. In this connection it may be agreed that one parent alone or both parents shall have custody. Where both parents have custodial powers, those of one parent may be limited to specific matters. (2) Where both parents have custody, they must submit an agreement to the court regarding the parent with whom the child is to stay primarily. This parent must always be put in charge of all custodial matters. (3) The court must approve the agreement of the parents if it serves the interests of the child.” “(1) If an agreement in accordance with Article 177 on the main domicile of the child or on custodial powers is not reached within a reasonable period after a marriage is dissolved or annulled, or if it is incompatible with the interests of the child, the court must decide which parent shall henceforth have sole custody, if all attempts to reach an amicable solution fail. (2) If both parents have custody under Article 177 after their marriage has been dissolved or annulled, and if one parent applies for the withdrawal of that custody, the court must decide which parent shall have sole custody, if all attempts to reach an amicable solution fail.” 15. The relevant provisions of the Austrian Civil Code were amended significantly on 1 February 2013. The relevant sections read as follows: “(1) If the marriage or the common household of the parents is dissolved, joint custody is maintained. They can, however, conclude an agreement before a court under which one parent is entrusted with sole custody, or the custody of one parent is limited to certain matters. (2) ) In the case that both parents have joint custody after the dissolution of their marriage or the common household, [the parents] have to conclude an agreement before a court regarding in whose household the child will predominantly be cared for.” “(1) Provided that it is in the best interests of the child, the court has to decide on the provisional regulation of parental responsibility (“the phase of provisional parental responsibility”), if 1. after the dissolution of the marriage or the common household the parents cannot concur on an agreement, pursuant to section 179, within a reasonable time limit, or 2. one parent applies for sole custody or his/her participation in custodial rights. ... (2) After [the phase of provisional responsibility, which lasts six months], the court has to take a final decision on custody (on the basis of what transpired during the phase of provisional parental responsibility) – including payment of statutory maintenance – [which is in the best interests of the child.] ... If the court awards joint custody, it also has to decide in whose household the child will predominantly be cared for.” | 0 |
test | 001-145659 | ENG | UKR | ADMISSIBILITY | 2,014 | KRAVCHENKO v. UKRAINE | 4 | Inadmissible | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych | 1. The applicant, Mr Anatoliy Alekseyevich Kravchenko, is a Ukrainian national, born in 1956 and living in Zhytomyr. He was represented before the Court by Mr S.O. Dubas, a lawyer practising in Kyiv. 2. The Ukrainian Government (“the Government”) were represented by their Agent, most recently Ms Nataly Sevostianova. 3. The applicant alleged, in particular, that he had been convicted in violation of Article 6 §§ 1 and 3 (c) of the Convention, on the basis of a confession extracted from him against his will and in the absence of a lawyer. 4. On 23 March 2011 the above complaints were communicated to the Government. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 1982 the applicant was deprived of his legal capacity as he suffered from schizophrenia. He was also registered as “category 2” disabled (on a four-category scale) for that reason. 7. In 1984 the applicant was convicted for theft and attempted rape of a minor. He was, however, relieved of criminal liability by reason of his mental condition. The courts ordered his compulsory medical treatment in a psychiatric hospital. The applicant underwent such treatment on several occasions, most recently in August 2003. 8. On 23 March 2004, at approximately 4.30 p.m., a group of teenagers from the Zhytomyr orphanage, as well as their two teachers, saw the applicant aggressing a young girl in a nearby forest. The girl, who was partly undressed and covered in blood, was crying for help. The applicant tried to flee, but without success. A fight broke out, and he was apprehended and handed over to the police, who someone had called in the meantime. 9. On the same day the applicant waived his right to legal assistance and confessed to attempting to rape a minor (the girl in question, P., was eleven years old). His handwritten confession statement mentioned his past criminal convictions, but did not contain any reference to his mental condition or legal incapacity. The applicant also wrote that his confession had not been made under duress. 10. According to the applicant’s submissions to the Court, he was coerced into both signing the waiver and confessing. He further alleged that he had immediately informed the police that he was legally incapable on account of his schizophrenia, but that information had remained ignored. 11. Also on 23 March 2004 the police questioned the eyewitnesses, who gave a detailed account of the incident and the circumstances of the applicant’s apprehension. 12. On 24 March 2004 the applicant was formally detained as a suspect, having been caught in flagrante delicto. He signed a statement as confirmation that his procedural rights, including his right to a lawyer, had been explained to him. He again waived his right to legal assistance. 13. During his questioning on 24 March 2004 and a reconstruction of the crime on 25 March 2004, the applicant reiterated his initial confession, specifically stating that he had realised the victim’s age. 14. On 25 March 2004 an identity parade took place, at which the witnesses recognised the applicant as the attacker. 15. On 26 March 2004 the investigator appointed a lawyer for the applicant, having been notified by the Information Bureau of the Ministry of the Interior that he had a history of compulsory psychiatric treatment. 16. On the same day the Zhytomyr City Court (“the Zhytomyr Court”), in a hearing which the applicant and his lawyer attended, remanded the applicant in custody pending trial. He again repeated his confession statements, and agreed that the preventive measure chosen was appropriate. 17. On 31 March 2004 the applicant was charged with attempted rape of a minor. He was questioned as an accused in the presence of his lawyer. The applicant repeated his confession. He stated that he had been apprehended by a group of six to eight teenagers, who he had tried to fight off with a stick and who had hit him several times. 18. On 1 April 2004 the applicant underwent a forensic medical examination, which revealed three bruises on his face and two bruises on his back, possibly inflicted in the ten days leading up to the examination. 19. On 21 April 2004 the applicant complained to the Zhytomyr Regional Prosecutor’s Office (“the Zhytomyr Prosecutor”) that he had been coerced into incriminating himself through “physical and psychological pressure by the police”, without giving further details. 20. On 27 April 2004 the applicant underwent a psychiatric examination, which found him to be of limited criminal capacity (обмежено осудний). It was concluded that he required regular psychiatric monitoring, although there was no need for compulsory medical treatment for the time being. 21. In April 2004 (the exact date is illegible) the management of the applicant’s local neighbourhood housing department, drew up a written character reference, describing the applicant as a quiet person about whom there had been no complaints. 22. On 11 May 2004 the applicant’s employer, a company for whom the applicant worked as a technician at the time of the events, issued a similar character reference, describing him as a responsible employee complying entirely with his job requirements. 23. On 15 May 2004 the Zhytomyr Prosecutor, having examined the applicant’s allegation of ill-treatment, decided not to institute criminal proceedings against the police officers for lack of corpus delicti in their actions. 24. On 18 May 2004 the forensic medical examination of P. was completed. Her injuries – multiple facial bruises and post-asphyxia syndrome – were found to fit with the applicant’s description of events. 25. On the same day the victim’s neighbour, a sixteen-year-old girl, Sh., was questioned as a witness. She submitted that on 23 March 2004, at approximately 4 p.m., near to where the incident with P. had taken place, she had also been attacked by a man, whose description corresponded with the applicant’s appearance. Sh. had however managed to escape. She stated that she was unable to recognise her attacker. 26. On 19 May 2004 the Zhytomyr Prosecutor refused to institute criminal proceedings against the individuals for injuring the applicant while apprehending him. It was held that under the circumstances there had been nothing criminal in their actions. 27. On the same day the prosecutor refused to institute criminal proceedings against the applicant in respect of the attempted rape of Sh., having found that there was no case to be examined. 28. Later that day the applicant’s colleague, who had been working with him on 23 March 2004, was questioned. He submitted that the applicant had left at approximately 3.40 p.m. under the pretext that he needed to go to the toilet, and had not returned thereafter. 29. On 24 May 2004 the applicant was indicted, and the case was sent for trial in the Zhytomyr Court. 30. On 27 May 2004 the applicant complained to the Zhytomyr Court that, following his apprehension on 23 March 2004, he had been ill-treated by the police. He alleged that he had been suspended from a bar between two tables while handcuffed, punched in the face, and thrown onto the floor with his hands handcuffed. He also complained that four officers had kicked him all over, put a gas mask on him and blocked the nose vent, twisted his arms, and struck him with a truncheon on his legs and knees. The applicant submitted that he had signed his waiver of legal assistance, and had had his confession extracted under duress. He stated that his injuries had been documented in the report of his forensic medical examination. 31. On 16 June 2004 the applicant asked to be represented by a different lawyer. His request was granted. 32. On 21 June 2004 the Zhytomyr Prosecutor wrote to the trial court, it appears in response to a request for information, stating that there was no reason to review the decision of 15 May 2004 (in which it refused to institute criminal proceedings in respect of the applicant’s allegation of ill-treatment – see paragraph 23 above). 33. On 16 September 2004 the applicant’s lawyer was replaced again, upon a request by him to that effect. 34. On 27 October 2004 the charge against the applicant was amended to include, in addition to attempted rape of a minor, grievous bodily harm. 35. On 17 November 2004 the Zhytomyr Court found the applicant guilty as charged, and sentenced him to twelve years’ imprisonment. It relied, among other things, on the confession statements he had made during the pre-trial investigation, even though he had retracted them during the judicial proceedings. The court noted that the bruises documented in the report of the applicant’s medical examination had been inflicted on him during his fight with the people who had apprehended him. The guilty verdict was also based on the statements of several eyewitnesses who had recognised him as P.’s attacker (she had been unable to recognise her attacker as she had been suffering from shock). Furthermore, the court relied on the statements of the applicant’s colleague confirming his absence from the workplace at the time of the incident. According to the applicant, he refused the services of a Ukrainian-Russian interpreter at the beginning of the trial, but later changed his mind. The later request he submitted for an interpreter had been unsuccessful. 36. The applicant, who had legal representation, appealed. He complained, in particular, that his confession had been extracted from him by torture and that he had been coerced into waiving his right to legal representation, which was unacceptable given his mental illness and ran contrary to criminal procedural law. 37. On 25 January 2005 the Zhytomyr Regional Court of Appeal upheld the applicant’s conviction, but reduced his sentence to eight years. It agreed with the first-instance court that there was no reason to consider that the applicant’s confession statements obtained during the pre-trial investigation had been made against his will. As regards the alleged restriction on his right to legal assistance, the appellate court noted that the applicant had himself waived that right and that the investigator had appointed a lawyer for him as soon as his mental illness had become known. 38. On 29 November 2005 the Supreme Court upheld the lower courts’ decisions and their reasoning. On 14 February 2006 the ruling was sent to the applicant. 39. Article 45 § 2 of the Code of Criminal Procedure (“the CCP”) provides that if criminal proceedings are brought against persons unable to exercise their right to defend themselves on account of a physical or mental disability, their legal representation is obligatory starting from the moment they are arrested, charges are brought against them, or their disability becomes known. 40. Under Article 46 § 1 of the CCP, a suspect, accused or defendant may dispense with invited or appointed counsel at any stage of the proceedings. Such a waiver is possible only at the initiative of the suspect, accused or defendant and does not preclude him or her from appointing the same or a different counsel at a later stage of the proceedings. However, a waiver of counsel in the cases covered by Article 45 should be based on reasoning found to be satisfactory by the inquiry officer, investigator or the court (Article 46 § 3). Should it be accepted, the suspect, accused or defendant has up to three days to replace counsel (Article 46 § 4). If he or she fails to do so within the set time-limit, and if his or her legal representation is mandatory under Article 45 of the Code, a legal representative must be appointed by the inquiry officer, investigator or judge, depending on the stage of the proceedings (Article 46 § 5). 41. According to paragraph 13 of Resolution of the Plenary Supreme Court of Ukraine no. 8 of 24 October 2003 on the application of legislation ensuring the right to defence in criminal proceedings, “persons who are unable to exercise their right to defend themselves because of a physical or mental disability” (Article 45 § 2 of the CCP) should be understood to be persons with considerable speech, sight, hearing or other defects, as well as persons who, even though recognised as having criminal capacity, have psychiatric conditions which would impede their ability to mount a defence against the charges brought against them. Such persons should be legally represented as soon as the aforementioned defects have been established. | 0 |
test | 001-180554 | ENG | RUS | CHAMBER | 2,018 | CASE OF AKIMENKOV v. RUSSIA | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive 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) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1987 and lives in Moscow. 6. The background facts relating to the planning, conduct and dispersal of the public event at Bolotnaya Square are set out in more detail in Frumkin v. Russia (no. 74568/12, §§ 7-65, 5 January 2016), and Yaroslav Belousov v. Russia (nos. 2653/13 and 60980/14, §§ 7-33, 4 October 2016). The parties’ submissions on the circumstances directly relevant to the present case are set out below. 7. On 6 May 2012 a public demonstration entitled the “March of Millions” was held in central Moscow to protest against allegedly rigged presidential elections. The event had been approved by the city authorities in the form of a march followed by a meeting at Bolotnaya Square, which was supposed to end at 7.30 p.m. The march was peaceful and held without any disruptions, but when the marchers arrived at Bolotnaya Square it turned out that barriers installed by the police had narrowed the entrance to the meeting venue, allegedly restricting the space allocated for the meeting. To control the crowd the police cordon forced the protestors to remain within the barriers. There were numerous clashes between the police and protesters. At 5.30 p.m. the police ordered that the meeting finish early and began to disperse the participants. It took them about two hours to clear the protestors from the square. 8. On the same day the Moscow city department of the Investigative Committee of the Russian Federation opened criminal proceedings to investigate suspected acts of mass disorder and violence against the police (Articles 212 § 2 and 318 § 1 of the Criminal Code). On 18 May 2012 the file was transferred to the headquarters of the Investigative Committee for further investigation. On 28 May 2012 an investigation was also launched into the criminal offence of organising acts of mass disorder (Article 212 § 1 of the Criminal Code). The two criminal cases were joined on the same day. 9. The applicant took part in the demonstration of 6 May 2012 at Bolotnaya Square. He was arrested on the date indicated below and charged with participation in mass disorder. The applicant was detained and tried on those charges but subsequently exempted from liability under the Amnesty Act. 10. The applicant is a political activist and a member of an opposition movement called Levyy Front. On 6 May 2012 he arrived at Bolotnaya Square to participate in the demonstration and, according to him, did not take part in any disorder or clashes with the police. After the events in question the applicant continued to live at his usual address and pursue his customary activities, including taking part in authorised public events. 11. On 10 June 2012 the applicant was detained on suspicion of participation in acts of mass disorder and committing violent acts against the police on 6 May 2012. On 11 June 2012 the Basmannyy District Court of Moscow held a hearing on the investigating authorities’ request to detain the applicant pending the completion of the criminal investigation. In view of the need to provide additional evidence in support of the request, the court adjourned the hearing and authorised the applicant’s detention for seventytwo hours. 12. On 14 June 2012 the Basmannyy District Court ordered the applicant’s pre-trial detention until 10 August 2012. It referred to the gravity of the charges and stated that the applicant’s state of health did not preclude his being detained. The District Court concluded that the applicant, faced with the risk of a prison term, might obstruct the proper administration of justice or abscond. 13. On 19 June 2012 charges were brought against the applicant under Article 212 § 2 (participation in mass disorder accompanied by violence) of the Criminal Code. He was accused, in particular, of having thrown an unidentified solid object towards the police. 14. On 11 July 2012 the Moscow City Court upheld the detention order of 14 June 2012. 15. On 8 August 2012 the Basmannyy District Court examined a request for an extension of the applicant’s pre-trial detention. The applicant requested to be released, arguing that all the necessary investigative acts had already been carried out. He presented personal guarantees from two State Duma deputies in support of an undertaking by him to appear before the investigating authorities and the courts for examination of his case. The applicant also requested his release on health grounds and submitted a medical document from 2004 which showed that he had a number of eye conditions. 16. On the same day the District Court granted an extension of the applicant’s pre-trial detention until 6 November 2012. It relied on the reasons for and the nature of the crime which had been committed, which gave sufficient grounds to presume that the applicant might reoffend, influence and threaten witnesses and other participants of the criminal proceedings, destroy evidence or otherwise obstruct the proper administration of justice. In addition, the applicant had negative reports related to his place of residence. In particular, he had no permanent employment or family and had been repeatedly brought to administrative responsibility. His state of health was satisfactory and did not warrant his release. Lastly, the court held that in view of the above circumstances the custodial measure could not be replaced by a more lenient preventive measure. 17. On 12 September 2012 the Moscow City Court upheld the extension order of 8 August 2012. 18. On 29 October 2012 the Basmannyy District Court examined a new request for an extension of the applicant’s pre-trial detention. The applicant argued that his detention was detrimental to his health, in particular his eyesight. He referred again to the personal guarantees of two State Duma deputies in support of his request for a milder preventive measure. On the same day the court extended the applicant’s detention until 6 March 2013. The court referred to the gravity of the charges and the nature of the offence imputed to the applicant, along with information about his personality, namely that he had no permanent employment or regular source of income and had negative reports from his place of residence. 19. On 7 November 2012 the charges against the applicant were updated. The classification of the offence remained unchanged. According to the new indictment, between 4 p.m. and 8 p.m. on 6 May 2012 at Bolotnaya Square unidentified persons had called those present to move outside the agreed meeting area and to disobey lawful police orders, leading to mass disorder accompanied by violence against public officials. Between 5 p.m. and 10 p.m. that day the applicant had taken part in acts of mass disorder, in particular, he had repeatedly shouted anti-government slogans. During that period of time the participants of the mass disorder threw pieces of tarmac, stones, sticks and other objects at the police, which hit them on various parts of their body. The applicant, no later than at 8 p.m., found a flagpole and threw it at an unidentified police officer, hitting him in the chest. 20. On 26 November 2012 the Moscow City Court upheld the extension order of 29 October 2012. 21. On 1 March 2013 the Basmannyy District Court granted a new extension of the applicant’s detention, until 10 June 2013. It stressed the complexity of the case, reiterated the grounds given in the previous orders and noted that the circumstances that had justified the detention order had not changed. The applicant asked to be released on bail and presented personal guarantees from a wellknown writer and two directors of prominent NGOs, but the court considered that a milder preventive measure could not be applied. The Moscow City Court upheld the extension order on 3 April 2013. 22. On 23 April 2013 the Moscow City Court examined a fresh request to extend the applicant’s detention and set a new term of 6 July 2013 on the same grounds as previously. 23. On 16 May 2013 the Moscow City Court examined an appeal by the applicant against its decision of 23 April 2013 and reversed it on the grounds that the prosecutor’s office would have enough time to bring an indictment by 10 June 2013, adding that after that date the trial court could consider a new extension of the applicant’s pre-trial detention. 24. On 24 May 2013 the applicant’s criminal case was transferred to the Zamoskvoretskiy District Court of Moscow for the determination of criminal charges. 25. On 6 June 2013 that court granted another extension of the applicant’s detention, until 24 November 2013. The decision concerned eleven defendants. Along with the gravity of the charges, the court based its decision on the findings that “the reasons which had initially warranted the detention have not changed” and that “no other measures of restraint would secure the aims and goals of the judicial proceedings”. The court also pointed out that the applicant’s state of health was not incompatible with his being kept in custody. The Moscow City Court upheld the extension order on 2 July 2013. 26. On 18 June 2013 the Zamoskvoretskiy District Court began the trial in a criminal case against ten participants in the demonstration at Bolotnaya Square, who were charged with participation in acts of mass disorder and committing acts of violence against police officers. 27. The applicant made an application for release during a court hearing on 6 August 2013 but it was dismissed by the Zamoskvoretskiy District Court on the same day. 28. On 11 September 2013 the Ombudsman of the Russian Federation submitted a complaint to the Presidium of the Moscow City Court about the extension of the applicant’s pre-trial detention and requested an alternative preventive measure for him. 29. On 1 November 2013 the Moscow City Court refused the Ombudsman’s request. 30. On 19 November 2013 the Zamoskvoretskiy District Court granted another extension of detention in respect of ten defendants, including the applicant. It ordered their detention until 24 February 2014 on the grounds of the gravity of the charges and the nature of the offences imputable to them. On 17 December 2013 the Moscow City Court upheld that extension order. 31. On 18 December 2013 the State Duma passed the Amnesty Act which applied, inter alia, to pending criminal proceedings against people suspected and accused of criminal offences under Article 212 §§ 2 and 3 of the Criminal Code. 32. On 19 December 2013 the applicant requested the termination of the criminal proceedings against him by operation of the Amnesty Act. On the same day the Zamoskvoretskiy District Court granted the request and released him from detention. 33. The applicant has moderate myopia, complex myopic astigmatism and a congenital coloboma of the choroid. 34. From 23 June 2012 to 17 September 2012 and from 4 November 2012 to 29 June 2013 the applicant was held in remand prison IZ-77/5 in Moscow. Upon his arrival there he was given a medical check which did not reveal any health issues. 35. In IZ-77/5 the applicant was detained in cells 320 (until 29 June 2012), 406 (until 17 September 2012, then from 4 to 30 November 2012), 509 (until 10 December 2012), 506 (until 19 June 2013), and 507 (until 29 June 2013). 36. The cells had the following characteristics: cell 320: 33.7 square metres and eight sleeping places; cell 406: 38.4 sq. m and nine sleeping places; cell 509: 18.2 sq. m and four sleeping places; cell 506: 16.4 sq. m and four sleeping places; cell 507: 16 sq. m and four sleeping places. 37. The parties agreed that on most days the number of inmates in the cell did not exceeded the design capacity. They also agreed that the size of the cells and the number of detainees had allowed the applicant four square metres of personal space and that the applicant had had an individual sleeping place in every cell. 38. The parties provided the following accounts of the conditions in the cells. According to the applicant, the cells were inadequately lit and ventilated, were excessively hot in the summer and cold in the winter, they all had a lavatory pan which was separated from the living space by a plastic partition to chin level, which did not provide enough privacy. The applicant alleged that he had been constantly exposed to cigarette smoke and that although the window in the cell could be opened, it overlooked a courtyard used for incinerating rubbish and had let in fumes. There was therefore a constant lack of fresh air in the cell, which the ventilation system could not compensate for. Outdoor exercise was limited to one hour per day. The applicant also stated that the window was too high to give sufficient light for reading or working on documents. Finally, he alleged that the purchase of an electric kettle was a condition for access to drinking water. 39. According to the Government, the cells were equipped with ventilation; the state of the sanitary facilities had been satisfactory; the cells had been cleaned and bedding changed once a week; the applicant had been entitled to one hour of outdoor exercise per day; and the cells had been disinfected and subjected to pest control monthly. They provided measurement tables for the remand prison, which had been created in August 2013. They showed that the level of light in the cells in which the applicant had been detained had ranged between 152 and 264 lux, the standard being 150 lux. The temperature in the cells had measured between 26oC and 28oC and humidity between 41% and 47%, while the permissible level was up to 28oC and 65% respectively. The Government also noted that detainees had access to a gym upon a written request. 40. On 11 July 2012 the applicant’s lawyer requested that the head of the remand prison order a medical examination for the applicant. He alleged that there had been a rapid deterioration of his eyesight. 41. On 16 July 2012 the public commission for the monitoring of detention facilities visited IZ-77/5, and the applicant complained to them about excessive heat in his cell and a deterioration of his eyesight. 42. On 30 July 2012 the applicant requested that the head of the remand prison organise a medical examination owing to his worsening eyesight. 43. On 27 August 2012 the applicant was taken for an outpatient consultation with an ophthalmologist. He was diagnosed with severe myopia, amblyopia, esotropia, and a congenital coloboma of the iris. The doctor noted that the applicant had last been examined in October 2004 and recommended that he have a special examination to determine his disability status (медико-социальная экспертиза). 44. On 8 November 2012 the chief of IZ-77/5 requested another ophthalmologic consultation, repeating the applicant’s complaints about the deterioration of his eyesight. 45. On 23 November 2012 the applicant was taken for another outpatient consultation with an ophthalmologist, who concluded that there were no negative developments in his state of health. The doctor also recommended that he have eye tests once a year. 46. On 13 December 2012 the applicant underwent the special examination for recognition of the status of being disabled, which he was refused. 47. On 29 March and 19 April 2013 the public commission for the monitoring of detention facilities visited IZ-77/5, and the applicant complained to them about the poor quality of his mattress and the deterioration of his eyesight. 48. On 17 September 2012 the applicant was transferred to remand prison IZ-77/1 in Moscow (Матросская тишина), which had a medical wing. The applicant remained there until 4 November 2012 and underwent a series of medical examinations, including blood tests, an echography, a chest photofluorography and an electrocardiogram. 49. According to the applicant, the prison cell measured 4 by 3.5 square metres and housed four inmates, including himself. The window measured 1.75 by 0.5 metres and was too high to give sufficient light for reading or working on documents. The artificial light was dim and flickering and was turned on even at night. There was no mechanical ventilation and the cell was damp, with broken window panes letting in the cold. A shower was allowed once a week and the toilet was only separated from the rest of the cell by a low wall. Outdoor exercise was limited to one hour per day and the purchase of an electric kettle was a condition for getting access to drinking water. 50. According to the certificate issued by the prison governor on 13 November 2013, the applicant was held in cell 707 in IZ-77/1. That cell had measured 16 square metres and had housed four inmates, including the applicant. The cell had one window measuring 115 by 170 cm and the state of the glazing was inspected every day and fixed whenever necessary. The temperature in the cell had been maintained at 18oC. Artificial light was provided by a fluorescent lamp with two 40-watt tubes from 6 a.m. to 10 p.m. and by a 40-watt lamp during the night, in line with requirements. The windows had no shutters, only a metal grill with 20-mm metal bars; the size of the mesh was 100 by 200 mm. Inmates had to clean the cell each day with chlorine bleach and detergent provided by the facility. The applicant had been able to shower once a week for fifteen minutes. The cell had been disinfected and subjected to pest control measures regularly. 51. On 16 October 2012 the applicant was examined by a commission of four doctors, including an ophthalmologist. They issued a report which, in so far as relevant, read as follows: “... According to the [the applicant’s] medical documents, dated from 1997 to 2004, [he had been diagnosed with] medium myopia, complex myopic astigmatism, a congenital coloboma of the choroid, and a vascular congenital coloboma of the iris. Partial optic atrophy. According to the results of the medical examination in [IZ-77/1] carried out on 5 October 2012 [he has] high myopia of the right eye. High-degree amblyopia of the left eye, esotropia. A congenital coloboma of the iris [and] of the choroid. ... There have been no negative developments compared with the previous evaluation reports (medical examinations).” 52. On 31 October 2012 the public commission for the monitoring of detention facilities visited IZ-77/1 to check the conditions of the applicant’s detention. Its report read as follows: “[The applicant] is being held in a cell in the remand prison’s medical wing. There are two other detainees in the cell. The cell is one of the worst in the medical wing of [IZ-77/1]. It is cold, the radiator is lukewarm and the glass in the hinged window is broken. The cell has not been renovated for a long time. Dirty, scuffed walls. There is no refrigerator or television, the radio socket is broken. [The applicant] complains that he has not received any treatment in the hospital for three weeks. The medical wing of the remand prison has no ophthalmologist and he was taken for a consultation to the [city hospital] ... According to the chief physician of the medical wing ... [the applicant] had 10% sight in one eye and 20% sight in the other. But the prison doctors could not recommend his release ... because only totally blind detainees are eligible. ... [The applicant’s] detention is detrimental to his health, his eyesight is deteriorating as each day goes by: the light is always on in the cell, day and night. The light is dim; that is bad for his eyesight. ... The members of the [commission] consider that [the applicant’s] detention ... is a way to pressure him into giving the evidence the investigation wants. [He] risks losing his remaining eyesight. It is evident that he has been placed in the worst cell, cold and damp, instead of being treated in the hospital. He has been deprived of the possibility to receive visits from his family and has found himself in an information vacuum, without any television, radio or press. No adequate treatment or medical care.” 53. On 2 November 2012 the applicant was taken for an outpatient consultation with an ophthalmologist, who confirmed the previous diagnoses and identified no change in the applicant’s condition. 54. The discharge summary (выписной эпикриз) issued on 4 November 2012 contained the results of the applicant’s medical examinations carried out in IZ-77/1. The head of the prison’s medical wing concluded that they did not reveal the presence of any of the serious conditions which were listed as being incompatible with custody and there were thus no obstacles to the applicant’s detention. 55. On 30 June 2013 the applicant was placed in remand prison IZ-77/2 in Moscow (Бутырская тюрьма) where he was held until his release on 19 December 2013. 56. In IZ-77/2 the applicant was detained in cells 52 (until 7 July 2013), 01-a (until 12 July 2013), 703 (until 2 September 2013), 332 (until 19 September 2013), and 327 (apparently until his release). 57. The cells had the following characteristics: cell 52: 26.96 sq. m and five sleeping places; cell 1-a: 53.01 sq. m and twenty sleeping places; cell 703: 11.42 sq. m and two sleeping places; cell 332: 11.22 sq. m and three sleeping places; cell 327: 9.25 sq. m and three sleeping places. 58. According to the applicant, the conditions in IZ-77/2 were poor, especially because of a lack of regular outdoor exercise and inadequate sanitary arrangements. In particular, the lavatory pan was only separated from the living space by a chest-high partition which did not provide sufficient privacy. In addition, the applicant did not take a shower after his transfer to IZ-77/2 until at least 30 July 2013, as he indicated in his letter. 59. According to the Government, the conditions in the cells at IZ-77/2 were as follows: the toilet was separated by a solid partition from the rest of the cell, which provided the necessary privacy; the state of the sanitary facilities was satisfactory; the cells were disinfected and subjected to a pest control procedure once every three months or whenever necessary; the applicant had been entitled to one hour of outdoor exercise daily; the cell had been cleaned and the bedding changed weekly; the cells were equipped with forced ventilation and could be aired through a hinged window. Artificial light was provided from a 100-watt bulb by day and a 75-watt bulb by night. The glazing of the windows let in sufficient daylight. 60. On 12 July 2013 the applicant was placed in the medical wing of IZ77/2 for an additional examination and adjustment of his treatment. He had been discharged on 18 July 2013 after refusing further treatment. 61. According to a statement of 7 November 2013 issued by IZ-77/2, the applicant’s state of health had been satisfactory and doctors had recommended that he have regular consultations with an ophthalmologist. 62. The applicant’s description of the conditions of detention during his transfer from the remand prison to court and back was identical to that in the case of Yaroslav Belousov (cited above, §§ 69-73). 63. On 6 June 2013 court proceedings began in hearing room no. 338 and in the end of July moved to hearing room no. 635 at the Moscow City Court. The defendants, including the applicant, were held in glass cabins in both hearing rooms. From mid-September 2013 to the end of 2013 the hearings continued at the Nikulinskiy District Court of Moscow in hearing room no. 303, which was equipped with metal cages. 64. For a detailed description of the conditions in those hearing rooms see Yaroslav Belousov (ibid., §§ 74-77). | 1 |
test | 001-164495 | ENG | RUS | ADMISSIBILITY | 2,016 | MALANICHEVA v. RUSSIA | 4 | Inadmissible | Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 1. The applicant, Ms Lada Vyacheslavovna Malanicheva, is a Russian national who was born in 1968 and lives in St Petersburg. 2. On 18 December 1985 the applicant attacked a classmate and caused the victim permanent injuries by cutting her face. Two days after the attack, the applicant voluntarily committed herself to a psychiatric facility. On 11 February 1986 a panel of psychiatrists concluded after an inpatient examination of the applicant’s mental health that despite having symptoms of a psychopathic disorder she was able to control her actions on the day of the attack and was competent to stand trial. 3. On 28 May 1986 she was convicted of aggravated hooliganism by the Vyborgskiy District Court of Leningrad (Выборгский районный народный суд г. Ленинграда) and sentenced to three years’ imprisonment. In 1988 she was released from prison. 4. Between 1985 and 1992 the applicant’s name was on the hospital register of persons suffering from psychiatric disorders. It was removed after remission, with the final diagnosis being disinhibited psychopathy. 5. On 6 August 2002 the Primorskiy District Court of St Petersburg (Приморский районный суд г. Санкт-Петербурга) (“the District Court”) dismissed an application by psychiatrists for a psychiatric examination of the applicant without her consent because there was no evidence she was suffering from a severe psychiatric disorder. In the course of those proceedings, the municipal healthcare authorities, psychiatric facilities and domestic courts exchanged information on the applicant’s mental health in internal communications. 6. In 2006 the applicant, represented by a lawyer, brought a libel action in the District Court against two psychiatric facilities and the municipal healthcare authorities. She challenged the validity of her medical records, the fact that between 1985 and 1992 she had been on the hospital register of persons suffering from psychiatric disorders, as well as references to various aspects of her mental health in the internal communications between the healthcare institutions and in their submissions to the courts. She also brought other, accessory claims. 7. The defendants applied to the court for an order for a psychiatric report to confirm the validity of the applicant’s medical records. However the court refused to grant such an order because the applicant was categorically opposed to it. At the same time, the trial court took account of the provision in Article 79 of the Civil Procedure Code that a fact which needs to be proven by an examination by experts is considered to be proven without such an examination when a party to a dispute refuses to take part in the examination or furnish necessary materials. 8. On 29 March 2006 the District Court dismissed the applicant’s libel action. The court highlighted that it was for the medical professionals to give any diagnosis about the applicant and concluded that she had failed to prove that there had been any errors in her medical records and or that there had been no grounds to keep her on the hospital register between 1985 and 1992. Accordingly, the references to her medical history and state of mental health in the internal communications between the healthcare institutions had not been libellous. At the same time, the District Court ruled in favour of the applicant’s claim for damages for the failure by one of the psychiatric institutions to provide her with a copy of her medical records and awarded her the amount she had claimed of 500 euros (EUR). 9. On 15 May 2006 the judgment was upheld on appeal by the St Petersburg City Court (Санкт-Петербургский городской суд). 10. According to the applicant’s submissions to the Court, in 2008 there was a criminal investigation against her on suspicion of theft. After spending several months in detention, the criminal case against her was terminated by the domestic courts because she was ruled incompetent to stand trial. On 30 September 2011 she was transferred to a psychiatric facility for treatment, without her consent. No documents were provided by the applicant in relation to any of those proceedings. | 0 |
test | 001-171478 | ENG | UKR | CHAMBER | 2,017 | CASE OF KRYVENKYY v. UKRAINE | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Sergiy Goncharenko;Síofra O’Leary | 5. The applicant, Mr Volodymyr Oleksandrovych Kryvenkyy, is a Ukrainian national who was born in 1934 and lives in Velyki Gadomtsi. 6. On 25 March 1997 the applicant obtained a certificate (cертифікат на право на земельну частку (пай)) attesting his entitlement to a nominal 3.61-ha share of the land belonging to the V.G. collective farm. At the same time, according to him, he was allocated a specific plot measuring 3.61 ha, which, he had farmed and paid land tax on since that time. It appears that the allocated land consisted of at least two different parcels, one of them measuring 0.6021 ha. 7. In September 1998 V.G. merged with Kh., a neighbouring collective farming company, which was designated as its successor. Following the merger, Kh. did not register itself as the new owner of the land formerly allocated to V.G. Subsequently the two farms separated again. 8. On 18 March 1999 the Parliament of Ukraine ordered the expropriation of 150 ha of Kh.’s land and its transfer to U.C.C. closed joint stock company for the exploitation of kaolin deposits. By the same decision, U.C.C. was obliged, in particular, to compensate the local council for the damage suffered by the agricultural producers in connection with the expropriation of the land. 9. On 10 June 1999 the Berdychiv district land authority drew up a draft land-ownership certificate designating the boundaries of the plot to be allocated to U.C.C. This plot was de facto located on the land which had been registered as belonging to V.G.. The draft certificate mentioned, in particular, that U.C.C. had to obtain and register a relevant State land-use certificate. 10. According to the applicant, until 2004 U.C.C. took no action to register its land-use rights and the plot designated for expropriation by Parliament’s decision of 18 March 1999 remained in the hands of the members of the V.G. collective farm. The 0.6021-ha parcel of the land farmed by the applicant was affected by the Parliament’s decision. 11. Meanwhile, on 17 January 2003 the Berdychiv district administration approved a draft certificate determining the boundaries of the plots of land to be designated to individual farmers from the lands allocated to V.G. and ordered production of the respective individual land-ownership certificates. 12. On the basis of this decision, on 4 June 2003 the applicant was issued with the land-ownership certificate for the aforementioned 0.6021-ha plot. No information concerning registration of ownership in respect of any other land parcels farmed by the applicant has been provided to the Court. 13. On 7 July 2005 the Berdychiv district prosecutor addressed the Berdychiv district administration objecting to its decision of 17 January 2003. The prosecutor maintained, in particular, that 150 ha of land designated for exploitation of kaolin deposits had been allocated to individual farmers in breach of U.C.C.’s rights. 14. On 22 July 2005 the Berdychiv district administration accepted the prosecutor’s objection and annulled its decision of 17 January 2003 in so far as it related to the 150 ha of land claimed by U.C.C. 15. On 31 August 2005 U.C.C. lodged a civil action claiming the 0.6021-ha plot of land allocated to the applicant and seeking annulment of the land-ownership certificate issued to him on 4 June 2003. It noted, in particular, that the Berdychiv district administration had already annulled its own decision of 17 January 2003, which had served as the basis for the issuance of the land-ownership certificate to the applicant. The issuance had therefore been devoid of legal basis. 16. On 17 August 2006 the Berdychiv Court allowed the aforementioned claim. It noted that the disputed plot had been allocated to the applicant mistakenly on the basis of the decision of 17 January 2003, without due regard to the fact that in 1999 this very plot had already been expropriated and transferred to U.C.C. 17. Following this decision, U.C.C. blocked the road leading to the plot disputed by the U.C.C. and it became impossible for the applicant to access it or use it for farming. 18. On 12 December 2006 the Zhytomyr Regional Court of Appeal upheld the above judgment. 19. The applicant appealed in cassation before the Supreme Court of Ukraine. He noted, in particular, that he had obtained the disputed land lawfully and in good faith. He could therefore not be deprived of it unless fair compensation was paid. 20. In February 2007 the applicant added to his cassation appeal, informing the Supreme Court of Ukraine that on 12 February 2007 the Regional Court had annulled the decision of 22 July 2005 and revalidated the decision of 17 January 2003, on the basis of which he had obtained his land-ownership certificate (see paragraph 23 below). 21. On 4 April 2007 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation. 22. On an unspecified date several individuals, excluding the applicant, apparently the land owners whose land was also being claimed by U.C.C., instituted administrative proceedings against the Berdychiv district administration. They sought, in particular, to annul its decision of 22 July 2005 and to declare lawful the decision of 17 January 2003, on the basis of which their land-use certificates had been issued. 23. On 12 February 2007 the Zhytomyr Regional Court of Appeal allowed their claim. It noted, in particular, that Parliament had ordered the expropriation of Kh.’s land, while the land, whose boundaries had been in dispute, had belonged to V.G., which had been a separate legal entity on the date of the decision at issue. 24. On 23 July 2008 the Higher Administrative Court of Ukraine quashed the above decision and remitted the case for retrial. 25. After several rounds of proceedings, on 14 September 2011 the Berdychiv Court found that the decision of 22 July 2005 had been unlawful in so far as it had related to the plots of land of the individuals who had instituted the proceedings. On 6 December 2011 and 27 August 2013 the judgment of 14 September 2011 was upheld by the Zhytomyr Regional Administrative Court and the Supreme Court of Ukraine respectively. | 1 |
test | 001-146356 | ENG | UKR | CHAMBER | 2,014 | CASE OF RUDYAK v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych;Vincent A. De Gaetano | 5. The applicant was born in 1974 and lives in Gadyach. 6. On 25 February 2004 the applicant was arrested in Gadyach by the Kharkiv Chervonozavodskiy District Police Drug Squad (Відділ по боротьбі із незаконним обігом наркотиків Червонозаводського районного відділу Харківського міського управління Міністерства внутрішніх справ України – “the Drug Squad”) and taken to Kharkiv. The applicant stated that he had been ill-treated by the police and that upon his arrest a police officer had hit him in the left eye. 7. On 19 July 2004 the Gadyachskiy District Court convicted the applicant of unlawful possession of weapons and drug trafficking and sentenced him to five years’ imprisonment, suspended for three years. On the same date the applicant was released. 8. On 27 November 2004 the applicant was diagnosed with a cataract and a subatrophy of the left eyeball. The only recommendation after the diagnosis was to avoid hypothermia. According to the applicant, he planned to have eye surgery. No medical evidence was submitted in this respect. 9. On 19 April 2005 the applicant was again arrested in Gadyach after selling drugs to D. and taken to Kharkiv by the Drug Squad. The applicant stated that he “had been beaten by the police after his arrest for three days simply because he had wanted to have a lawyer”. He further stated that “pending investigation” a gas mask had been put on his face with lit cigarettes inserted into the air valve. 10. On 20 April 2005 Kharkiv Hospital no. 11 issued a certificate stating that the applicant had head and left shoulder injuries, a haematoma on the left ear and had possibly suffered a closed craniocerebral injury. However, the certificate stated that the applicant could be detained, so long as he was under the supervision of a neurosurgeon. 11. On 22 April 2005 criminal proceedings on drug trafficking charges were instituted against the applicant and it was decided to arrest him. 12. On 29 April 2005 the Kharkiv Chervonozavodskiy District Court (“the Chervonozavodskiy Court”) remanded the applicant in custody. 13. On 5 May 2005 Kharkiv Hospital no. 11 issued a certificate stating that the applicant was suffering from the after-effects of a head injury but that he could be detained. He was also examined by an ophthalmologist and diagnosed with an old optic subatrophy in the left eye. 14. On 6 May 2005 the applicant was placed in Kharkiv Pre-Trial Detention Centre no. 27 (“the SIZO”). It was noted in his medical file that on 25 February 2004 he had suffered an eye injury and that on 19 April 2005 he had been suffering from a head injury. He was diagnosed with a cataract and with a subatrophy of the left eye. 15. On 3 June 2005 the Kharkiv Regional Prosecutor’s Office ordered the Head of the Kharkiv Regional Office of the Ministry of Internal Affairs of Ukraine (начальник Управління Міністерства внутрішніх справ України в Харківській області – “the regional head”) to look into the applicant’s complaints of ill-treatment. 16. On 21 July 2005 the regional head informed the applicant that the police officers involved had not broken any laws. 17. On 5 October 2005 the applicant asked the Chervonozavodskiy Court to obtain medical evidence from his SIZO medical file which would confirm the infliction of injuries on him. 18. On 25 October 2005 the applicant complained to the regional head that: “... on 19 April 2005 police officers, M., S., Sh., K. and G., accompanied by two witnesses, arrived in Gadyach. Again on 20 April 2005 the same diagnosis [was established]: closed craniocerebral injury, facial fractures, nasal fracture, haematomas on the body, arms, legs and left ear, scratches.” 19. On 19 April 2006 the Chervonozavodskiy Court, examining the applicant’s case on the merits, ordered the Chervonozavodskiy District Prosecutor’s Office (Прокуратура Червонозаводського району м Харкова) to look into the applicant’s complaints of ill-treatment. The court noted that, according to the applicant, he had been beaten in Kharkiv by police officers M., S., Sh. and G., and that he had later been examined in Hospitals nos. 4 and 11. 20. On 27 June 2006 the Chervonozavodskiy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. It was noted that the decision to arrest the applicant had been adopted on 22 April 2005 and that the applicant had been questioned on this date. He had refused to have a lawyer present. The applicant had never complained of any ill-treatment. The police officers had stated that they had never ill-treated the applicant. On the same date the Prosecutor’s Office informed the Chervonozavodskiy Court of the decision taken. 21. On 11 August 2006 the Chervonozavodskiy Court examined the applicant’s case. The applicant pleaded guilty to some of the charges and stated that he was a drug addict, that the confiscated drugs had been for his personal use only and that he had confessed to drug trafficking after being subject to physical pressure by the police. The court convicted the applicant of unlawful possession of weapons and drug trafficking and sentenced him to six and a half years’ imprisonment. 22. The applicant appealed against this decision. On 7 August 2007 he amended his appeal stating, inter alia, that on 12 May 2005 he had asked for the severity of his injuries to be recorded and that he had not been able to appeal against the decision of 27 June 2006 as he had not received a copy of it. 23. On 10 January 2008 the Kharkiv Regional Court of Appeal quashed the decision of 11 August 2006 and remitted the case for fresh consideration. 24. On 20 November 2008 the Chervonozavodskiy Court again convicted the applicant of unlawful possession of weapons and drug trafficking and sentenced him to five years and six months’ imprisonment. The applicant pleaded guilty. He did not appeal against the decision. 25. On 23 May 2009 the applicant was transferred to Poltava Correctional Colony no. 64. On 25 May 2010 he was released. 26. Between 17 and 28 January 2011 he was admitted to a hospital. He was diagnosed with hypertension, chronic cholecystitis, a cyst of left kidney and optic supatrophy in the left eye. 27. According to the Government, while in detention, the applicant was examined by an ophthalmologist on numerous occasions, namely on 17 and 22 August 2005 (on the latter date it was noted that the applicant’s state has improved), 23 September 2005, 23 November 2005, 16 and 19 October 2006 (it was noted that the applicant needed no maintenance treatment for his optic subatrophy), 16 July 2009 and 14 March 2010. On no occasion had any deterioration of the applicant’s state of health been established. When the applicant had complained of pain in his left eye, in particular, on 17 August 2005, 23 September 2005 and 23 November 2005, he had been prescribed treatment. 28. The applicant submitted that he had been taken to Kharkiv Ophthalmology Clinic but did not provide any further information in this respect. 29. On 16 July 2009 the applicant refused to be hospitalised in the ophthalmology department of the prison hospital at Correctional Colony no. 81. 30. According to the Government, the applicant had had the following consultations with other specialists: (i) with a surgeon on 18 May 2006 (complaints about pain in the right leg, the applicant was prescribed medication) and 4 September 2007; (ii) with a neuropathologist on 5 May 2005 and 13 June 2009; (iii) with a psychiatrist on 18 May 2005 and 4 September 2007; and (iv) with a general physician on 30 June 2005 (the applicant complained about a pain in the left eye and general weakness and was advised to see an ophthalmologist), 13 July 2005 (the applicant complained about pain in his back and was prescribed painkillers), 16 September 2005 (the applicant was issued a referral to a civil hospital in order to decide whether he is able to work and whether he falls into any disability group), 16 August 2006, 13 September 2006 and 4 September 2007. 31. On 18 December 2005, 6 June 2006, 13 September 2006, 12 October 2006, 9 January 2007, 27 October 2008, 12 January 2009 and 13 June 2009 the applicant underwent periodic medical screening. 32. On 10 May 2006 the applicant received treatment for a shoulder injury. 33. On 27 February 2010 the applicant complained of hypertension. He was offered an examination and, if necessary, treatment in the prison hospital, which he refused. | 1 |
test | 001-160042 | ENG | LVA | ADMISSIBILITY | 2,015 | LOYKO v. LATVIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary | 1. The applicant, Mr Anatoliy Yakovlevich Loyko, is a Ukrainian national, who was born in 1948 and lives in Jelgava. He was represented before the Court by Ms R. Matjušina, a lawyer practising in Riga. 2. The Latvian Government (“the Government”) were represented by their Agent at the time, Ms I. Reine. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Between 7 and 8 October 2004 the applicant and an acquaintance were consuming alcohol together when a fight broke out between them and the acquaintance died. The applicant, still under the influence of alcohol, asked the neighbours to call an ambulance or the police, who arrived at 4.23 a.m. on 8 October 2004. The applicant was placed under administrative arrest and admitted to a sobering-up facility at 5.10 a.m. 5. At noon on the same day the applicant was placed under arrest on suspicion of having committed the offence proscribed by section 125(3) of the Criminal Law (Krimināllikums) (see paragraph 34 below). The record of the arrest stated that the applicant had been sober and also contained his signature to confirm that he did not need a lawyer. 6. Between 12.25 and 12.55 p.m. the police questioned the applicant as a suspect. The record of the interview indicated that the applicant was suspected of the offence under section 125(3) of the Criminal Law for having inflicted severe injury causing death. It further contained the applicant’s signature to confirm that he had been informed of the right to ask for a lawyer. He also signed a note made in Russian stating that he wished to give evidence in Russian and that he did not need a lawyer. According to the applicant, this note was written in his handwriting. The applicant declared that the victim had started the fight and that he had acted in self-defence. 7. On 15 October 2004, between 10 and 10.50 a.m., the police visited the crime scene together with the applicant to verify his statements. Between noon and 12.10 p.m. the applicant was questioned. The record of the interview contained his signature to confirm that he had been informed of the right to have a lawyer present. It further stated that the applicant had wished to give evidence in the presence of a lawyer. The same day the applicant was provided with State-appointed lawyer I.C. 8. On 26 October 2004 the police questioned the applicant in the presence of I.C. The applicant gave further details concerning the incident. He confirmed that the victim had started the fight and that he had acted in self-defence. 9. On 27 October 2004 the applicant was charged with murder under section 116 of the Criminal Law. The same day he was questioned as an accused in the presence of I.C. The applicant stated that he was not guilty. He had hit the victim because the latter had attacked him. 10. On 7 December 2004 the applicant again declared, in the presence of I.C., that he was not guilty. He did not wish to add anything to his previous statements. The same day the applicant and I.C. familiarised themselves with the case file. The applicant stated that he had understood its content and did not wish to make any requests or remarks. 11. On 9 December 2004 the applicant was committed for trial. 12. On 25 January 2005 a hearing was held before the court in Jelgava. I.C. was present. The applicant testified that he had caused the victim’s death but it had not been his intention to kill him. The applicant expressed his remorse. 13. According to the transcript of the hearing, I.C. asked two questions, one to the applicant and the other to his former wife. In her closing statement, I.C. stated, inter alia, that the applicant had not started the fight. It had been the victim who had inflicted pain on him and this had prompted him to react. The applicant had been unable to understand the consequences of his actions because of the mental distress he had been caused. Following the incident he had actively sought assistance. The applicant had been the only witness to the incident and any doubts regarding the existence of facts relevant to the case had to be interpreted in his favour. 14. During the first-instance proceedings the applicant raised no complaints as regards his representation by I.C. He stated that no lawyer had been present during the first “investigation”. 15. On 26 January 2005 the first-instance court convicted the applicant of murder under section 116 of the Criminal Law and sentenced him to seven years’ imprisonment. 16. On 31 January 2005 I.C. lodged a one-page appeal against the sentence imposed by the first-instance court. Referring to the circumstances of the incident, she submitted that the applicant had not acted intentionally. 17. On 4 February 2005 the applicant lodged an appeal. He maintained that he had not intended to kill the victim. He raised no complaints as regards his representation by I.C. He stated that there had been several irregularities during the investigation, including the fact that he had not been provided with a lawyer. 18. On 8 February 2005 the court in Jelgava decided not to consider the applicant’s appeal on the grounds that he had not made any requests in it. 19. On 14 February 2005 the applicant lodged another appeal. He disagreed with the legal classification given to the facts. He had acted in self-defence and had not intended to kill the victim. He supported the appeal lodged by I.C. and requested that a more lenient judgment be rendered. 20. On 16 February 2005 another lawyer, I.D., undertook to represent the applicant in the criminal proceedings. 21. On 12 April 2005 an appeal hearing was held before the Zemgale Regional Court (Zemgales apgabaltiesa). I.D. was present. The applicant maintained that he had not intended to kill the victim. I.D. stated, inter alia, that the first-instance court had failed to consider all the mitigating circumstances, namely, the fact that the victim had started the fight and had been the first to hit the applicant. The incident had been brought about by the victim’ 22. During the appeal proceedings the applicant raised no complaints as regards his representation by I.D. or I.C. 23. Following the appeal hearing, on 12 April 2005 the Regional Court dismissed the appeals by the applicant and his lawyer and upheld the lower court’s judgment. 24. On 27 April 2005 the applicant lodged an appeal on points of law against the aforementioned judgment. He disagreed with the legal classification given to the facts and argued that he had not intended to kill the victim. The applicant raised no complaints as regards his legal assistance or his representation by I.D. or I.C. 25. On 2 May 2005 the Regional Court decided not to consider the applicant’s appeal on the grounds that he had failed to substantiate it. 26. The same day the applicant supplemented his appeal on points of law. He disagreed with the legal classification given to the facts. He maintained that he had acted in self-defence and had not intended to kill the victim. He complained that initially he had been suspected of having inflicted severe injury resulting in death but subsequently had been charged with murder. When the offence had been reclassified I.C. had “sat and remained silent”. 27. By a final decision of 31 May 2005 the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments) refused to examine the applicant’s appeal on points of law. 28. On 27 July 2005 the applicant filed a complaint with the Latvian Bar Association regarding the quality of legal services provided by the first State-appointed lawyer during the preliminary investigation and the proceedings at first instance. 29. On 1 August 2005 the Bar Association replied that I.C. had acted in accordance with domestic law. It could be seen from the case material that she had defended the applicant’s interests. 30. On 30 October 2008 the applicant lodged a complaint with the Ombudsperson (Tiesībsargs). He stated that his right to a fair trial had been breached because he had not received legal assistance during the preliminary investigation. 31. On 13 January 2009 the Ombudsperson replied that the applicant’s right to a fair trial had not been breached. Following the preliminary investigation, I.C. had been requested to assist the applicant, followed later by I.D. According to the transcript of the hearings, both lawyers had defended the applicant. 32. Upon a further complaint by the applicant, on 14 January 2009 the Bar Association replied that I.C. had attended all the procedural activities to which she had been asked. She had lodged an appeal against the firstinstance judgment. The applicant had not complained about her services or requested another lawyer during the preliminary investigation or the first-instance proceedings. 33. The relevant provision of the former Code of Criminal Procedure (in force until 1 October 2005) provided as follows: Article 98 – Mandatory defence “The defendant must have defence counsel during the first-instance proceedings: ... 3) in cases involving persons (lietās par personām) who do not understand the language of the proceedings. ... In the [aforementioned] cases of mandatory defence the defendant must also have defence counsel during the preliminary investigation... In cases of mandatory defence, if the suspect [or] accused ... does not engage defence counsel and no one engages defence counsel on his or her behalf, an investigator, a prosecutor or a court shall ensure the participation of defence counsel in the proceedings.” Under Article 99 the suspect and the accused had the right to refuse defence counsel on his or her own initiative. 34. Under section 125(3) of the Criminal Law infliction of severe injury which caused death by negligence was punishable by imprisonment for a term of three to fifteen years with or without police control for up to three years. Under section 116 of the Law murder was punishable by imprisonment for a term of five to fifteen years with or without police control for up to three years. | 0 |
test | 001-160009 | ENG | HRV | CHAMBER | 2,016 | CASE OF BILBIJA AND BLAŽEVIĆ v. CROATIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković | 5. The applicants were born in 1958 and 1961 respectively and live in Zagreb. 6. On 13 February 2001 the applicants’ mother died after being admitted for respiratory problems to the Jordanovac Clinical Hospital Centre (Klinički bolnički centar Jordanovac; hereinafter: the “Hospital”), a public health care institution. 7. An autopsy performed on the next day by the General Medical Pathology and Anatomical Pathology Department of the Zagreb University Medical Faculty (Zavod za opću patologiju i patološku anatomiju Medicinskog fakulteta Sveučilišta u Zagrebu) indicated that the cause of death was a respiratory insufficiency leading to cardiac complications. 8. The applicants were informed of the results of the autopsy and the measures which had been taken in the treatment of their mother were explained to them. 9. According to the applicants, based on a mutual agreement, it was decided that the first applicant would pursue legal remedies concerning the death of their mother. 10. In July 2001 the first applicant met two health inspectors at the Ministry of Health (Ministarstvo zdravstva; hereinafter: the “Ministry”) to whom she complained of their inability to obtain their mother’s medical records and about the circumstances in which she had died. The inspectors, however, took no further action concerning these complaints. 11. On 1 October 2002 the first applicant complained to the Croatian Medical Chamber (Hrvatska liječnička komora; hereinafter: the “CMC”) that her mother had died in unclear circumstances which had severely affected her family. She also expressed her dissatisfaction with the functioning of the medical system and complained in particular of her own medical treatment. 12. Upon receiving the first applicant’s complaint, the Professional Supervisory Commission of the Croatian Medical Chamber (Povjerentsvo za stručni nadzor Hrvatskw liječničke komore; hereinafter: the “Commission”) invited the first applicant to specify in respect of which doctor and medical institution she made her complaints. 13. By a letter of 28 February 2003 the Commission informed the first applicant that it considered her complaints to be withdrawn as she had failed to specify them as requested. 14. On 17 March 2003 the first applicant replied to the letter of the Commission maintaining that there must have been some misunderstanding with the correspondence she had received from them. She indicated that her complaint concerned the Hospital, its director doctor, LJ.P., and the head of the intensive care unit doctor, B.S. The first applicant in particular submitted that her family had never received any relevant documents concerning their relative’s death. A copy of this reply was sent to the Ministry. 15. After receiving the first applicant’s complaint, the Ministry requested the Hospital to provide a report concerning her mother’s death. 16. On 16 April 2003 the Hospital submitted a report to the Ministry concerning the medical treatment of the applicants’ mother and the circumstances of her death. 17. On 30 April 2003 the Ministry forwarded all available documents to the Commission and requested a report on the actions taken with regard to the first applicant’s complaint. 18. By a letter of 2 May 2003 the Commission informed the first applicant that it had not found any malpractice in the medical treatment of her mother. 19. The first applicant objected to these findings on 6 June 2003. She stressed that her family had never received any concrete document indicating the cause of death of their relative and that the letter which she had received from the Commission lacked the relevant reasoning. 20. On 15 July 2003 the first applicant submitted further observations on her objection and on 20 November 2003 she urged the CMC to adopt a decision on the matter. 21. On 21 October 2003 the CMC Executive Board (Izvršni odbor Hrvatske liječničke komore), as a second-instance body of the CMC, dismissed the first applicant’s objection as ill-founded, upholding the decision of the Commission. It also informed the first applicant that she could challenge its decision by lodging an administrative action in the Administrative Court (Upravni sud Republike Hrvatske). 22. After receiving the decision of the CMC Executive Board, the first applicant requested the CMC for an explanation concerning the procedure before it. On 4 December 2003 she received a reply from the CMC indicating that she had been accordingly informed that she could lodge an administrative action in the Administrative Court and that there was no need for the CMC to communicate further with her concerning the matter. 23. On 24 November 2003 the first applicant lodged an administrative action in the Administrative Court challenging the decision of the CMC Executive Board. She argued that the bodies of the CMC had not replied to her submissions and had failed to properly assess the circumstances of her mother’s death. 24. On 24 April 2006 the first applicant urged the Administrative Court to examine her case. She received a reply from the Administrative Court on 11 May 2006 indicating that due to a backlog at that court her case had still not been examined. 25. The applicant then complained to the Ministry of Justice (Ministarstvo pravosuđa Republike Hrvatske) about the manner in which her case was processed by the Administrative Court and on 4 October 2006 the Ministry of Justice requested the Administrative Court for a report on the matter. The Administrative Court replied on 14 November 2006, reiterating its previous explanation as to the reason why the case had not been examined. 26. On 14 February 2007, upon another complaint by the first applicant, the Ministry of Justice requested the Administrative Court for a report concerning the progress of the case. 27. On 2 March 2007 the Office of the President of the Republic of Croatia (Ured Predsjednika Republike Hrvatske), based on the first applicant’s complaint, urged the Administrative Court to speed up the proceedings in her case. 28. On 5 October 2007 the Administrative Court declared the first applicant’s administrative action inadmissible on the ground that the decision of the CMC Executive Board was not an administrative decision concerning any of her rights or obligations or legal interests. 29. On 8 January 2008 the first applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske), complaining of the ineffectiveness of the proceedings before the lower bodies and her family’s inability to obtain any concrete information about the circumstances of their relative’s death. 30. On 27 February 2010 the first applicant urged the Constitutional Court to examine her case. Meanwhile she supplemented her constitutional complaint with further arguments and complaints, complaining in particular about the inordinate length of the proceedings in her case. 31. On 19 August 2010, the first applicant also asked the Constitutional Court to allow her to inspect the case file. 32. In the meantime, the first applicant complained to various domestic authorities, including the Office of the President of the Republic of Croatia, the Office of the Prime Minister of Croatia (Ured Predsjednika Vlade Republike Hrvatske) and a Deputy in the Parliament about the ineffectiveness of the domestic authorities’ response to her complaints concerning her mother’s death. 33. On 26 November 2012 the Ministry, replying to a question of the Deputy, stressed that it had never taken any action within its competence concerning the applicants’ case, although it had taken note of the proceedings before the competent bodies of the CMC and informed the first applicant of its findings with regard to the decisions of the CMC. 34. On 17 December 2013 the Constitutional Court dismissed the applicant’s constitutional complaint of 8 January 2008 as ill-founded (see paragraph 29 above), upholding the decision of the Administrative Court. It also declared the applicant’s additional complaints inadmissible as being lodged out of time and for non-exhaustion of the length of proceedings remedies. The decision of the Constitutional Court was served on the first applicant on 14 January 2014. 35. On 6 February 2004 the first applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) alleging medical negligence by unknown Hospital staff. In particular, the first applicant submitted that upon the admission of her mother to the Hospital she had been given a drug to which she was allergic, which had caused an allergic reaction and further medical complications leading up to her death. 36. After lodging the criminal complaint, the first applicant inquired several times with the Zagreb Municipal State Attorney’s Office about the progress of the investigation. 37. On 13 September 2006 the first applicant submitted a written request to the Zagreb Municipal State Attorney’s Office urging it to examine her criminal complaint. 38. As she received no reply from the Zagreb Municipal State Attorney’s Office, the first applicant complained to the Ministry of Justice about the inactivity in processing her complaint. 39. Based on the first applicant’s complaint, on 4 October 2006 the Ministry of Justice requested a report from the State Attorney’s Office of the Republic of Croatia (Državno odvjetništvo Republike Hrvatske) concerning the case. 40. Since it received no reply, on 14 February 2007 the Ministry of Justice again urged the State Attorney’s Office of the Republic of Croatia to produce a report concerning the proceedings at issue. 41. On 1 March 2007 the State Attorney’s Office of the Republic of Croatia informed the Ministry of Justice and the first applicant that the Zagreb Municipal State Attorney’s Office had requested an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) to commission an expert report concerning the circumstances of the applicants’ mother’s death. It also stressed that this fact should be known to the first applicant as she had been duly informed about the status of the proceedings when she had made an inquiry in the Zagreb Municipal State Attorney’s Office. 42. After receiving this information, the first applicant made several inquiries in the Zagreb County Court concerning the status of the case. On 11 January 2008 she was informed by that court that the Zagreb Municipal State Attorney’s Office had never requested any investigative actions concerning her criminal complaint. 43. Meanwhile, on 21 December 2007 the Zagreb Municipal State Attorney’s Office found that the first applicant’s case file had been lost and ordered that it should be reconstructed. 44. The Zagreb Municipal State Attorney’s Office also ordered the police to conduct an investigation into the circumstances of the first applicant’s complaint. In addition, it requested the Zagreb University Medical Faculty to provide the autopsy report, and it commissioned an expert report concerning the circumstances of the applicants’ mother’s death. 45. On 2 January 2008 the police produced a report on the interviews with the applicants’ mother’s general practitioner and doctor B.S. The latter denied any medical malpractice and administration of the drug to which the applicants’ mother was allergic. His statement was confirmed by the Hospital director, doctor LJ.P. The police also obtained the relevant medical records concerning the medical treatment and death of the applicants’ mother. 46. On 8 January 2008 an expert, doctor J.Š., produced a report indicating that the cause of death of the applicants’ mother was a respiratory insufficiency leading to cardiac complications. The report did not indicate any medical malpractice on the part of the Hospital doctors. 47. On 25 January 2008 the Zagreb Municipal State Attorney’s Office rejected the first applicant’s criminal complaint on the ground that there was no reasonable suspicion that a criminal offence had been committed in the medical treatment of the applicants’ mother. The first applicant was instructed that she could take over the prosecution as a subsidiary prosecutor. 48. On 13 February 2008 the first applicant asked the Zagreb Municipal State Attorney’s Office to provide her with a copy of the entire domestic case file. 49. On 21 February 2008, after she had received the relevant documents from the Zagreb Municipal State Attorney’s Office, the first applicant instituted criminal proceedings in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) against doctor B.S. on charges of medical negligence. 50. In the meantime, the first applicant complained to various domestic authorities about the ineffectiveness of proceedings before the Zagreb Municipal State Attorney’s Office and on 11 April 2008 she received a reply from the State Attorney’s Office of the Republic of Croatia expressing its regrets for the protracted length of the proceedings dealing with her criminal complaint. 51. On 7 August 2008 the Zagreb Municipal Criminal Court requested the Zagreb Municipal State Attorney’s Office to forward the relevant documents concerning the first applicant’s case. 52. The documents were provided on 16 October 2008. 53. On 16 March 2009 the Zagreb Municipal Criminal Court invited the first applicant to amend her request to prosecute (optužni prijedlog) as required under the relevant domestic law concerning the factual and legal basis of the charges against doctor B.S. 54. On 30 March 2009 the first applicant submitted an indictment (optužnica) against doctor B.S. on charges of medical negligence. 55. As there was no progress in the proceedings, on 13 November 2009 the applicant urged the Zagreb Municipal Criminal Court to examine her case. 56. On 22 December 2009 the Zagreb Municipal Criminal Court commissioned an expert report concerning the medical treatment and death of the applicants’ mother. It requested an investigating judge of the Zagreb County Court to coordinate that procedural action. 57. An expert report of 11 March 2010, drafted by doctors D.M. and I.Š., indicated that there had been no irregularity in the medical treatment of the applicants’ mother. It further found that the drug, to which the applicant’s mother was allergic, had neither been used nor indicated for use during her treatment on 13 February 2001. The experts also excluded the possibility that the applicants’ mother had died as a result of an allergic reaction. 58. The first applicant received the expert report on 27 August 2010. 59. On 22 September 2010 the first applicant challenged the findings of the expert report, arguing that it had failed to examine all aspects of the medical treatment and death of her mother. The first applicant thus requested that the experts be ordered to re-examine and accordingly supplement their findings. 60. On 4 April 2011 a three-judge panel of the Zagreb Municipal Criminal Court returned the indictment to the first applicant, ordering her to institute an investigation before an investigating judge of the Zagreb County Court. 61. The first applicant complied with that order and on 25 April 2011 requested that an investigation be opened before an investigating judge of the Zagreb County Court. 62. On 14 October 2011 an investigating judge of the Zagreb County Court questioned doctor B.S., who denied any medical malpractice maintaining that the drug to which the applicants’ mother was allergic had neither been used nor indicated in her treatment. 63. On 12 December 2011 the investigating judge expressed his disagreement with the first applicant’s request for opening of an investigation and forwarded the case file to a three-judge panel of the Zagreb County Court. 64. On 16 February 2012 a three-judge panel of the Zagreb County Court dismissed the first applicant’s request for an investigation on the ground of lack of evidence of medical malpractice. The first applicant challenged this decision by lodging an appeal before the Supreme Court (Vrhovni sud Republike Hrvatske). 65. Meanwhile, the first applicant complained to the Supreme Court about the length of the criminal proceedings and on 18 September 2012 the Supreme Court found a violation of her right to a trial within a reasonable time and awarded her 2,500 Croatian kunas (HRK) in non-pecuniary damage (approximately EUR 340). 66. On 28 November 2012 the Supreme Court dismissed the first applicant’s appeal and upheld the decision of the Zagreb County Court of 16 February 2012 (see paragraph 64 above). The decision of the Supreme Court was served on the first applicant on 24 December 2012. 67. The first applicant then lodged a constitutional complaint with the Constitutional Court, complaining of the ineffectiveness of the proceedings before the lower courts and their failure to elucidate the circumstances of her mother’s death. 68. On 28 February 2013 the Constitutional Court declared the constitutional complaint inadmissible on the ground that the decisions of the lower courts did not concern any of her rights or obligations or any criminal charge against her. The decision of the Constitutional Court was served on the first applicant on 12 March 2013. 69. On 28 March 2013 the first applicant lodged a request for the reopening of the proceedings before the Zagreb County Court, alleging procedural flaws in the processing of her case. 70. The Zagreb County Court rejected the request as unfounded on 29 October 2013 and this was upheld by the Supreme Court on 20 March 2014. 71. The first applicants also lodged a criminal complaint against the medical experts D.M. and I.Š. on 27 August 2013 alleging that they had provided false evidence. On 7 October 2013 she received a reply from the Zagreb Municipal State Attorney’s Office indicating that it considered her criminal complaint unfounded in any respect. | 1 |
test | 001-152988 | ENG | RUS | CHAMBER | 2,015 | CASE OF VOLKOV AND ADAMSKIY v. RUSSIA | 3 | Remainder inadmissible;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;Legal assistance of his own choosing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 6. The applicants were each targeted in undercover operations conducted by the police in the form of a test purchase of counterfeit software under sections 7 and 8 of the Operational-Search Activities Act of 12 August 1995 (no. 144-FZ). The operations led to their criminal conviction for distribution of counterfeit software. 7. On 6 December 2007 an undercover police officer V called the applicant on the number advertised by him on a job-advertisement site on the Internet and asked him to perform some computer repairs, including the installation of software. The applicant agreed, bought several compact discs with counterfeit software on them and installed the software on V’s computer for 3,300 roubles (RUB) (about 45 euros (EUR)). The relevant part of the recording of the applicant’s conversation with V in the course of the repairs read as follows: “... V: how much will [the installation] cost approximately? Mr Volkov: I don’t know exactly, [it] depends on the programmes to be installed. V: [I need] Photoshop, [Windows] XP etc. Mr Volkov: with Photoshop, it is 200 roubles more. V: We called other companies; they said it would cost about twenty thousand. Why are the prices so different? ... Mr Volkov: [other companies] are probably being careful, unlike me, I come instantly. They are probably afraid of getting caught; they may have done it before and run into some inspection. V: What kind of inspection? Mr Volkov: [Licensing] inspection, if I installed a licensed programme for you, it would cost a lot. V: How much does the licensed programme cost? Mr Volkov: Photoshop is 500 dollars. V: To install? Mr Volkov: No, the programme itself. ... if it is done like now, in a semi-legal way, the price is obviously lower ...” 8. Following the above, the applicant was charged with copyright infringement. The applicant retained a lawyer during the pre-trial proceedings but could no longer afford paying for legal representation in court. He was therefore provided with a legal aid lawyer. 9. On 3 July 2008 the Golovinskiy District Court of Moscow (District Court) examined the applicant’s case. The applicant testified that he had agreed to help V because he had already performed similar services for his relatives and acquaintances. He also testified that V had asked him to have some programmes installed but did not indicate whether V had specifically asked for unlicensed software. V testified that the police had launched an undercover operation after they had received information incriminating the applicant in the distribution of counterfeit software. The applicant pleaded not guilty to copyright infringement and claimed that the police had incited him to commit the crime. The court found the applicant guilty of copyright infringement and imposed a suspended sentence of one year and three months’ imprisonment with one year’s probation. 10. The applicant lodged an appeal (кассационная жалоба) asking the appellate court (кассационный суд) to examine the case in his presence. In his appeal, he did not request to have a lawyer appointed for the hearing of his case. 11. On 6 August 2008 the Golovinskiy District Court of Moscow informed by post and telephone Ms D., the applicant’s lawyer in the proceedings before the District Court, that the hearing of the applicant’s appeal had been scheduled for 20 August 2008. The court’s call log indicated that the applicant had no retainer agreement with Ms D. for representation in the appeal proceedings. 12. On 20 August 2008 the Moscow City Court dismissed the applicant’s arguments on appeal and upheld his conviction. The applicant was present at the hearing. However, Ms D. did not appear and the applicant did not have any other lawyer to represent him during the appeal hearing. It is not clear whether the applicant requested to have the hearing adjourned or to have replacement counsel appointed. 13. On 10 December 2008 an undercover police officer M called the number advertised by the applicant in the computer-repairs section of a newspaper and asked him to install several computer programmes. The applicant, who was in financial need at the time, downloaded several unlicensed programmes from the Internet and installed them on M’s computer the next day for RUB 3,000 (about EUR 40). The relevant part of the recording of the applicant’s conversation with M in the course of the repairs read as follows: “... M: how much does [this programme] cost? Mr Adamskiy: I did not buy it. M: You did not? Mr Adamskiy: To buy means to go bankrupt. M: [did you get it] from the Internet? Or some other way? Mr Adamskiy: Got it through my peers, [it was] cracked ... M: I don’t really understand this stuff ... If I install it at work, will I get arrested? Mr Adamskiy: I think it is obvious. I would not let any inspections in while the data is downloading. M: ...why? What can happen? Mr Adamskiy: just warning, I personally would not [let anyone inspect]. M: what would happen? ... Do they inspect more often? Mr Adamskiy: yes ... M: will we get jailed? Mr: Adamskiy: No, if it is kept quiet ...” 14. Following the above, the applicant was charged with copyright infringement. On 28 September 2009 the Timiryazevskiy District Court of Moscow examined the applicant’s case. At the trial, the applicant did not claim that M had asked him to have unlicensed software installed. He also confirmed that he had informed M in the course of the installation that the software had been counterfeit. M testified that the police had received information implicating the applicant in the distribution of counterfeit software and had decided to verify that information. The applicant pleaded guilty to copyright infringement but claimed that the police had incited him to commit the crime. The court convicted the applicant and imposed a suspended sentence of one year and six months’ imprisonment with one year’s probation. 15. On 16 November 2009 the Moscow City Court upheld the applicant’s conviction and sentence on appeal. | 1 |
test | 001-141644 | ENG | LVA | CHAMBER | 2,014 | CASE OF AVOTIŅŠ v. LATVIA | 3 | Preliminary objection dismissed (Article 35-3-b - No significant disadvantage);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Equality of arms) | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva | 5. On 4 May 1999 the applicant and F.H. Ltd., a commercial company incorporated under Cypriot law, signed a deed of acknowledgement of debt before a notary. Under the terms of the deed the applicant declared that he had borrowed 100,000 United States dollars (USD) from F.H. Ltd. and undertook to repay that sum with interest by 30 June 1999. The document also contained choice of law and jurisdiction clauses according to which it was to be governed “in all respects” by Cypriot law and the Cypriot courts were to have non-exclusive jurisdiction to hear any disputes arising out of it. 6. In 2003 F.H. Ltd. brought proceedings against the applicant in the Limassol District Court (Επαρχιακό Δικαστήριο Λεμεσού, Cyprus), alleging that he had not repaid the above-mentioned debt and requesting that he be ordered to pay the debt together with interest. 7. In an order of 27 June 2003 the District Court summoned the applicant to appear before it. Since the applicant was not resident in Cyprus, F.H. Ltd. made an ex parte application to the same court on 11 September 2003 seeking a fresh order enabling a summons to be served on the applicant outside the country, requiring him to appear within thirty days from the date of service. In that connection the claimant company’s lawyer produced an affidavit declaring that the defendant was habitually resident at an address in G. Street in Riga and that a summons could be served on him at that address. The applicant, for his part, contended that it had been objectively impossible for him to receive the summons at that address, which was simply the address at which he had signed the loan contract and the deed of acknowledgement of debt in 1999 and was not his home or business premises. 8. On 7 October 2003 the Limassol District Court ordered that the applicant be summoned at the above-mentioned address. It summoned him to appear or to come forward within thirty days of receiving the summons, failing which all future announcements concerning the case would be posted on the court’s noticeboard. An affidavit produced by an employee of the firm of lawyers representing F.H. Ltd. showed that, in accordance with the court order, the summons was sent by recorded delivery on 16 November 2003 to the address in G. Street in Riga. It also showed that the legal firm had received a post office slip confirming that the letter had been received by the applicant on 18 November 2003 (the Latvian national holiday and therefore a non-working day in Latvia). The applicant claimed never to have received the summons. 9. As the applicant did not appear, the Limassol District Court, ruling in his absence on 24 May 2004, ordered him to pay the claimant USD 100,000 or the equivalent in Cypriot pounds (CYP), plus interest at an annual rate of 10% of the aforementioned amount from 30 June 1999 until payment of the debt. The applicant was also ordered to pay costs and expenses in a gross amount of CYP 699.50, plus interest at an annual rate of 8%. According to the judgment, which was finalised on 3 June 2004, the applicant had been duly informed of the hearing but had not attended. The judgment itself made no reference to the fact that it was final or to the available remedies. 10. On 22 February 2005 F.H. Ltd. applied to the Riga City Latgale District Court (Rīgas pilsētas Latgales priekšpilsētas tiesa, Latvia) seeking recognition and enforcement of the judgment of 24 May 2004. In its request the company also sought to have a protective measure applied. It stated that the applicant was the owner of real property in Garkalne (a district of Riga) which, according to the land register, was already mortgaged to a bank. Accordingly, fearing that the applicant might seek to evade enforcement of the judgment, it asked the District Court to place a charge on the property and record it in the land register. Lastly, it requested that the applicant be ordered to pay the costs. In its request the company gave as the applicant’s place of residence an address in Č. Street in Riga which differed from the address previously notified to the Cypriot court. 11. On 28 April 2005 the Latgale District Court adjourned examination of the company’s request, pointing to a series of substantive defects which the company was given one month to correct. In particular, the court noted that the company had omitted to explain why it had referred to the address in Č. Street, when the applicant’s presumed address, as it had featured hitherto in the case, was in G. Street. 12. On 26 May 2005 F.H. Ltd. submitted a corrigendum in which it explained, among other points, that according to the data taken from the register of residents (Iedzīvotāju reģistrs), the address in Č. Street was the applicant’s officially declared home address. As to the address in G. Street, the company’s representatives had assumed it to be the applicant’s actual residence. 13. In an order of 31 May 2005 the Latgale District Court ruled that the corrigendum submitted by F.H. Ltd. was insufficient to remedy all the defects in its request. The court declined to examine the request and sent it back to the company. The latter lodged an appeal with the Riga Regional Court (Rīgas apgabaltiesa), which set aside the impugned order on 23 January 2006 and remitted the case to the District Court, instructing it to examine the request for recognition and enforcement as rectified by the corrigendum of 26 May 2005. 14. In an order of 27 February 2006 issued without the parties being present, the Latgale District Court allowed F.H. Ltd.’s request in full. It ordered the recognition and enforcement of the Limassol District Court’s judgment of 24 May 2004 and the entry in the Garkalne municipal land register of a charge on the property owned by the applicant in that municipality. The applicant was also ordered to pay the costs. 15. It was not until 16 June 2006 that the applicant learnt – by chance, according to his account – of the existence of both the Cypriot court judgment of 24 May 2004 and the Latvian court order of 27 February 2006. He did not attempt to challenge the Cypriot judgment before the Cypriot courts. However, he lodged a so-called ancillary appeal (blakus sūdzība) against the above-mentioned order with the Riga Regional Court, while asking the Latgale District Court to extend the time allowed for lodging the appeal. In that connection the applicant observed that there was nothing in the case file to indicate that he had been summoned to appear at the hearing of 27 February 2006 or that he had been notified of the order issued that day. Accordingly, the thirty-day period laid down by the Civil Procedure Law should start running on 16 June 2006, the date on which he had become aware of the order in question. 16. In an order of 13 July 2006 the Latgale District Court granted the applicant’s request and extended the time-limit for lodging an appeal. It noted, inter alia, as follows: “... It is clear from the court order of 27 February 2006 that the issue of recognition and enforcement of the foreign judgment was determined in the absence of the parties, on the basis of the documents furnished by the claimant [F.H. Ltd.]. At the same time the order states that it is open to the applicant to appeal against it within thirty days from the date of receipt of the copy [of that order], in accordance with section 641(2) of the Civil Procedure Law. The court considers the circumstances to which the applicant, P. Avotiņš, refers, to be established, namely the fact that he did not receive the order ... of 27 February 2006 until 16 June 2006, this being attested to by the reference in the list of consultations [appended to the case file], and by the fact that the order, served [on the applicant] by the court, was returned on 10 April 2006... It is apparent from the documents appended to the appeal that the applicant has not lived at his declared address in [Č.] Street since 1 May 2004; this confirms ... the statement made by his representative at the hearing, according to which the applicant no longer lives at the above-mentioned address. Accordingly, the thirty-day period should ... run from the date on which the applicant received the order in question... At the same time, the court does not accept the view of the representative of [F.H. Ltd.] that the applicant himself is responsible for his failure to receive the correspondence because he did not declare his home address promptly, and that the time allowed [for lodging an appeal] should not therefore be extended. The fact of not complying with the legislation on registration of residence is not sufficient to justify the potential consequences if the court were to refuse to allow the applicant to exercise the fundamental rights guaranteed by the State as regards access to the courts and judicial protection, including the right to appeal against a decision. ...” 17. In his grounds of appeal before the Riga Regional Court the applicant argued that the recognition and enforcement of the Cypriot judgment in Latvia was in breach of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and and commercial matters (known as the “Brussels I Regulation”, hereafter “the Regulation”) and of the relevant provisions of the Latvian Civil Procedure Law. He submitted two arguments in that regard. 18. First, the applicant observed that in accordance with Article 34(2) of the Regulation (corresponding in substance to section 637(2), third subparagraph, of the Latvian Civil Procedure Law), a judgment given in default in another Member State could not be recognised if the defendant was not served with the document which instituted the proceedings in sufficient time and in such a way as to enable him to arrange for his defence. In the applicant’s view, those provisions had been breached in his case. The applicant maintained that both the Cypriot lawyers who had represented the claimant company in the Limassol District Court and the Latvian lawyers who had represented it in the Latvian courts had been perfectly aware of his business address in Riga. He observed in that connection that he had had professional dealings with the Cypriot lawyers, who had telephoned him and sent faxes to his office; as to the Latvian lawyers, he had met them in person. Therefore, they must all have been aware of his business address. Furthermore, the summons could have been sent to the applicant’s home address in Garkalne, as he had a residence there that was officially declared in accordance with the law and his property there was entered under his name in the land register, which the lawyers could have consulted. However, instead of having the summons sent to one of those addresses, which were known and accessible, the lawyers had given the courts an address where it was objectively impossible to reach him. 19. Second, the applicant observed that, under the terms of Article 38(1) of the Regulation and section 637(2), second sub-paragraph, of the Latvian Civil Procedure Law, a judgment had to be enforceable in the State of origin in order to be enforceable in the Member State requested. In the instant case, there had been a threefold breach of those requirements. Firstly, the requesting party had only submitted the text of the Cypriot court judgment to the Latvian court, and not the certificate required in accordance with Annex V to the Regulation. In that connection the applicant acknowledged that under Article 55(1) of the Regulation the court in which enforcement was sought could, in some circumstances, exempt the requesting party from the obligation to produce a certificate; however, in the present case, the Latgale District Court had omitted to explain whether and for what reason it considered that the requesting party could be exempted from that obligation. Secondly, the Cypriot judgment itself had contained no reference to its entry into force or possible remedies. Lastly, in order to be enforced in accordance with the Regulation, a judgment had to be enforceable in the country of origin; however, none of the documents produced by the company demonstrated that the judgment of 24 May 2004 was enforceable in Cyprus. The applicant therefore concluded that the judgment could under no circumstances be recognised and enforced in Latvia. 20. In a judgment of 2 October 2006 the Regional Court allowed the applicant’s appeal on the merits, quashed the impugned order and rejected the request for recognition and enforcement of the Cypriot judgment. 21. F.H. Ltd. lodged an appeal against that judgment with the Senate of the Supreme Court, which examined it at a hearing on 31 January 2007. At the start of the hearing the appellant company submitted copies of several documents to the Senate, including the certificate provided for by Article 54 of the Regulation and by Annex V thereto, dated 18 January 2007 and signed by an acting judge of the Limassol District Court. According to the certificate, the document instituting the proceedings had been served on the applicant on 27 November 2003. The last part of the certificate, intended for the name of the person against whom the judgment was enforceable, had been left blank. When asked to comment on these documents, the applicant’s lawyer argued that they were clearly insufficient to render the judgment enforceable. 22. In a final judgment of 31 January 2007 the Senate quashed and annulled the Regional Court judgment of 2 October 2006 and allowed F.H. Ltd.’s claims. It ordered the recognition and enforcement of the Cypriot judgment and the entry in the land register of a charge on the applicant’s property in Garkalne. The relevant extracts from the judgment read as follows: “ ... It is clear from the documents in the case file that the Limassol District Court judgment was made final. This is confirmed by the explanations provided by both parties at the Regional Court hearing on 2 October 2006, according to which no appeal had been lodged against the judgment, and by the certificate issued on 18 January 2007... As [the applicant] did not appeal against the judgment, his lawyer’s submissions to the effect that [he] was not duly notified of the examination of the case by a foreign court are of no importance. Having regard to the foregoing, the Senate accepts that the judgment of the Limassol District Court (Cyprus) of 24 May 2004 should be recognised and enforced in Latvia. Article 36 of the Regulation provides that a foreign judgment may under no circumstances be reviewed as to its substance; in accordance with section 644(1) of the Civil Procedure Law, once such judgments have been recognised they are to be enforced in accordance with the conditions laid down by the same Law. ...” 23. On the basis of the Senate judgment the Latgale District Court issued a writ of execution (izpildu raksts) on 14 February 2007. The applicant complied immediately with the terms of the writ and paid the bailiff employed by the claimant company a total of 90,244.62 Latvian lati (LVL, approximately 129,000 euros (EUR)), comprising LVL 84,366.04 for the principal debt and LVL 5,878.58 in enforcement costs. He then requested that the charge on his property in Garkalne be lifted. In two orders dated 24 January 2008 the judge with responsibility for land registers (Zemesgrāmatu nodaļas tiesnesis) refused the request. The applicant lodged an appeal on points of law with the Senate of the Supreme Court which, in an order of 14 May 2008, lifted the charge on the property. | 0 |
test | 001-184821 | ENG | ROU | COMMITTEE | 2,018 | CASE OF IVAN 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. | 1 |
test | 001-164954 | ENG | BGR | CHAMBER | 2,016 | CASE OF MIRYANA PETROVA v. BULGARIA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Georgieva;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev | 5. The applicant was born in 1950 and lives in Sofia. 6. The applicant had been employed by the National Security Service as a system operator since 1981. She submitted that, on account of the nature of her duties, she had held a security clearance permitting her access to classified information constituting State secrets. According to the applicant’s job description, being in a possession of such a security clearance had been a prerequisite to her holding her post. 7. On 30 April 2002 the Classified Information Protection Act (hereinafter “the Act”) was promulgated in the State Gazette. Under the Classified Information Protection Act, permits granting access to classified information that had been issued under the legal provisions existing before the entry into force of the Act were to remain valid until their replacement by security clearance allowing access to classified information. The heads of organisational units employing persons who possessed an access permit and whose positions required that they have access to classified information were to request the issuance of security clearance, in accordance with the requirements of the Act. Non-compliance with that provision would result in the invalidation of the respective existing access permits. 8. On 3 June 2003, in compliance with that obligation, the Director of the National Security Service issued a decision refusing the applicant security clearance allowing access to classified information. The applicant submitted that that decision had been based on a psychological test. The decision did not contain any reasoning in respect of the refusal, apart from a reference to Section 57 of the Classified Information Protection Act. 9. The applicant lodged an appeal against the refusal with the State Commission for Information Security. The latter, by a decision of 5 February 2004, upheld the refusal. That decision was final and not amenable to judicial review. 10. On 27 April 2004, the Director of the National Security Service ordered that the applicant be dismissed. The reason given for the termination of her employment was the refusal to grant her security clearance, possession of which was an indispensable condition of her being able to perform her duties. 11. The applicant challenged her dismissal at three levels of jurisdiction. She contested the objectivity and the lawfulness of the dismissal procedure, arguing that she had fulfilled all conditions for the issuance of security clearance and that she had been dismissed on account of the negative personal relationship between her and her direct supervisor. In the applicant’s view, the clearance had probably been refused because she had suffered from depressive neurosis in 1995, a condition which according to her was no longer relevant. The applicant’s request that a report by a psychiatric expert be commissioned was refused by the Sofia District Court. 12. By its judgment of 11 May 2005 the Sofia District Court rejected the applicant’s claims, reasoning that the refusal of the Director of the National Security Service to grant security clearance to the applicant was a final and valid administrative act, and it rendered the applicant’s dismissal inevitable because she was no longer able to perform her duties. The court added that the refusal was not amenable to any judicial review; therefore, the court was not competent to examine, within the framework of the dismissal proceedings, any substantial or procedural questions related to its lawfulness. 13. On appeal, the Sofia City Court, by a ruling of 6 April 2006 upheld the lower court’s decision, endorsing its reasoning. 14. On 19 June 2008, the Supreme Court of Cassation upheld those rulings. | 1 |
test | 001-184524 | ENG | NLD | CHAMBER | 2,018 | CASE OF X v. THE NETHERLANDS | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Morocco) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova | 5. The applicant was born in 1988 and is currently in the Netherlands. 6. On 6 July 2012 the applicant left his home in Salouin (Morocco), where he had been living with his parents, for the Netherlands. He went to the Netherlands to visit family but overstayed his tourist visa, which was valid until 24 August 2012. During his stay in the Netherlands he lived with his brother and the latter’s family in Amsterdam. 7. According to an official report (ambtsbericht) drawn up by the General Intelligence and Security Service (Algemene Inlichtingen- en Veiligheidsdienst – “the AIVD”) dated 14 September 2014, information provided by a generally reliable source indicated that a certain Moroccan national residing in the Netherlands, had sworn allegiance to Abu Bakr al-Baghdadi, the Caliph of the so-called Islamic State in Iraq and al Sham (“ISIS”), and that he was trying to obtain a firearm with which to attack the Netherlands police. The information also contained two telephone numbers used by that person. The official report further stated that it appeared from the AIVD’s own investigation that the person was the applicant, that he was not registered in the Netherlands and that he did not have a valid residence permit. 8. On 15 October 2014 the applicant was arrested on suspicion of having committed acts in preparation of terrorist offences and placed in police custody. The house where he had been staying was searched by the police, who found and seized notes containing, inter alia, instructions on how to make an improvised explosive device (IED) and a written pledge to ISIS. Furthermore, the police seized a computer and found on the applicant’s Facebook account conversations in which he had made enquiries into how to make IEDs, projecting himself as a supporter of ISIS and expressing his wish to join the jihad in Syria. 9. On 5 November 2014 the Netherlands investigating authorities sent a request for mutual legal assistance (rechtshulpverzoek) to the competent Moroccan authorities in connection with the criminal investigation against the applicant, requesting, inter alia, the examination of a number of bank accounts and bank cards. The request contained the number of the applicant’s national identity card and specified that the criminal investigation concerned suspicion of (preparation of) murder with a terrorist motive, participation in a criminal organisation with a terrorist aim, preparation of a terrorist offence, and financing of terrorism. On 20 April 2015 a supplementary request was sent to the Moroccan authorities. 10. The applicant’s remand in custody was extended. Criminal proceedings against him commenced on charges of several preparatory acts of terrorism, including the criminal offence defined in Article 134a of the Criminal Code (Wetboek van Strafrecht), namely the acquisition of information and know-how in preparation of the commission of a terrorist offence. 11. In April 2015 several articles, written in Dutch, Arabic and English, about the dismantling of a terrorist cell and arrest of its members in Selwane were published on Internet news sites. Those articles also mentioned the arrest in the Netherlands of a Moroccan living there, who was planning attacks in the Netherlands and who had links with that terrorist cell. Some of the articles also stated that information provided by the Moroccan intelligence agency (the General Directorate of Surveillance of the National Territory – “the DGST”) to the AIVD had led to the person’s arrest in the Netherlands. 12. On 8 September 2015 the Rotterdam Regional Court (rechtbank) acquitted the applicant of all charges. It found that his intent to commit terrorist offences had not been proven in the light of evidence presented by him showing that his chat messages had been meant to impress and show off. His acquittal was reported by various media outlets in the Netherlands. One of those reports stated that, according to his lawyer, the applicant intended to apply for asylum in the Netherlands, as he feared that, in the event of his removal to Morocco, he would be detained in Morocco as a terror suspect. The public prosecutor (officier van justitie) appealed against the acquittal. 13. On 20 June 2016 the Court of Appeal (gerechtshof) of The Hague quashed the impugned judgment, convicted the applicant of having committed the offence under Article 134a of the Criminal Code, and sentenced him to twelve months’ imprisonment. The applicant’s intent to acquire information and know-how in order to use it in the commission of a terrorist offence was found proven on the basis of numerous chat messages and written notes. Referring to the systematic and radical nature of those messages and given the relatively long period during which the applicant had been engaged in the internet conversations, the Court of Appeal dismissed the argument that he had merely been trying to impress and show off. 14. The applicant subsequently lodged an appeal in cassation with the Supreme Court (Hoge Raad). On 21 March 2017 the Supreme Court declared the applicant’s appeal inadmissible, providing summary reasoning in application of section 80a of the Judiciary (Organisation) Act (Wet op de rechterlijke organisatie). 15. On 28 August 2015 the applicant’s remand in custody came to an end and he was placed in immigration detention (vreemdelingenbewaring). On the same day he applied for asylum, claiming that, if removed to Morocco, he would, inter alia, run the risk of being arrested by the Moroccan secret service, detained in inhumane conditions and tortured, as the Moroccan authorities considered him to be a terrorist. 16. In support of his claim, the applicant referred to various press articles about the criminal proceedings against him in the Netherlands, as well as to several Internet news articles written in Dutch, Moroccan and English about a terrorist cell in Salouin ‒ the town where he had been living before going to the Netherlands ‒ which had been dismantled by the Moroccan authorities in April 2015. Some articles also mentioned that a member of that terrorist cell who was residing in the Netherlands had been arrested. According to the applicant, they had been referring to him (see paragraph 11 above). Although the applicant denied that he had any contacts with this cell, he stated that because of these allegations he will be associated with these Moroccan suspects of terrorism. 17. The applicant further submitted that he had learned from his family in Morocco that two acquaintances from his place of birth, Driouch named “A.M.” and “B.M.”, had been arrested by the Moroccan security service in March or April 2014. According to the applicant, this was a strong indication that he too was a target of the Moroccan security service. 18. By a letter of 15 October 2015, the Deputy Minister of Security and Justice (Staatssecretaris van Veiligheid en Justitie) requested the Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) to conduct an investigation in Morocco in relation to the applicant’s asylum application. In so far as relevant for the instant case, the letter contained the following questions: “1) Is [the applicant] known by his stated identity ... at his last known address in Morocco ... in Salouin, region of Nador? 2a) The report about the dismantling of a terrorist cell appeared in Moroccan and international media on 13 April 2015. When were the members of the Moroccan terrorist cell arrested? 2b) Are A.M. and B.M. among those who were arrested? If so, are they from [the applicant’s] birth place, namely Driouch? 2c) Is it known whether [the applicant] and the persons mentioned under 2b) know each other? 3) Are the persons mentioned under 2a) still detained since their arrest in April 2015? If so, what are the charges? If not, when were they released? 4) Is [the applicant] known by name in the media in Morocco as the member residing in the Netherlands of the terrorist cell dismantled in Morocco (as referred to in question 2a)? 5a) Is [the applicant] being searched for by the Moroccan authorities in the context of the criminal investigation of the terrorist cell (as meant in question 2a)? 5b) Is there a charge against [the applicant]? If so, what is the charge? 5c) Is [the applicant] being searched for by the Moroccan authorities in relation to offences other than those mentioned under 5a? If so, in relation to what offences is he being searched for? Has he been convicted of those offences and, if so, what is the sentence?” 19. In reply to the above request, a person-specific official report (individueel ambtsbericht) was released on 3 December 2015 by the Ministry of Foreign Affairs. The relevant part of the report stated as follows: “Question 1: The address ... in Salouin, region of Nador, is [the applicant’s] last known address in Morocco. Question 2: a) The members of the Moroccan terrorist cell were all arrested on 13 April 2015. b) A.M. and B.M. do not find themselves in the group [of persons] arrested on 13 April 2015. Additional information: the above-cited names are not necessarily the actual names of the persons. In the group of persons, there is an A. and a B.. However, these persons do not have the surname M. c) This question cannot be answered in the light of the above. Question 3: At the time of the investigation, the persons referred to in 2a) were still detained. The charge is: ‘the establishment of a criminal organisation which supports jihadist ideology, in particular by planning to assassinate persons with opposing religious convictions’ (‘la constitution d’une bande criminelle adepte de la pensée djihadiste, projetait notamment l’assassinat de personnes aux convictions religieuses contraires’). Question 4: [The applicant] is not mentioned by name in the media reports. It was mentioned in the media reports that a Moroccan national residing in the Netherlands had been arrested in cooperation with the local authorities. Additional information: nor were the other persons who were arrested on 13 April 2015 mentioned by name in the media reports. ... Question 5: a) No, at the time of the investigation [the applicant] was not being searched for by the Moroccan authorities in the context of the criminal investigation as referred to in question 2. b) No, at the time of the investigation, there was no charge against [the applicant]. c) No, at the time of the investigation [the applicant] was not being searched for by the Moroccan authorities in the context of a criminal investigation into offences other than those as referred to by question 5a.” 20. By letter of 12 January 2016, in reply to a request for further clarification, the Minister of Foreign Affairs stated: “There are no indications that [the applicant] is being searched for by the Moroccan authorities in the context of the criminal investigation referred to in question 2a of your letter of 15 October 2015. There are also no indications of a charge against [the applicant] or indications that [the applicant] is being searched for by the Moroccan authorities in connection with a criminal investigation of facts other than those referred to in question 2a of your letter of 15 October 2015.” 21. The asylum application was rejected by the Deputy Minister on 21 July 2016. In addition, an entry ban (inreisverbod) of twenty years was imposed on the applicant, the Deputy Minister holding that he posed a threat to public safety on account of his criminal conviction and information from the Netherlands security service that he posed a danger to national security. Furthermore, and referring to the person-specific official report of 3 December 2015, the Deputy Minister held that the applicant had failed to demonstrate that he faced a real and personal risk of treatment contrary to Article 3 of the Convention in Morocco. The applicant was not being searched for by the Moroccan authorities, nor had he been charged with any criminal offences there. The Deputy Minister found that the applicant’s fear of being arrested, tortured and detained was based on general reports and assumptions. The Deputy Minister referred to earlier experiences with young Moroccan men who had stood trial in the Netherlands on charges related to Islamic terrorism and who had been removed to Morocco. None of them had encountered any problems from the side of the Moroccan authorities that could be regarded as relevant from an asylum-law perspective. On this point, the Deputy Minister referred to an article published on 10-11 September 2011 in the Netherlands daily newspaper NRC Handelsblad about the experiences of four convicted members of the Islamist terrorist “Hofstad group” (Hofstadgroep) who, after having served their sentence in the Netherlands, had been removed to Morocco. 22. The applicant lodged an appeal (beroep) with the Regional Court, submitting in addition to his previous submissions, inter alia, a copy of an email from his Moroccan attorney, E.I., and extracts from a Moroccan police report dated 24 April 2015 concerning a criminal investigation in respect of several persons, including one “B.B.” (previously referred to by the applicant as “B.M.”). The police report stated that B.B. was the person behind the radicalisation of his neighbour (the applicant), who was being detained in the Netherlands in connection with terrorism. It further stated that, after the applicant’s departure to the Netherlands, they had remained in contact by telephone and that in their conversations, the applicant had indicated his wish to buy a firearm, and that he intended to learn how to make explosives for use in a terrorist act in the Netherlands. 23. On 14 February 2017 the Regional Court of The Hague, sitting in Rotterdam, dismissed the appeal and upheld the impugned decision. As regards the applicant’s reliance on Article 3 of the Convention, it held as follows: “6. [The appellant] argues that on return he will be at a real risk of a violation of Article 3 of the Convention. He fears that he will be detained and ill-treated because – due to media reports – he is being linked by the Moroccan authorities to terrorist groups and terrorist activities. On this point [the appellant] refers to various documents. In addition, [the appellant] argues that [the Deputy Minister] was not allowed to base his decision on the person-specific official report of the Ministry of Foreign Affairs as insufficient due care had been taken in drawing it up and, in addition, as it lacks clarity. 6.1. The court states at the outset that it is in principle for [the appellant] to make out a plausible case that he is running a real risk of a violation of Article 3 of the Convention. [The appellant] has submitted a number of documents in substantiation of his claim. In addition, [the Deputy Minister] has met [the appellant] halfway in the discharge of the burden of proof which rests on the latter by having the Ministry of Foreign Affairs conduct an investigation which has resulted in a person-specific official report. The court will discuss below [the appellant’s] documents and the person-specific official report of the Ministry of Foreign Affairs. 6.2. [The appellant] has submitted media reports about a terrorist cell that intended to commit attacks in the Netherlands and about a Moroccan man, [name of appellant], who was arrested in October 2014 in the Netherlands on suspicion of terrorism and convicted by the Court of Appeal. [The appellant] also submitted documents about a Moroccan Dutchman who had been interrogated and tortured in Morocco and referred to information from Amnesty International and Human Rights Watch about torture and ill-treatment of detainees and unfair proceedings for terrorist suspects in Morocco. In addition, [the appellant] has submitted an email message from his Moroccan lawyer about the negative attention which [the applicant] will attract upon return and a copy of (part of) an official report of the police in Morocco in the terrorism case of B.B. in which [the appellant’s] name is mentioned. In addition, [the appellant] has submitted part of a judgment of the [Tribunal Correctionnel de Paris] concerning G.H., who is suspected of terrorist activities and [the appellant] claims that this person has been convicted again in Morocco for the same set of facts. 6.2.1. In so far as it appears from the documents submitted by [the appellant] that he is known as a terror suspect or has been convicted of facts relating to terrorism, the court considers that this has already been found credible by [the Deputy Minister]. The circumstance that, because of media reports about this, [the appellant] is known in the Netherlands and Morocco does not mean that therefore he runs a real risk of serious harm when he returns to Morocco. [The appellant] fears that, because of being known [by those authorities], he will upon return be arrested and ill-treated by the Moroccan authorities, but for substantiation purposes has not submitted documents concerning [himself]. [The appellant] has pointed to general information about the treatment of detainees in Morocco and about the proceedings in respect of terrorist suspects, but this information is only relevant if it is plausible that [the appellant] upon return will be arrested or prosecuted for terrorism. In the court’s opinion, [the Deputy Minister] has not unjustly adopted the position that [the appellant] has not made out a plausible case. In the email message from [the appellant’s] Moroccan lawyer submitted by [the appellant], this lawyer reports that [the appellant] will be tried when transferred to Morocco, even though he has already been tried in the Netherlands, and refers to two decisions in which the same person was convicted both in France and in Morocco for the same facts. This means that the email message contains no more than a statement from [the appellant’s] lawyer, without specific further substantiation relating to [the appellant] from which it follows that [the appellant] will be prosecuted in Morocco. Reference is only made to a case of another person convicted in France, but no documents have been submitted showing that this person has been convicted of the same facts in Morocco. Nor have documents been submitted from which it can be deduced that [the appellant] finds himself in the same situation. It can further not be concluded from the copy of (a part of) a report of the Moroccan police, submitted by [the appellant], that [the appellant] is being searched for in Morocco as a suspect of terrorism. As pointed out rightly by [the Deputy Minister], the document only contains information about the activities of the suspect B.B., including the influencing of [the appellant], but it does not appear from the document that [the appellant] is involved in any criminal proceedings. However, triggered by what [the appellant] has presented about the terror cell dismantled in April 2015, of which B.B. was a member, [the Deputy Minister] asked the Ministry of Foreign Affairs for a person-specific official report, which will be discussed below. 6.3.1. According to the constant case-law of the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) (including the ruling of 29 July 2016, ECLI:NL:RVS:2016:2171), an official report from the Minister of Foreign Affairs about the situation in a country is an expert opinion for the Deputy Minister for the exercise of the latter’s powers. If it provides information in an impartial, objective and transparent manner with an indication, in so far as this is responsible, of the sources from which this information is derived, the Deputy Minister may, in making a decision, assume the correctness of this information, unless there are concrete reasons for doubting that accuracy. As regards person-specific official reports, the Administrative Jurisdiction Division has considered that, if a person-specific official report contradicts the asylum claim which it concerns, it is for the alien concerned to refute the official report. 6.3.2. [The appellant’s] argument that [the Deputy Minister] was not allowed to base his decision on the person-specific official report of the Ministry of Foreign Affairs because insufficient due care had been taken in drawing it up, fails. On 8 December 2015 the Deputy Minister carried out a REK-check, which entails [the Deputy Minister] assuring himself that the person-specific official report has been drawn up with due care and is comprehensible. The outcome of the REK check was that this could not be concluded. Subsequently, the Ministry of Foreign Affairs was asked for further clarification, [in response] to which the Ministry of Foreign Affairs supplemented, by letter of 12 January 2016, the person-specific official report. On 14 January 2016 a fresh REK check was carried out and it was concluded that the person-specific official report was comprehensible but that, procedurally, due care had not been exercised in preparing the report, as the investigation in Morocco had taken place without using a trusted local advisor (vertrouwenspersoon). Although in the case of an asylum application this falls short of due care, the court finds that in this case [the Deputy Minister] did not have to see reason for not taking into account in the decision making the person-specific official report of the Ministry of Foreign Affairs, as [the Deputy Minister] has given sufficient reasons for holding that the interests of [the appellant] were not harmed by this failure to exercise due care. [The Deputy Minister] has indicated that the use of a trusted local advisor is to ensure that the authorities of the country of origin are not informed of the alien’s stay in the Netherlands and of his asylum application, whereas in this case it can be assumed that the Moroccan authorities, due to reports in the media there, are already aware [of this circumstance]. On this point [the Deputy Minister] has referred to a number of media reports. [The appellant] has not argued or further substantiated that that knowledge by the Moroccan authorities will lead to problems. Also for the remainder, [the appellant] has not indicated why his interests would have been harmed by the lack of due care in the preparation of the person-specific official report. 6.3.3. The person-specific official report of the Ministry of Foreign Affairs states, inter alia, that the members of the terrorist cell dismantled on 13 April 2015, which is mentioned in the coverage referred to by [the appellant], were all arrested on that date. This group does not include A.M. or B.M. as mentioned by the applicant, but these names are not necessarily the names of the persons. The group does include an A. and a B., but not with the family name M. In addition, the person-specific official report states that these persons were still in detention at the time of the investigation and that neither [the appellant] nor these persons were mentioned by name in press reports about the dismantled terror cell. It is indeed mentioned in press reports that a Moroccan staying in the Netherlands has been arrested in cooperation with the local authorities. Finally, it has been included in the person-specific official report that at the time of the investigation [the appellant] was not being searched for by the Moroccan authorities in connection with the criminal investigation into the dismantled terror cell, that at the time of the investigation no charge had been brought against [the appellant] and that at the time of the investigation [the appellant] was not being searched for by the Moroccan authorities in connection with a criminal investigation into other facts. 6.3.4. [The appellant’s] argument that [the Deputy Minister] was not allowed to base his decision on the person-specific official report of the Ministry of Foreign Affairs because it contains unclear points, also fails. In the opinion of the court, [the appellant] has not presented any concrete arguments for [the court] to doubt the correctness of the person-specific official report. [The appellant] has argued that it is unclear to what extent the [Moroccan] investigating judge (onderzoeksrechter) is competent to make statements about [the appellant]. In the first place, this mere remark does not comprise a concrete argument as mentioned above. Irrespective of this, the court considers that, on the basis of the underlying materials of the person-specific official report which the court has consulted, it can be assumed that the investigating judge in question is competent and able to provide the information given. Also the mere assertion of [the appellant] that it is odd that the investigating judge, who apparently holds all information on terrorism cases, is not asked whether [the appellant] is being searched for, is not a concrete argument in the above sense. Moreover, it follows from question 5 in the letter from [the Deputy Minister] to the Ministry of Foreign Affairs of 15 October 2015 that the Ministry has been asked both whether [the appellant] is being searched for by the Moroccan authorities in connection with the criminal investigation into the arrested terror cell and whether [the appellant] is being searched for by the Moroccan authorities in connection with a criminal investigation into other facts. Also, the unclear assertions made by [the appellant] about the names of the persons arrested, mentioned in the person-specific official report and the notion ‘at the time of the investigation’ offer no concrete reasons to doubt the accuracy of the person-specific official report. The term ‘at the time of the investigation’ cannot be read otherwise than that the question has been answered by the investigating judge on the basis of the state of affairs at the time of the investigation. Incidentally, [the appellant] has not argued that the state of affairs would be different at a different (later) point in time. As to the names of the arrested persons, the person-specific official report already states that the names may also be different. Also on this point the court sees no reason for doubting the correctness [of the official report]. As the document from the criminal case file submitted by [the appellant], which possibly refers to him, is of a much earlier date than the person-specific official report of the Ministry of Foreign Affairs, it is not plausible that this reference has given the Moroccan authorities cause to open a criminal investigation against [the appellant]. This is [therefore] not a concrete reason for doubting the correctness and completeness of the person-specific official report. 6.4. In addition to the person-specific report of the Ministry of Foreign Affairs, [the Deputy Minister] has also referred to experiences made with young Moroccan men (including members of the Hofstad group) who had been the subject of a terrorism trial in the Netherlands and/or constituted a danger to Dutch national security in connection with involvement in Islamic terrorism and/or jihad and for that reason [had been] returned to Morocco. According to [the Deputy Minister], no signals to be taken seriously have been received from them that, upon their return, they had encountered problems, relevant from an asylum-law perspective, from the side of the Moroccan authorities. The court notes that [the appellant] has not rebutted this in a substantiated manner and finds that [the Deputy Minister] has correctly taken this into account in his assessment. In this respect, the court refers to the ruling of the [Administrative Jurisdiction] Division of 5 October 2016 (ECLI:NL:RVS:2016:2692). [The appellant] has not established that the Moroccan authorities will act differently in his case. 6.5. The court concludes that it follows from the person-specific official report of the Ministry of Foreign Affairs that [the appellant] is not being searched for by the Moroccan authorities in connection with the criminal investigation concerning the dismantled terror cell or other facts and that [the appellant] has not put forward any concrete arguments for [the court] to doubt the correctness of this information. Nor can it be deduced from the documents submitted by [the appellant] that he is being searched for by the Moroccan authorities and/or will be detained and tortured upon return. This can also not be inferred from previous experiences in similar cases. Thus the fear alleged by [the appellant] upon return has not been made plausible. In view of this, [the Deputy Minister] rightly took the view that [the appellant] has not established that, upon return, he will run a real risk of a violation of Article 3 of the Convention. ...” 24. The applicant lodged a further appeal (hoger beroep) against the Regional Court’s decision with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State). He also requested a provisional measure (voorlopige voorziening), namely to stay his removal pending the outcome of the further appeal. Neither a further appeal nor a request for a provisional measure has automatic suspensive effect. 25. On 21 February 2017 the applicant asked the Court to apply an interim measure under Rule 39 of the Rules of Court, in order to stay his removal to Morocco. The determination of that request was adjourned by the Court on the same day and the Government were requested to submit factual information. 26. On 22 February 2017 the Administrative Jurisdiction Division granted the applicant’s request for a provisional measure by revoking the order to expel the applicant to Morocco scheduled for 25 February 2017. In view of that decision, the Court decided on 23 February 2017 to suspend until further notice the determination of his Rule 39 request. 27. On 28 February 2017 the Administrative Jurisdiction Division rejected the applicant’s further appeal. It held that under section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against this ruling. On the same day the Administrative Jurisdiction Division rejected the applicant’s request for a provisional measure. 28. On 2 March 2017 the applicant’s lawyer was informed that the applicant’s removal to Morocco had been scheduled for 4 March 2017. 29. On 3 March 2017 the Court applied Rule 39 for a period of four weeks and requested further factual information from the Government. The requested information was received on 22 March 2017. 30. The Government informed the Court that in the context of the criminal proceedings against the applicant information had been exchanged between the Moroccan and the Dutch authorities through a legal assistance request submitted by the Dutch authorities on 5 November 2014 and a supplementary request on 20 April 2015 (see paragraph 9 above). They added that the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst), in establishing that there was no Article 3 risk for the applicant were he to be removed to Morocco, had taken into account that the Moroccan authorities had been apprised of the criminal proceedings and that they were likely to be aware of the outcome thereof. The Government added that the Moroccan authorities had not sought the applicant’s extradition. The Government had not sought specific guarantees from the Moroccan authorities as they took the view that the applicant’s removal would not result in a violation of Article 3 of the Convention. The authentic and valid ID-card held by the applicant was sufficient for him to be accepted onto a flight to Morocco. No special procedure had been put in place for his removal, but during his transfer he would be accompanied by officers of the Royal Netherlands Military Constabulary (Koninklijke Marechaussee) and after arrival he would be handed over to the authorities at the destination airport. The Government lastly informed the Court that they had not been able to obtain further information regarding the criminal proceedings against the members of the terrorist cell which had been dismantled in Morocco in April 2015. 31. On 29 March 2017 the applicant informed the Court that, through his Moroccan attorney E.I., he had been able to obtain a copy of the judgment by which B.B. and eight others had been convicted of, inter alia, the establishment of a terrorist group loyal to the Islamic State intended to commit terrorist activities against the public order of Morocco. B.B. had been sentenced to five years’ imprisonment. The judgment in Arabic, which runs to twenty-three pages, contains the following passage: “B.B. has several connections with jihadis. In particular, he recruits young men in his area for his terrorist organisation. In 2015 a befriended policeman in Nador informed B.B. – after receiving secret Government information – that he should break off his contact with people involved with terrorist organisations, including amongst others [the applicant’s name] who lives in the Netherlands.” 32. On 30 March 2017 the interim measure under Rule 39 staying the applicant’s removal to Morocco was extended for the duration of the proceedings before the Court. 33. On 15 November 2017 the Government submitted a copy of a judgment given on 21 December 2016 by the criminal division of the Rabat Court of Appeal for Terrorism Cases on an appeal lodged by G.H. (see paragraph 23 above at point 6.2) – assisted by the attorney E.I. – against a judgment given on 10 March 2016 by the criminal division of the Rabat First Instance Court for Terrorism Cases. The appellate court overturned the impugned judgment, finding that pursuant to Article 707 of the Moroccan Criminal Code, which contains the ne bis in idem rule, the appellant could no longer be tried for facts in respect of which he had already been convicted by a criminal court in France and had already served the sentence imposed by that court. Consequently, it acquitted him of the charges of the establishment of a criminal group for the preparation and commission of terrorist offences, illegal use and possession of fire arms and ammunition in the context of a joint project aimed at endangering public order, and inciting and persuading others to commit terrorist offences. It did, however, convict him of complicity in providing support to those who commit a terrorist offence and imposed a conditional one-year prison sentence. | 0 |
test | 001-144784 | ENG | AZE | ADMISSIBILITY | 2,014 | MAMMADOV v. AZERBAIJAN | 4 | Inadmissible | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 1. The applicant, Mr Akif Kazim oglu Mammadov (Akif Kazım oğlu Məmmədov), is an Azerbaijani national born in 1955 and currently serving a prison sentence in Baku. 2. He was represented before the Court by Mr I. Ashurov, a lawyer practising in Azerbaijan. The Azerbaijani Government (“the Government”) were represented by their Agent, Mr Ç. Asgarov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. At the time of the events, the applicant served as a police major in the Ministry of Internal Affairs. He worked for the Saatli District Police Organised Crime Department. 5. At around 10 p.m. on 22 March 2005, at a location near the Azerbaijani-Iranian border in the Imishli District, the applicant and an acquaintance (U.H.) received approximately 71.75 kg of marijuana from an Iranian national who had smuggled the drugs through the State border. The two accomplices put the packages of marijuana in the boot of the applicant’s car. When they attempted to drive off, a number of MNS agents, who had surveilled the operation, tried to stop the car. Shots were fired and two bullets reached the car’s interior and wounded the applicant in the left leg. Despite his bullet wounds, the applicant managed to continue driving his car and escape from the scene. 6. The applicant and U.H. drove several kilometres, then disposed of the packages of marijuana and abandoned the car. Shortly afterwards the applicant and U.H. were arrested by the MNS agents. The applicant was first brought to the Imishli District Department of the MNS, but due to his wounds thereafter transferred to the Imishli District Hospital for treatment. 7. The record of arrest compiled by the MNS agents on 23 March 2005 also described the circumstances of the operation of 22 March 2005. The relevant part of the record reads as follows: “...Two persons who were in the car tried to escape from the scene of the crime by speeding the car towards the MNS agents. Although the MNS agents fired a warning shot into the air, the driver tried to hit them by car and at that moment shots were fired at the car’s tyres. Two persons in the car began to drive the car through the village in the direction of the fields situated in the Beylagan District...” 8. On 24 March 2005 criminal proceedings were instituted by the Investigation Department of the MNS in connection with above-mentioned incident, under Articles 206, 234.4.1 and 234.4.3 of the Criminal Code. 9. At 6.10 p.m. on 24 March 2005 an investigator from the MNS issued a record of the applicant’s detention as a suspect (tutma protokolu) in the presence of him and his lawyer. He was suspected of smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances under Articles 206, 234.4.1 and 234.4.3 of the Criminal Code. The applicant claimed his innocence and stated that he had not known that the packages had contained marijuana. He submitted that U.H. had lied to him about what they had contained, and that he had only gone to the border area at U.H.’s request. He further confirmed that after his arrest, he had first been taken to the Imishli District Department of the MNS, and then to the Imishli District Hospital, where he had been provided with medical assistance. He did not challenge the lawfulness of the force used against him during the operation of 22 March 2005. 10. On 26 March 2005 the applicant was officially charged with smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances. On the same day the investigator questioned him again, now as an accused, in the presence of his lawyer. The applicant reiterated his previous statement. On the same day the applicant was brought before the Sebail District Court which ordered his pre-trial detention for a period of three months. 11. On 28 April 2005 the applicant’s lawyer asked the investigator to order a forensic examination to determine whether the applicant’s state of health was compatible with his pre-trial detention, as he suffered from ischemic heart disease and had once suffered a heart attack. 12. On 29 April 2005 the investigator dismissed the request after deciding that a forensic examination of the applicant was not necessary. 13. On 14 June 2005 the investigator lodged the indictment with the Assize Court. 14. According to the applicant, on 4 July 2005 at a hearing before the Assize Court in the course of the criminal trial, he submitted that on 22 March 2005 the MNS agents had shot at his car without first firing a warning shot, as a result of which he had been wounded in the left leg. He further claimed that the agents had not been wearing vests identifying them as officers of the law-enforcement authorities and he therefore could not identify them in the darkness. The applicant also complained that he had not been provided with adequate medical assistance during the first fifteen days of his detention in the MNS detention facility. 15. The proceedings before the Assize Court ended on 13 July 2005 with a judgment in which the court found the applicant guilty of smuggling and the illegal preparation, possession, purchase, transportation and sale of narcotic substances and sentenced him to fifteen years’ imprisonment. The court also ordered that his car be confiscated as it had been used in the crime. The court did not in its judgment refer to the issues related to the operation of 22 March 2005 and the alleged lack of adequate medical assistance following his arrest, as submitted by him on 4 July 2005 (cf. paragraph 14). 16. In August 2005 the applicant appealed against his conviction, claiming his innocence. He complained about the assessment of the evidence by the Assize Court and argued that the lower court had not taken into account when sentencing him to fifteen years’ imprisonment. 17. On 15 September 2005 the Court of Appeal upheld the applicant’s conviction, but reduced his sentence to thirteen years’ imprisonment, taking into account certain mitigating circumstances. 18. In March 2007 the applicant lodged a cassation appeal. He claimed his innocence, complaining about the assessment of the evidence by the lower courts. 19. On 22 May 2007 the Supreme Court upheld the Court of Appeal’s judgment of 15 September 2005. 20. In accordance with Article 37 of the Code of Criminal Procedure (“the CCrP”), criminal proceedings are instituted on the basis of a complaint by the victim of an alleged criminal offence. Chapter LII of the CCrP lays down the procedure by which parties to criminal proceedings could challenge actions or decisions of the prosecuting authorities before a court. Article 449 provides that a victim or his counsel may challenge such actions or decisions as, inter alia, the prosecution authorities’ refusal to institute criminal proceedings or to terminate them. The judge examining the lawfulness of the prosecuting authorities’ actions or decisions may quash them if he or she finds them to be unlawful (Article 451). The judge’s decision may be challenged before an appellate court in accordance with the procedure established in Articles 452 and 453 of the CCrP. | 0 |
test | 001-165546 | ENG | NLD | ADMISSIBILITY | 2,016 | A AND B v. THE NETHERLANDS | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 1. The applicants, Mr A and Ms B, are a married couple and currently living in the Netherlands. They are Mongolian nationals and were born in 1980 and 1978, respectively. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). They were represented before the Court by Ms J. Bravo Mougán, a lawyer practising in Amsterdam. 2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 1 May 2009 the applicants and their daughter, born in 2001, fled Mongolia. On 11 May 2009 they entered the Netherlands and applied for asylum, claiming to fear persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). The next month a second child was born to the applicants. 5. On 5 August 2009 the immigration authorities held a first interview (eerste gehoor) with each applicant about their identity, nationality and travel itinerary. A written record of each interview was drawn up. The applicants, who were assisted by a lawyer, were given the opportunity to submit corrections and additions, which they did on 6 August 2009. 6. On 7 August 2009, the immigration authorities held a further interview (nader gehoor) with each applicant about their reasons for seeking asylum. A written record of each interview was drawn up and on 21 September 2009 a lawyer submitted corrections and additions on the applicants’ behalf. 7. In his asylum statement, the first applicant declared that he was a former Buddhist monk (“lhama”). His only relative was a foster parent who had died in 1998. After his marriage to the second applicant he had resigned as a monk and started to work as a spiritual counsellor. Among his clients were Mr X, a prominent political and government leader, Mr Y, a former business associate of X, and Mr Z, a judge. By the end of June 2008, the first applicant had received a 3-4 page letter from Y who had been placed in pre-trial detention. In this letter Y wrote that he was innocent and wrongly imprisoned and that he had been falsely accused by X. The letter further contained incriminating information about X who was allegedly involved in corruption. The first applicant had not discussed this information with anyone. Soon after, the first applicant had received several threatening telephone calls from accomplices of X. They told him that they knew that he had received the letter, that he knew too much and that he should keep his mouth shut. They also ordered him to give them his clients’ records. The second applicant also received threatening calls. On 10 July 2008 the first applicant learned that Y had died in prison. 8. On 2 or 3 August 2008 the first applicant, whilst walking upstairs to his apartment, had been assaulted by two unknown men in the stairwell of the building. The two men had demanded the letter and the records the first applicant had kept on his clients. When a neighbour had appeared, the two men had run off. As requested by Y, the first applicant had taken the letter to Z who had advised him not to go to the police as X had more power than the police. Being a judge, Z. would deal with the matter himself. According to the first applicant, Y had written the letter to the first applicant and not directly to Z because he had known the first applicant very well and had trusted him. 9. As the applicants had no longer felt safe at home, the first applicant had asked one of his other clients to shelter him and his family. This client had done so as from September 2008 and sheltered the applicants in a town near to Ulaanbaatar. Although the first applicant had changed his telephone number, he continued to receive threatening phone calls. 10. On 26 October 2008, whilst travelling for business by car to Dorngovi, the first applicant had a car accident. One of the front wheels of his car had broken off, causing the car to roll over twice. His co-driver had been thrown out of the car and the applicant, who had been driving the car, had lost consciousness. The traffic police drew up a report and left. A friend took them and the car back to Ulaanbaatar. When the first applicant reported the accident to the police as requested by the latter, he was told that the accident had been caused by him driving too fast. According to the first applicant this was untrue as he had driven at a normal speed. The first applicant had taken the police report to Z who – like the first applicant – had found it rather odd and would look into it. 11. On 1 February 2009 Z’s wife had called the first applicant and told him that Z had suddenly died of food poisoning. The first applicant had not believed this and suspected murder. Now fearing for his family and himself, he had started to make preparations to leave Mongolia which he and his family had done on 1 May 2009. With the aid of a “travel agent” to whom they had given their identity documents the applicant, his wife and their daughter had travelled first by train to Moscow and later by car to the Netherlands. This travel agent had not returned their identity documents. 12. The asylum statement of the second applicant, who had also applied for asylum on behalf of the couple’s two young children, was based on the asylum statement given by the first applicant. She also stated that her mother and brother were living in Mongolia. Her father had died in 2008. 13. On 1 December 2009 the Deputy Minister of Justice (Staatssecretaris van Justitie) issued a notice of her intention (voornemen) to reject the first applicant’s asylum application. On 2 December 2009 the Deputy Minister issued the same notice to the second applicant. 14. The Deputy Minister considered at the outset that the applicants’ failure to substantiate in a sufficient manner their stated identity, nationality and travel itinerary as well as their failure to give a detailed, coherent and verifiable account of their journey to the Netherlands cast doubt on the sincerity of their asylum claim and detracted from the credibility of their asylum statement. As to the question whether the applicants’ asylum statement should nevertheless be accepted as positively persuasive (positieve overtuigingskracht), the Deputy Minister found that the events as described by the first applicant were credible, i.e. the receipt of the letter, the threatening telephone calls and having been assaulted once in the stairwell of the building where he used to live. Noting, inter alia, that the name of X had never been mentioned in the phone calls or by the men who had assaulted the first applicant, the Deputy Minister found that it could not be established that these acts were carried out by accomplices of X and in his name. The Deputy Minister further found that the applicants could and should have reported the threatening telephone calls and the assault in the stairwell to the Mongolian authorities and that it had not been demonstrated that these authorities would be incapable of providing protection. 15. On 23 December 2009, assisted by a lawyer, the applicants submitted written comments (zienswijze) on the notice of intent sent to both applicants. 16. On 21 January 2010, in two separate decisions and referring to the above notices, the Deputy Minister rejected the applicants’ asylum applications, finding that they had failed to dispel the doubts about the credibility of their asylum statement. The Deputy Minister maintained that the applicants had failed to substantiate their claim that X was corrupt. The fact that government corruption occurred in Mongolia did not mean that X was personally corrupt as well. The Deputy Minister also maintained that the applicants had failed to establish that X was responsible for the events described by them. These acts could equally have been carried out by accomplices of other powerful men. The Deputy Minister also did not find it demonstrated that the applicants would run a risk of treatment contrary to Article 3 of the Convention if they were expelled to Mongolia. 17. In its judgment of 13 January 2011 the Regional Court (rechtbank) of The Hague sitting in Assen accepted the applicants’ appeal, quashed the impugned decisions of 21 January 2010, and ordered a fresh determination of the applicants’ asylum claim. It accepted the Deputy Minister’s findings in respect of the absence of any identity documents and the failure to give a detailed, coherent and verifiable account of their journey to the Netherlands, as well as the Deputy Minister’s conclusion that it was not credible that the death of Y and Z and the first applicant’s car accident resulted from intentional acts instructed by X or committed in his name. However, the Deputy Minister had given insufficient reasons for finding that the applicants’ suspicion that there was a connection between X and the threatening telephone calls received by the applicants and the first applicant’s assault in the stairwell lacked positive persuasiveness as both the threats and the assault were connected to the letter which the applicant had received from Y. This was not altered by the fact that it did not appear from general sources that X was involved in corruption or other illegal practices, when taking into account X’s interest in keeping the content of the letter written by Y quiet given that – according to the official report (ambtsbericht) on Mongolia of January 2010 as compiled by the Minister of Foreign Affairs (Minister van Buitenlandse Zaken) – the great discontent in the Mongolian population over the widespread poverty in the country and the corruption in government circles had probably worked to the advantage of X who had campaigned with promises of change and of combatting corruption and income inequality. 18. On 7 February 2011, the Minister for Immigration and Asylum (Minister voor Immigratie en Asiel), the successor to the Deputy Minister of Justice, filed a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State), arguing essentially that it was for the Minister to assess the credibility of the facts submitted by an asylum-seeker and that the courts could only examine that assessment with due reticence (terughoudend). Referring to the Division’s case law, the Minister submitted that the Regional Court had overstepped its competence. Pursuant to the system of asylum proceedings, in appeal proceedings the Regional Court should only have determined whether the administrative authority concerned (i.e. the Minister) had exercised its administrative powers in a reasonable manner and whether this authority could reasonably have taken the impugned decision (marginale toetsing). In this case however, the Regional Court had made its own findings of fact, substituting them for the findings made by the Minister. 19. On 18 August 2011 the Administrative Jurisdiction Division accepted the Minister’s further appeal, quashed the impugned judgment of 13 January 2011 and rejected the applicants’ appeal. It held that, instead of examining whether the Minister could not reasonably have reached the conclusions as to the credibility of the applicants’ asylum statement, the Regional Court had wrongly drawn its own separate conclusions in relation to various parts of the asylum statement. It therefore quashed the judgment of the Regional Court and substituted it with its own decision on the appeal, holding that the Minister could reasonably have concluded that the applicants’ stories lacked positive persuasiveness. Accordingly, the applicants had not established that their removal to Mongolia would expose them to a real and personal risk of being subjected to treatment in violation of Article 3 of the Convention. No further appeal lay against this decision. 20. On 16 September 2013 the Government informed the Court that the Departure and Repatriation Service (Dienst Terugkeer en Vertrek) of the Ministry of Security and Justice (Ministerie van Veiligheid en Justitie) were taking action for the applicants’ removal to Mongolia by presenting them to the Mongolian authorities. 21. On 22 February 2016 the President of the Section decided, under Rule 54 § 2 (c) of the Rules of Court, that the Government should be invited to submit further observations dealing specifically with aspects of the applicants’ effective removal to Mongolia. 22. In their reply of 15 March 2016, the Government informed the Court that the removal of rejected asylum-seekers to Mongolia is only possible when they hold a valid travel document. The Government further stated that they had applied for a laissez-passer on behalf of the applicants at the Embassy of Mongolia where the applicants had been presented in person in August 2015. The applications had been taken into consideration by the authorities of Mongolia. The Netherlands authorities are still awaiting the response and have been sending reminders to the Embassy of Mongolia once or twice every month, the most recent one having been sent on 14 March 2016. 23. In their reply of 30 March 2016, the applicants confirmed that they had been presented to the Mongolian authorities. They further stated that their nationality had been officially confirmed and that the request for a travel document (laissez-passer) was still pending. They could and would be removed to Mongolia as soon as these documents were issued. 24. The relevant domestic law and practice as regards asylum proceedings and enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-28, 25 September 2012). | 0 |
test | 001-144354 | ENG | TUR | CHAMBER | 2,014 | CASE OF YİĞİTDOĞAN v. TURKEY (No. 2) | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 6+6-1 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Article 6-1 - Fair hearing) | András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano | 4. The applicant was born in 1968 and is currently serving a prison sentence in Kocaeli. 5. On 25 July 1999, at 11.30 a.m., the applicant was arrested on suspicion of being a member of an illegal organisation, namely the Turkish Revolutionary Communist Union, Türkiye İhtilalci Komünistler Birliği, “the TIKB”. The arrest records held by the police stated that they had had to use force to arrest the applicant, who had tried to escape when officers approached him to conduct an identity check. 6. On the same day he underwent a medical examination at 1.30 p.m. at Atatürk Hospital in Izmir. The report drawn up afterwards stated that no indication of ill-treatment had been observed on the applicant’s body. 7. The applicant was examined again later that day, at 5.45 p.m. at the same hospital. The report issued following that examination noted that the applicant had a healing, scabbed scratch measuring 2 x 2 cm on his right elbow. It concluded that there was no indication of physical violence on his body. 8. Following the medical examinations, the applicant was transferred to Istanbul, where he was placed in police custody at the Anti-Terrorist Branch of the Istanbul Security Headquarters. According to his submissions, he was subjected to ill-treatment during his time there. 9. On 27 July 1999 the applicant’s residence in Istanbul was searched by the police, who found several guns and cartridges, which were later sent to the Istanbul Criminal Police Laboratory for ballistic examination. 10. On 28 July 1999 the applicant was examined by a doctor at Haseki Hospital, who noted a swelling, a bruise and a scratch measuring 1 x 2 cm on his right elbow, as well as another scratch measuring 0,5 x 1 cm on his arm. The doctor recommended that the applicant undergo an orthopaedic examination. 11. At the request of the public prosecutor, on 29 July 1999 the Istanbul State Security Court decided to extend the applicant’s police custody by three days. 12. On 30 July 1999 the applicant was examined again at Haseki Hospital. This time, two scars on his gluteal region were noted. 13. On an unspecified date the applicant made statements to the police, in the absence of a lawyer. 14. On the last day of his police custody, namely on 1 August 1999 the applicant underwent another medical examination at Haseki Hospital. The report drawn up afterwards indicated a scar measuring 1 x 1 cm on his right elbow. The doctor also noted that the applicant’s medical condition was generally good, and recommended that he should undergo a urological consultation to follow up his complaint of rectal pain. He stated that a final report would be issued by the Forensic Medicine Institute. 15. On the same day the applicant was heard by the public prosecutor at the Istanbul State Security Court. He was not legally represented when he made his statements. 16. Subsequently, the applicant was brought before the investigating judge at the Istanbul State Security Court; he was remanded in custody. In the presence of a lawyer appointed by the Bar association, he retracted his previous statements and maintained that he had been subjected to illtreatment during his time in police custody. In response to a question by the investigating judge, the applicant maintained that he did not object to the content of the medical report drawn up earlier that day. 17. According to the applicant’s submissions, on 2 August 1999 he was examined by a doctor at Haydarpaşa Numune Hospital. The Government stated that there had been no such examination. 18. On 9 August 1999 the public prosecutor at the Istanbul State Security Court filed an indictment with that court, accusing the applicant of membership of an illegal armed organisation and of involvement in activities which undermined the constitutional order of the State, pursuant to Article 146 of the Criminal Code in force at the time (Law no. 765). In this respect, the public prosecutor noted that the applicant had taken part in several armed acts of the illegal organisation, including murder. 19. On 7 August 2000 the applicant informed the Istanbul State Security Court that he would not attend the hearing that was to be held that day, as he had had no opportunity to have prior consultation with his lawyer. The court asked the public prosecutor’s office to ensure the applicant’s attendance at the subsequent hearing. 20. At a hearing dated 7 February 2001, during which the applicant’s lawyer was present, the court noted that although it had requested that the applicant be brought before the court, it had received no response from the public prosecutor concerning the matter. At the same hearing the case was joined to another one, in which the applicant was being tried together with some others. 21. During subsequent hearings, which were conducted in the absence of the applicant, the court heard submissions from some of the co-accused and some witnesses. At one of these hearings, on 24 January 2002, the applicant’s lawyer asked the court to obtain the medical reports issued at Haydarpaşa Numune Hospital in 1999. He also stated that the applicant had been transferred to another prison and that the order for him to attend the hearing had not been sent there. 22. On 28 March 2002 the court noted that the applicant could not be brought to the hearing as he had been transferred once again. 23. On 30 May 2002 the Istanbul State Security Court gave an interlocutory decision, holding that the applicant should be brought before the court for the subsequent hearings, and that failure to do so would result in those responsible for his absence being subject to a criminal investigation. 24. On an unspecified later date the applicant’s lawyer submitted a letter to the court, noting that the applicant had not been brought before the court following its interlocutory decision dated 30 May 2002. He argued that the prison personnel and police officers concerned should be prosecuted for this. 25. On 24 October 2002 the applicant was brought before the court. He submitted his defence, indicating that he had been severely beaten during his arrest in Izmir and had been subjected to electric shocks, hung by the arms, hosed with cold water and sexually assaulted during his seven-day police custody at the Istanbul Security Headquarters. He claimed that although his right arm had been broken and he had developed facial paralysis, he had not been taken to the Forensic Medicine Institute. In that respect, he asked the court to obtain the medical reports issued following his examination at Haydarpaşa Numune Hospital, where he said a plaster cast had been put on his broken arm. 26. At hearings on 6 February, 17 April and 17 June the applicant and his lawyer submitted additional defence statements. 27. During those proceedings, in 2004 State Security Courts were abolished following a constitutional amendment, and the case was transferred to the Istanbul Assize Court. 28. At a hearing on 27 February 2007 the applicant informed the court that his lawyer had failed to attend the hearings, and asked for time to appoint a new lawyer. 29. On 11 December 2007 the applicant’s new lawyer reiterated the applicant’s allegations of ill-treatment and asked the court to assess the medical reports on him. In that connection, she maintained that the applicant had not undergone urological or orthopaedic consultations, although the doctors at Haseki Hospital had recommended that he should. The lawyer added that the applicant had never been taken to the Forensic Medicine Institute, and that the court had not obtained the reports from Haydarpaşa Numune Hospital, despite the applicant’s request for them. She also stated that the applicant had not been present at the hearings when the court had heard certain key witnesses. 30. On 11 June 2008 the applicant’s lawyer submitted a request to Haydarpaşa Numune Hospital for the medical reports on the applicant’s medical examination on 2 August 1999. However, the hospital administration informed her that the records for that year had been destroyed in 2006, as a result of a sewage pipe explosion above the archives. 31. On 12 September 2008, on the basis of several items of evidence, including the applicant’s police statements, the guns found at his home, and ballistic reports on those guns, the Istanbul Assize Court found the applicant guilty as charged and sentenced him to life imprisonment. 32. The applicant’s lawyer appealed against the judgment, arguing that the applicant had been subjected to ill-treatment while in police custody and had been convicted on the basis of statements extracted under duress. 33. On 18 March 2010 the Court of Cassation upheld the judgment of the Istanbul Assize Court. This judgment was pronounced on 7 April 2010. | 1 |
test | 001-170524 | ENG | LVA | ADMISSIBILITY | 2,016 | S.N. AND T.D. v. LATVIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 1. The applicants, Mr S.N. (“the first applicant”) and Mr T.D. (“the second applicant”), are two Russian nationals, who were born in 1977 and 1972 respectively and live in Moscow. The President of the Section decided that their names should not be disclosed (Rule 47 § 4 of the Rules of the Court). The Chamber also decided not to notify the Government of the Russian Federation of the present application on the grounds that Article 36 § 1 of the Convention did not apply in the circumstances of the present case (see I v. Sweden, no. 61204/09, §§ 40-46, 5 September 2013). 2. The applicants were represented before the Court by Ms C. Kruger and Mr O. Rode, lawyers practising in Strasbourg and Riga respectively. The Latvian Government (“the Government”) were represented by their Agent, Mrs K. Līce. 3. The applicants complained, in particular, that their expulsion to the Russian Federation had put them at risk of being subjected to torture or inhuman treatment contrary to Article 3 of the Convention, and that they did not have effective remedies in that regard. They also complained under Article 8 of the Convention about interference with their family life and absence of procedural safeguards in that regard. 4. On 6 February 2014 the above-mentioned complaints were communicated to the Government. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicants were born in what is now the Chechen Republic in the Russian Federation. The first applicant moved to Latvia in 1997 and has lived there ever since, on the basis of regularly renewed residence permits. In 2002 he was granted a permanent residence permit, which was renewed in 2007 and 2012. The second applicant moved to Latvia in 2002 and has lived there subsequently, on the basis of regularly renewed residence permits. 7. On 26 July 2012 the Latvian Minister of Interior adopted decisions to include the applicants in the list of aliens prohibited from entering and remaining in Latvia and the Schengen Area (hereinafter “the blacklist”) for an indeterminate period of time. These decisions were taken on the basis of a report by the Constitution Protection Bureau, one of the Latvian intelligence services (Satversmes aizsardzības birojs – hereinafter “the SAB”), submitted on 9 July and amended on 20 July 2012. The SAB had informed the Minister of Interior that both applicants had been engaging in criminal activity and planning to commit a serious crime, and hence posed a threat to national security and public order and safety. The part relating to national security grounds was identical in both decisions and stated: “The SAB indicated that the information obtained attests to [the applicant’s] criminal activity in a leading role within an organised criminal group. Similarly, it is apparent from the information provided by the SAB that [the applicant] is planning to commit a serious or especially serious crime which may have irreversible consequences on national security. As a consequence [the applicant] in his activity [is] a threat to public order and national security.” 8. The applicants were not made aware of the SAB’s report. 9. The decision concerning the first applicant pointed to the fact that he was married to a Russian national. It was therefore concluded that he would not encounter any obstacles in meeting his spouse outside Latvia. 10. In the decision concerning the second applicant it was noted that he was married to a Latvian national. His former wife (a Russian national) and their minor child were also residing in Latvia. The decision went on to state that an interference with the second applicant’s right to respect for his private and family life was justified, taking into account, among other things, that during the nine years he had resided in Latvia “he had not learned the [State language], which [had] clearly obstructed his integration into society”. It was also pointed out that he had moved to Latvia when he was over eighteen, which meant that his ties to his native country had not disappeared. With regard to him having an opportunity to meet his young son, the decision stated that he had already agreed in 2002, while still residing in Russia, that the child would reside with his mother in Latvia. It was therefore concluded that he “would not be entirely deprived of opportunities to meet [his] son” in Russia. The interference with his family life with his spouse, a Latvian national, was held to be “commensurate with the interests of the society”. 11. Both decisions mentioned that under section 61(8) of the Immigration Law, an appeal could be lodged with the Prosecutor General’s Office. The decisions became effective on the day they were signed, 26 July 2012, and were sent to the applicants’ declared addresses in Riga. On 3 August 2012 they were expelled from Latvia (see paragraph 23 below). 12. On 3 August 2012 the applicants, through their legal representative, applied to the Administrative Cases Division of the Senate of the Supreme Court to challenge the Minister of Interior’s decision to put their names on the blacklist. On 7 and 9 August 2012 the Senate refused to accept the applicants’ complaints for lack of jurisdiction, indicating that such reviews fell within the competence of the Prosecutor General if the decision had been adopted “on the basis of information obtained as a result of intelligence or counterintelligence”. The decisions also referred to the Constitutional Court’s judgment of 6 December 2004 (see paragraph 53 below) which said that the prosecutor’s review as such did not infringe the right of access to court. The Senate’s decision was final. 13. On 20 August 2012 the applicants’ legal representative appealed to the Prosecutor General asking, inter alia, that the decision to put them on the blacklist be revoked and that he be given access to the SAB’s report of 9 and 20 July 2012, which had formed the basis of the Minister of Interior’s decision. On five occasions the appeals were amended to include, inter alia, the allegations that in 1998 the applicants had collaborated with the Latvian State security services in a hostage liberation operation in the Chechen Republic. Later the appeal was amended to include the second applicant’s allegation that subsequently he had refused to cooperate with a SAB officer in relation to certain activities of the leaders of the Chechen community in Latvia, and therefore the expulsion had been instigated in revenge for that. 14. In a reply of 24 September 2012 the Prosecutor General dismissed the request for access to the requested documents. He noted that the possibility to familiarise oneself with information containing State secrets, if necessary with the assistance of specially authorised representatives, as provided in section 65³ of the Immigration Law (see paragraph 51 below), applied only to administrative court proceedings. The Prosecutor General in his reply also stated: “... By envisaging in section 61(8) of the Immigration Law that an appeal against a decision the Minister of Interior adopted on the basis of information obtained in the course of intelligence or counterintelligence activities carried out by a State security institution could be lodged with the Prosecutor General [but] not a court, the legislator wished especially to protect information obtained in the course of intelligence or counterintelligence activities; [granting] access to such information to persons not possessing special permission ... could seriously infringe the work of the State security institutions ... thus seriously impairing national security.” 15. In a final decision of 23 November 2012 the Prosecutor General reformulated the Minister of Interior’s decision of 26 July 2012 (see paragraph 7 above). The part relating to national security grounds was identical in his decisions relating to both applicants and stated: “Having familiarised myself with the results of the review carried out by the Prosecutor [General’s Office] and the information provided in the conclusions and supporting documents, [I] find that the SAB, as a competent State institution, had grounds to consider that [the applicant] had a role in an organised criminal group and [was] one of its leaders, [had] committed or [was] planning to commit a serious or especially serious crime, and [that his] presence in Latvia was a threat to public order and national security as confirmed by the information [obtained by the SAB in the course of counterintelligence activities], which I have verified and examined. Nevertheless, when adopting a decision to include [someone] in the list of aliens prohibited from entering the Republic of Latvia, the Minister must assess whether the behaviour of the foreigner and the nature and scope of information held by the competent institution is sufficient to establish any of the ... conditions set out in section 61(1) of the Immigration law. Having examined the information held by the SAB, [I] consider that [the information] is not sufficient to establish the conditions set out in section 61(1)(1) and (3), [namely] that [the applicant is] acting in an anti-governmental or criminal organisation or [has] a role in such an organisation, and has carried out or is planning to commit a serious or particularly serious crime. At the same time, the nature and scope of the SAB information obtained in the course of counterintelligence activities clearly attest to [the fact] that [the applicant’s] activity is a threat to Latvian national security and public order and safety, as well as a threat to the national security of the States in the Schengen [Area]. The condition set out in section 61(1)(2) has therefore been established, which serves as a basis for the adopted decision to include [the applicant] in the list of aliens prohibited from entering the Republic of Latvia.” 16. The Prosecutor General also dismissed the applicants’ fear that they could be exposed to ill-treatment in Russia due to their alleged involvement in the hostage liberation in 1998, as that involvement remained unconfirmed. In particular, the witnesses questioned had provided controversial submissions, which did not correspond to the testimony of other witnesses, including the statements obtained from the hostages liberated during the operation. In examining the allegations about the risk of ill-treatment after expulsion, the information the Prosecutor General’s Office had obtained from the Border Guard Service and the applicants’ relatives confirmed that on numerous occasions between January 2010 and July 2012 the applicants had entered the Russian Federation, including the Chechen Republic. 17. In relation to the complaint of unlawful activity by a SAB officer, the Prosecutor General noted that the meeting between the SAB officer and the second applicant had been recorded in accordance with the law, and that the second applicant’s allegations were ill-founded. 18. Subsequently, in the light of the Prosecutor General’s decision to reformulate the basis on which the applicants’ names had been put on the blacklist, on 22 August 2013 their legal representative wrote to the Minister of Interior and director of the SAB asking for a review of the decisions to include them in the list. 19. On 25 September 2013 the applicants’ representative received a response from the director of the SAB, stating that his request of 22 August 2013 did not refer to any new circumstances which could serve as a basis for amending or revoking their report to the Minister of Interior in July 2012 (see paragraph 7 above). On 10 October 2013 the Minister of Interior gave a similar reply to the applicants’ representative. 20. In a letter sent to the Court on 21 October 2013 the applicants’ representative brought to the Court’s attention the following: “... [I]n April 2013 the applicants were informed that in an unofficial conversation with a certain high-ranking police officer, [a staff member of the SAB] had stipulated that he would “take care” of any potential complaints the applicants might submit to the Court, and certain politicians would make sure the complaints were not successful. ... The applicants considered this information irrelevant before the above mentioned official information [the Government’s letter] was received.” They further drew the Court’s attention to two questions, the first being how the SAB became aware of their application to the Court, and the second how the application influenced the decisions of the SAB and Minister of Interior. 21. The authorities apprehended the first and second applicants on 31 July and 2 August 2012 respectively. They were both placed in a State Police temporary detention facility. The first applicant met one of his lawyers on the day of his detention, and the other one the following day. The second applicant met his lawyer on the day of his detention. 22. On 2 August 2012 the acting chief of the Riga branch of the State Border Guard Service adopted decisions to expel the applicants from Latvia and to deport them to the Russian Federation. The reason was that the applicants constituted a threat to national security, public order or safety under section 51 paragraph 2 part 4 of the Immigration Law (see paragraph 47 below). The decisions indicated that it was possible to lodge an appeal without suspensive effect to the chief of the Border Guard Service. On the same day both applicants were made aware of the respective decisions. They both appealed (see paragraph 26 below). 23. On the morning of 3 August 2012 the applicants were taken to the Russian border and expelled from Latvia. 24. That afternoon one of the legal representatives sent a fax to, inter alia, the Border Guard Service, asking the applicants not to be expelled to the Russian Federation “because they are possibly agents of the Security Police and their expulsion to the receiving State puts them under threat and they could be subjected to torture”. 25. According to the applicants’ initial submissions to the Court, “five days after their expulsion to the Russian Federation” they were summoned by Chechen police and were questioned about their role in the hostage liberation operation in 1998 before being beaten up. The case file contains an identical certificate for each applicant issued by a Chechen hospital, confirming that on 10 August 2012 both applicants had been found to have concussion, a brain injury and multiple bruises and scratches. The applicants alleged that as a result of what had happened they had had to flee the Chechen Republic and were now hiding in the Russian Federation. 26. The applicants’ representative submitted appeals against the expulsion orders of 2 August 2012 (see paragraph 22 above), complaining, inter alia, of the authorities’ failure to strike a fair balance between the right to respect for their family life and the alleged threat to national security, as required under Article 8 of the Convention. The chief of the Border Guard Service dismissed the first and second applicant’s complaints on 23 and 27 August 2012 respectively. 27. In their appeal to the Administrative District Court of 7 September 2012 the applicants also said that before adopting the impugned decision the Border Guard Service had not heard them, meaning they had not been able to provide information on the possible threat they would face at the hands of the security services after their expulsion to the Russian Federation. 28. On 7 May 2014 the Administrative District Court, in two judgments, upheld the impugned decisions in relation to both applicants. The Administrative District Court established that prior to expulsion the applicants had not approached the Latvian authorities with allegations concerning the risk of being subjected to treatment contrary to Article 3 if expelled to the Russian Federation. It also noted that on 2 August 2012 both applicants were informed that the expulsion would be carried out the following day, on 3 August 2012. On the same day one of the applicants submitted a request to the chief of the Border Guard Service asking to be given several impounded goods in custody, but no other requests were made. Both applicants met their lawyers after being detained. 29. The court referred to its well-established case-law and noted that the decisions to put the applicants’ names on the blacklist on national security grounds had been reviewed and upheld by the Prosecutor General, so neither the Border Guard Service nor the administrative court were competent to review the Minister of Interior’s decision. 30. By addressing the complaint that in adopting the impugned expulsion decision of 2 August 2012 the applicants were not heard, the court noted that even if it constituted a minor procedural shortcoming, the lack of hearing of the applicants and witnesses could not have an effect on the outcome of the case. In particular, the court noted that the review of the Minister of Interior’s decision fell outside the scope of the present administrative proceedings. Any information the applicants might have submitted in relation to the adoption of the above decision could not have any effect on the content of the contested decision of 2 August 2012 to expel the applicants. Moreover, the applicants were not prevented, with the assistance of their legal representatives, from communicating to the Border Guard Service any information regarding the alleged interference the impugned decision would have on their family life. 31. The judgments also stated that there were no obstacles for the applicants to enjoy their family life in the Russian Federation. Nor were there any special circumstances to the effect that the family members could not join them outside Latvia. The wife of the first applicant was a Russian national and she would not have any restrictions to travel to the Russian Federation, whereas the second applicant would not encounter any obstacles in meeting outside Latvia his child whose mother was a Russian national. 32. On 3 September 2015 (in relation to the first applicant) and on 5 February 2015 (in relation to the second applicant) the Administrative Cases Division of the Senate of the Supreme Court refused to initiate cassation proceedings. The Senate stated, in particular, that the contested expulsion orders were a final stage in the proceedings initiated by the decisions of the Minister of Interior. The Senate further noted that it had been made aware of the decisions of the Minister of Interior and the letters of SAB on which the decision was based, and of the decisions of the Prosecutor General. Review of the above decisions fell outside the scope of the present proceedings, but these decisions attested to the lawful basis and legitimate aim of the applicants’ expulsion. 33. On the question of the proportionality of the interference with the applicants’ family lives, the Senate upheld the lower court’s findings and noted that the applicants had not advanced any arguments indicating any restrictions to enjoy their family life outside Latvia. In relation to the second applicant, the Senate noted that in 2002, while still residing in Russia, he had agreed that the child would reside with the applicant’s former wife, a Russian national, in Latvia. The Senate also stated that both applicants had entered the Republic of Latvia as adults and throughout their stay in Latvia they had not learned Latvian, which showed that their ties with the expelling State were not strong. 34. On 1 August 2012 the acting director of the Office of Citizenship and Migration Affairs decided to withdraw the first applicant’s residence permit and refused to grant the second applicant a temporary residence permit because of their inclusion in the blacklist. 35. The applicants’ legal representative lodged appeals against the above-mentioned decisions on 22 and 28 August 2012 respectively. Two levels of administrative courts dismissed the complaints. 36. On 14 August 2015, the Administrative Cases Division of the Senate of the Supreme Court refused to initiate cassation proceedings in relation to the second applicant. The Senate noted, in particular, that the authorities had concluded that the applicant posed a threat to national security, and that depriving him of residence permit served a legitimate aim. The Senate also did not see any reasons why the applicant could not meet his minor child outside the territory of Latvia, especially in the circumstances where already in 2002, while still residing in Russia, the applicant had agreed that the child would reside with his mother in Latvia. 37. The cassation complaint submitted by the first applicant is pending examination before the Senate. 38. On 15 September 2014 the Ombudsman of the Republic of Latvia issued an opinion following the applicants’ complaint concerning their expulsion proceedings. The Ombudsman did not find any violation of Articles 3 or 8 of the Convention. In relation to the review procedure, the opinion stated: “A decision to include someone in the list of foreigners prohibited from entering the Republic of Latvia is adopted by the Senate of the Supreme Court in the form of oral proceedings by a special panel of judges to whom special access to [State] secrets is granted, as well as interpreters, recordkeepers and other court officials to whom such access is also granted. No prima facie legitimate purpose can currently be established for dividing the appellate procedure into the competence of two other institutions, the Supreme Court and Prosecutor General; no further analysis shall follow, however, as the assessment of this issue is not the subject of this case.” 39. The final conclusions, as far as relevant, stated: “Firstly, a breach of Article 13 of the [Convention] and [Article 1 § 1 (a)] of Protocol No. 7 to the [Convention] has been committed in respect of the expelled S.N. and T.D. Once a State holds that not only the Supreme Court but also the Prosecutor General has the right to review a decision to include someone in the list of foreigners prohibited from entering the State, observation of the adversarial principle has to be ensured in the latter process, similar to the process guaranteed in Supreme Court [review cases]. If an alien seeks to contest the decision, defence counsel must be provided who has access to classified information, [State] secrets, and the right to familiarise [himself] with the evidence on which the expulsion of foreigners is based, so that a complaint may be filed for the protection of the interests of the expelled foreigner.” 40. The relevant Articles of the Latvian Constitution (Satversme) provide: “Everyone has the right to defend his or her rights and lawful interests in a fair court. Everyone shall be presumed innocent until his or her guilt has been established in accordance with the law. Everyone whose rights are violated without justification has the right to commensurate compensation. Everyone has the right to the assistance of counsel.” “Everyone has the right to inviolability of his or her private life, home and correspondence.” “The rights of persons set out [in Article 96] ... of the Constitution may be subject to restrictions in the circumstances provided for by law in order to protect the rights of other people, the democratic structure of the State and public safety, welfare and morals. On the basis of the conditions set forth in this Article, restrictions may also be imposed on the expression of religious beliefs.” 41. Section 18 paragraph 1 part 4 of the Constitutional Court Law provides that an application to the Constitutional Court regarding the initiation of constitutional proceedings must, among other criteria, contain legal reasoning (juridiskais pamatojums). Pursuant to section 19², in addition to the above-mentioned requirements, an individual constitutional complaint must include justification as to how the applicant’s fundamental rights as defined in the Constitution have been infringed upon, and show that all available remedies have been used. 42. Section 20 sets out the grounds on which the panel examining the constitutional complaint may refuse to initiate a case. When examining a constitutional complaint (application) the panel may also refuse to initiate a case where the legal reasoning included in the complaint is evidently insufficient to satisfy the claim (section 20(6)). 43. In a decision of 14 March 2014 (application no. 29/2014) on the question of institution of constitutional proceedings, the panel of the Constitutional Court stated that the legal reasoning of a complaint is an analysis of the content of a legal provision, an explanation as to how the impugned provision interferes with the applicant’s fundamental rights, an assessment of the lawfulness of the procedure according to which the impugned provision has been adopted, and an assessment of the legal aim and proportionality of the interference. 44. On 7 May 2014 (application no. 61/2014) on the question of institution of constitutional proceedings, the panel of the Constitutional Court stated that in support of an allegation that the impugned provision does not comply with the provisions of the Constitution, the applicant must indicate in the legal reasoning (1) whether the contested provision contains any restriction of rights, (2) whether this restriction is prescribed by law and has a legitimate aim and (3) whether the restriction is proportionate to the aim pursued. 45. Under section 46(5) of the Immigration Law, once a decision to include an alien in a blacklist has been adopted by the Minister of Interior and if the person is on Latvian territory, the chief of the Border Guard Service or someone authorised by him must adopt a decision to expel (lēmums par piespiedu izraidīšanu) the person concerned within eight days, to be counted from the date it was established that he or she was on Latvian territory. 46. Section 50(1) provides that an alien has the right to appeal against an expulsion decision within seven days. Under section 50(3), an appeal against a decision taken pursuant to section 46 does not have suspensive effect. 47. Section 51 of the Immigration Law lists the circumstances in which the State Border Guard Service may detain an alien. Paragraph 2 part 4 at the material time, provided that an alien could be detained on grounds of information that a person poses threats to national security, public order or safety. 48. Under section 61(1)(1) the Minister of Interior may decide to include someone who is not a Latvian citizen or a “non-citizen” in a blacklist if, among other things, “competent State institutions have reason to believe” (“kompetentām valsts iestādēm ir pamats uzskatīt”) that he or she (i) is a member of an anti-governmental or criminal organisation or has a role in such an organisation, (ii) is a threat to national security or public order and safety, or (iii) may hinder the pre-trial investigation or work of the law enforcement authorities in investigating the crimes upon arriving in Latvia (section 61(1)(2)), or (iv) has carried out or is planning to carry out a serious or particularly serious crime (section 61(1)(3)). 49. In relation to the review, section 61 at the material time provided as follows: (6) A alien in respect of whom a decision has been taken in accordance with [61(1)] has the right, within one month of becoming acquainted with the decision, to appeal to the Administrative Cases Division of the Senate of the Supreme Court of the Republic of Latvia. Submission of an application to the court may not suspend implementation of the decision referred to [in section 61(1)]. The applicant does not have the right to request the court to suspend the operation of such a decision. ... (8) If the decision referred to in section 61(1) has been taken on the basis of information acquired by State security institutions as a result of intelligence or counterintelligence operations, it may be appealed to the Prosecutor General’s Office, whose decision shall be final.” 50. Section 61(6) came into effect on 1 July 2005 and it was introduced after the Constitutional Court had declared unconstitutional a provision providing that decisions adopted by the Minister of Interior were not amenable to review (see paragraph 53 below). Section 61(8) about the Prosecutor General’s Office review came into effect on 10 February 2006. 51. In May 2006 section 653(3) came into force, which provides that if the applicant’s representative does not have a special permit for access to State secrets, the court must appoint as the applicant’s representative for that part of the proceedings an advocate practising in Latvia who has been issued such a permit. If the applicant does not consent to such representation, the court must examine the information associated with official secrets without involving the applicant or his or her representative. 52. Section 63(7) provides that in cases where the period of an entry ban exceeds three years, the institution which has adopted the decision to include an alien in the blacklist shall review it every three years from the date it was taken. 53. The relevant parts of the Constitutional Court’s judgment of 6 December 2004 (case no. 2004-14-01) on the compliance of section 61(6) of the Immigration Law with Article 92 of the Constitution read: “10. In conformity with section 61 of the Immigration Law, the opinion of the competent State authorities (in this particular case, the opinion of the State security institution) lies at the basis of the Minister’s [of the Interior] decision. Someone who challenges his or her inclusion in the [blacklist] does not agree, as a matter of course, with the facts expressed in the decision, which are often connected with issues of State security. When reviewing such claims, the use of confidential material may be unavoidable. Even though in cases connected with national security the possibility of legal examination is limited, this does not mean that the national authorities can be free from effective judicial control in all cases, whenever they choose to assert that national security and terrorism are involved (see ECHR Judgment in case “Chahal v. the United Kingdom” § 131). ... If the violation of a person’s rights is the result of the decision of a competent institution (State security institution), on the basis of which the Minister of Interior has adopted the decision, one can agree with the opinion voiced in the letter by the Ministry of the Interior that the person has the possibility of protecting his rights by lodging a complaint to the prosecutor under the procedure set out in Article 6 of the State Security Institutions Law. As regards an assessment of the activity of the State security institution in this case, the State has secured a protection remedy for the individual, which is as effective as possible in circumstances where the issue is connected with State security and, possibly, the use of confidential information. The Constitutional Court in its judgments has already pointed out that “in Latvia the Prosecutor [General’s Office] may be regarded as an effective and available means of protection, because the status and role of the prosecutor in supervising the law secures an independent and impartial review of cases in compliance with Article 13 of the Convention” (see the Constitutional Court October 11, 2004 Judgment in case no. 2004-06-01; April 23, 2003 Judgment in case no.2002-20-0103) Thus, as regards the assessment of the competent (State security) institution, the State has secured effective protection under Article 13 of the Convention. ... 15. ... The fact that the Minister of Interior’s decision might be connected with interests of State security does not prevent the State from establishing a procedure under which the judicial institutions in certain cases, and under a definite procedure, may acquaint themselves with the material connected with State security. The institution concerned may even decide to present the required amount of documents separately if [they] do not include State secrets. Article 6 of the Convention, if read together with Article 5, also provides such a solution by, among other things, a special positive duty upon States, in accordance with which they have to create institutional infrastructures necessary for the implementation of a fair court, and enact legal norms which guarantee that the procedure is fair and impartial. ... The impugned provision thus does not ensure realisation of a person’s right to a fair court as guaranteed by Article 92 of the Satversme”. 54. On 7 October 2010 the Constitutional Court (case no. 2010-01-01) noted that international human rights norms and the practice of their application serve as a means of interpretation at constitutional law level to determine the contents and scope of fundamental rights and the principle of the law-governed State, as far as it does not lead to a decrease or limitation of the fundamental rights included in the Constitution. 55. On 6 November 2014 the Constitutional Court (case no. 2013-20-03) held that the contested provision of the domestic law did not comply with the Constitution and was repealed with effect from 1 May 2015. As regards the individual applicant, in order for him to have the possibility to require repeated assessment of the proportionality of the measure adopted against him, the contested legal provision was repealed with effect as of the date of its adoption. | 0 |
test | 001-157397 | ENG | HUN | COMMITTEE | 2,015 | CASE OF UDVARDY v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Elisabeth Steiner;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 4. The applicant was born in 1966 and lives in Komló. 5. On 19 February 2003 the applicant was interrogated as suspect of forgery of private documents. 6. The Public Prosecutor preferred a bill of indictment on 8 October 2004. Subsequently, on 27 June 2005 the Public Prosecutor extended the charges against the applicant with charge of fraud. 7. In the ensuing criminal proceedings on 23 March 2010 the Komló District Court acquitted the applicant in respect of fraud and found him guilty in forgery of private documents. 8. On appeal of the Public Prosecutor, the Baranya County Court reversed the judgment and acquitted the applicant in respect of all charges on 20 May 2011. | 1 |
test | 001-174410 | ENG | LVA | CHAMBER | 2,017 | CASE OF FROLOVS v. LATVIA | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-c - Defence through legal assistance) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Yonko Grozev | 5. The applicant was born in 1963 and is detained in Riga. 6. The applicant was charged with several counts of organising, inciting and aiding various crimes against persons and property. Two of his eleven co-accused, A.D. and V.P., had given evidence against him when questioned by the police between January and May 2001; when giving that evidence they stated that the applicant had incited them to engage in certain criminal activities. They also gave evidence as regards the alleged involvement of their co-accused, P.B., in some of those criminal activities. According to the records of the police questioning, on all but one occasion A.D. and V.P. were questioned by L.Z., a police officer, and they did not ask for a lawyer. Subsequently, when questioned by a prosecutor on 17 October 2001, A.D. stated that police officers had coerced him into incriminating his co-accused, including the applicant; V.P. told the prosecutor that he would testify in court. 7. The trial commenced before the Kurzeme Regional Court (Kurzemes apgabaltiesa) on 16 April 2003 and lasted until 16 July 2003. During that period at least ten court hearings were held in the presence of the applicant and his defence council. At the trial, A.D. and V.P. testified that they had never before met the applicant, and that P.B., who had died in the meantime, had been the instigator of some of the crimes. The court read out the pre-trial statements of A.D. and V.P. When invited to explain the discrepancies between those initial pre-trial statements and their subsequent evidence, they claimed that they had been forced to sign the initial pre-trial statements. A.D. submitted that the statements had been illegible and that he had not been given the opportunity to engage a lawyer. V.P. stated that police officer L.Z. had been writing a record of his questioning while another police officer had questioned him. On 3 May 2003 V.P. lodged with the first-instance court a written request for the court to take into account his submission that the police had coerced him into incriminating the applicant. 8. On 5 May 2003 L.Z. appeared before the first-instance court. She testified that she had taken statements from the accused. She stated that it was possible that another police officer, R.S., had participated in their questioning. On the same day, R.S. appeared before the first-instance court. He testified that while he had questioned A.D. and V.P., L.Z. had been keeping a record of their respective questioning. L.Z. and R.S. denied the allegations of physical or psychological coercion. The applicant’s lawyer, A.V., was given an opportunity to put questions to them. 9. On 7 May 2003 A.D. submitted a written request to the first-instance court for it to disregard his pre-trial statements as he had been ill-treated and tortured during the pre-trial investigation in order to force him to incriminate his co-accused, including the applicant. Specifically, he had been constantly beaten and ridiculed: electric currents had been applied to his body through his handcuffs, and narcotic substances had been forcibly injected into his veins. Nobody had offered to assign him a lawyer. He had not complained about these incidents at the time because he had been afraid of retribution. However, after the completion of the pre-trial investigation he had complained to the prosecutor, who had ignored his complaint. 10. In his closing statement, the prosecutor denied the allegations of A.D. and V. P., emphasising that they had not lodged any complaints prior to the first-instance proceedings. During their initial questioning A.D. and V.P. had given evidence in respect of facts which at that stage had not been known to the police. The credibility of their allegations of coercion was further diminished by the fact that following the death of P.B. they had stated that he had been the instigator of some of the criminal activities in question. 11. On 14 July 2003 the Kurzeme Regional Court delivered judgment. The court cited the initial pre-trial statements of A.D. and V.P. incriminating the applicant. It did not regard as credible their submissions that police officers had pressured them into giving those statements. The police officers had also questioned another co-accused, I.T., who, unlike A.D. and V.P., had not incriminated the applicant. Furthermore, had the police officers pressurised them into giving their statements, they would have contained more details as regards the applicant’s involvement. A.D. and V.P had signed the statements. The court did not find that their right to legal assistance had been restricted. No complaints as regards the alleged ill-treatment had been submitted or noted down in procedural documents by A.D. or V.P., or their lawyers. A.D. and V.P. had made the allegations of coercion in an attempt to explain why they had subsequently given evidence in favour of their other co-accused, including the applicant, and against their late co-accused, P.B. 12. The Kurzeme Regional Court found the applicant guilty and sentenced him to six years’ imprisonment. It also ordered his detention. As the applicant was not present at the delivery of judgment, he could not be arrested in the courtroom. He was subsequently declared wanted by the police and arrested more than six years later – on 23 November 2009. 13. On 23 July 2003 the applicant’s lawyer, A.V., lodged an appeal against the first-instance judgment. He argued that the police officers had pressurised A.D. and V.P. into incriminating the applicant. 14. On 17 March 2004 the appeal hearing was held before the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta). The applicant did not attend the hearing. A.V. submitted that he did not know his whereabouts. The court adjourned the hearing. At the following hearing, held on 25 October 2004, the applicant was represented by a different lawyer, V.K., who had been retained by the applicant’s wife. 15. On 25 October 2004 the Criminal Cases Chamber of the Supreme Court, referring to Article 442(7) of the Code of Criminal Procedure (Kriminālprocesa kodekss), declined to examine the appeal lodged by A.V. It noted that the applicant, even though he had been summoned, had failed to appear at the two appeal hearings without a valid reason. Similarly, he had failed to attend the closing hearing before the first-instance court. He had been declared wanted and was at large. Given that the applicant had retained V.K. to represent him, he had been aware of the proceedings and had intentionally failed to attend, thereby showing disrespect towards the court. In the applicant’s absence the court was unable to ascertain whether he wished to maintain the appeal lodged by his lawyer. Lastly, proceedings in the case – which required the examination of voluminous material – could not be delayed simply because of the applicant’s unjustified absence. 16. On 5 November 2004 V.K. appealed against the aforementioned decision to the Criminal Cases Division of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments). He argued that he had not been retained by the applicant but by his wife, on the applicant’s instructions (uzdevumā). The applicant had not received any summons and his family had no information about his whereabouts or the reasons for his absence. V.K. relied on Article 6 § 1 of the Convention and complained of an infringement of the applicant’s defence rights. 17. On 30 September 2005 the Senate of the Supreme Court by a final decision refused to examine the appeal lodged by A.V. It noted that the applicant had repeatedly failed to attend the appeal hearings and that “in the criminal case at hand only the accused could maintain the appeals lodged by their lawyers”. This decision was sent to the applicant’s address and to V.K. on 7 October 2005. 18. On 27 October 2004 the Criminal Cases Chamber of the Supreme Court delivered judgment with respect to the appeals lodged by the applicant’s co-accused. It found that the first-instance court had correctly assessed the allegations of A.D. and V.P. as regards coercion. It also found that they had made those allegations in an attempt to explain why they had subsequently given evidence in favour of their co-accused, including the applicant. 19. On 30 September 2005 the aforementioned judgment was upheld by the Senate of the Supreme Court. | 1 |
test | 001-170050 | ENG | CHE | CHAMBER | 2,017 | CASE OF SALIJA v. SWITZERLAND | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant was born in 1980 in Tetovo and lives in Golema Rečica in the municipality of Tetovo in “the former Yugoslav Republic of Macedonia”. He arrived in Switzerland in 1989 via family reunification and was granted a permanent residence permit. 7. On 1 July 1999 the applicant married a national of “the former Yugoslav Republic of Macedonia”, born in 1978, who arrived in Switzerland in 1990 and who also held a permanent residence permit. The couple has two children, born in 2001 and 2005, who are likewise nationals of “the former Yugoslav Republic of Macedonia”. 8. After leaving school, the applicant did not undergo professional training, but worked in a variety of jobs, namely as a postman, mailman, plasterer and construction worker, with brief periods of unemployment. 9. On 13 March 2003 the Zurich District Court convicted the applicant of embezzlement for having sold a rental car to a third person in September 2000 and gave him a suspended sentence of three months’ imprisonment. 10. On 16 December 2004 the Supreme Court of the Canton of Zurich convicted the applicant of homicide with indirect intent (Eventualvorsatz) and serious violations of the rules of road traffic. On 4 October 2000, while he was engaged in a car race on a public road with an acquaintance, the applicant, driving at a speed of at least 170 kilometres per hour, lost control of his car and crashed into a lamppost, which caused the death of his passenger. That court took the view that the applicant, by agreeing to engage in the race, had deliberately taken the risk of killing him. It found that the applicant had acted with a high degree of recklessness and sentenced him to five years and three months’ imprisonment. 11. The applicant’s appeals against this conviction were dismissed by the Cantonal Court of Cassation on 10 December 2005 and by the Federal Supreme Court on 28 March 2006. 12. On 25 April 2006 the applicant started serving his sentence. 13. On 30 September 2007 the Hinwil District Office (Statthalteramt) sentenced the applicant to a fine of 120 Swiss Francs (CHF) for the purchase and consumption of marihuana. 14. On 28 October 2009 the applicant was released on parole after having served two thirds of his sentence. 15. On 27 July 2009, after having heard the applicant, the Migration Office of the Canton of Zurich revoked the applicant’s permanent residence permit. It found that the conditions for revocation pursuant to, inter alia, Article 63 § 1 lit. a in conjunction with Article 62 lit. b of the Federal Act on Foreign Nationals (Ausländergesetz, AuG, see relevant domestic law and practice paragraph 27 below) were met. Ait concluded that the public interest in the applicant’s removal outweighed his interest in enjoying his family life with his wife and children in Switzerland. It ordered his expulsion pursuant to Article 66 § 1 of the Federal Act on Foreign Nationals. 16. On 30 September 2009 the government (Regierungsrat) of the Canton of Zurich dismissed the applicant’s appeal lodged on 27 August 2009. 17. On 10 February 2010 the Administrative Court of the Canton of Zurich dismissed the applicant’s appeal lodged on 20 October 2009. It considered that the applicant had committed a serious criminal offence, that he was not well integrated in Switzerland despite the length of his stay, that expert prognosis regarding the likelihood that he would reoffend was positive but did not rule out any such risk, that he spoke Albanian and was familiar with the culture in “the former Yugoslav Republic of Macedonia”, where he spent parts of his childhood and which he had visited since. It concluded that the decision to revoke his permanent residence permit was proportionate. Moreover, the court noted that the applicant’s wife was a national of “the former Yugoslav Republic of Macedonia” as well, knew Albanian and the country’s culture, and was not well integrated in Switzerland either. Observing that the couple’s children were five and nine years old and thus of an adaptable age, it concluded that the applicant’s wife and children could reasonably be expected to relocate to “the former Yugoslav Republic of Macedonia” with him. 18. On 9 March 2010 the applicant appealed that decision, arguing that the decision to revoke his permanent residence permit was disproportionate. 19. On 27 July 2010 the Federal Supreme Court dismissed the appeal. It considered that the main criminal offence, of which the applicant was convicted, intentional homicide, was a particularly serious one. While it acknowledged that he had lived in Switzerland for over twenty years, which had thus become the centre of his life, it found that he was neither professionally nor socially integrated. It considered that he had no stable employment, but considerable debts. Both he and his wife and children had benefitted significantly from social welfare. Moreover, the court considered that the applicant could reasonably (re-)integrate in “the former Yugoslav Republic of Macedonia”, considering that he spoke Albanian, was born there and had spent a part of his childhood there and had visited the country since. It observed that the same was true for his wife, who likewise originated from “the former Yugoslav Republic of Macedonia”, where she spent the first twelve years of her life and still had relatives. She knew Albanian and visited the country annually on holiday. At the same time, she was not well integrated in Switzerland as she did not undergo any professional training after leaving school, had received social welfare as from 2005 and only started to work in 2010. As far as their children were concerned, the court considered that they attended primary school and kindergarten, respectively, and were still of an adaptable age. The Federal Supreme Court concluded that the public interest in the applicant’s removal outweighed the applicant’s interest in remaining in Switzerland and enjoying respect for his family life there, also noting that his wife and children had a choice between either following him to “the former Yugoslav Republic of Macedonia” or remaining in Switzerland and maintaining contact through short but regular visits. 20. On 16 October 2010 the applicant left Switzerland in compliance with the expulsion order. 21. On 10 December 2010 the Federal Office for Migration issued an entry ban against the applicant for a period of nine years. 22. In late 2011 the applicant’s wife and children relocated to “the former Yugoslav Republic of Macedonia” to live with him. 23. On 14 May 2013 the Federal Administrative Court, on the applicant’s appeal, reduced the duration of the re-entry ban to seven years due to proportionality considerations. It found that the conditions in Article 67 §§ 2 lit. a and 3 of the Federal Act on Foreign Nationals for the issuance of an entry ban for a period of more than five years were met (see relevant domestic law and practice paragraph 26). It considered that the offence committed by the applicant was particularly serious and that he continued to be a serious threat to public order, notwithstanding his mostly good behaviour since the commission of the offence and positive personality development. It noted that the applicant could ask for a temporary suspension of the entry ban for humanitarian or other important reasons (Article 67 § 5 of the Federal Act on Foreign Nationals) and that the applicant’s wife, who originated from “the former Yugoslav Republic of Macedonia” herself, could visit him there together with their children and also maintain contact by various means of communication. 24. In August 2015, i.e. after almost four years, the applicant’s wife and children returned to Switzerland to avoid the expiry of their permanent residence permit pursuant to Article 61 § 2 of the Federal Act on Foreign Nationals (see relevant domestic law and practice paragraph 27) and because their socioeconomic living conditions in “the former Yugoslav Republic of Macedonia” were difficult. They live in Zurich. | 0 |
test | 001-142515 | ENG | MKD | CHAMBER | 2,014 | CASE OF DUŠKO IVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 3 | Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses) | Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicant was born in 1971 and lives in Skopje. 6. On 4 February 2003 the applicant was apprehended by the police on a location in Skopje and searched. As indicated in the search record, which the applicant duly signed, the search was carried out without a court warrant and in the absence of witnesses, as provided for in sections 200(4) and 202(2) of the Criminal Proceedings Act (“the Act”, see paragraph 32 below). The police confiscated 13 keys and a mobile phone from him. The search was completed at 2.10 pm. 7. On that date, an investigating judge of Skopje Court of First Instance (“the trial court”) issued two separate search warrants (Kri.br.34/03 and Kri.br.35/03) concerning two apartments (nos. 8 and 9 in the building in which the applicant lived) and other premises (наредба за претрес на дом и други простории) owned by the applicant’s father. The search warrants were issued on the reasonable suspicion that the applicant had been involved in drug trafficking. 8. Both apartments and the accompanying cellars were searched that day in the presence of the applicant’s father and two neighbours, who acted as witnesses. Seven packages containing an unknown substance were found. An authorised police officer, the neighbours, as well as the applicant’s father, who was specified in the search records as the occupier of the premises, signed the search records without any objection. The searches were completed at 6 pm. and 7.30 pm. At the request of those attending the search, the following note was included in the search record concerning apartment no. 9: “The packages were found in the cellar belonging to apartment no. 10 of the same building, which was opened with a key confiscated during the personal search of [the applicant] ....” 9. As indicated in that search record, a certificate of confiscation of property (“the certificate”) was issued concerning the seven packages found in the cellar. It stated that the packages had been confiscated in relation to a crime punishable under the Criminal Code (drug trafficking). The applicant had not been present in the cellars while those were being searched but was brought to the premises afterwards (see § 16 below). He signed the certificate of confiscation as a person from whom the packages had been confiscated. 10. On 5 February 2003 the Criminal Investigations Bureau at the Ministry of the Interior (“the Bureau”, Сектор за криминалистичка техника) carried out an expert examination of the padlock which had secured cellar no.10 and 13 keys that had been confiscated from the applicant. According to the expert report of that date (no. 10.2.6-5520/1), the locking system of the padlock had been damaged and it could be opened with any object, including all keys confiscated from the applicant. 11. In another expert report (X-164/2003) of that date, the Bureau confirmed that five packages found in cellar no.10 contained 2.296 kg of heroin. As to the remaining 0.991 kg found in the two other packages, the report stated that they contained two substances that were often mixed with heroin. That was confirmed by an additional expert report of the Bureau dated 10 February 2003 (no. X-164/2/2003). As indicated in the report X-164/2003, each of six packages found in the cellar contained between 486gr and 527gr. The dimensions of the largest package were 20x10x2.2 mm. 12. A third expert report of the Bureau (SK-164/2003) of 5 February 2003 that concerned a fingerprint found on one of the packages confiscated in cellar no.10 stated: "The fingerprints found were entered into the system of automatic search of fingerprints ... it was determined, after verification of the list of suspected candidates, that [the fingerprints] corresponded to (the applicant’s) right middle finger ..." 13. On the same date, the Ministry of the Interior lodged a criminal complaint with the public prosecutor accusing the applicant of drug trafficking. In support, it submitted the evidence described above (see paragraphs 6-12 above) and a number of photographs. 14. On 5 February 2003 an investigating judge of the trial court examined the applicant in the presence of his lawyer. The applicant remained silent. He confirmed, however, that he had signed the record of his personal search and two certificates of confiscation of property. The investigating judge opened an investigation against the applicant and ordered his pre-trial detention for thirty days. 15. On 17 February 2003 the public prosecutor lodged an indictment with the trial court charging the applicant with having been in possession of and offering for sale 5 packages containing 2.396 kg (the weight was specified to 2.296 kg later at the trial) of heroin and 0.991 kg of other prohibited substances, which had been found in the cellar of the building in which he had lived. 16. At a hearing held on 19 March 2003, the trial court examined the applicant, who denied any connection with the drugs found in the cellar. As to the cellar, he submitted that it belonged to a third party, whom he did not know. He further stated that after he had been arrested, he had been brought with a police car in front of the building in which he had lived. He had waited in the car for an hour or two before the police had brought him to the cellar. He submitted that there had been many people (мешаница) there, including five police inspectors who had asked him to hold the packages in his hands in order to photograph him. The applicant also stated: “They forced me to touch the drugs; I don’t remember what the packages looked like and how many there were. At that point, maybe I touched (the drugs), I don’t remember. Then they photographed me; I refused [to cooperate] the whole time. My father was also present. Then, they brought me to the police (station) where they again forced me to take the [package of] drugs, to hold it in my hands in order to take photographs... Then, they started beating me and jumping over handcuffs (put) on my hands in order to [make me] touch the drugs. Then, they took my fingerprints. I was again physically ill-treated. They stopped when my lawyer arrived...” 17. As regards the alleged ill-treatment by the police, he stated that he had neither asked for medical assistance nor had he informed the investigating judge due to fear of further ill-treatment by the police. He had not seen how and what key had been used to open the door of the cellar because he had been, at that time, in the police car. He further stated that he had signed the search records in the presence of a police officer and two witnesses. He had voluntarily signed the confiscation records regarding the keys found in his possession. As regards the certificate of confiscation concerning the drugs he stated: “... I most probably signed it when they (police officers) gave me five sheets of paper to sign...” 18. The applicant’s lawyer requested that the court examine the applicant’s father regarding the place where the drugs had been found and title to the apartment. In a statement, the applicant’s father confirmed that the police had shown him two search warrants and that the search had been carried out in his presence and that of two neighbours. He also stated: “... I use other cellars in the building, namely two small cellars that I have constructed and another one which belongs to... When they did not find anything (in his cellars), a policeman ... entered cellar no.10, which is currently used by the sister of P.G., who owns the apartment and the cellar. After some time, policemen opened the padlock with the keys confiscated from [the applicant]... After half an hour, a policeman called me and said that he had found something in the cellar’s ventilation shaft... I saw a plastic bag. After he had taken the bags out, I noticed that there were seven bags. He put them on a metal sheet. Before doing so, he called the witnesses, namely the two neighbours, who confirmed what they were looking at. They called my son Duško. When he arrived, [the police officer] told him to stand next to the metal sheet in order for him to be photographed. Actually, he pushed him against the metal sheet and then [the applicant], in order not to fall down, touched the metal sheet with his hands. Thus, he touched the packages. They photographed him with the packages and took him away again. Then they brought the dog. Then we went upstairs to the apartment. [The police officer] forced me to sign the record that the packages had been found in cellar no.10, which I did. That meant that they did not find anything in my place, but in the [cellar belonging to] apartment no.10...” 19. As indicated in the record, the applicant’s father reiterated that cellar no.10 had been opened with a key found in the applicant’s possession, which belonged to another padlock. He also stated: “I want to say that two keys of ours (the applicant’s and his) fitted in that padlock. [The police officer] actually opened (the padlock) with one of my keys and found out that one of the keys that Duško had fitted in the padlock. [They] were a pair, of which I had one and Duško had the other.” 20. The applicant’s father also stated that the police officer had not been wearing gloves when he had taken the packages out. He had put gloves on later. 21. In his concluding remarks made at the trial, the applicant’s lawyer objected that no search warrants had been issued regarding the personal search of the applicant and the search of cellar no.10. In the absence of any eyewitnesses, there had been no direct evidence that would link the applicant with the drugs, which had been hidden in a cellar that had belonged to a third party and could have been opened with any key. He also argued that the applicant’s fingerprint had been secured in the absence of an expert and that the police had sought an expert examination ex post facto. He maintained that expert report SK-164/2003 (see paragraph 12 above) had been unclear and imprecise because it had contained no information as to the manner and circumstances under which that fingerprint had been secured. Furthermore, it would have been impossible for the applicant to manipulate the packages with only one finger. He further argued that no fingerprints had been found on the padlock and the cellar where the drugs had been found. 22. He also challenged the expert examination of the substance found in the packages, arguing that the latter had been too small to contain compacted material in the quantity indicated in the expert report X-164/2003 (see paragraph 11 above). In this connection he argued that it had not been established the place and person who had determined the quantity of the substance. He also submitted that the expert examinations had been carried out in his absence. Furthermore, he challenged whether the substance found had been pure heroin. In this connection he also stated: “I think that the problem [arising from] the practice that the prosecuting body also carries out expert examinations means that the evidence [obtained thereby] is not impartial.” 23. On 20 March 2003 the trial court convicted the applicant, who had a previous criminal record (suspended prison sentence for an act of violence), of drug trafficking and sentenced him to two-and-a-half years’ imprisonment. The court established that he had stored, with the aim of offering for sale, the five packages containing 2.296kg of heroin found in cellar no.10. The court held inter alia: "Cellar no.10 where the drugs were found had been locked with a padlock that could be open with any keys besides the original ones. The court established these facts on the basis of admitted written evidence ... The expert examinations of [the Bureau] confirmed that the substance found in the compacted packages was 2.296kg heroin. The expert examination confirmed that the fingerprint, which had been found and secured during the on-site examination, corresponded to the accused’s right middle finger ... The court examined the arguments presented by the defense ...., but it finds that they are unsubstantiated because the court established ... that the written evidence, notably the record concerning the search of home and other premises had been drawn up in lawful procedure in the presence of two witnesses and on the basis of a search warrant issued earlier. The attending witnesses are neighbours who were present there by accident and whom [the applicant’s father] knew. The court established that the accused had signed the certificate for confiscated property without any qualification. He did not contest his signature. The court examined the arguments of [the applicant’s lawyer] that there were no witnesses to corroborate that the accused had hidden the drugs in order to offer it for sale and that the accused could not be brought in connection with the drugs hidden in a cellar that did not belong to him, but (the court) dismissed those arguments on the basis of a written evidence, notably the (fingerprint) expert opinion by [the Bureau], which confirmed that the fingerprint corresponded to the [applicant’s] middle finger. Accordingly it is irrelevant that the drugs were found in the cellar belonging to a third person. The court examined the statement produced by [the applicant’s father] according to which the police officers had pushed his son against the metal sheet where drugs had been put and that, in order not to fall down, he had touched (the packages) but it gave no weight because the responsible police officers acted in compliance with their official duty and after they had found the drugs they photographed him next to (the packages). There was no reason for them to push the accused or to secure evidence with the use of force. The father’s statement was biased because it concerns his son and it is understandable that he wants to help [the applicant] avoid criminal liability ...” 24. In an appeal of 17 June 2003, the public prosecutor complained that the sentence given to the applicant had been too lenient. 25. On 24 July 2003 the applicant appealed against the trial court’s judgment, arguing that his conviction had been based on inadmissible evidence, namely there had been no court warrant authorising the search of cellar no.10 and the expert examinations of the substance and the fingerprint found on one of the packages in that cellar. He reiterated his complaints regarding the quality and reliability of the fingerprint expert evidence (see paragraph 21 above). In this connection he complained about the trial court’s failure to examine the police officers who had secured his fingerprint in his absence, as well as the experts who had drawn up report SК-164/2003 and requested that they be examined. He further argued that the trial court could not have validly based its judgment on those expert examinations since they had been carried out by the Bureau, a body that operated within the Ministry, which had set in motion the criminal proceedings against him. Accordingly, the examinations had been biased. He also sought to have alternative expert examinations conducted. That concerned both the fingerprint expert evidence, which according to him, had been the sole evidence linking him with the drugs, as well as the expert examination of the substance. As to the latter examination, he reiterated his complaints raised in the concluding remarks (see paragraph 22 above). 26. The applicant also requested that the court examines the neighbours (providing their names and addresses) who had attended the search regarding his allegations that his fingerprint found on one of the packages had been the result of an argument which he had had in the cellar with the police after he had refused to comply with their order to touch the packages. 27. At a public session held on 20 May 2004 in the presence of the applicant and his lawyer, the Skopje Court of Appeal dismissed the appeals and upheld the trial court’s judgment. It held that: "... the evidence admitted at the trial on which the judgment was based do not contain such deficiencies so as to be regarded unlawful evidence that cannot serve as a legal basis for the judgment, within the meaning of section 15(2) of the Act. As evident from the case-file, the search of the accused’s home and other accompanying premises ... and the personal search of the accused were carried out in accordance with the (relevant) statutory provisions ... The search of the home and other premises was carried out by competent officials on the basis of a written warrant by the investigating judge ... in the presence of two adult citizens, as witnesses and the occupier of the premises-[the applicant’s] father. Search records were drawn up and duly signed by the competent official, the occupier and the attending witnesses, in accordance with sections 198, 199 and 200 of the Act. The personal search of the accused was carried out without a court warrant and in the absence of witnesses, but it was done by competent officials on account of a reasonable suspicion ... in accordance with section 202(2) of the Act. Accordingly, the search records are a valid ground on which the court judgment was based. The court examined the complaint ... concerning the lack of an order by the investigating judge for the expert examinations carried out by [the Bureau] ... regarding the nature and composition of the substance and the origin of the fingerprint evidence; however, the Ministry has competence to request expert examinations ... ... On the basis of admitted evidence, especially that the accused was in possession of the keys from the door of the cellar; [the applicant’s] fingerprint found on one of the packages containing drugs and the certificate for confiscated property signed by the accused, the trial court had undoubtedly established [the applicant’s] identity as the perpetrator of the criminal offence ... The court examined the complaint regarding the quantity and composition of the drugs, but it dismissed it finding that the trial court had established [the quantity of the drugs], on the basis of the expert opinion by [the Bureau], which applied (it gave a description of the used methodology). The court dismissed the complaint regarding the objectivity of the expert opinions of [the Bureau], since it was a department that was founded and operated within the Ministry of the Interior, as a State body, which had been authorised to carry out expert examinations, as specified in section 234(2) of the Act ... (furthermore, the expert reports) ... had been based on scientific methods, which enable valid results ... on the basis of the case-file, it can be established that after the competent officials had discovered the criminal offense, (they) secured evidence which had been transmitted to [the Bureau] whose experts had determined [the applicant’s] identity applying the system of automatic search of fingerprints. The court considered the complaint regarding the examination of [the neighbours] as witnesses ... but it dismissed it because ... [the neighbours] had signed the search records without any objection, which means, for all practical purposes, that they had confirmed [the record’s] veracity regarding the search. Accordingly, it is not necessary for them to be examined ..." 28. On 6 July 2004 the applicant lodged an application for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда), arguing that there had been no direct evidence corroborating his guilt. In this connection he reiterated his complaints that cellar no.10 had been searched without a court order; that the trial court should have summoned the experts and police officers regarding his fingerprint; and that the Court of Appeal had wrongly found that their examination and the examination of the neighbours would have been irrelevant. In this connection, the applicant’s lawyer stated that: “... the (police) officers present in cellar (no.10) forced [the applicant] to touch the packages in order to confirm whether they [contained] compacted [material]. [The applicant] refused to comply with the officers’ order to touch the packages and due to the mass of people pushing each other (поради настаната мешаница и турканица), he was again taken to the police station. The same method of treating [the applicant] continued in the police station, where he was forced to touch the packages in order to obtain his fingerprint [on them]...” 29. He further reiterated his concerns regarding the quality and impartiality of the expert examinations carried out by the Bureau (see paragraphs 21, 22 and 25 above) and sought alternative expert examinations of the fingerprint and heroin found. 30. On 2 November 2004 the Supreme Court dismissed the applicant’s application and confirmed the lower courts’ judgments. The relevant parts of the judgment read as follows: "... the evidence admitted at the trial on which the judgment was based do not contain such deficiencies so as to be regarded unlawful evidence that cannot serve as a legal basis for the judgment, within the meaning of section 15(2) of the Act. The lower courts correctly established that the search of the accused’s home and other accompanying premises ... and the personal search of the accused had been carried out in accordance with the (relevant) statutory provisions ...The search of the home and other premises, as evident from the admitted written evidence, was carried out, according to this court, by competent officials on the basis of a written warrant by the investigating judge ... in the presence of two adult citizens, as witnesses and the occupier of the premises-[the applicant’s] father. Search records were drawn up and duly signed by the competent official, the occupier and the attending witnesses, which implies that sections 198, 199 and 200 of the Act had been respected. It is true that the personal search of the accused was carried out without a court warrant and in the absence of witnesses, but the lower courts correctly held that such measures had been taken by competent officials on account of a reasonable suspicion ... in accordance with section 202(2) of the Act. Accordingly, the search records are a valid ground on which the court judgment could be based. The Supreme Court examined the complaint ... concerning the lack of an order by the investigating judge for the expert examinations carried out by [the Bureau] ... regarding the nature and composition of the substance and the origin of the fingerprint evidence, but it dismissed them as unsubstantiated. The court had decided in compliance with section 234(2) of the Act ... [The court] cannot accept the allegation raised in the extraordinary review request regarding the objectivity of the expert opinions of [the Bureau], since it was a department that was founded and operated within the Ministry of the Interior, as a State body, which could be requested to carry out expert examinations, as specified in section 234(2) of the Act ... The Supreme Court considers that in the ordinary proceedings the trial court decided in accordance with section 339(2) of the Act. In establishing the facts, it had into consideration and assessed all evidence admitted at the trial, i.e. it assessed the evidence separately and taken together, and on the basis of such assessment, it drew conclusion if certain fact was established ... In view of the foregoing, it is clear that in the ordinary proceedings all legally relevant facts were correctly established ..." 31. On 17 February 2005 the public prosecutor informed the applicant that there were no grounds for lodging a request for the protection of legality with the Supreme Court. | 1 |
test | 001-158307 | ENG | TUR | ADMISSIBILITY | 2,015 | ÖZBİL v. TURKEY | 4 | Inadmissible | Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström;Ksenija Turković | 1. The applicant, Mr Sami Özbil, is a Turkish national, who was born in 1977 and is detained in the Kocaeli Prison. He was represented before the Court by Ms Ö. Gümüştaş, a lawyer practising in Istanbul. 2. 3. By a decision dated 15 May 2009 (no. 2009/29/52), the Education Committee of the Kocaeli prison decided not to allow the applicant to receive a copy of the daily newspaper, Hawar, published in Kurdish. In rendering its decision, the committee held that it was not in a position to establish whether the content of the publication was obscene or likely to endanger security in the prison. 4. The applicant’s appeals, lodged with the Kocaeli Enforcement Judge and the Kocaeli Assize Court, were dismissed on 16 June 2009 and 21 July 2009 respectively. 5. A full description of the domestic law and practice at the relevant time may be found in Mesut Yurtsever and Others v. Turkey (nos. 14946/08, 21030/08, 24309/08, 24505/08, 26964/08, 26966/08, 27088/08, 27090//08, 27092/08, 38752/08, 38778/08 and 38807/08, §§ 78-80, 20 January 2015). 6. A full description of the relevant domestic law may be found in Yıldız and Yanak v. Turkey ((dec.), no. 44013/07, §§ 9-17, 27 May 2014). In particular, Article 4, paragraph (d) of the decree adopted by the Council of Ministers on 10 February 2014, which was subsequently published in the Official Gazette on 16 March 2014, states that the Compensation Commission, which was established by Law no. 6384, is entitled to examine applications relating to complaints lodged by detainees/prisoners about the refusal of the prison authorities to hand over periodicals based on different grounds. Under the same decree, the Compensation Commission has competence ratione temporis to deal with applications lodged with the Court up until 23 March 2013. | 0 |
test | 001-173779 | ENG | POL | CHAMBER | 2,017 | CASE OF DEJNEK v. POLAND | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos | 5. The applicant was born in 1976 and is detained in Lublin. 6. On 10 October 2008 the applicant was arrested on suspicion of the attempted murder of his brother, K.D. 7. On 25 March 2009 a bill of indictment against the applicant was lodged with the Lublin Regional Court. 8. On 12 December 2011 the Lublin Regional Court convicted the applicant and sentenced him to 10 years’ imprisonment. 9. The applicant appealed. 10. On 21 August 2012 the Lublin Court of Appeal upheld the conviction. 11. On 7 December 2012 the applicant’s lawyer lodged a cassation appeal with the Supreme Court. 12. On 10 June 2013 the Supreme Court dismissed the cassation appeal as manifestly ill-founded. 13. Following his arrest, on 11 October 2008 the applicant was remanded in custody in the Lublin Remand Centre. 14. On 22 August 2009 the prison authorities discovered 132 pills of psychoactive drugs hidden in the applicant’s clothes. 15. On 26 August 2009 the applicant encouraged other prisoners to start a hunger strike. On the same day, the Penitentiary Commission, viewing the applicant as someone who posed a severe danger to the safety of the facility, classified him as a “dangerous detainee”. The applicant then went on a hunger strike which lasted until 7 September 2009. He was punished by being placed in solitary confinement for fourteen days. 16. In November 2009 the applicant refused to continue to take part in his rehabilitation programme and was therefore excluded from it. 17. On 18 February 2010 the special regime for dangerous detainees was lifted in respect of the applicant. 18. Between 17 November 2009 and 31 March 2010 the applicant was detained in the Rzeszów Remand Centre. On the latter date he was transported back to Lublin. 19. The applicant’s behaviour during 2011 varied: he was sometimes rewarded for good behaviour and sometimes faced disciplinary measures. Such measures were imposed in particular for illegal contact with other inmates, for commencing hunger strikes and for being active in the prison subculture. 20. On 6 December 2011 prison officers found that the applicant had 80 Polish zlotys in cash from an unknown source. The money was seized and transferred to the applicant’s bank account. 21. On 30 January 2012 the applicant attempted to go for a walk in the prison yard without permission from the supervising officer and was reprimanded on 1 February. 22. On 4 February 2012 the applicant was visited by members of his family and tried to pass them an illegal message on a piece of paper. After the visit he was ordered to undergo a strip search. 23. On 6 February 2012 the applicant complained about the strip search to the Lublin Remand Centre. 24. On 17 April 2012 the director of the Lublin Remand Centre examined his complaint and found that the search had been performed in accordance with the law and that the applicant had not been debased or humiliated. The director also found that on 4 February 2012 the applicant had given a visiting member of his family a piece of paper with some notes on it. The director found that that “constituted a violation of discipline and order”. 25. On 29 April 2012 the applicant complained about another strip search, which had taken place on 28 April 2012. His complaint was examined on 29 June 2012 by the director of the Lublin Remand Centre, who found that the search had been carried out in accordance with the law. 26. On 5 June 2012 the applicant underwent a strip search which was accompanied by a search of his cell. The inspection of the cell was part of an action plan introduced at the Lublin Remand Centre in 2012 to increase security. The plan included the inspection of all the cells. 27. In his observations before this Court, the applicant’s lawyer submitted that the applicant had been ordered to undergo a strip search on 5 June 2012, even though he had had severe back pain and had barely been able to walk. He had also had difficulties getting undressed. 28. The applicant complained to the director of the remand centre. He submitted that after the search of his cell his personal belonging had been thrown on the floor, mixed in with other inmates’ possessions and that the cell had “looked like after a hurricane”. In the complaint he neither mentioned any irregularities as regards the strip search nor complained about back problems. 29. On 9 August 2012 the remand centre director dismissed the complaint. He found that the search had been performed in accordance with the law and had respected the applicant’s rights and personal dignity. The relevant part of the director’s decision read as follows: “The strip search and cell inspection were conducted in accordance with Article 116 §§ 2, 3, 4 and 5 of the Code of Execution of Criminal Sentences. The guards did not use offensive language and did not debase you. Nobody hit you. The objects which were inspected were not thrown around. Nothing was damaged during the search.” 30. In 2012 the applicant was seen by a neurologist seventeen times and on two occasions by a neurosurgeon. On 16 October 2012 an operation, apparently for back pain, was scheduled for the applicant for 17 September 2013. The doctors did not advise against body checks of the applicant. 31. On 25 August 2012 the applicant had a visit from his sister and brother-in-law and was afterwards ordered to undergo another strip search. He again complained to the director of the Lublin Remand Centre, submitting that the strip search had not been justified and had lacked legal grounds. 32. On 30 October 2012 the director of the Lublin Remand Centre dismissed the complaint as ill-founded. The relevant part of the decision read: “The strip search you were subjected to was carried out in accordance with the relevant provisions and with respect for your personal dignity.” 33. On 3 November 2012 the applicant received a visit from members of his family and was allowed to have direct contact with them. Afterwards, he was again ordered to undergo a strip search. The applicant stated that he had intense pain in his spine on that day and could barely stand and had therefore refused to undergo the search. The chief duty officer was then called. He arrived with three other guards and subjected the applicant to a strip search. He was ordered to strip naked, bend at the knees, show his penis and open his mouth. However, as he was deemed to have performed the guards’ orders “in a dilatory manner” he was punished on 6 November 2012 with a two-month ban on having direct contact with his family during visits, only being able to see them from behind a glass screen. 34. On 3 November 2012 the applicant complained to the Central Board of the Prison Service about the way the strip search of 3 November 2012 had been conducted. He submitted, among other things, that he had had severe back pain after the family visit, had barely been able to move and had therefore refused to undress. The prison officers had apparently ignored his complaints and had “forced him to undergo the strip search”. He also submitted in the complaint that he had been unable to get dressed after the strip search because of the severe pain in his back and that he had been left standing in only his underpants for about fifty minutes. One of the officers had then opened the window to let in freezing air to make him get dressed quickly. 35. On 7 November 2012 the applicant also complained about the imposition of the disciplinary penalty on him after the strip search of 3 November 2012. 36. On 20 November 2012 the director of Lublin Remand Centre informed the applicant that his complaint of 3 November needed further investigation, which would last until 7 December 2012. The applicant did not provide any further information about the outcome of those proceedings. 37. The complaint of 7 November 2012 was dismissed on 20 November 2012. The decision, issued by the deputy director of the Lublin Remand Centre, said that the “applicant refused to undergo a strip search and only agreed to comply when the chief duty officer was called”. The decision does not refer to the applicant’s submissions that the alleged reason for his refusal to undergo the strip search had been severe back pain. It also made no reference to his allegations that he had been left for about fifty minutes in a state of being unable to get dressed and that he had been forced to put his clothes on by someone letting freezing air into the room. The applicant then lodged a further complaint with the Lublin Regional Court, which, on 17 December 2012 upheld the decision given by the deputy director of the Lublin Remand Centre. The court found that the decision had been issued in accordance with the relevant provisions of the law and that it had no competence to examine whether the decision had been well-founded or not. 38. On 12 September 2013 the Lublin Regional Court, in view of the applicant’s state of health and his neurological and orthopaedic problems, granted him leave to undergo the operation outside prison. The applicant was scheduled to return to prison on 12 January 2014. | 1 |
test | 001-166948 | ENG | UKR | COMMITTEE | 2,016 | CASE OF YAROVENKO v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) | André Potocki;Ganna Yudkivska;Síofra O’Leary | 6. The applicant was born in 1975. As of October 2013, he was serving a life sentence in Kherson Prison no. 61. On 21 March 2014 his representative informed the Court about the applicant’s new address, which was Lugansk Pre-Trial Detention Centre (SIZO), without any further details. 7. On 24 (or 25 according to the Government) September 2004 the applicant was arrested on suspicion of robbery and murder. According to the applicant, the police subjected him to various forms of ill-treatment following his arrest. 8. On 23 November 2005 the Court of Appeal of the Autonomous Republic of Crimea, sitting as a court of first instance, found the applicant guilty of aggravated robbery, two counts of murder, and unlawful possession of firearms. The court sentenced him to life imprisonment with confiscation of property. 9. The applicant appealed on points of law. 10. On 20 April 2006 the Supreme Court upheld the judgment of the first-instance court. 11. The applicant was detained in the following detention facilities: the Simferopol Temporary Detention Facility (“the Simferopol ITT”, a part of the police system): from 25 September to 26 October and from 4 to 19 November 2004 (during the intervening period from 26 October to 4 November 2004 the applicant was undergoing a forensic psychiatric examination in a psychiatric hospital); the Simferopol Pre-Trial Detention Centre (“the Simferopol SIZO”): from 19 November 2004 to 16 March 2006 and from 2 May to 18 October 2006; the Dnipropetrovsk SIZO: from 17 March to 6 April, from 25 April to 1 May and from 19 to 29 October 2006; the Kyiv SIZO: from 7 to 25 April 2006 (that is during the time when the applicant’s case was examined by the Supreme Court); the Odessa SIZO: from 30 October to 4 November 2006 (the applicant raised no complaints in respect of his detention there); and Kherson Prison no. 61: from 4 November 2006 onwards. 12. The applicant did not specify the cells in which he had been detained. According to him, he was held in an overcrowded, cold and damp cell located in a basement and lacking fresh air and sufficient daylight. He also alleged that he had not been provided with any bed linen. Furthermore, he was allegedly deprived of access to shower and had no facilities for shaving. Nor could he enjoy any outdoor walks. The nutrition was allegedly very poor and did not correspond to the applicant’s needs given his health condition. 13. The applicant further submitted that, although he was suffering from active tuberculosis, he had had to share his cell with healthy inmates, which had provoked conflicts. 14. According to the applicant, when he was transferred back to the ITT on 4 November 2004 after his forensic psychiatric examination, the temperature in his cell was very low. Nonetheless, the ITT administration withheld his warm clothes. As a result, the applicant allegedly caught bronchitis and pneumonia. 15. The Government submitted that they were not able to provide details as to the specific cells, in which the applicant had been detained, because the relevant records had been destroyed with the passage of the envisaged period of their storage. The Government therefore provided information about all the cells of the Simferopol ITT based on the information note issued by the ITT’s governor on 11 December 2012. 16. As specified in that information note, the ITT had nine cells able to accommodate up to forty-two inmates. Seven of those cells were identical: each of them measured 10 sq. m. and was designated for four persons. The eighth cell measured 13 sq. m. and accommodated two inmates. And, lastly, there was a bigger cell, measuring 21 sq. metres, which was designated for eight persons. 17. All the cells were located in a semi-basement. Each of them had a window and was equipped with a forced ventilation system. 18. The cells had beds for each inmate, a table, a lavatory and a washstand with centralised water supply. There was also centralised heating in the ITT functioning during the cold season (end of autumn, winter and beginning of spring). 19. According to the Government, the inmates were provided with all the required bed linen in the ITT. 20. According to the information note issued by the governor of the Simferopol SIZO on 29 November 2012 at the request of the Government’s Agent, the applicant was detained in the following cells: from 19 November 2004 to 18 March 2005 and from 22 April to 23 November 2005 – in cell no. 101; from 18 March to 22 April 2005 – in cell no. 105; from 23 to 25 November 2005 – in cell no. 69; from 24 November 2005 to 16 March 2006, from 30 June to 7 July 2006 and from 14 to 21 July 2006 – in cell no. 72; and from 23 to 30 June, from 7 to 14 July and from 21 July to 18 October 2006 – in cell no. 70. 21. Cells nos. 101 and 105 were ordinary cells, which the applicant shared with two other inmates for most of the time. According to the applicant, however, starting from 29 June 2005 his cell-mates were transferred to other cells and he remained alone in cell no. 101. Cells nos. 69, 70 and 72 belonged to the maximum security unit and the applicant was in solitary confinement there. 22. The case file contains a copy of the SIZO governor’s decision of 24 November 2005 about the applicant’s placement in a separate cell of the maximum security unit on the ground of the prevention of the spread of tuberculosis (the applicant was then diagnosed with active tuberculosis). 23. Given that in 2007 the numbering of the SIZO cells had been changed, the Government found it impossible to locate with precision each cell, in which the applicant had been detained. They, however, submitted that all the cells of the same category (ordinary or maximum security) had the same characteristics. 24. According to the information provided by the Government, each of the cells had a double-glazed window enabling natural ventilation and penetration of daylight. All the cells were equipped with ventilating equipment, water supply and sewerage, as well centralised heating. There was all the required furniture in the cells. 25. According to the applicant, his cells were cold and damp. The window in cell no. 101 was allegedly not glazed and the inmates had to cover it with blankets and plastic bags. 26. The maximum security cells were allegedly very small and had poor lighting and ventilation. The applicant also submitted that the toilet had not been separated from the living area and smelled of excrement. There was no hot water supply and cold water was supplied irregularly. 27. Furthermore, the nutrition was allegedly very basic often being limited to bread, porridge and soup with sour cabbage. According to the Government, however, the nutrition for the detainees had been in accordance with the applicable legal requirements. 28. Lastly, the applicant submitted that the special “life prisoner” uniform had been too small for him, which had caused him discomfort and had provoked mockery by other inmates. The Government noted, without further details, that wearing a special uniform was a legal requirement. 29. According to the applicant, he was detained in a solitary cell measuring 1.7 by 3 metres in a semi-basement. It had a concrete floor and was equipped with a bench, which was also made of concrete. The light in the cell was very poor. The toilet was not separated from the rest of the cell. 30. The Government did not make any submissions in respect of the conditions of the applicant’s detention in the Dnipropetrovsk SIZO. 31. The applicant was held in a solitary cell, in allegedly poor conditions. Furthermore, he was allegedly denied the opportunity to use the common shower facilities. Instead, on 12 and 19 April 2006 he was locked for an hour in a small room equipped with a cold-water tap on the level of his stomach. As the temperature inside was very low, he preferred not to wash himself. The applicant had therefore no access to warm shower for the entire period of his detention in the Kyiv SIZO (from 7 to 25 April 2006). 32. The Government did not comment on this period of the applicant’s detention. 33. The applicant, being a life prisoner, was transferred from one cell to another every ten days. According to him, all the cells, in which he had been detained (he mentioned, in particular, cells nos. 8, 10, 11 and 14) were damp and cold. In some of them, the walls were covered with mold and fungus. 34. Furthermore, the prison cells allegedly lacked sufficient daylight and fresh air. They were not ventilated artificially and the only access to fresh air was through a window, which could not be opened wider than five centimetres. The applicant also submitted that the windows were closed during the inmates’ daily outdoor walks, as the cells were then being disinfected by ultraviolet germicidal irradiation lamps. 35. The applicant specified the size and population of only two cells: cell no. 8 measured 21 sq. m. and was shared by four inmates; and cell no. 14 measured about 15 sq. m. and accommodated three inmates. 36. During the period from May 2007 to December 2010 there were major repairs in the prison, which had allegedly caused the applicant such inconveniences as having to bear with a high level of noise and inhaling construction dust and paint smells. 37. The applicant further submitted that the yard for outdoor walks (which lasted two hours per day) had no shelter to protect detainees from rain or sun. 38. According to the Government, the conditions of detention in the prison were in compliance with the standards established by the Court. 39. On 17 October 2012 an official of the Kherson City Prosecutor’s Office in charge of the supervision of lawfulness in penitentiaries, a representative of the Association of Ukrainian human rights monitors in law-enforcement institutions, as well as the governor and the deputy governor of the prison, conducted “a monitoring visit” of the prison. According to their report, all the maximum security cells were located below the ground level and were damp. Cell no. 8 (in which the applicant was detained at the time) measured 21 sq. m. and accommodated four inmates. It had sufficient daylight and artificial light. It was, however, impossible for inmates to switch on/off the light or to regulate its brightness. The cell had natural ventilation and the window could be opened from inside. There was centralised heating, but at the time of the visit the weather was warm and the heating was off. The toilet was separated from the living area. There was a washstand, but the water tap was leaking. There were minor flood traces on the ceiling, which the administration explained by a recent accident. 40. On an unspecified date in October 2012 the deputy governor of the prison issued an information note about the conditions of detention in that prison at the request of the Government’s Agent. It stated, in particular, that cell no. 8 had a window of 1.3 by 1.1 metres, one 220V lamp and one night watch light (36V). The prison official also stated that between May 2007 and December 2010 the maximum security unit of the prison had undergone major refurbishments. In October 2012 some minor repairs were carried out in cell no. 8. 41. The Government submitted four photographs of cell no. 8, showing a spacious and light room in a visually good state of repair. According to the applicant, those photographs had been taken after his detention in that cell and were of no relevance for his case. 42. According to the information provided by the Government, the prison cells were disinfected on a daily basis during the detainees’ outdoor walks. The applicant noted that this did not happen when inmates chose not to go for a walk because of poor weather conditions. 43. As further submitted by the Government, cells for smear-positive and smear-negative inmates were located on different floors and had separate shower facilities, X-ray examination rooms and walking yards. The applicant specified that it had not been so before October 2012. 44. Prior to his detention the applicant had been suffering from chronic hepatitis, neurocirculatory asthenia, varicose veins, and astigmatism of both eyes. It is not known whether he had undergone any medical treatment in that connection. 45. Furthermore, in 1995 the applicant was diagnosed with tuberculosis for the first time. In November 2001 his tuberculosis disease was considered to have developed in a chronic form. 46. On 30 November 2001 the applicant was admitted for inpatient treatment to the Zaporizhzhya regional tuberculosis dispensary. 47. On 22 February 2002 he was discharged from it on the ground of his refusal from the treatment and his continued absence. 48. On 18 March 2002 the applicant was re-admitted to the aforementioned dispensary for treatment. 49. On 30 April 2002 he was discharged on the ground of his persistent breaches of the treatment regimen and the dispensary’s rules. 50. According to an information note issued by the dispensary’s chief doctor at the request of the applicant’s lawyer on 24 April 2013, during his treatment there in 2002 the applicant had been administered anti-tuberculosis medicines of the first and the second lines. 51. On 26 May 2003 the applicant was recognised as falling within the third category of disability (the mildest) on account of his tuberculosis disease. 52. On 25 September 2004 the applicant underwent a medical examination upon his admission to the Simferopol ITT. As recorded in the ITT’s journal, the applicant informed the doctor about his tuberculosis disease, but did not raise any complaints. 53. On 11 October 2004 the ITT governor wrote to the Simferopol prosecutor that, according to the conclusion of a tuberculosis specialist of the same date, the applicant was suffering from an active form of tuberculosis and required further examination and inpatient treatment in a hospital environment. At the time of writing he was, however, detained in the ITT as an ordinary detainee. The ITT governor requested the prosecutor to help in organising the applicant’s transfer to a tuberculosis dispensary. It appears that there was no follow up to that request. 54. On 26 October 2004, upon the applicant’s admission to the psychiatric hospital for his forensic psychiatric examination, a tuberculosis specialist examined him. The applicant complained of coughing with purulent sputum, general weakness, breathlessness and a considerable loss of weight. He was diagnosed with active fibrous-cavernous pulmonary tuberculosis at the stage of infiltration and was prescribed isoniazid, rifampicin, pyrazinamide, ethambutol, streptomycin and some other medications and vitamins. 55. On 1 November 2004, while still in the psychiatric hospital, the applicant was X-rayed and repeatedly examined by a tuberculosis specialist. The doctor confirmed the earlier diagnosis and recommended the continuation of the medicinal treatment, subsequent monitoring of the applicant’s condition and his isolation. 56. On 4 November 2004 the applicant was transferred back to the Simferopol ITT. According to him, his medical treatment for tuberculosis was disrupted at that point. 57. On 19 November 2004, following the applicant’s transfer to the Simferopol SIZO, a panel of doctors, including a tuberculosis specialist, examined him. He was prescribed with: isoniazid, rifampicin, pyrazinamide, ethambutol and streptomycin – for an intensive treatment phase (for the periods from 19 November 2004 to 28 February 2005, from 1 August to 30 November 2005 and from 2 May to 30 August 2006) and isoniazid, rifampicin and pyrazinamide – for a follow-up treatment phase (for the periods from 1 March to 31 July 2005, from 1 December 2005 to 16 March 2006 and from 1 September to 13 October 2006). 58. According to the applicant’s medical file, he was provided with the prescribed medications on a daily basis. Furthermore, during his detention in the Simferopol SIZO the applicant was examined by a tuberculosis specialist and underwent sputum smear testing on a monthly basis. He also had regular chest X-ray examinations. The applicant’s diagnosis remained the same and his X-raying showed no changes in the state of his lungs. The applicant’s medical file pertaining to his pre-trial detention contains no reference to his drug susceptibility test. 59. The applicant complained to various authorities, in particular, about his solitary confinement, which he did not consider to be justified on medical grounds. On 8 September 2005 an official of the regional office of the State Department for the Enforcement of Sentences wrote to the applicant that he was the only detainee suffering from an active form of tuberculosis and his isolation was justified. He was receiving regular medical treatment. Furthermore, as stated in the letter, he had undergone drug susceptibility testing carried out with the participation of the Simferopol city tuberculosis dispensary. 60. On 18 October 2006 the applicant was transferred from the Simferopol SIZO to Kherson Prison no. 61. 61. On 4 November 2006 the applicant arrived in Kherson Prison no. 61 having the status of a penitentiary tuberculosis hospital (before his arrival in the prison he had been detained in the Dnipropetrovsk and Odessa SIZOs (see paragraph 11 above), where he allegedly received no medical treatment). 62. Immediately after the applicant’s arrival in the prison, a panel of doctors examined him and diagnosed him with: chronic pulmonary tuberculosis, chronic hepatitis in an aggravation phase, neurocirculatory asthenia, varicose veins, and astigmatism of both eyes. He was placed in the prison’s medical unit for inpatient treatment. 63. On 28 November 2006, following the applicant’s complaint about heartache, weakness and loss of appetite, he was examined by a general practitioner who diagnosed him with chronic hepatitis in an aggravation phase and neurocirculatory asthenia of cardiac type. The doctor prescribed some medications to the applicant and recommended that he undergo an electrocardiogram. It appears that the above recommendation had not been implemented. As the applicant continued raising the same complaints, a general practitioner again examined him on 15 January and 6 June 2007. He confirmed the earlier diagnoses and prescribed medications. 64. Furthermore, in December 2006, April 2007, January 2008 and March 2009, as well as in May and July 2011, an ophthalmologist diagnosed the applicant with astigmatism of both eyes and prescribed eyeglasses for him. It is not known whether the applicant received the eyeglasses according to the prescription. 65. The applicant’s chest X-raying in January 2007 (the exact date is illegible) showed that his tuberculosis disease was progressing. 66. On 20 February 2007 the applicant underwent a drug susceptibility test, which established that he was resistant to isoniazid, rifampicin, pyrazinamide, ethambutol and streptomycin. His treatment was therefore corrected and he was prescribed different medicines (such as kanamycin, ethambutol, para-aminosalicylic acid, ciprofloxacin and ofloxacin). 67. On 27 April 2007, 24 April 2008, 30 April 2010 and 27 May 2011 the applicant was recognised as falling into the second category of disability on account of his tuberculosis disease (for a period of one or two years, with his condition to be reassessed thereafter). 68. On 15 April 2008 the applicant’s X-raying showed negative developments in his lungs. 69. His subsequent X-ray examinations on 3 and 28 October 2008 indicated that his condition “was becoming stable”. Accordingly, the applicant’s treatment was changed from inpatient to outpatient. 70. In March 2009 his tuberculosis disease progressed again. As a result, on 13 March 2009 he was referred again to the prison’s medical unit for inpatient treatment. 71. On 13 April, 28 July and 28 September 2009 the applicant refused to take the anti-tuberculous medicines. 72. On 5 May and 15 September 2009 he also refused from X-raying. 73. On 14 June, 14 July, 19 August, 8 October and 10 November 2009 the applicant refused that his blood samples be taken for analysis. 74. On 20 April and 29 December 2010 the applicant underwent further X-ray examinations of his chest, which showed no changes in his lungs. 75. On 26 January 2011 a neurologist diagnosed the applicant with cervical spine osteochondrosis and recommended him to put a hard surface (something like a wood shield) beneath his matrass. According to the applicant, the prison administration did not allow him to do that. 76. On 15 March and 15 September 2011 the applicant refused to take the anti-tuberculous medicines. 77. On 29 March, 5 July, 8 September and 11 October 2011 his X-raying showed no changes in his condition. 78. As indicated in the applicant’s medical records, on 28 October 2011 his treatment was corrected. He was prescribed with: pyrazinamide, para-aminosalicylic acid, capreomycin, ofloxacin and cycloserine. 79. On 30 January, 4 May and 13 November 2012 the applicant had his chest X-rayed again. Like before, no changes in his lungs were reported. 80. On 10 May 2012 the applicant agreed in writing to palliative care. He wrote that he was aware of the reasons and consequences of that decision and that he had taken it without any pressure. 81. On 14 September 2012 the prison administration wrote a letter to the applicant’s mother in reply to her complaint, in particular, regarding his medical care. The prison governor stated that the applicant’s treatment for tuberculosis had been without effect for a long period of time, as he had developed multi-resistance to all possible anti-tuberculosis drugs. Accordingly, it had been proposed to the applicant that his treatment be confined to palliative care and he had accepted that proposal. It was explained in the letter that the palliative care consisted of the administration of two anti-tuberculosis drugs of the first line (isoniazid and rifampicin) regardless of the applicant’s resistance to them. As rifampicin was not available in the prison, it had been replaced with ethambutol. Lastly, the prison official wrote that the palliative care had been prescribed to the applicant for life. 82. On 27 September 2012 the National Institute of Tuberculosis Studies and Pulmonology, to which the applicant’s mother had also complained about his medical treatment in detention, responded to her. The director of the Institute wrote that, as it appeared from the medical file, the applicant’s tuberculosis disease had become incurable. Accordingly, the prospects of its treatment were deplorable regardless of the place of that treatment. Lastly, as noted in the letter, it was open for the applicant to apply for release on the ground of his incurable infectious disease. 83. As confirmed by a record in the applicant’s file of 16 November 2012, his X-ray examinations had not shown any positive changes in the state of his lungs since 2008. More specifically, the lung cavities were not disappearing. 84. On 7 December 2012 the prison doctors recommended to continue the applicant’s inpatient treatment according to the prescribed regimen. 85. There is no information in the case file regarding the applicant’s health condition and treatment thereafter. 86. On 11 June 2006 the applicant sent his first letter to the Court, in which he complained, in particular, about the physical conditions of his detention and the lack of adequate medical care. 87. On 20 June 2006 the Registry sent him an application form and accompanying explanatory documents and instructed him to submit a duly completed and signed application form within six weeks from the date of receipt of the Court’s letter. 88. In October 2006 the Court received several copies of the completed application form from the applicant, in which he elaborated, in particular, on the complaints, which he had outlined in his initial letter to the Court, including about the conditions of his detention in the Simferopol, Dnipropetrovsk and Kyiv SIZOs. According to him (and confirmed by his three cell-mates), he had attempted to send his application form on 30 August 2006, but the administration of the Simferopol SIZO had refused to dispatch it unless he deleted any complaints about his conditions of detention there. The applicant also submitted that the domestic courts had rejected his requests for access to some documents in his case file, which he intended to enclose to his application form, on the ground that he had already received copies of those documents, which was confirmed by his signature. Furthermore, the administration of the Simferopol SIZO allegedly refused to produce copies of some documents at the applicant’s request. 89. On 1 February 2012 the applicant sent a letter to the Court supplementing his application form with a complaint about poor physical conditions of detention and inadequate medical care in the Kherson prison. | 1 |
test | 001-158806 | ENG | BGR | CHAMBER | 2,015 | CASE OF DIMITROV AND RIBOV v. BULGARIA | 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) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev | 5. The applicants were born in 1974 and 1979 respectively and are serving whole life sentences in Burgas Prison. 6. The facts of the case can be summarised as follows. 7. In November 2001 both applicants were arrested on suspicion of murder and were remanded in custody. In September 2002 they were transferred to Burgas Prison. In December 2004 the trial court, Burgas Regional Court, found them guilty of murder resulting from terrorist activity and sentenced them to whole life imprisonment, to be served initially under the “special regime”. In April 2006 the appellate court, Burgas Court of Appeal, upheld that sentence which was further upheld by the Supreme Court of Cassation in a final judgment of 16 January 2008. 8. The applicants have been serving their sentences under the “special regime” in Burgas Prison, in permanently locked individual cells measuring 1.5 by 3 metres, under heightened security supervision. Both applicants have been allowed out of their cells for between one and two hours a day to take exercise in the open, which they have been spending walking in the prison courtyard. 9. The parties diverge in respect of the material conditions in which the applicants have been kept. 10. According to the applicants, the daylight in the cells has been scant and a light bulb attached to the ceiling has been on 24 hours a day. There is so little unencumbered space in the cell that the applicants are forced to spend most of the day either lying or sitting on their beds. There are no toilets in their cells and, since the beginning of 2008, the prison authorities have allowed them to use the common sanitary facilities three times a day. The rest of the time they use a bucket to satisfy their physiological needs. Hygiene is rather poor: the prison premises, including the canteen and kitchen, are infested with cockroaches and rats. The food is of inadequate quality and insufficient quantity. The medical service in the prison lacks even the most basic medical supplies. Mr Dimitrov caught psoriasis in prison and because of the absence of adequate treatment his condition has deteriorated into psoriatic arthritis. 11. According to the Government, the applicants’ cells are equipped with toilets and the light is sufficient for them to read and write. In addition, the prison premises are cleaned every day and a thorough cleaning is carried out weekly by a specially designated individual. The authorities employ the services of an external company which regularly cleans and disinfects all prison areas. The prison director supervises the quality and quantity of the food offered to the inmates who receive meat dishes six times a week and a vegetarian dish once a week. The prisoners have access to a bathroom with hot running water six times a day. Sometimes they spend up to two hours a day in the open. They can visit the prison library, the prison chapel, as well as take part in – unspecified – group activities. Mr Ribov has tended to participate in them happily, while Mr Dimitrov has refused to do so without giving any reason for that. | 1 |
test | 001-161533 | ENG | HUN | COMMITTEE | 2,016 | CASE OF PARTNERS 2000 KFT AND OTHERS v. HUNGARY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property) | Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 6. The first applicant, Partners 2000 Kft, is a Hungarian limited liability company with its seat in Nyárliget. It is owned and run by the second applicant. The second applicant is a Hungarian national, who was born in 1972 and lives in Sopron. The third applicant is the second applicant’s wife, who was born in 1973 and lives in Sopron. The fourth applicant is the second and third applicants’ minor child, born in 2000. 7. On 11 September 2012 Parliament enacted Act no. CXXXIV of 2012 on the Repression of Smoking of the Youth and on Tobacco Retail. The Act was published on 24 September 2012. 8. According to the Act, tobacco retail was to become a State monopoly (exercised through a State-owned company, ND Nemzeti Dohánykereskedelmi Nonprofit Zrt), and tobacco retailers would become authorised through a concession tender, advertised on 15 December 2012. The time-limit for applying was 22 February 2013. 9. Entities or persons previously engaged in tobacco retail had no privileges in the tender. Legal persons were not entitled to apply. 10. The Act was subsequently amended on several occasions, and the final version was enacted on 6 June 2013, with entry into force on 1 July 2013. Government Decree no. 181/2013. (VI.7.), which contained the detailed rules for the operations of the future concession-holders, was published on 8 June 2013, that is, after the completion of the tendering process, the results of which had become public on 22 April 2013. The decision about the tenders was taken by ND Zrt itself. 11. The first applicant, Partners 2000 Kft had been active in tobacco retail for several years. Since, however, it was not entitled to apply for a concession under the new law, the second applicant applied personally for one, on several occasions. However, ND Zrt turned down his applications, informing him that he had not obtained a tobacco retail concession. The decisions said that his applications did not fully meet the requirements, without developing the shortcomings. 12. No compensation is available for ex-tobacco-retailers who, by not being awarded a concession, lost part of their livelihood. The refusals, such as those of Mr Györkös, were not subject to any legal remedy. 13. The applicants submitted that others in comparable situations – and in the case of those who had never been doing tobacco retail beforehand, in non-comparable situations – were granted concessions, which difference in treatment cannot be explained by any circumstance other than political adherence. | 1 |
test | 001-162200 | ENG | RUS | CHAMBER | 2,016 | CASE OF NOVIKOVA AND OTHERS v. RUSSIA | 3 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Dmitry Dedov;George Nicolaou;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 4. This application was lodged on 27 April 2007 by Marina Viktorovna Novikova, who was born in 1972 and lives in Moscow. The applicant is represented by Yuriy Yershov, a lawyer practising in Moscow. 5. On 10 November 2006 the applicant staged a demonstration in front of the State Duma in Moscow, holding a poster that read “Psychiatry kills our children on our taxes”. According to her, it was a solo static demonstration (одиночное пикетирование) (see “Relevant domestic law and practice” below) and, as such, fell outside the statutory requirement to give prior notification to the competent public authority. Moreover, she took care to position herself at a distance from other people who were also present in front of the State Duma. 6. After about ten minutes, the applicant was approached by police officers, who then took her to the district police station. An arrest record was compiled; the reasons for her arrest are unclear. 7. According to the applicant, she spent some three hours in the police station and was then allowed to leave. 8. The Government submitted to the Court a report issued on 11 November 2006 by the senior officer on-duty, Su. The report stated that the applicant and five other people (including A., M. and S.) had been present at 8.30 a.m. in front of the State Duma, holding posters that read “Attention! Psychiatry kills. 7.5 million roubles of public funds spent on the destruction of lives”, “Do not force taxpayers to pay for psychiatrists’ systematic extermination of Russians”, “Psychiatrists need walls to hide their crimes” and other such statements. The Government also submitted to the Court copies of documents relating to administrative offence proceedings against A., M. and S. 9. As for the applicant, the administrative offence record states that she was accused of “taking part, together with other citizens, in a demonstration in respect of which no prior notification had been provided to the public authorities”. Her actions were classified under Article 20.2 of the Code of Administrative Offences of the Russian Federation (hereinafter “the CAO”), which regulates the penalties applied to violations of the regulations on public events set out in, inter alia, the Public Assemblies Act. 10. Officer G. submitted a written report to his hierarchical superior indicating that the applicant “had been arrested and taken to the police station for violating the regulations on public gatherings, namely Article 20.2 of the CAO”. 11. According to the Government, on 14 November 2006 the case against the applicant was received by the justice of the peace of the Tverskoy District, who on the same day scheduled a hearing for 15 November 2006. According to the applicant, she was not informed of the hearing date until it was too late. Thus, she made no written or oral submissions to the court. 12. Having examined the file, on 15 November 2006 the judge considered that the applicant had been apprised of the hearing but had refused to sign the summons. The court decided to proceed with the case in her absence and held that she had been afforded but had not used an adequate opportunity to make written or oral submissions. On the same day, the judge found the applicant guilty under Article 20.2 § 2 of the CAO and imposed a fine of 1,000 Russian roubles (RUB), which was at the time equivalent to 29 euros (EUR). 13. Referring to the arrest record, the offence record and G.’s report (see above), the court considered that the applicant had participated in a demonstration after which some five people and the applicant had been arrested. In the court’s view, the applicant’s behaviour amounted to participation in a public event requiring prior notification. The justice of the peace then held as follows: “[The applicant’s] actions constitute a violation of the regulations on static demonstrations in that no notification had been made [to the competent authority] about the possibility of staging a demonstration ... Thus, this demonstration was held without legal grounds. The court takes into account that the applicant’s presence next to the object being picketed, together with other people, directly discloses the expression of opinions and attitudes, and thus takes the form of a group public event, namely a static demonstration.” 14. The applicant sought re-examination of the case on appeal by the Tverskoy District Court of Moscow. On 5 December 2006 the court heard the applicant and upheld the judgment of the justice of the peace, concluding that the applicant had taken part in a public event held without prior notification to the competent authority; on 10 November 2006 she had been apprised of the hearing to be held before the justice of the peace but had failed to sign the summons. 15. On 23 January 2007 the Deputy President of the Moscow City Court upheld the District Court’s decision on supervisory review. 16. This application was lodged on 26 August 2011 by Yuriy Ignatyevich Matsnev, who was born in 1937 and lives in Kaliningrad. He was represented by Aleksandr Koss, a lawyer practising in Kaliningrad. 17. On 30 July 2010 the applicant staged a solo demonstration in front of the Kaliningrad Regional Administration building. He was holding a poster showing people (apparently, officials he suspected of corruption) behind bars, and saying “They should be found accountable!” and “Mr Boos! Kaliningrad’s residents are waiting for you to solicit the President!”. Mr S., a journalist, was passing by and filmed the demonstration and the arrival of the police. 18. The applicant was arrested by the police and taken to the police station. He remained there for two hours and was then allowed to leave. No administrative offence proceedings were instituted against him. 19. According to reports subsequently made by the arresting officers, the applicant had not had an identity document on him and had agreed to accompany them to the police station in order to have his identity verified and to have an administrative record compiled. 20. The applicant brought civil proceedings seeking RUB 500,000 as compensation in respect of non-pecuniary damage caused by the authorities’ actions. The applicant referred to Article 10 of the Convention. 21. By a judgment of 14 March 2010, the Tsentralnyy District Court of Kaliningrad acknowledged that the taking of the applicant to the police station and his retention there had been unlawful. The court held as follows: “Following the escorting of [the applicant] to the police station no administrative offence case was opened ... [Mr S.] testified that the defendant had shown his identity document and had not expressed his consent to go with the police to the police station ... The police officers acted unlawfully when escorting the applicant to the police station ...” The court awarded the applicant RUB 6,000 in respect of non-pecuniary damage (approximately EUR 149 at the time). It dismissed his claim concerning the alleged destruction of the poster by the police and made no separate findings relating to his freedom of expression. 22. On 25 May 2011 the Kaliningrad Regional Court upheld the judgment. 23. This application was lodged on 10 November 2012 by Viktor Mikhaylovich Savchenko, who was born in 1967 and lives in the village of Platonovo-Petrovka in the Rostov Region. 24. On 23 June 2011, when Mr Putin was visiting the village of Peshkovo, the applicant staged a demonstration, standing at some distance from a road close to the village and holding a poster reading “Mr Putin! In the Rostov region they disregard your Decree on social assistance to families. The Russian Government disregards its obligations to issue housing certificates!” 25. According to the applicant, police officers approached him and ordered him to go to another place where journalists were filming. He arrived there and displayed his poster. He was approached by people in plain clothes who ordered the police to take him to the police station. The police complied. After some three hours in the police station, the applicant was free to leave. 26. The police drew up a record of the administrative escorting in respect of the applicant. 27. The applicant was accused of disorderly behaviour on account of using foul language in a public place on 23 June 2011. On 24 June 2011 a senior police officer found him guilty under Article 20.1 of the CAO (see paragraph 74 below) and imposed a fine of RUB 500 on him. On 21 December 2011 the Azov Town Court overruled the conviction because the senior police officer had not heard evidence from the applicant. The court then discontinued the case owing to the expiry of the time-limit for prosecution. On 7 February 2012 the Rostov Regional Court upheld the judgment on appeal. 28. The applicant brought civil proceedings challenging the actions of the police in respect of him. On 4 April 2012 the Town Court dismissed his claims. On 14 June 2012 the Regional Court upheld the judgment on appeal. The appeal court noted that the courts dealing with the administrative offence case had not determined whether the applicant had committed the impugned action (using foul language) and whether he had committed an offence, but had simply discontinued the case on procedural grounds. The appeal court concluded that the above “did not disclose any unlawfulness” on the part of the law-enforcement officers, while the applicant had not substantiated, in the current case, that their actions had violated or otherwise impeded the exercise of his protected rights or freedoms. 29. This application was lodged on 30 November 2012 by Aleksandr Mikhaylovich Kirpichev, who was born in 1984 and lives in Astrakhan. He is represented by Konstantin Ilyich Terekhov, a lawyer practising in Moscow. 30. At 7.15 p.m. on 3 July 2012 the applicant staged a solo demonstration at a bus stop. He was holding a poster which read “The Kremlin is not for sale – it is a piece of architecture!”. After several minutes some five passers-by stopped and looked at him and his poster. 31. It appears that soon thereafter five police officers approached and warned those present that a meeting required prior notification to the authorities. The passers-by went away. 32. It appears from a video recording submitted by the applicant that one of the police officers refused to listen to the applicant’s explanations and told him that he would be taken to the police station. The applicant was then placed in a police car and taken to the police station. He was accused of holding a public event without giving prior notice. 33. According to the Government, the applicant had staged a public meeting first on the road and then on the pavement near a bus stop. The police officers’ written reports indicated that the applicant had called passers-by to approach and discuss with him the topic of the event. The police decided to apply the escort procedure (доставление) to the applicant because it was necessary to put an end to the administrative offence and because an administrative offence record could not be compiled on the spot since the applicant had no identity document on him. The applicant agreed to go with the police to the police station. 34. On 20 July 2012 a justice of the peace convicted the applicant under Article 20.2 § 2 of the CAO. The court considered that the applicant had held a public event in the form of a meeting (митинг); some five people had gathered but then dispersed after a warning from a police officer. The justice of the peace sentenced the applicant to a fine of RUB 20,000 (approximately EUR 505 at the time), noting that the applicant had committed an offence that was similar to another one for which he had already been convicted earlier the same year. The justice of the peace warned the applicant that his failure to pay the fine would constitute an administrative offence under Article 20.25 of the CAO, which was punishable by a fine of double the amount or up to fifteen days’ detention. 35. The applicant appealed, arguing that the court had failed to take into account his financial situation when imposing a high fine. 36. On 21 August 2012 the Kirovskiy District Court of Astrakhan upheld the judgment on appeal. The appeal court dismissed the argument concerning the amount of the fine by stating that it was the minimum statutory amount prescribed by Article 20.2 § 2 of the CAO. 37. In September 2012 the justice of the peace allowed the applicant to pay the fine in three monthly instalments. 38. This application was lodged on 20 May 2013 by Valeriy Leonidovich Romakhin, who was born in 1965 and lives in Astrakhan. He is represented by Konstantin Ilyich Terekhov, a lawyer practising in Moscow. 39. At 1.30 p.m. on 10 November 2012 the applicant held a solo demonstration in front of the Maritime University in Astrakhan, to express his disagreement with the recent decision to close the university. The applicant was holding a poster that read “To close the university is to commit a crime”. 40. Mr A. was holding a demonstration on the other side of the road, making similar claims. He was holding a poster saying “Annul order no. 101 of 27 September 2012 and find its authors liable”. According to the applicant, he was standing some 50 metres away. The Government submitted that the applicant and A. were at “visual distance from each other”. 41. Shortly after starting his demonstration, the applicant was approached by a police officer who warned him that he was in breach of Article 20.2 of the CAO. He then escorted the applicant to the police station. It appears that A. was also taken to the police station. According to the Government, it was not possible to draw up an administrative offence record on the spot because the applicant had no identity document on him. 42. The applicant was allowed to leave the police station after several hours. 43. In the Astrakhan Region, Law no. 80/2012-FZ of 27 November 2012 set the minimum distance between solo demonstrators at twenty metres. 44. On 6 December 2012 a justice of the peace held a hearing. A. stated that he knew the applicant; without any concerted plan, they had both gone to the university to stage solo demonstrations; the applicant had not prepared his own poster and so had taken one of A.’s posters; they had placed themselves at a distance of some fifty metres from each other. 45. On the same day, the justice of the peace convicted the applicant under Article 20.2 § 2 of the CAO (organisation and holding of a public event without prior notification) and imposed a fine of RUB 20,000 on him. On 5 February 2013 the Sovetskiy District Court of Astrakhan upheld the judgment. The courts considered that the applicant and A. had held a public static demonstration (common logistical organisation, timing and claims disclosing a common goal), which by law required them to notify the local authorities in advance. The courts concluded that the offence impinged upon public order and public security, “having a significant adverse impact on protected public relations”. According to the Government, the applicant was a “participant” in a demonstration with A. 46. It appears that on 26 April 2013 the Astrakhan Regional Court reviewed the case and reduced the fine to RUB 1,000. | 1 |
test | 001-144132 | ENG | BGR | CHAMBER | 2,014 | CASE OF RADKOV AND SABEV v. BULGARIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicants were born in 1972 and 1966 respectively. At the time of the events in question they were detained in Lovech Prison, serving sentences of life imprisonment, after being convicted of numerous crimes, including murder, rape and armed robberies. 6. On an unspecified date in 2006 the two applicants brought proceedings against the Ministry of Justice under the State and Municipalities Responsibility for Damage Act, seeking damages for the allegedly poor conditions of detention in Lovech Prison. The case was examined by the Sofia City Court, which accepted a request by the applicants to have two of their fellow inmates questioned as witnesses regarding the living conditions in the prison. 7. A special court hearing for that purpose took place on 26 January 2007 in a hearing room in Lovech Prison. 8. The applicants were brought to the hearing with their arms handcuffed behind their backs and their ankles shackled. Once the hearing began, Mr Radkov requested that his handcuffs be removed because he was uncomfortable. The judge presiding over the hearing refused, without giving any specific reasons. Mr Sabev then asked that it be noted in the record of the hearing that his handcuffs had not been removed either. The applicants’ arms remained handcuffed behind their backs until the end of the hearing. 9. The two witnesses heard by the court – who were from the same group of life prisoners – had their handcuffs removed. 10. A prosecutor was also present at the hearing. 11. The hearing continued for about an hour. | 1 |
test | 001-158861 | ENG | FRA | GRANDCHAMBER | 2,015 | CASE OF COUDERC AND HACHETTE FILIPACCHI ASSOCIÉS v. FRANCE | 1 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression;Freedom to impart information);Damage - claim dismissed (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ann Power-Forde;Branko Lubarda;Dean Spielmann;Erik Møse;Helen Keller;Helena Jäderblom;Johannes Silvis;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Mark Villiger;Mirjana Lazarova Trajkovska;Päivi Hirvelä;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano | 8. The applicants are the publication director and the publishing company, respectively, of the weekly magazine Paris Match. Ms Anne-Marie Couderc was born in 1950 and lives in Levallois-Perret. The company Hachette Filipacchi Associés has its registered office in Levallois-Perret. 9. On 3 May 2005 the British newspaper the Daily Mail published an article headlined “Is this boy the heir to Monaco?”, describing the disclosures by a woman, Ms Coste, who claimed that her son’s father was Albert Grimaldi, who had become reigning prince of Monaco (hereafter, “the Prince”) following the death of his father on 6 April 2005. The article mentioned a forthcoming publication in Paris Match, and set out its core elements. It was accompanied by three photographs, one of which showed the Prince holding the child in his arms and was captioned “His successor to the throne? Prince Albert with Alexandre”. 10. On the same day, having been informed that an article was about to appear in Paris Match, Prince Albert served notice on the applicants to refrain from publishing it. 11. On 4 May 2005 the German weekly magazine Bunte published the interview with Ms Coste. The front cover of the magazine was headlined “Prinz Albert ist der Vater meines Kindes” (“Prince Albert is the father of my child”). It was illustrated by two photographs of the Prince: in one of them he was pictured alongside Ms Coste, and in the other he held the child in his arms. 12. On the same day various Internet sites relayed the news. In France, information from the forthcoming Paris Match article was included in an article on the RTL radio station’s Internet site entitled “Le prince Albert II aurait un fils, silence au Rocher” (“Prince Albert II alleged to have a son, no comment from Monaco”). For its part, the LCI channel published an article headlined “Albert : la rumeur d’un fils” (“Albert: rumours about a son”) on its Internet site. The news also appeared on the Internet site of the MEDEF (French Business Confederation), as follows: “L’enfant caché du prince Albert de Monaco : selon certains journaux britanniques et allemands, Albert de Monaco serait le papa d’un petit garçon de 19 mois” (“Prince Albert of Monaco’s secret son: according to certain British and German newspapers, Albert of Monaco is the father of a 19-month-old boy”). 13. On 5 May 2005, in spite of the Prince’s notice to refrain, the weekly magazine Paris Match published an article in its edition no. 2920, presented on the magazine’s cover under the headline “Albert of Monaco: Alexandre, the secret child” (“Albert de Monaco: Alexandre, l’enfant secret”), illustrated by a small photograph showing the Prince with the child in his arms. The article, published on pages 50-59 of the magazine, consisted of an interview with Ms Coste, who replied to questions put by a journalist and stated that the father of her son Alexandre, born on 24 August 2003, was the Prince. In particular, the interview described the circumstances in which Ms Coste had met the Prince, their intimate relationship, their feelings, and the manner in which the Prince had reacted to the news of Ms Coste’s pregnancy and had behaved towards the child at his birth and subsequently. 14. The relevant passages of this interview follow: “Paris Match: When did you meet Albert of Monaco? Nicole Coste: Eight years ago, on a Nice to Paris flight... Before landing he asked for my telephone number. Two weeks later I had a message on my mobile... ... He wanted to invite me to Monaco...I went there the following weekend... We spent a very tender night next to each other, it was very romantic! After that weekend he called me to say that he had had a very pleasant time and that he wanted to see me again. ... As the months went by, I fell very much in love. I spent weekends in Monaco. He took me everywhere with him when he didn’t have official duties... ... I had the impression that something was happening. He didn’t speak about his feelings, but I heard his heart beating. There are signs that can’t be mistaken when you’re in someone’s arms... He didn’t say anything to me and I didn’t ask him anything. But he had tender looks and gestures towards me, even in public, and even in front of other young women. I think that he appreciated my affection. He told his friends that I was very very loving, and that he liked my maternal side. For my part, I found him touching. P.M. Did you meet up often? N.C. For the first five years I went to Monaco about once a month... Sometimes he took me along to official events, such as the World Music Awards or tennis tournaments... P.M. Did you ever meet his father, Prince Rainier? N.C. Yes. At a dinner with about twenty guests; Albert told me that we couldn’t go along together, since his father [would be] there. In the afternoon, he indirectly made me his loveliest declaration of love, by saying to a friend in front of everyone ‘Take good care of Nicole. I am very fond of her.’ And he kissed me... P.M. What did he tell you about his talk with his father? N.C. We spoke about it the next day. I found him strange. I became worried. ‘I’ve been thinking’, he said. ‘I believe it’s better if we stay friends.’ P.M. How did you react? N.C. ... I was crying. I telephoned him to find out if it was really over. ‘If you were in my situation, what would you do?’ He answered ‘I would wait. Not for long, but I would wait...” ... P.M. One has the feeling that Albert’s discussion with his father was a turning point in your relationship. N.C. It’s true, the relationship deteriorated after that. At the same time, however, he seemed to be afraid of taking a decision; he hesitated, taking one step forward and two steps back... ... Albert is not someone who expresses his feelings or who argues. He has a good sense of humour. I had the impression that he still had feelings. We saw each other with more or less the same frequency, but for less time, one day instead of three. I had the impression that he was afraid of becoming too attached. In December 2002 I wanted us to celebrate my ... birthday together. He suggested that I come to Monaco... we went [out] for a drink. There were lots of young women coming up to him, and I let him know that I wasn’t happy about that. On returning to the flat, we became lovers again, something that I didn’t want that night. The evening had annoyed me. P.M. Was it then that you became pregnant? N.C. Yes. Neither he nor I had planned it. I was taking precautions...When I saw Albert on 11 December I had sore breasts. I said to him ‘If I’m pregnant, what are we going to do?’ He replied ‘If you’re pregnant, you must keep it’. He said it from the heart. He immediately began thinking of boys’ names, and I was coming up with girls’ names, since I already had two boys. He said ‘I’m trying to think of boys’ names – that’s all you know how to make!”... ... Shortly afterwards, I had a positive pregnancy test... I wanted him to take a decision very quickly... I was well aware of what a child represented for Albert, given his position. In my opinion, it was for him to decide... He said to me ‘Keep it. I’ll look after things. You won’t lack for anything. I don’t promise to marry you, but keep him and don’t worry: I’ll bring him into the family little by little. I’d like us to keep the news to ourselves for the moment. The only person I must tell is my adviser and childhood friend, whom you know well.’ P.M. Did he contact you for news during your pregnancy? N.C. From time to time. He spoke to me very kindly. Then one day he came to see me in Paris with his adviser... I was three months’ pregnant. He seemed to have changed his mind, but as far as I was concerned it was too late. The adviser said to me ‘Do you realise that if it’s a boy, they’ll use that to prevent Albert acceding to the throne, and the child will be able to claim the throne’. I was surprised that he was going into things that were only details for me. I wasn’t even thinking about these questions... it is clear to me that a child born outside marriage cannot accede to the throne. P.M. What happened next? N.C. I learned that I was expecting a boy. I was very worried... I asked him if it would make things difficult if it was a boy... “No, no more than if it were a girl.” He put his hand on my stomach and we discussed names again... ... When I was five-and-a-half months’ pregnant, I called him. He didn’t behave the way he usually did with me, I understood that something had happened and that he wanted to end the relationship. He said “I’ve thought it through. I’ve asked for advice. The child is impossible”. ... I went to see a lawyer, who alerted Albert’s lawyer. Albert called me immediately, and was very annoyed: ‘You’ve trapped me...’ He spoke to me as though he had been brain-washed. I was eight months’ pregnant, and had become pregnant six years after our first meeting. I would have had multiple opportunities to become pregnant. P.M. How was the birth? N.C. 24 August 2003 is not my happiest memory. I was very alone. On the day I left hospital, I was visited by a French laboratory, approved by the Swiss Forensic Institute, for a DNA swab from my son. That was organised by his adviser. ... My two older children still didn’t know who their little brother’s father was... Alexandre was sleeping in my bedroom, in a crib... He suffered from asthma and was hospitalised for six weeks... I had to deal with this alone, with no one to confide in. ... P.M. When did he see Alexandre for the first time? N.C. Two and a half months after his birth... the most important thing for me was that Alexandre be recognised. It was out of the question that my child would not have a father. That is how I explained it to them. For me, non-recognition would have been the only basis for taking things to court. It was up to Albert to organise things so that this little baby had a more or less normal life, even if, at the very beginning, it had been necessary to hide him. But I didn’t want him to grow up like Mazarine, for example. I thought only about that, and not for a second about the fact that he represented a potential heir. Meanwhile, Albert was paying me a sum every three months that I still receive. P.M. What happened subsequently? N.C. As I didn’t really trust my lawyer any longer, I contacted another one, to whom I explained that the only thing that counted was that Albert recognise his son. In my opinion, non-recognition of a child amounts to denying him his roots... ... P.M. Did Albert realise how important it was for you that he recognise this child? N.C. Ultimately, yes, to my great joy: on 15 December 2003 he arranged to meet me at a notary’s office, with his adviser... P.M. What happened during the meeting at the notary’s office? N.C. Albert signed the deed of recognition. He did it out of respect for me, while giving instructions that this deed was not to be transcribed in the official register until after his father’s death. P.M. Do you have a copy of this deed of recognition? N.C. I wasn’t given any papers, I only have the registration number of the deed. I asked the notary several times for a certificate stating that he had a document concerning my son. I was told “Later.” After Rainier’s funeral I contacted the notary again, asking that Albert’s undertaking be upheld, and that the official recognition of our son’s paternity be entered in the register of births and deaths. Again, the notary told me that it could wait... I again asked for a copy of the deed. He refused... P.M. What about your flat? Did you finally move? N.C. ... I found a house in April 2004, and work is currently being carried out on it. P.M. To whom does it belong? N.C. To a property investment company (an SCI). 50% of the shares are in Alexandre’s name... P.M. What contacts have you had with Albert since seeing him at the notary’s office to sign the deed recognising your son? N.C. I wanted him to see his son regularly, and also to call for news of him. He has done that... During one of his visits, I said ‘Just because we’ve had a child, that doesn’t mean that everything has to end between us’. He replied ‘For the moment, I prefer that we end things, because if we continue we’ll end up with a second child!’ ... P.M. Why have you decided to speak out? N.C. I’ve already given you some reasons. I want Alexandre to grow up normally, with a father. I want the lies to stop. For my part, I’m fed up with lying, hiding and passing for the mistress of his friends. On account of this silence, I no longer have an identity and I live almost like an outlaw. I’m afraid for my son’s psychological health. I should like to have him baptised as soon as possible, with a correctly drawn-up birth certificate. In addition, I understand that there are rumours going around about this child, and I want the truth to be re-established, so that his two older brothers have a dignified image of their mother. ...” 15. This interview was illustrated by five photographs of the Prince with the child and three of the Prince with Ms Coste. In particular, a double-page spread (pages 50 and 51) consisted in a photograph of the Prince holding the child in his arms, headlined “Alexandre ‘is Albert’s son’ says his mother”, followed by this text: “A little boy who knows how to say only two words: daddy and mummy. A little boy who does not seem troubled by the huge gulf between the two cultures from which he comes. His name is Alexandre, a conqueror’s name, an emperor’s name. He was born in Paris on 24 August 2003. His mother asks that he does not grow up clandestinely, ‘like Mazarine’. For that reason, she is now disclosing his existence, which poses no threat to any republic or any dynasty. Because in Togo, the country of his maternal family, all children, whether or not they are born to lawfully married couples, are entitled to an official father. For the moment, the little boy with black curls isn’t interested in knowing whether he is a prince or not. His mother just has to lean towards him and he is happy. There’s already a king in the house... him.” The photograph was also accompanied by the following captions: “The 47-year-old new sovereign of Monaco had not been known to have any long-term relationship. Today Nicole Coste, an air hostess whom he met eight years ago, claims that they have had a son.” “He’s never been seen smiling like this before: Prince Albert succumbs to Alexandre’s charm.” 16. Four photographs of the Prince holding the child in his arms were published on pages 52, 53, 56 and 57, and were also accompanied by captions and/or sub-headings. In particular, the caption on page 52 reads “Gentleness, tenderness and patience, key words for a prince who loves children”, and on page 53, “The Prince has always had a soft spot for children” and “Albert, President of the Monegasque Olympic Committee, wearing an Olympics shirt, with Alexandre in his arms”. The following sub-heading appeared on pages 56 and 57: “Alexandre at 6 months. He is already trying to stand up. This is one of his very first meetings with Albert. He sleeps in his mother’s bedroom. Nicole and her three sons have already moved into a flat in the 16th arrondissement of Paris.” Lastly, three photographs of the Prince with Ms Coste were published on pages 58 and 59. The photograph on page 58 was captioned as follows: “They met on a Nice to Paris flight, Nicole was an air hostess. She had left Lomé, in Togo, eight years previously, aged 17. ‘In my country, a father would have obliged his son to recognise his child’.” The photographs on page 59 were sub-titled as follows: “Nicole also attended official events. In May 2001 she was on the Prince’s right as he received the singer Yannick at the Monte-Carlo Music Awards. In 2002 (left) she can be seen in the Royal box at the Grand Prix.” 17. On 10 May 2005 Ms Coste issued a statement indicating that she had agreed to give an interview to Paris Match, for publication in the edition of 5 May 2005, had carefully reread its wording, and had herself handed over the photographs showing the Prince with Alexandre. She specified that she had taken those photograph, and that she had taken them with the Prince’s full consent. She issued a further statement indicating that she had handed these photographs over to the media for publication without charge. She added that her son had been recognised before a notary, that the notarial deed had been signed on 15 December 2003 and that it had been agreed on that date that the deed would be sent to the district hall of the 14th arrondissement of Paris immediately after Prince Rainier’s death. She stated that she had attempted, by all amicable means, to find a compromise with the Prince’s lawyer, and that it was the fact that the Prince had failed to honour his undertaking which had induced her to bring the matter to the public’s attention. With regard to the media, she stated: “they have merely helped my son and myself to have Alexandre officially recognised”. 18. On 19 May 2005, considering that the publication of the article in Paris Match interfered with his rights to private life and to protection of his own image, the Prince brought fixed-date proceedings against the applicants, on the basis of Article 8 of the Convention and Articles 9 and 1382 of the Civil Code, seeking damages from the publishing company and an order that it publish the court’s ruling on the front cover of the magazine, and requested that the court’s decision be immediately enforceable. 19. On 29 June 2005 the Nanterre Tribunal de Grande Instance (the “TGI”) ordered the company Hachette Filipacchi Associés to pay the Prince 50,000 euros (EUR) in non-pecuniary damages. It also ordered that details of the judgment be printed on the magazine’s entire front cover, at the publishing company’s expense and on pain of a daily fine, under the headline “Court order against Paris Match at the request of Prince Albert II of Monaco”. The judgment was immediately enforceable. 20. The TGI noted, in particular, that from the front page onwards, the magazine had disclosed the Prince’s paternity outside marriage, under the headline “Albert of Monaco: Alexandre, the secret child”, accompanied by a photograph showing him holding the child. It also noted that the article dealt with the issue of the Prince having fathered the child over ten pages inside the magazine, by means of an interview in which the questions led Ms Coste to discuss her relationship with the Prince, the couple’s feelings, the Prince’s private life and reactions and the child’s recognition before a notary. It emphasised that the magazine had deliberately chosen numerous photographs, taken in the context of the intimacy of the protagonists’ private life, to illustrate and lend support to the disclosure, and that these photographs were accompanied by the magazine’s own captions, which also referred to the Prince’s love life and the circumstances in which he met the interviewee, analysing his conduct and his reactions to the young woman and the child, and speculating as to his feelings with regard to this secret child. 21. The TGI held that the entire article, including the accompanying photographs, fell within the most intimate sphere of love and family life and that it did not concern any debate of general interest. It added: “... the claimant’s accession to the throne of the Principality of Monaco did not deprive him of the right to respect for his private life, nor of his right to protection of his own image in the face of mere rumours concerning the civil status of a child, which could not in any event serve as a legitimate pretext for providing information to a prying and curious public about the lives of public figures, their feelings and their private conduct, with a view to media coverage in the columns of a newspaper which cannot in all seriousness claim to take the place of the courtroom, which is where the rights of children are legally defended, without prejudice to those of women; The disputed article, which treats rumours in a sensational manner, both in its wording and through the accompanying pictures - which are completely irrelevant in that they contribute to the impugned interference with private life - amounts to a serious and wilful breach of the claimant’s fundamental personality rights, the latter having specifically served notice by extra-judicial process on the publishing company to respect those rights on 3 May 2005...” 22. The applicants appealed against that judgment. 23. In a press release of 6 July 2005 the Prince publicly acknowledged that he was the father of Alexandre. 24. On 13 July 2005 the Versailles Court of Appeal suspended the immediate enforcement of the TGI’s judgment with regard to the order to publish the court’s judgment. 25. On 24 November 2005 the Versailles Court of Appeal gave judgment. It noted that, through the interview with Ms Coste, the impugned article focused on disclosing the birth of the child, who was presented as having been born from the intimate relationship between the interviewee and the Prince from 1997 onwards. It also noted that although the latter might already have made a statement recognising the child in a notary’s office – that is, in deliberately chosen conditions of confidentiality – by the time that the article was published, this statement had not given rise to a note in the margin of the child’s birth certificate, with the result that his birth and his father’s identity remained unknown to the public. 26. The Court of Appeal also stated that a person’s affections, love life or family life and issues of paternity and maternity came within the sphere of private life and were protected by Article 9 of the Civil Code and Article 8 of the Convention, and that those provisions made no distinction between anonymous persons and public figures, whatever their civil, political or religious functions. It noted, however, that this principle allowed for an exception whenever the facts disclosed could give rise to a debate on account of their potential impact or consequences given the status or function of the persons concerned, in which case the duty to provide information took precedence over respect for private life. 27. It reasoned as follows: “Given that the fact of Albert Grimaldi’s fatherhood had never been publicly recognised, that the Monegasque Constitution makes it impossible for a child born out of wedlock to accede to the throne and that Albert Grimaldi had not consented to the disclosure of his possible paternity of Ms Coste’s child, since on 3 May 2005 he had indicated to Hachette Filippachi Associés his opposition to the publication of those facts, it follows that Hachette Filipacchi Associés deliberately breached the provisions of Article 9 of the Civil Code and of Article 8 of the European Convention on Human Rights, without being able to justify this offence on the inexistent requirements of current-affairs reporting, the legitimacy of the information or its readers’ right to information, which did not include Albert Grimaldi’s secret paternity, even if he had become the reigning Prince of the Principality on his father’s death in April 2005; This interference in his private sphere, in that the article did not merely disclose the existence of a “secret” child but also contained numerous digressions derived from Ms Coste’s confessions concerning the circumstances of their meeting, the respondent’s feelings, his most intimate reactions in response to the news of Ms Coste’s pregnancy and his attitude towards the child during private encounters in her flat, could not be justified by the concomitant publication of these facts in the magazine Bunte, or by the media impact caused by the content of the article, or by the fact that other publications had subsequently repeated these reports (which had become common knowledge through the fault of the publishing company), or by the alleged legitimacy of such a disclosure, given that the child had no official status which would have rendered his birth and the disclosure of the father’s identity a subject which the media and specifically the company Hachette Filipacchi Associés, were required as part of their duty to provide information, to bring to the public’s attention, or by the fact that Albert Grimaldi, faced – against his will – with the media impact of the disclosure of information about his private life that he had intended to keep secret if not confidential, has been obliged to provide a public explanation, or by the tone of the article, which, as Hachette Filipacchi Associés irrelevantly specifies, was intended to show the respondent in a particularly positive light; Although the photographs showing the child with the respondent which accompany the article were taken by Ms Coste with Albert Grimaldi’s consent, and although Ms Coste, the only person having parental responsibility for the child, handed them over to Paris Match for publication, it remains the case that Albert Grimaldi did not consent to their being published in support of an article which constitutes an invasion of his privacy, with the result that their publication is wrongful...” 28. The Court of Appeal concluded that the publication in question had caused the Prince irreversible damage in that the fact of his paternity, which he had wished to keep secret and which had remained so from the child’s birth until publication of the impugned article, had suddenly, and against his will, become public knowledge. It considered that the non-pecuniary damage thus caused justified an order for publication of the court ruling as supplementary compensation, and that, in view of the nature of the breach and the seriousness of its consequences, such a measure was not conditions of publication of the court ruling, which was no longer to appear under a headline and was to take up only one third of the front cover. Thus, the Court of Appeal ordered that the lower third of the front cover of the first issue of Paris Match to be published in the week following service of the judgment was to display a white box containing the following text, printed in red letters, failing which the applicant company would be fined EUR 15,000 per issue after expiry of that deadline: “By a judgment of the Versailles Court of Appeal upholding the judgment delivered by the Nanterre Tribunal de Grande Instance, the company Hachette Filipacchi Associés has been held liable for infringing the privacy and the right to his own image of Albert II of Monaco in issue no. 2920 of the Paris Match newspaper, dated 5 May 2005, in an article entitled ‘Albert of Monaco: Alexandre. The secret child’.” 29. This statement was published on the front cover of edition no. 2955 of the magazine, dated 5 January 2006, under a photograph of the Prince. The cover bore the headline “Albert of Monaco. The truth has been punished”, which was accompanied by the following commentary: “Paris Match disclosed the existence of his son, Alexandre. The courts have punished freedom to impart information. We have received support from the international press in reaction to this.” 30. In addition, the applicants lodged an appeal on points of law against the Court of Appeal’s judgment. In their grounds of appeal, they developed the following arguments: the disclosure of a ruling sovereign prince’s paternity was a news event relating to public life, given the functions held by the individual in question and the hereditary nature of the transmission of power in the Principality of Monaco; divulgation of this information was necessary in order to inform the public; the publication of observations and digressions alongside the announcement of a news event such as the fact of a sovereign prince’s fatherhood was lawful, provided that these were innocuous and merely served to put the information into perspective; and the publication of photographs taken within the family, illustrating the news event described in the article, was not such as to interfere with respect for privacy and private life. 31. Relying on Article 10 of the Convention and citing the Court’s case-law, the applicants also argued that the public had the right to be informed, and that this right extended to information concerning the private life of certain public figures. They considered, in particular, that the Court’s decision in the case of Von Hannover v. Germany (no. 59320/00, §§ 62 and 76, ECHR 2004VI) would have been the reverse had the relevant member of the royal family been, as in the present case, the Prince himself, Head of the State of Monaco. In support of this argument, they cited the case of Krone Verlag GmbH & Co. KG v. Austria (no. 34315/96, 26 February 2002), which, they submitted, showed that the fact of being a politician brought an individual exercising that role into the sphere of public life, with the attendant consequences. They further argued that the Court of Cassation also recognised the public’s right to information, including with regard to facts concerning private life, even where the individual concerned held no public office. Lastly, they submitted that the primacy of the right to inform and the right to be informed had been established in similar circumstances, even where a person’s right to their own image was in issue. 32. The applicants argued, in particular, that in a hereditary monarchy the Prince’s lack of known issue was already a matter of discussion, and that the existence of a child was such as to contribute to that discussion. They also submitted that the child was a potential heir to the Monegasque throne, since his father could legitimise him at any time. They considered that, even if improbable, this scenario remained legally possible, and could therefore become the subject of a general debate regarding the future of the Monegasque monarchy, and that, in addition, the fact that the child was of Togolese origin could contribute to a debate of general interest which had the potential to change the image of a particularly conservative principality. 33. The applicants also pleaded the very strong ties which, they alleged, bound the Principality of Monaco to France. They further submitted that the worldwide impact of the contested material, including in the most serious and most prestigious newspapers, proved that the information disclosed by Paris Match was such as to contribute to a debate of general interest, and that this was not simply an article written to provide entertainment. 34. They further argued that the photographs accompanying the article, showing the Prince with the child or with Ms Coste, illustrated a news event, and that they entailed no breach of respect for human dignity, since the Prince was presented in a positive light. They asserted that these photographs had not been taken without the Prince’s knowledge, but by Ms Coste herself, and specified that she had handed them over to Paris Match for publication, voluntarily and without charge. 35. Lastly, they emphasised that the magazine Bunte had published an almost identical article in Germany on 4 May 2005, prior to publication of the impugned article, and that the German courts had dismissed the Prince’s action against that newspaper. 36. By a judgment of 27 February 2007, the Court of Cassation dismissed the appeal on points of law on, inter alia, the following grounds: “... every person, whatever his rank, birth, fortune or present or future functions, is entitled to respect for his private life; ... the judgment notes firstly that, on the date on which the article was published, the child’s existence and his descent were unknown to the public, and secondly that the Principality’s Constitution rules out the possibility of his accession to the throne, since he was born out of wedlock, a situation that, moreover, the company’s pleadings did not claim to be a subject of debate in French or Monegasque society or of examination in the impugned publication, and, lastly, [that] the article contained multiple digressions on the circumstances in which Ms Coste and Prince Albert met and about their relationship, the Prince’s reactions to the news of the pregnancy and his subsequent attitude towards the child; ... in the light of these findings and considerations, the Court of Appeal correctly noted the lack of any topical news item or any debate on a matter of public interest which would have justified its being reported at the time of the impugned publication on the grounds of legitimate imparting of information to the public;... moreover, the publication of photographs of a person to illustrate subsequent content which amounts to an invasion of his privacy necessarily infringes his right to control of his own image...” 37. On 12 May 2005, after publication of the initial article on 4 May 2005 (see paragraph 11 above), the weekly magazine Bunte published another article about the disclosure of the Prince’s paternity, this time accompanied by several photographs showing the Prince and the child. 38. The Prince brought urgent proceedings against the magazine in order to prevent any further publication, but his case was dismissed on 19 July 2005 by a judgment of the Freiburg Regional Court (Landgericht), upheld on 18 November 2005 by the Karlsruhe Court of Appeal (Oberlandesgericht). 39. The Freiburg Regional Court noted, in particular, that, as a figure of contemporary society par excellence, the Prince had to tolerate the impugned encroachment on his private life, given the information value of the report. It noted that the veracity of the information published by the magazine with regard to the statements by the child’s mother and to the claimant’s paternity had not been disputed on any specific point. It considered that the publication was not unacceptable in terms of the protection of a person’s intimate sphere, since the disclosures did not relate to that sphere but to the sphere of private life, which was less protected. It held that the public’s right to information resulted from the claimant’s position in society, and that the pressure that he might have experienced as a result of those disclosures, aimed at obliging him to recognise his child, did not prohibit publication but was merely an inevitable consequence of it, which he was required to tolerate. It noted that the published photographs had been taken with the claimant’s agreement, in his private sphere, and had been made available to the press by a person who had just as much right to do so as the claimant. It held that the protection of the claimant’s private sphere and his right to his own image had to yield to the freedom of the press, on account of the importance of communicating to the public information concerning the claimant’s son born out of wedlock and about the child’s mother. Lastly, it considered that it was for the mother rather than for the Prince, who had not recognised the child, to decide whether the disclosure of the latter’s existence fell within the protected private sphere. 40. Following the appeal by the Prince, the Court of Appeal ordered the magazine not to republish or allow to be published a photograph which had appeared in the 4 May 2005 issue of Bunte, showing the claimant in a moment of intimacy with Ms Coste. However, it considered that the issue of a male heir to the prince of Monaco – a constitutional hereditary monarchy – was of decisive importance, and that the interest taken in this question not only by the citizens of Monaco but also by many persons who lived outside the Principality deserved protection and ought not to be superseded by the claimant’s interest in securing protection of his private sphere, on the ground that the current legal situation allowed only legitimate children to accede to the throne. | 1 |
test | 001-148225 | ENG | RUS | CHAMBER | 2,014 | CASE OF AMIROV v. RUSSIA | 3 | Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention;Trial within a reasonable time);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 7. The applicant was born in 1954 and prior to his arrest lived in the town of Makhachkala, Dagestan Republic. He is currently being detained in a temporary detention facility in Rostov-on-Don. 8. In 1993 the applicant, at the material time the deputy Prime Minister of the Dagestan Republic, survived an assassination attempt. However, his spine was badly wounded and he became paralysed. He cannot walk and is confined to a wheelchair. He also lost his ability to urinate or defecate without special medical procedures, such as catheters and enemas. 9. Since 1998 the applicant has been mayor of Makhachkala, the Dagestan Republic. 10. Сriminal proceedings were instituted against the applicant on suspicion of organised aggravated murder and attempted murder of State officials, including several prosecutors, investigators, a member of the town council and the head of the investigative committee in the Dagestan Republic. The investigation was assigned to a group of senior investigators and criminologists from the investigative committees of various regions of the Russian Federation and led by the deputy head of the Russian Federal Investigative Committee, a major-general. The applicant was arrested on 1 June 2013. 11. On the following day the Basmanniy District Court of Moscow ordered the applicant’s detention pending trial, citing the gravity of the charges against him and the risk that he might abscond, interfere with the investigation, in particular influence witnesses, and reoffend. The District Court’s decision was based on the applicant’s official powers and his significant contacts with various persons involved in the investigation, as well as his consequent ability to influence the investigation. The court referred to the case-file materials, according to which a number of defendants arrested on suspicion of participating in the murders were also public officials and law-enforcement agents, investigators or police officers. They had identified the applicant as the “master-mind” of the murders, had provided details of the murders and had argued that certain victims had been murdered in retaliation for their failure to obey the applicant’s orders. 12. At the same time, the District Court dismissed the applicant’s arguments pertaining to his poor state of health, his stable family situation, his age and his standing in the community, having considered that they did not outweigh the reasons warranting his detention. The District Court was also not convinced by the description given by the head of the Makhachkala police department portraying the applicant as “an example of compliance with the law and public order”. 13. The decision of 2 June 2013 was upheld on appeal on 3 July 2013 when the Moscow City Court found the District Court’s finding reasonable and convincing. The City Court also noted that no alternative measure, such as house arrest or a written undertaking, could ensure the proper course of the criminal proceedings. 14. On 26 July 2013 the Basmannyy District Court extended the applicant’s detention until 11 November 2013, having again linked the gravity and nature of the charges against him, as well as his standing in society, to the likelihood that he would obstruct the course of justice, reoffend or abscond. The District Court once again relied on the applicant’s connections to support the conclusion that if released he would tamper with the evidence. At the same time, the District Court took into account a medical opinion issued on 17 July 2013 (cited in detail below), according to which the applicant’s state of health did not preclude his detention in the conditions of an ordinary detention facility. It also noted that there was no evidence that the authorities had delayed the pre-trial investigation. The District Court concluded by stressing that the case was particularly complex, involved a large number of defendants and required a series of investigative steps to be taken. 15. On 20 September 2013 new charges were brought against the applicant. He was charged with firearms trafficking and attempting to organise a terrorist attack on a public official, his political rival. According to the investigation, the applicant and his accomplices had intended to shoot down, with a portable anti-aircraft rocket launcher, a civilian aircraft in which the public official was to travel from Makhachkala to Moscow with other passengers. 16. On 7 November 2013 the Basmannyy District Court accepted the investigators’ request to extend the applicant’s detention again until 28 February 2014. The District Court noted the gravity of the charges, including the new ones, and the fact that the applicant was facing a sentence of up to life imprisonment. It once again cited the risks of the applicant absconding, reoffending and obstructing the course of justice, and expressed concern for the safety of the witnesses and victims. The District Court noted that the investigation of certain criminal offences with which the applicant was charged was at an active stage and that the risk of his interfering with the investigation, if he were released, was well-founded. More than eleven defendants had been arrested and certain suspects were yet to be apprehended. The District Court placed particular weight on the complexity of the case and the progress that the investigators were making with it. 17. The District Court also examined in detail the arguments put forward by the defence in favour of the applicant’s release and the application of a more lenient measure of restraint. It concluded that neither his family ties nor his state of health outweighed the reasons for his continued detention. In particular, the District Court relied on the medical opinions of 17 July and 7 August 2013, which had found that the applicant’s illness was not among those listed in Governmental Decree no. 3 of 14 January 2011 preventing the detention of a suspect. It further stressed that on a daily basis at least three medical specialists from municipal and State medical facilities (“generalists, surgeons, neurologists, urologists, endocrinologists, proctologists, an infectious diseases specialist, and a rehabilitation specialist”) had examined the applicant and that he had received the prescribed drug treatment in full. Moreover, he had undergone all the necessary laboratory testing and clinical examinations in certified civilian laboratories in Moscow and on 5 November 2013 he was to undergo yet another expert examination to determine whether he was suffering from any illness warranting his release. Having cited a long list of the applicant’s illnesses, the District Court noted that there was no evidence that his condition had deteriorated or that he required treatment in a specialised medical facility. The District Court dismissed as unreliable various expert opinions and medical records prepared by specialists, including foreign ones, in various related fields of medicine and produced by the defence in support of their argument that the applicant’s life was being put at risk by his prolonged detention in the conditions of an ordinary detention facility and in the absence of adequate medical assistance. 18. On 25 February 2014 the Basmannyy District Court extended the applicant’s detention until 1 June 2014. Having again assessed the materials presented to it by the investigation and the defence, the District Court concluded that the risks of the applicant influencing witnesses, reoffending, obstructing the investigation by other means and absconding were still present. In particular, the criminal proceedings against the applicant were at a crucial stage of collecting evidence and there was a risk that, using his connections in the criminal underworld, the applicant might try to influence witnesses and victims who feared him. The District Court also cited the medical reports of 17 July, 7 August and 8 November 2013, which supported its conclusion that the applicant’s state of health did not preclude his further detention. 19. It appears that the applicant’s detention was further extended. However, neither party provided the Court with an update. 20. On 9 July 2014 the North-Caucasian Military Court found the applicant guilty of conspiring to organise a terrorist attack and sentenced him to ten years’ imprisonment. The applicant was stripped of all State awards and commendations. It appears that the criminal proceedings on the remaining charges against the applicant are still pending. 21. Numerous medical certificates and expert opinions submitted by the parties show that the applicant is suffering from a spinal cord injury, paraplegia, chronic urinary tract infection, chronic pyelonephritis (kidney infection), chronic urinary retention, rectal prolapse (a condition in which the rectum protrudes out of the anus), paraproctitis (an inflammation of the cellular tissues surrounding the rectum), ischemic heart disease, chronic heart failure, hypertension, a thyroid gland disease, hepatitis C and non-insulin-dependent diabetes. 22. At the request of the applicant’s representatives a panel comprising experts in neurology, urology and general medicine examined the applicant’s medical records dating from the period between 2001 and 2008. Their report dated 2 July 2013 found that, due to his inability to satisfy his most basic needs (such as moving, urinating or defecating) without help and to his very serious diseases, the applicant required constant medical supervision, treatment and assistance and that he should therefore be placed in a specialised medical facility. His detention in a temporary detention facility could aggravate his condition and, in the absence of a swift reaction to such an aggravation, could result in his death. The report also found that the applicant was suffering from diseases which, according to Governmental Decree no. 3 of 14 January 2011, were incompatible with detention. 23. On 17 July 2013 a panel of three doctors from State hospital no. 20 in Moscow examined the applicant at the investigator’s request. Having studied the applicant’s medical history, the results of his recent clinical blood and urine analyses, as well as the results of his ultrasound scan and MRT examinations, the doctors confirmed the diagnoses and found that the applicant “was not suffering from any of the serious diseases included in the list of serious illnesses precluding detention of a suspect or an accused”. The report did not indicate the field of medicine in which the doctors specialised. 24. In response to a request by the investigator, on 25 July 2013 the director of the medical unit of temporary detention facility (SIZO-2) in Moscow, where the applicant was detained, prepared a certificate describing the applicant’s state of health. Citing extracts from the medical records, the director reported that the applicant was examined by him almost every day and also by various specialist doctors, including a urologist, a neurologist, a surgeon, a cardiologist and an endocrinologist. Blood and urine tests were regularly performed. He was prescribed and administered various medications. The applicant used disposable catheters to urinate. He performed that procedure himself, as he had done before his arrest, up to ten times a day without the facility administration having the possibility of ensuring the requisite level of asepsis. An enema was carried out by a doctor two or three times a week to make the applicant defecate. The applicant’s condition was stable and no deterioration in his health had been noted, although he had continued to raise various health complaints. 25. At the same time, the director of the medical unit also noted that, because the applicant was confined to a wheelchair, he could not be transported to the medical unit of the detention facility. He was therefore held in an ordinary cell where he was visited by the doctors and where all the necessary medical procedures were performed. In particular, the neighbouring cell which was used to perform the enemas was not suitable for that medical procedure as it was difficult to ensure the requisite sterility. The director stressed that lack of sterility could result in a serious complication. 26. The applicant’s lawyers submitted the medical report of 17 July 2013 for assessment by two medical specialists: a deputy president of the Russian Scientific Society of Medical Experts, academician and honorary doctor of the Russian Federation, Mr K.; and a member of the Russian and International Neurosurgeons’ Association, academician and highly respected professor-neurosurgeon, Mr S. On 25 July 2013 the two experts issued their review of the report. Having noticed the lack of information on the medical qualifications and specialisation of the three doctors who had issued the report, the two experts considered that the report contained a number of “significant and important contradictions”. In particular: - a urologist had not examined the applicant or participated in the preparation of the report of 17 July 2013, even though the applicant was suffering from a serious urological disorder; - although the three doctors had been provided with a complete set of medical records comprising the applicant’s medical history, including those related to his injuries and complications, the report was only based on “fragments of that information”; major complications arising from the applicant’s condition, such as chronic cystitis and pyelonephritis, remained unassessed; - Governmental Decree no. 3 of 14 January 2011 listed, among the serious illnesses precluding the detention of a suspect, “serious progressive forms of atrophic and degenerative illnesses of the nervous system accompanied by a stable disorder of the motor, sensory and vegeto-trophic functions”, which fully corresponded to the applicant’s diagnosis. However, that medical condition had not been taken into account by the three doctors who had prepared the report of 17 July 2013; - the applicant was also suffering from a life-threatening post-traumatic pathology of the kidneys and urinary tracts. However, despite the fact that a similar condition was also listed by the Governmental decree among the illnesses precluding detention, the three doctors had paid no attention to it. 27. The two experts concluded that the report of 17 July 2013 was incomplete and was not objective, as it did not fully reflect the “true picture of [the applicant’s] pathology, which undoubtedly fell within the serious illnesses precluding detention pending trial, as determined by Governmental Decree no. 3 of 14 January 2011”. 28. On 7 August 2013 the three doctors from hospital no. 20 issued another report confirming the findings in their previous report of 17 July 2013. The doctors again concluded that the applicant’s condition did not warrant his release as he was not suffering from any illness listed in Governmental Decree no. 3. The findings of the two reports were similar, the only difference being that part of the second report was based on more recent clinical tests and examinations of the applicant. 29. On 13 August 2013 the applicant asked the Court to apply Rule 39 of the Rules of Court and to authorise his transfer to a specialised medical facility as an interim measure. 30. The applicant claimed that the medical assistance he was receiving in the temporary detention facility was insufficient in view of his very serious diseases, which required constant medical supervision by specialised medical staff. The facility’s medical staff were not competent to deal with such serious conditions. The treatment he was receiving there did not correspond to the treatment he had received before his arrest. Moreover, he was unable to satisfy his most basic needs without help. In particular, when he wanted to defecate, he had to wait, suffering, until an external specialist was called, as the facility staff were not qualified to carry out an enema. According to the applicant, such inadequate medical assistance could result in a brutal aggravation of his condition and ultimate death. 31. On 16 August 2013 the Court decided to indicate to the Russian Government, under Rule 39 of the Rules of Court, that it was desirable in the interests of the proper conduct of the proceedings that the applicant be immediately examined by medical experts independent from the prison system with a view to determining: (1) whether the treatment he was receiving in the detention facility was adequate for his condition; (2) whether his current state of health was compatible with detention in the conditions of a detention facility; and (3) whether his current condition required his placement in a hospital. 32. On 26 August 2013 the Government responded to the Court’s letter of 16 August 2013, having submitted a handwritten copy of the report prepared when the applicant was examined on admission to the detention facility SIZO-2 in Moscow; documents showing that the detention facility was licensed to provide medical services to inmates; certificates issued jointly by the head of the detention facility and the director of its medical unit describing the state of the applicant’s health and listing the medical procedures to which he had been subjected; extracts from the applicant’s medical history dating back to 2007; a certificate issued by the same two officials informing the Court that there was no risk to the applicant’s life and limb and that his condition was considered stable; a handwritten copy of the applicant’s medical record drawn up in the detention facility in which the most recent entry had been made on 21 August 2013 by a prison doctor; a record drawn up during the applicant’s stay in hospital no. 20 in Moscow from 11 to 17 July 2013, noting the applicant’s diagnosis and assessing his condition as moderately serious; a medical record from a psychiatric prison hospital where he had stayed from 12 to 17 June 2013 and where he had been treated for an “adaptation disorder affecting emotions and behaviour”; copies of the two medical reports issued on 17 July and 7 August 2013, respectively, by a medical commission of three doctors from hospital no. 20 who, having cited the applicant’s medical history and the results of his examinations by various specialists and clinical tests performed in the hospital in July 2013 and the beginning of August 2013, concluded that the applicant was “not suffering from an illness included in the list of serious illnesses precluding detention of suspected or accused persons”. 33. The Government also answered the three questions which, in its letter of 16 August 2013, the Court had asked them to address to independent medical experts. In particular, having provided an answer to the first question related to the adequacy of the applicant’s treatment, the Government stressed that the applicant had been placed under dynamic medical supervision by the medical personnel of the detention facility in relation to illnesses of the musculoskeletal, endocrine, hepatobiliary and urinary systems. They acknowledged that the applicant, as a wheelchair- bound inmate, required systematic care and permanent medical attention, which were being provided to him in a special cell. He was performing the remaining hygiene procedures himself. The Government submitted that the applicant received the necessary medical attention and that no additional medical procedures were required. 34. In their response to the second question about the compatibility of the applicant’s state of health with the conditions of the detention facility, the Government stressed that the applicant was under the medical supervision of the personnel of the detention facility and was also being seen by various civilian medical specialists. The prison doctors were fully complying with the treatment plan developed by the civilian specialists. 35. In replying to the third question as to whether the applicant needed to be transferred to a hospital, the Government relied on the two reports issued by the three doctors from hospital no. 20 on 17 July and 7 August 2013, according to which the applicant was not suffering from any condition included in the list of serious illnesses precluding the detention of suspected and accused persons in detention facilities, as provided for by in Decree no. 3 of the Government of the Russian Federation of 14 January 2011. 36. On 29 August 2013 the Court reminded the Russian Government that on 16 August 2013 an interim measure had been imposed under Rule 39 of the Rules of Court, in accordance with which independent medical experts were to examine the applicant and provide their expert opinion on the three questions, assessing the quality of the applicant’s treatment, the compatibility of his state of health with the conditions of the detention facility and the need to transfer him to a hospital. The Government’s attention was also drawn to the fact that the failure of a Contracting State to comply with a measure indicated under Rule 39 may entail a breach of Article 34 of the Convention. 37. On 13 September 2013 the Government submitted an English translation of their submissions of 26 August 2013. 38. The applicant submitted a large number of medical reports and opinions issued by various Russian and foreign experts. In particular, he provided the Court with a copy of an opinion issued by Dr P. of the Nurnberg Centre of Gastroenterology in Germany, where he had undergone treatment on a number of occasions since 2004. The doctor who had attended to the applicant on those occasions stressed that he was in need of permanent medical supervision by qualified specialists. The lack of such assistance, in the doctor’s opinion, was life-threatening. He also noted that the conditions of a detention facility were not suitable for a person in the applicant’s state of health. 39. The applicant also provided the Court with an assessment report issued on 15 August 2013 by a deputy president of the Russian Scientific Society of Medical Experts, academician and honorary doctor of the Russian Federation, Dr K., in response to the medical opinion prepared on 7 August 2013 by the three doctors from hospital no. 20. Dr K. again criticised the opinion for the same defects as those identified in the previous report of 17 July 2013. 40. According to another report prepared on 2 August 2013 by Professor B., a surgeon from the Caspari Clinic in Munich, Germany, the applicant required complex daily medical examinations and procedures to control his diabetes, hepatitis C and urological problems. The doctor, who had treated the applicant in December 2012 and January 2013, insisted that the lack of such care would be critically dangerous for the applicant’s life. 41. Another medical expert from Germany, a urologist from a hospital in Dillenburg, in his opinion of 5 August 2013, described the complexity of the applicant’s health condition and listed the treatment which he should receive on a daily basis. He concluded that the applicant’s detention in the absence of such treatment posed a threat to his life. 42. Two more specialist reports were issued in November 2013: the first, by a professor of urology/andrology from Salzburg, Dr J.; and the second by a professor of surgery and intensive surgical medicine from the Paracelsus Private Medical University of Salzburg, Dr W. The reports were based on the applicant’s medical record and answers to their questions prepared by the applicant’s defence team. Having noted the poor sanitary conditions in which the applicant had to undergo necessary procedures and his “reduced immune system”, their prognosis for him was “very bad”, with the likelihood that “over time he would suffer from antibiotic-resistant urinary tract infection that [could] cause urosepsis with a very high risk of [death]”. Dr J. concluded that from the medical evidence before him, the applicant already had a permanent urinary tract infection which would probably soon develop into urosepsis. There was a 60% to 90% chance of developing septic shock and death in such a case, even in optimal clinical conditions. That chance became far more probable in a prison environment. The risk was even higher than for otherwise healthy paraplegic men given that the applicant was suffering from diabetes. Having listed various medical procedures and recommendations for treatment, Dr J. concluded that the applicant’s life “was in acute danger” and that “high-quality medical management of [the applicant’s] problems [was] mandatory”. Dr W. concluded his analysis of the applicant’s health and the treatment to which he was being subjected with the following assessment: “In my 40 years of professional experience as a surgeon, I have never encountered such inhuman, demoralizing and humiliating treatment of [a disabled person] bound to a wheelchair. A paraplegic patient has the same life expectancy as a [non-disabled] person, provided the measures described above are followed. Based on the documents presented to me, I have no reason to assume that this is the case. Given the circumstances described here, one may expect the patient to experience severe and agonizing pain. Due to the non-existent medical care, one may anticipate severe complications or his demise.” 43. On 17 December 2013 Dr W. amended his expert opinion. Having again listed all the illnesses with which the applicant had been diagnosed by the Russian prison authorities, Dr W. stated as follows: “From the medical view it is absolutely insignificant if one or more of those diseases are not in the list of serious diseases preventing the holding in custody of suspects or accused of the commission of crimes. On the other hand, it is proved in international medical literature that the combination of all these serious diseases causes an enormous life threatening situation for [the applicant]. The patient is really very critically ill.”. 44. In the meantime, relying on the Court’s letter of 16 August 2013, on 27 September 2013 the applicant’s lawyers asked the investigators in the case to provide the applicant with an opportunity to be examined in person by a number of medical experts from various civilian hospitals, including those who had prepared the reports assessing the doctors’ opinions of 17 July and 7 August 2013. The lawyers insisted that the named specialists had agreed to provide their expert opinion in response to the three questions put by the Court before the Russian Government under Rule 39 of the Rules of Court. 45. On 3 October 2013 the lawyers received a letter from the senior investigator “fully refusing” their request. Having pointed out that the applicant had already been examined twice by doctors from hospital no. 20, a civilian hospital, and that the doctors had concluded that the applicant was not suffering from an illness included in the list of serious illnesses precluding detention pending trial, the senior investigator dismissed the request. 46. The lawyers sent a similar request to the director of the applicant’s detention facility. The director responded that he did not “in principle” object to such an examination by medical experts, but that the decision authorising the examination could only be taken by the investigator. 47. The applicant was again sent for an examination to hospital no. 20, where the three doctors confirmed their previous findings of 17 July and 7 August 2013. The new report issued on 5 November 2013 was very similar. 48. The lawyers also submitted to the Court a large number of certificates issued by the administration of the detention facility showing that the applicant’s daily needs in terms of medicines and medical materials, including catheters, were covered by his relatives. The director of the detention facility also confirmed that fact in his letter of 23 October 2013. 49. On 1 April 2014 the applicant was transferred to temporary detention facility no. 4 in Rostov-on-Don. A prison doctor attending on the applicant in that facility issued a record listing a number of visits to the applicant by various medical specialists and registering the applicant’s mounting complaints. In the same record she stated that while the applicant remained under permanent medical supervision and was subjected to regular clinical examinations, with his condition, due to those procedures, being satisfactory, any of his illnesses at any time could lead to a significant deterioration in his health and become acute or chronic, with an unpredictable prognosis for his life expectancy. | 1 |
test | 001-173380 | ENG | RUS | COMMITTEE | 2,017 | CASE OF MANUYLOV 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 | 001-180482 | ENG | HUN | ADMISSIBILITY | 2,017 | BÁRDI AND VIDOVICS v. HUNGARY | 4 | Inadmissible | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 1. The applicant in the first case, Ms Györgyi Gabriella Bárdi (the first applicant), is a Hungarian national who was born in 1951 and lives in Budapest. She was represented before the Court by Mr D. Lázár, a lawyer practising in Budapest. 2. The applicant in the second case, Mr László Vidovics (the second applicant), is a Hungarian national who was born in 1978 and lives in Budapest. He was represented before the Court also by Mr D. Lázár, acting in that case on behalf PITEE, a consumer protection association. 3. The facts of the cases, as submitted by the applicants, may be summarised as follows. 4. In 2006 both applicants took out mortgages from Hungarian commercial/mortgage banks. Their loan agreements were denominated in Swiss francs. According to the terms of the agreements, the applicants were to bear the risk of any exchange rate fluctuations between the Hungarian forint and the Swiss franc. 5. The first applicant submitted that her loan agreement had not contained all the information required by law, to be exact, that provisions on a particular cost element, namely that of “currency spreads” (the practice of applying the “sell rate” when granting the loan and the “buy rate” for repayment) were not indicated. Furthermore, no proper reasons had been given in the agreement to justify any unilateral modifications of the costs collected by the banks. She contended that her loan agreement had been invalid because, owing to the above-mentioned defects, it conflicted with mandatory provisions of Hungarian law that had been in force at the time of signing. 6. In 2011 the first applicant initiated civil proceedings against the banks, urging the court to declare her loan agreements invalid for the reasons stated above. According to the information provided by the applicant, the proceedings are suspended. 7. Simultaneously, several debtors of foreign-currency-based consumer loan agreements lodged similar actions in Hungary. Due to the large number of those court cases, the Kúria decided to deliver a uniformity decision in respect of the issues concerning such agreements. In its Civil Law Uniformity Decision no. 2/2014 of 16 June 2014, it adopted a position on the unfairness of certain clauses of such consumer loan contracts. It held that the fact that, in such situations, the debtor bore the risk of currency fluctuations (in exchange for the favourable interest rates obtained) did not, in itself, make the agreements invalid. The unfairness of such contractual terms could be assessed and established only if the information provided by the bank on the nature of that risk was unintelligible for the average consumer. It also held that currency spreads, as provided for in the contracts, were invalid. Moreover, clauses enabling the unilateral amendment of the contracts were also invalid unless those clauses complied with certain principles laid down in the earlier no. 2/2012 (XII.10) Uniformity Decision of the Kúria. 8. In order to ensure that the principles laid down in the Kúria’s Uniformity Decision could be enforced directly, not only in pending litigations but also in connection with potential, non-litigated claims concerning consumer loan contracts, Parliament then adopted three pieces of legislation. Those statutes were enacted also to ensure that all foreign-currency-based loan agreements were converted into Hungarian forints and that settlements between the consumer and the financial institution – in respect of unlawfully collected sums from currency spreads and costs that arose from unilateral amendments – were implemented in accordance with the guidance of the Kúria and with pending court actions being meanwhile put on hold. 9. In particular, Act no. XXXVIII of 2014 on the resolution of questions relating to the uniformity decision of the Kúria regarding consumer loan agreements drawn up by financial institutions (“Act 1” – see paragraph 16 below), which entered into force on 19 June 2014, provided that currency spreads constituted invalid contractual provisions. Moreover, that there was a presumption – to be potentially refuted by the banks in separate proceedings – that clauses enabling the unilateral amendment of the contract were also invalid. This legislation prescribed that pending proceedings in respect of consumer loan agreements were to be suspended until the measures provided for in the other two relevant pieces of legislation had been taken. 10. Act no. XL of 2014 on the rules of settlement laid down in Act 1 (“Act 2” – see paragraph 18 below), which entered into force on 1 November 2014, provided, among other things, that if a claimant wished to pursue his or her claim against the financial institution in court, he or she needed to complete the claim by itemising and quantifying the consequences of the alleged invalidity of the contract, otherwise the case would be discontinued except for those claims that related to issues not covered by Act 1. 11. Act no. LXXVII of 2014 on change of the currency of consumer loan agreements denominated in foreign currency (“Act 3” – see paragraph 19 below), which entered into force on 6 December 2014, provided that all foreign-currency-based loan agreements were to be converted into Hungarian-forint-based loans, using a defined exchange rate. 12. The first applicant lodged complaints with the Constitutional Court, claiming that certain provisions of Act 1 and Act 2 had violated her right to a fair trial. She argued that Parliament had intervened in private-law matters by adopting the impugned legislation and that this contravened the democratic principle of separation of powers. On 23 February 2015 the Constitutional Court rejected the complaint, without an examination on the merits, holding that it lacked relevant reasoning and as such, was not eligible for a decision. 13. The first applicant’s pending action against the banks was suspended under section 16 of Act 1; and on 19 November 2015 she was invited by the court to supplement her statement of claim in accordance with section 37 of Act 2 (see paragraph 9 above). She lodged another constitutional complaint, arguing that the court’s decision and section 37 of Act 2 on which it was based were unconstitutional. On 7 March 2016 the Constitutional Court rejected the complaint, without an examination on the merits, holding that it concerned an interim decision rather than a final judgment and, as such, was not eligible for constitutional review. 14. The second applicant lodged a complaint with the Constitutional Court on 29 July 2015, claiming that certain provisions of Act 3 – those in respect of the conversion of foreign currency into Hungarian forints using a defined exchange rate – were unconstitutional. He argued that Parliament had intervened in private-law matters. 15. On 1 December 2015, after due examination of the merits of several hundreds of similar complaints, the Constitutional Court dismissed the second applicant’s complaint. It stated that the aims of Act 3 were to eliminate the continuous risk arising from exchange-rate fluctuations and to ensure that the loan agreements could remain in force between the parties. Those aims were in the interests of both debtors, such as the applicants, and creditors with stakes in the financial institutions. It held that when Parliament – in the light of the critically changed situation which had occurred after the execution of the relevant loan agreements (namely the unexpected and dramatic devaluation of the Hungarian forint vis-à-vis the Swiss franc) – had modified the contractual terms ordering the conversion of the agreements, it had acted in the common interest of society, taking into due consideration the interest of consumers as well. The interference was thus proportionate and necessary in a democratic society. Furthermore, the Constitutional Court held that there was no connection between the challenged provisions of Act 3 and the right to a fair trial, because the challenged provisions (namely the conversion of loans from foreigncurrency-based loans into Hungarian-forint loans at a defined exchange rate) had no impact on the pending actions regarding the alleged invalidity of the loan agreements. 16. The relevant provisions of Act 1 read as follows: “(1) With the exception of contract terms which have been individually negotiated, any term in a consumer loan agreement where the buying rate stipulated by the financial institution for the granting of the loan ... differs from the selling rate or from the rate ... for the purposes of repayment shall be deemed null and void. (2) The annulled term referred to in subsection (1) shall be replaced ... by a provision for the application of the official exchange rate of the National Bank of Hungary ... (5) The financial institution shall settle accounts with the consumer as provided for in another statute.” “(1) As regards consumer loan agreements allowing for the possibility to alter the terms of the contract unilaterally, any term – with the exception of contract terms which have been individually negotiated – that creates a right to increase the interest rate and other costs and fees unilaterally is deemed to be unfair, given that it does not comply with: a) the principle of clear and intelligible wording, where the term in question is neither plain nor understandable for the consumer; b) the principle of detailed specification, where the conditions for amending the terms of the contract unilaterally are not specified in detail, that is to say the reasons are not listed, or the reasons supplied are merely indicative; c) the principle of objectivity, where the conditions for amending the terms of the contract unilaterally lack objectivity, that is to say the party with whom the consumer is entering into a contract is able to cause such conditions to occur, and has the power to incite such conditions and to influence the extent of any change that may serve as grounds for substantiating the amendment; d) the principle of effectiveness and proportionality, where the circumstances specified in the list of reasons do not effectively or proportionally influence the interest, costs and/or fees; e) the principle of transparency, where the consumer was not in a position to foresee what additional burdens would be passed on to him, nor the extent and reasons for such changes; f) the principle of withdrawability, where the consumer does not have the right to withdraw from the contract if it is amended; or g) the principle of symmetry, where the contract does not allow any change in the conditions that may occur to the consumer’s benefit to take effect for the consumer’s benefit. (2) The contract term referred to in subsection (1) hereof shall be deemed null and void if the financial institution has failed to lodge a civil action ... or if the court dismisses the action or terminates the proceedings ...” “(1) ... The court shall ex officio suspend, until the measure provided for in other specific legislation has been taken, at the latest until 31 December 2014, proceedings in respect of lawsuits having as their object, in part or in whole, the contract terms referred to in [this Act], or proceedings instituted by a financial institution against a consumer for the enforcement of a claim based, inter alia, on such contract term. The court may decide on the suspension of proceedings without a formal hearing. As regards the suspension of proceedings, the provisions of the Code of Civil Proceedings shall apply mutatis mutandis, with the proviso that the court ruling ordering the suspension of proceedings shall not be amenable to appeal. (2) ... The court shall also ex officio suspend, until the measure provided for in other specific legislation has been taken, at the latest until 31 December 2015, proceedings in respect of lawsuits having as their object, in part or in whole, the contract terms referred to in [this Act], or proceedings instituted by a financial institution against a consumer for the enforcement of a claim based, inter alia, on such contract term, if the ... contract term ... figures in a ... consumer loan contract ...” 17. The explanatory memorandum attached to Act 1 contains the following passage: “In order to ensure that those principles are enforced directly, the present Act codifies the principles laid down in the Kúria’s Uniformity Decision. The Act makes the Kúria’s interpretation applicable to everyone. It does not create any new substantive laws or new principles in respect of consumer loan and leasing agreements, but purely codifies the interpretation of the Kúria. This is to ensure that a high number of consumers avoid lengthy and costly litigation that would, in any event, overburden the judicial system.” 18. The relevant provisions of Act 2 read as follows: “(1) In respects of contracts to which the present legislation applies, a party may apply to the court – irrespective of the reason for the alleged invalidity – seeking annulment of the contract or of certain terms of the contract (partial annulment) only if the application also includes details of the claims in respect of the consequences of annulment, such as treating the contracts as if they were valid until the date of the court’s judgment. In the absence thereof or if a request for supplementing the statement of claim is unsuccessful, the claim shall not be decided on the merits. If the party requests the court to establish the consequences of full or partial annulment, he shall also indicate the type of legal consequence to be applied. In respect of the consequences, the party shall apply to the court with a defined request, indicating the requested sums and the settlement between the parties. (2) Under subsection (1) above ... if the conditions set out in this Act are met, in proceedings instituted for the establishment of the full or partial annulment of a contract that are still pending, the statement of claim shall be rejected without examination on the merits or the proceedings shall be terminated. The court shall not dismiss the statement of claim without examination on the merits or terminate the proceedings if the party has further claims pending, apart from the one seeking full or partial annulment of the contract. In this case, the proceedings shall be continued only in respect of this further claim.” 19. The relevant provisions of Act 3 read as follows: “(1) Consumer loan agreements shall be amended in accordance with this Act.” “The financial institution that is the creditor of the foreign-currency-based consumer loan agreement shall convert ... the full debt arising out of the foreign-currency-based loan agreement – including the interest, fees and costs accrued in foreign currency – into Hungarian forints using the exchange rate that is more favourable to the debtor between a) the average exchange rate applied by the National Bank of Hungary between 16 June 2014 and 7 November 2014, or b) the exchange rate applied by the National Bank of Hungary on 7 November 2014.” | 0 |
test | 001-161380 | ENG | ROU | CHAMBER | 2,016 | CASE OF M.G.C. v. ROMANIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1997 and lives in Deva. 6. At the time of the events, the eleven-year-old applicant was living with her family in a small village and often used to go to play with two girls from a neighbouring family at their house. The girls, F.C.B. and M.S.B., were about the same age as the applicant. The neighbours’ family (the B. family) had ten children and were also accommodating a relative of theirs, J.V., a fifty-two-year-old man who was unemployed and lived in the family’s vacant cattle stable. 7. According to the statement made by the applicant later to the police, in August 2008 and then again in December 2008, J.V. had dragged her by force while she was playing with her girlfriends at the neighbours’ house, had taken her to an empty room in the house or into the barn and had raped her while holding her down and keeping his hand over her mouth in order to prevent her from screaming. The applicant also stated to the police that between August 2008 and February 2009 she had been raped in similar circumstances by four of the neighbours’ sons and their friend G.I. 8. On 10 March 2009 the applicant’s mother noticed that the applicant did not get her monthly period and had a talk with her. She told her mother that she had been sexually abused by J.V. and the other boys. She said that she had been ashamed to talk about what happened and also afraid to tell her parents sooner because J.V. had threatened that he would beat her if she told anyone. 9. As a result of the sexual abuse, the applicant became pregnant and, with her parents’ approval, she later underwent a surgical termination of the pregnancy. 10. On 10 March 2009 the applicant’s parents lodged a complaint against the alleged perpetrators with the local police and an investigation was started against J.V. and the four brothers F.B., A.B., G.B. and P.B. No proceedings were opened with respect to G.I., who was under fourteen and hence not criminally liable. 11. On the same day the five suspects were called into the police station for questioning. F.B. declared that on 22 December 2008, when the applicant was visiting her friends, he had asked her to have sex with him and she had accepted. P.B. declared that it had been J.V. who insistently told him to have sex with the applicant. 12. On 11 March 2009 a forensic report found that no traces of violence had been detected on the applicant’s body. 13. During the investigation J.V. declared that the applicant had provoked him to have sex with her as she was always scantily dressed. He further stated that it was she who had come to him and had asked him to have sex with her the first time, in August or September 2008. He alleged that the applicant had told him that she had had sex before with the boys from the B. family. 14. The applicant declared before the police that she had been forced by J.V. to have sex with him on several occasions, alleging that he had threatened that he would beat her if she told anyone. The other boys had also forced her to have sex with them, telling her that it was J.V. who had told them what to do. 15. On 22 April 2009 the Deva Police sent the file to the Prosecutor’s Office of the Hunedoara County Court in order to pursue the investigation into rape. The judiciary police officer making the request held that, even if the perpetrators’ statements were to be accepted as truthful, the victim’s age (eleven at the time of the first sexual act) precluded the existence of legally valid consent as she could not have freely expressed her will. 16. On 7 July 2009, at the request of the Hunedoara County Police, the Hunedoara County Forensic Institute issued a forensic psychiatric report on the applicant. The report held that the applicant was suffering from post-traumatic stress and stated that: “Concerning the specific circumstances in which the criminal acts were committed, the minor speaks with shame about what happened. She has a vivid memory of the events. ... She says that she did not tell anyone about the incidents sooner because she feared for her safety and the safety of her family members.” The report concluded that the applicant had difficulties in foreseeing the consequences of her actions and had insufficient discernment due to her age. 17. F.B. declared before the prosecutor that he had had sex with the applicant once on 22 December 2008. A.B. declared that he had had sex with the applicant in the autumn of 2008. G.B. declared that he had had sex with the applicant once in April and then again in October 2008. P.B. stated that he had had sex with the applicant on one occasion in the autumn of 2008. The applicant had asked him to have sex with her, and when he had refused - because he had never done this before - it was she who got undressed and climbed onto him. He further mentioned that he had used a condom that he had in his pocket. They all declared that it was the applicant who had taken the initiative each time and that it had happened because she displayed a provocative attitude, being scantily dressed most of the time. Each brother stated that the applicant had told him that she had had sex before, either with one of the other brothers or with J.V. 18. When questioned during the investigation, F.C.B. and M.S.B. declared that the applicant had told them she had had an intimate relationship with J.V. and that they had never seen him taking the applicant by force while they were playing. They also stated that the applicant often came to their house scantily dressed and that their brothers C.B. and A.B. had told them that the applicant had provoked them and “jumped onto them”. 19. On 10 December 2009 the Prosecutor’s Office of the Hunedoara County Court issued an indictment decision with respect to J.V. for the crime of sexual intercourse with a minor on repeated occasions. F.B., A.B., G.B. and P.B. were given administrative fines for the same crime. From the statements of the perpetrators and the two sisters, the prosecutor held as proved the fact that the applicant had gone to the neighbours’ house scantily dressed and had had a sexual relationship with J.V. The prosecutor therefore concluded that from the documents in the file it was not proved beyond doubt that the applicant had not given her consent to the sexual acts. 20. The applicant’s complaint against the prosecutor’s decision concerning the four brothers and G.I. was rejected by the superior prosecutor and subsequently by the courts. 21. On 20 April 2010 J.V. was found guilty by the Deva District Court of sexual intercourse with a minor and was sentenced to three years’ imprisonment. The applicant was awarded 10,000 Romanian lei (ROL) by way of compensation in respect of non-pecuniary damage (approximately 2,000 euros (EUR)). 22. During the proceedings the applicant’s representative requested the perpetrator’s conviction for rape. She submitted to the file a copy of a judgment issued on 10 November 2009 by the Bacău Court of Appeal which held that a girl aged ten years and eight months could not understand what a sexual act meant sufficiently well to give her consent to it. 23. The applicant declared before the court that J.V. had forced her to have sex with him and had threatened to beat her if she told anyone. She was afraid of him because he could become violent when he was drunk. The other boys had also threatened to beat her and once A.B. had threatened her with a knife. 24. In reaching its decision, after also hearing statements from J.V. and the witnesses F.C.B. and M.S.B., the Deva District Court firstly observed that the forensic certificate stated that no signs of violence had been detected on the victim’s body. The court further noted that it was apparent from the statements of J.V. and the other perpetrators who had not been indicted by the prosecutor that the applicant had always taken the initiative for the sexual acts and she had been in the habit of provoking both J.V. and the other boys to have sex with her. As regards the content of the above-mentioned statements, the court considered “relevant” the fact that the applicant was scantily dressed and that even after she had allegedly been sexually abused she went on playing with her girlfriends. The court considered that: “If sexual intercourse had taken place by force or by taking advantage of the victim’s lack of capacity to defend herself or to express her will, it is certain that [she] would not have continued her previous practice [going to play with the neighbours’ daughters]”. 25. The applicant, represented by her lawyer, appealed against the judgment of the Deva District Court, requesting that J.V. be convicted of rape and that the amount of compensation in respect of non-pecuniary damage be increased to ROL 50,000. The applicant’s representative submitted that the decision of the first instance court had not been impartial since it had been based only on the statement of the accused, together with statements by the other perpetrators and two witnesses – all related to the accused. Furthermore, since the minimum age of consent to a sexual act was set by law at fifteen, the applicant ‒ who was only eleven at the time of the incidents ‒ could not have expressed valid consent and the sexual abuse committed against her could therefore only be classified as rape. In addition, the applicant’s representative complained that the forensic psychiatric report of 7 July 2009, which declared that the victim lacked capacity to express valid consent and was suffering from post-traumatic stress, had not been taken into consideration by the first instance court. 26. The Hunedoara County Court decided to allow the applicant’s appeal, holding that: “According to the provisions of Article 197 of the Criminal Code, the crime of rape is ‘Sexual intercourse of any kind with a person ... taking advantage of the [person’s] lack of capacity to defend herself or to express her will [original emphasis]...’. At the time when the accused had sexual intercourse with the victim, she was eleven years old. In Romanian law, there is an absolute presumption that any person below fourteen completely lacks capacity. Therefore, before the age of fourteen, the minor cannot express a valid consent, being in a position of inability to express [his/her] will in a valid manner...” 27. Taking these arguments into account, on 4 November 2010 the Hunedoara County Court convicted J.V. of rape and sentenced him to four years’ imprisonment. The court applied a sentence below the minimum provided for by law for the crime of rape against a person under fifteen, finding mitigating circumstances due to the defendant’s good behaviour prior to the commission of the crime on trial. The court also held that it was not necessary to increase the amount of compensation in respect of non-pecuniary damage awarded by the first instance court. 28. The applicant’s representative submitted an appeal on points of law (recurs) against the judgment of 4 November 2010, requesting an increase in the amount of compensation for non-pecuniary damage and that a more severe sentence be imposed on the defendant. J.V. also contested the judgment, requesting a conviction for the crime to which he had confessed, namely sexual intercourse with a minor. 29. On 21 March 2011 the Alba Iulia Court of Appeal allowed the appeal on points of law submitted by J.V. and upheld with final effect the judgment of the Deva District Court of 20 April 2010. The Alba Iulia Court of Appeal based its verdict on the statements given by J.V., F.C.B. and M.S.B. as well as the account of the events given by the other perpetrators. Based on these testimonies and the fact that the victim had not told her parents about the alleged abuse, the court drew the conclusion that the instances of sexual intercourse had always been initiated by the applicant and dismissed the theory that the victim might have lacked capacity to express her will. The findings of the forensic psychiatric report of 7 July 2009 were not mentioned or discussed in any way by the court. The court of appeal explained as follows: “The court considers that the crime of rape is committed by constraint - physical or moral - or by taking advantage of the victim’s lack of capacity to express his/her will, more specifically rape is a sexual intercourse committed without consent. On the other hand, the crime of sexual intercourse with a minor, as provided by Article 198 of the Criminal Code, means engaging in a sexual intercourse with a minor under 15, but with the minor’s consent. ... “The presumption of lack of capacity applies only to minors who are under fourteen and have committed a crime, but with respect to the crime provided by Article 198 of the Criminal Code, the minor [the applicant] is the victim and not the perpetrator.” | 1 |
test | 001-156557 | ENG | HRV | ADMISSIBILITY | 2,015 | SEKUL v. CROATIA | 4 | Inadmissible | Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 1. The applicant, Mr Zorislav Sekul, is a national of Croatia and Australia, who was born in 1936 and lives in Supetar. He was represented before the Court by Ms L. Kušan, a lawyer practising in Ivanić Grad. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant and his wife moved to Croatia from Australia sometimes in 1997/1998 and they bought a flat in Supetar from B.M. and D.M.E. Although there was no written purchase agreement, the applicant paid the full purchase price and moved into the flat. 5. Meanwhile, the applicant’s wife was admitted to a nursing home in Nerežišća and the applicant moved to a rest home in Supetar. 6. On 18 January 1999 the applicant brought an action in the Supetar Municipal Court (Općinski sud u Supetru) against B.M. and D.M.E., seeking a court order for the conclusion of a written sale and purchase agreement concerning the flat. 7. On 10 May 1999 the Supetar Municipal Court ruled in the applicant’s favour but on 4 October 2002 the Split County Court (Županijski sud u Splitu), as the court of appeal, quashed the first-instance judgment and remitted the case on the grounds of inadequate reasoning of the judgment. 8. In the resumed proceedings, on 14 January 2003, the applicant, represented by lawyer Z.I., amended his civil action seeking the award of title of ownership over the flat and the performance of certain construction works by B.M. and D.M.E. 9. During the proceedings, B.M. and D.M.E. lodged a counterclaim against the applicant seeking annulment of the oral sale and purchase agreement. 10. On 22 August 2003 the Supetar Municipal Court accepted the applicant’s action, awarded him the title of ownership over the flat and ordered B.M. and D.M.E. to perform the requested construction works. It also dismissed B.M.’s and D.M.E.’s counterclaim. 11. On 9 June 2005 the Split County Court upheld the first-instance judgment concerning the title of the applicant’s ownership and the dismissal of B.M.’s and D.M.E.’s counterclaim, whereas it quashed the part of the judgment concerning the performance of construction works and in that part remitted the case for re-examination. 12. In the resumed proceedings the applicant complained to the Split County Court about the length of the proceedings before the Supetar Municipal Court. 13. On 25 January 2008 the Split County Court found a violation of the applicant’s right to a hearing within a reasonable time, awarded him 7,000 Croatian kunas (HRK) in compensation and ordered the Supetar Municipal Court to decide the case within six months. 14. In September 2008 lawyer Z.I. informed the Supetar Municipal Court that he no longer represented the applicant, and in January 2009 lawyer J.A.M. informed that court that he was the applicant’s representative. 15. On 30 January 2009 the Supetar Municipal Court partially accepted the applicant’s civil action concerning the construction works, ordering B.M. and D.M.E. to carry out some additional works on the doors and windows, façade and the parquet floor in the applicant’s flat. In addition, it authorised the applicant, in the case of a failure of B.M. and D.M.E. to comply with that order, to carry out the construction works himself at the expense of B.M. and D.M.E. The applicant was also awarded costs and expenses in the amount of HRK 88,732. 16. This judgment was upheld on appeal by the Split County Court on 21 January 2010. It thus became final, and on 17 March 2010 it became fully enforceable. 17. On 29 November 2011 the applicant, represented by lawyer D.R., instituted enforcement proceedings against B.M. and D.M.E. in the Supetar Municipal Court concerning the performance of construction works ordered in the judgment of 30 January 2009 (see paragraphs 15 and 16 above). Relying on section 217 of the Enforcement Act, the applicant requested that B.M. and D.M.E. should comply with their duty to finish the construction work within a period of eight days and, in case of a failure on their part to comply with the judgment, to pay an enforcement fine (sudski penali) of HRK 500 for every further day of delay. 18. After unsuccessful friendly settlement arrangements, and several orders of the Supetar Municipal Court to correct his request for enforcement, on 29 June 2012 the applicant reiterated his request, under section 217 of the Enforcement Act, asking that B.M. and D.M.E. be given an additional period of fifteen days to comply with the judgment and, in case of a failure on their part, to pay an enforcement fine of HRK 500 for every further day of delay. 19. On 5 July 2012 the Supetar Municipal Court accepted the applicant’s request and ordered B.M. and D.M.E. to comply with the judgment of 30 January 2009 within a period of fifteen days, and, in case of a failure to that effect, to pay an enforcement fine in the amount of HRK 500 to the applicant for every further day of delay. 20. On 13 July 2012 B.M. and D.M.E. challenged the time-limit set out for the enforcement, seeking its postponement due to the upcoming tourist season. On 10 May 2013 the Supetar Municipal Court dismissed the request unfounded. 21. On 27 May 2013 B.M. and D.M.E. appealed to the Split County Court against the dismissal of their request for the postponement of the enforcement, arguing in particular that the construction works could not be performed during the tourist season and that the applicant had denied their workers access to the flat. 22. On 23 July 2013 the Split County Court dismissed the appeal lodged by B.M. and D.M.E. as unfounded, upholding the Supetar Municipal Court’s order for the payment of an enforcement fine. 23. The applicant did not seek the enforcement of that order by seeking payment of the awarded amount. 24. On 23 October 2008 lawyer Z.I., who represented the applicant in his civil proceedings instituted against B.M. and D.M.E. (see paragraphs 8-14 above), asked a public notary in Solin to issue an enforcement order on the applicant’s property in general for the payment of lawyer’s fees in the amount of HRK 83,229.86, together with the statutory default interest. 25. The following day the public notary accepted the request and issued an enforcement order on the applicant’s property. It instructed the applicant that he could lodge an objection against the order with the competent civil court within a period of eight days following its service on him. 26. The material available to the Court contains a delivery note of this decision dated 31 October 2008, bearing in handwriting the applicant’s last name. 27. As there was no objection against the public notary’s decision it became final on 8 November 2008. 28. On 12 February 2009 the applicant, represented by lawyer J.A.M., requested the public notary to re-open the proceedings arguing that he had not received the enforcement order on 31 October 2008, and that he had only later learnt of its existence. He also challenged the validity of the enforcement order. 29. After receiving the request, the public notary forwarded it to the Supetar Municipal Court for its examination and decision. 30. On 9 June 2009, after hearing the parties’ arguments, the Supetar Municipal Court declared the applicant’s request inadmissible as being lodged out-of-time. In particular, the Supetar Municipal Court found that there was no doubt that the enforcement order issued by the public notary had been served on the applicant on 31 October 2008, which was therefore taken as the date when the three-month time-limit for lodging a request for re-opening had started running. Accordingly, as the applicant’s request had been lodged on 12 February 2009, it followed that it was lodged out-of-time. 31. The Supetar Municipal Court informed the applicant that he could lodge an appeal against this decision with the Split County Court. The applicant did not avail himself of that possibility. 32. Meanwhile, Z.I. asked the Supetar Municipal Court to enforce the public notary’s enforcement order by the judicial sale of the applicant’s flat. Following the applicant’s protests, the Supetar Municipal Court on 8 February 2010 invited the parties to provide further comments on the case. 33. After receiving the parties’ further submissions, on 23 February 2010 the Supetar Municipal Court, in view of the applicant’s specific complaints, advised him to institute a separate set of civil proceedings requesting an interdiction of the further enforcement on his property based on Z.I.’s enforcement request. The applicant did not avail himself of this possibility. 34. On 20 May 2010 a hearing was held before the Supetar Municipal Court with a view of establishing the value of the applicant’s flat. It was decided that the competent tax authority would be requested to provide the relevant information in that respect. 35. On 3 February 2011 the Supetar Municipal Court, on the basis of available information, set the value of the flat at HRK 84,000 and ordered its judicial sale on 13 April 2011. 36. On 7 April 2011 Z.I. asked the Supetar Municipal Court to postpone the judicial sale of the applicant’s flat for a further six months so as to allow him the possibility to settle the debt by other means. 37. In October 2011 Z.I. requested the Supetar Municipal Court to resume the enforcement proceedings. 38. In January 2014 Z.I. informed the Supetar Municipal Court that so far he managed to receive HRK 22,307.21 from the applicant and that the applicant still owned him HRK 60,922.55. He therefore adjusted his claim, asking seizure of the amount awarded to the applicant on account of costs and expenses of the proceedings against B.M. and D.M.E. (see paragraph 15 above). 39. On 7 February 2014 the Supetar Municipal Court accepted Z.I.’s revised enforcement request. 40. It appears that the enforcement proceedings are still pending. 41. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010, 85/2010 and 5/2014) read as follows: “In the determination of his rights and obligations or of any criminal charge against him, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” “Everyone has a right to respect for and legal protection of his ... family life, ...” “The right of ownership shall be guaranteed ...“ 42. The relevant provisions of the Enforcement Act (Ovršni zakon, Official Gazette, nos. 57/96, 29/99, 42/00, 173/03, 194/03, 151/04, 88/05, 121/05 and 67/08), which was in force between 11 August 1996 and 14 October 2012, read as follows: “(1) The enforcement proceedings shall be instituted upon the request of the creditor ...” “(1) The court shall order enforcement ... by the means and on the objects set out in the request for enforcement ...” “... (2) An enforcement order issued on the basis of a reliable document can be challenged by an objection. ...” “... (2) Reinstatement of the proceedings shall be allowed only in case of a failure to meet the time-limits for an appeal or objection.” “(1) In the enforcement proceedings ... the provisions of the Civil Procedure Act shall apply mutatis mutandis, unless otherwise provided under this or some other Act. ...” “(1) Against the enforcement order the debtor may lodge an appeal: ... 10. if the enforcement of the claim is, even if temporarily, postponed, prohibited, amended or otherwise impossible due to the fact which appeared at the moment when the debtor could not have raised it any longer in the proceedings in which the decision adopted ..., or 11. if the claim, set out in the enforcement document, is time-barred.” “(1) If an appeal has been lodged for one of the reasons under section 46 § 1 ... (9)-(11) of this Act, the first-instance court [conducting the enforcement proceedings] shall forward the appeal to the creditor for a comment ... (2) If the creditor accepts that one of the reasons referred to in the appeal exists, the court shall terminate the enforcement proceedings. (3) If the creditor challenges the existence of those reasons ..., the first-instance court [conducting the enforcement proceedings] shall without further delay instruct the debtor that he or she can, within the period of fifteen days following the finality of the decision [by which the instruction has been issued], institute the civil proceedings asking for an interdiction of the further enforcement on the grounds of the existence of reasons referred to in paragraph 1 of this section for which the appeal has been lodged. ...” “(1) If in his or her objection against the enforcement order issued on the basis of a reliable document the debtor has not indicated in which part the order is challenged, it shall be presumed that the order is challenged in whole. (2) If the enforcement order is challenged in whole, or only in the part in which the debtor was ordered to comply with the claim, the court to which the objection has been submitted shall set aside the enforcement order in the part in which the enforcement had been ordered ... and the proceedings shall continue as if an objection against a payment order [issued by the competent civil court] has been made.” “(1) If the debtor does not comply with his or her non-monetary duty to perform an action ... established in a final court decision ..., the court in the enforcement proceedings shall, on the basis of a request by the creditor, set out a further appropriate time-limit for the debtor [to comply with his or her duty] and [it will also] order that the debtor shall, in case of a failure to comply with his or her duty within that time-limit, pay to the creditor a certain amount of money for each day of delay ... (enforcement fine), starting from the expiry of the time-limit. ... (4) The payment of the enforcement fine can be sought until, on the basis of the enforceable [title], the enforcement of the non-monetary relief is sought. (5) The right to [seek] the enforcement fine terminates on the day when the request for enforcement referred to in paragraph 4 of this section is submitted. Enforcement of the payment of [the amount awarded by] the enforcement fine due on that day can be sought [by seizure of the debtor’s bank accounts]. ...” “On the basis of a final decision ordering the enforcement fine under section 217 of this Act, the court shall, in the same enforcement proceedings where that decision was made, upon the request of the creditor, order the enforcement of the [amount] awarded by the enforcement fine.” “(1) The enforcement of the duty to an action which can also be performed by another person shall be conducted so that the court shall authorise the creditor to commission, within a certain time-limit and on the expense of the debtor, from another person the performance of that action or to carry it out himself or herself. (2) In his or her request, the creditor may ask the court to order the debtor to deposit in advance certain amount [of money] at the court, necessary for the expenses related to the performance of the action by the third party or the creditor. ...” “Public notaries shall be competent to decide upon a request for enforcement on the basis of a reliable document, in accordance with this Act.” “(1) If the public notary finds that the request for enforcement is admissible and justified, he or she shall issue an enforcement order on the basis of a reliable document and shall serve it on the parties. ...” “(1) The debtor may lodge an objection against the enforcement order issued on the basis of a reliable document to the public notary who issued [the order]. (2) The public notary who received a belated or inadmissible objection against the order which he or she had issued, shall forward the case file for a decision on the objection to the competent court (section 252j), which shall declare such an objection inadmissible. ... (4) The case file forwarded to the competent court ..., upon the termination of the [relevant] proceedings, shall remain at the court.” 43. The Civil Procedure Act (Zakon o parničnom postupku, Official Gazette nos. 53/91, 91/92, 58/93, 112/99, 88/01, 117/03, 88/05, 02/07 and 84/08) in its relevant part provides: “(1) If a party fails to meet ... the time-limit for a procedural action and therefore loses the right take that action, the court shall, upon his or her request, allow to that party to take that action later (reinstatement of the proceedings) if it finds that this omission was the result of a justifiable reason. ...” “... (4) After the expiry of three months following the failure [to take the procedural action] the reinstatement of the proceedings cannot be sought. ...” “(1) If the defendant objects to the payment order ..., the court shall first decide upon that objection. If it finds that the objection is justified, it shall quash the payment order and, after the finality of that decision, open the proceedings on the subject matter [of the dispute] ... (2) If the court does not accept that objection, it shall open the proceedings on the subject matter [of the dispute], and the decision of the court [concerning the objection] shall be part of the decision on the subject matter [of the dispute]. ...” 44. The relevant provisions of the Courts Act (Zakon o sudovima, Official Gazette nos. 150/2005, 16/2007, 113/2008, 153/2009, 116/2010, 122/2010, 27/2011, 57/2011 and 13/2011), applicable in the case issue, read as follows: “(1) A party to court proceedings who considers that the court has failed to decide within a reasonable time on his or her rights or obligations or a criminal charge against him or her, may lodge a request for the protection of the right to a hearing within a reasonable time with a court at the next higher level of jurisdiction. ...” Section 28 (1) If the court referred to in section 27 of this Act finds the request well founded, it shall set a time-limit within which the court before which the proceedings are pending must decide on a right or obligation of, or a criminal charge against, the person who lodged the request, and may award him or her appropriate compensation for a violation of his or her right to a hearing within a reasonable time. (2) The compensation shall be paid out of the State budget within three months of the date on which the party’s request for payment is lodged. ...” 45. The relevant provision of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 35/2005, 41/2008 and 125/2011) provides: “(1) All claims established by a final court decision ... shall be time-barred after the expiry of [the time-limit of] ten years, even if the law provides shorter period of prescription. ...” | 0 |
test | 001-156133 | ENG | SRB | ADMISSIBILITY | 2,015 | MATIĆ AND POLONIA DOO v. SERBIA | 4 | Inadmissible | Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 2. The applicants are Mr Aleksandar Matić (“the first applicant”) and Polonia DOO (“the second applicant”). 3. The first applicant is a Serbian national who was born in 1961 and lives in Mladenovac. He is also the second applicant’s authorised representative. The second applicant is a limited liability company based in Mladenovac. Both applicants were represented before the Court by Mr M. Grujičić, a lawyer practising in Belgrade. 4. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 2005 the second applicant bought a cargo ship (teretni brod) outside of Serbia. This ship’s estimated worth was approximately 545,000 Euros (“EUR”). 7. In September 2005 the first applicant, acting on behalf of the second applicant, retained the services of a forwarding company (špediter), which company specialised in customs-related matters. 8. On 13 September 2005 the forwarding company filed a declaration with the customs authorities, supplementing it with the relevant documentation provided by the applicants. 9. On 7 November 2005 the Belgrade Customs Office (carinarnica), having, inter alia, heard a number of witnesses, established that the ship had been improperly classified (svrstan pod pogrešni tarifni stav), as a sea-going vessel, which classification, in turn, implied that no customs duty would be payable. The forwarding company and its authorised representative, as well as the applicants in the present case, were thus found guilty of a customs offence (cariski prekršaj) and fined in accordance with the relevant legislation (see paragraph 16 below). In particular, the first and the second applicants were ordered to pay 10,000 and 3,000,000 Serbian Dinars (“RSD”) respectively, whilst the forwarding company and its authorised representative were fined in the amount of RSD 3,000,000 and 10,000 in that order. The Customs Office noted that its own classification of the ship, as primarily a river-going vessel, was based on the assessment of one of the two expert organisations which had submitted opposing opinions during the proceedings. The Customs Office also referred to an attesting declaration, issued by the German authorities and provided by the applicants themselves, to the effect that the ship was “suitable for sailing on the Rhine, between Basel and the open sea”. In any event, the head of the Customs Office, at one point, recommended that the ship be classified as a river-going one, but the applicants refused to do so. 10. On 11 October 2006 the Ministry of Finance (Ministarstvo finansija) partly accepted the appeals filed by the four defendants, and in so doing amended the fines imposed at first instance. In particular, the first and second applicants were ordered to pay RSD 5,000 and RSD 2,000,000, (approximately EUR 60 and EUR 23,600 at that time), respectively, whilst the forwarding company and its authorised representative were fined less, i.e. RSD 500,000 and RSD 3,000 (approximately EUR 5,900 and EUR 35 at that time) respectively. The Ministry of Finance stated that the reason for this distinction was that the forwarding company had merely complied with the applicants’ request for the improper classification of the ship in question, as established on the basis of a witness statement given in the course of the proceedings. Also, the Ministry of Finance accepted that there was no intent on the part of the applicants to deceive the authorities, which was why they were found guilty under Article 340 of the Customs Act, an offence not requiring the existence of such intent but rather the mere failure to provide accurate information upon submission of a customs declaration. 11. On 25 October 2006 the applicants lodged an appeal on points of law (zahtev za vanredno preispitivanje pravosnažnog rešenja), which appeal was supplemented on 8 December 2006, 31 January 2008 and 12 February 2008. Therein, the applicants maintained, inter alia, that: (a) although the Belgrade Customs Office had taken into account two expert opinions regarding the classification of the ship, it had accepted, without proper explanation, one opinion and effectively given no credence to the other; (b) they had had no expertise to navigate their way through the complex customs proceedings, which was why they had hired the forwarding company to deal with this issue; and (c) the impugned decisions of the customs authorities had been inconsistent with their decisions in other similar cases. 12. On 26 December 2007 the Supreme Court (Vrhovni sud) ruled on the applicants’ appeal on points of law. The first applicant’s claims were rejected as inadmissible (odbačeni), since the amount of the fine imposed in his case was below the statutory threshold of RSD 100,000 (see paragraph 22 below), whilst the second applicant’s claims were considered on their merits and rejected (odbijeni). The Supreme Court endorsed the reasoning contained in the impugned decisions issued by the administrative authorities. The applicants received the Supreme Court’s judgment on 10 March 2008. 13. The second applicant was granted the possibility to pay the fine in monthly instalments, and by January 2008 the fine was paid in full. 14. The above-described proceedings were conducted on the basis of the Minor Offences Act 1989, as amended in 2004, as well as the Customs Act 2003 (see paragraphs 16-24 below). 15. Between 25 September 2006 and 10 December 2010 the Ministry of Finance and the Supreme Court of Cassation (Vrhovni kasacioni sud), applying Article 340 of the Customs Act, issued six decisions in respect of situations broadly similar to that of the applicants. Specifically, they noted that it was the responsibility of the importer to provide accurate documentation to the forwarding company and the forwarding company’s duty to properly classify the goods in the customs declaration. No intent to deceive the authorities was deemed necessary for the existence of the said offence. In two of these cases the importers were, ultimately, acquitted or formally cautioned (opomenuti), without being fined, whilst in the remaining four cases they were fined in accordance with the applicable legislation (see, for example, rešenja Ministarstva finansija od 25. septembra 2006. i 21. januara 2007, Pžc nos. 1349/05 i 667/07; as well as presude Vrhovnog kasacionog suda od 12. februara 2010, 26. marta 2010, 11. juna 2010. i 10. decembra 2010, Upr nos. 2/10, 115/10, 12/10 i 110/10). 16. Article 340 provides, inter alia, that a company, as well as its authorised representative employed therewith (odgovorno lice), shall be liable for failing to provide accurate information upon submission of a customs declaration. They shall further be fined therefor in the amount of up to RSD 25,000 or the threefold value of the imported goods, as regards a natural person and a corporate entity respectively. 17. Article 35 § 1 provides that should a natural person (fizičko lice), fail to pay the fine imposed, it shall be converted into a prison term on the basis that one day in prison shall be worth RSD 500, but that the imprisonment may not exceed a period of thirty days in all. 18. Article 36 § 2 provides that should a corporate entity fail to pay the fine imposed, it shall be collected “forcibly” (naplatiće se prinudnim putem). 19. Article 41 § 1 provides, inter alia, that a defendant may be formally cautioned, rather than fined, where there are serious extenuating circumstances. 20. Article 84 identifies, inter alia, the courts entrusted with conducting customs-related proceedings. 21. Article 234 § 1 (9) provides that proceedings shall be terminated if there is no proof that the defendant had committed the offence with which he has been charged. 22. Article 272 provides, inter alia, that a natural person, as well as an authorised representative of a corporate entity employed therewith (odgovorno lice u pravnom licu), shall be entitled to lodge an appeal on points of law if they have been fined in the amount of RSD 100,000 or more. 23. In accordance with Article 277, the Supreme Court shall, should it accept an appeal on points of law lodged by one of the parties concerned, have the power to overturn and/or amend the impugned decision or quash it and order the re-examination of the issue before the competent administrative authorities. 24. Article 17 of the Amendments Act adopted in 2004 amended Article 84 of the Minor Offences Act 1989, whereby administrative authorities were given the competence to conduct customs-related proceedings at first and second instance. 25. On 1 January 2007 this Act repealed the Minor Offences Act 1989, as amended in 2004. 26. Article 306 of the Minor Offences Act 2005 provides that it shall be applicable to all pending cases where no second instance decision has been rendered on the merits by 1 January 2007. By implication, as regards all other pending cases, including the present case, the Minor Offences Act 1989, as amended in 2004, remained applicable until their very conclusion. | 0 |
test | 001-167801 | ENG | HRV | CHAMBER | 2,016 | CASE OF BAŠIĆ v. CROATIA | 4 | 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 - Fair hearing) | Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1980 and lives in Slavonski Brod. 6. In response to a request from the police, on 26 November 2007 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta) asked an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) to authorise the use of special investigative measures, namely tapping the telephone conversations of the applicant and several other individuals on the grounds of their suspected participation in organised drug trafficking, customs evasion, and the abuse of power and authority. 7. On 27 November 2007 the investigating judge granted the request and issued an order for the use of secret surveillance measures. His statement of reasons read as follows: “The State Attorney’s Office for the Suppression of Corruption and Organised Crime asked the investigating judge to authorise the use of phone tapping measures under Article 180 § 1 (1) of the Code of Criminal Procedure in respect of ... Damir Bašić [and others] on the grounds that a preliminary [police] investigation suggested that these individuals were engaged in criminal activity involving the commission of offences under Articles 173 §§ 1 and 2, 298 § 2, 337 and 333 of the Criminal Code. Having assessed the [State Attorney’s] request, and in view of [the request from the police], it is established that there is probable cause for believing that the criminal offences have been committed and that the requisite investigation in the present case could not be carried out by any other means, or would be extremely difficult. In addition, given that the matter concerns the offences enumerated in Article 181 § 1 (2) of the Code of Criminal Procedure, the request has been granted and it was decided as indicated in the operative part of this order.” 8. In the course of the investigation, the investigating judge issued several further secret surveillance orders to the same effect. In addition to the phone tapping, the investigating judge also authorised the covert monitoring of the suspects. 9. On the basis of the evidence obtained by the aforementioned use of secret surveillance measures, on 2 July 2008 the police lodged a criminal complaint against the applicant and five other persons with the Slavonski Brod County State Attorney’s Office (Županijsko državno odvjetništvo u Slavonskom Brodu) in connection with suspected drug trafficking and customs evasion. 10. On the same day the applicant was brought before an investigating judge of the Slavonski Brod County Court (Županijski sud u Slavonskom Brodu), who questioned him in connection with the charges brought against him. The applicant decided to remain silent and not give any evidence. 11. On 4 July 2008 the investigating judge opened an investigation in respect of the applicant and the other suspects in connection with suspected drug trafficking. She also ordered the applicant’s pre-trial detention. 12. After the completion of the investigation, on 25 November 2008 the Slavonski Brod County State Attorney’s Office indicted the applicant and four other persons in the Slavonski Brod County Court on charges of drug trafficking. 13. On 12 June 2009 the applicant asked the Slavonski Brod County Court to exclude from the proceedings the evidence obtained by means of secret surveillance as being unlawfully obtained. He argued that the secret surveillance had been carried out on the basis of orders which had been issued contrary to the relevant domestic law and practice of the Constitutional Court (Ustavni sud Republike Hrvatske) in that they contained no reasoning justifying the use of secret surveillance. 14. At a hearing on 18 June 2009 the Slavonski Brod County Court dismissed the applicant’s request as unfounded. At the same hearing the applicant pleaded not guilty to the charges held against him, whereas three other defendants pleaded guilty. The trial bench heard several witnesses and an expert witness and examined the reports in the case file. 15. A further hearing was held on 29 September 2009 at which the applicant reiterated his request for the exclusion of the evidence obtained by secret surveillance as being unlawfully obtained. The applicant further contended that his exact location at the moment of the alleged commission of the offence at issue should be established by obtaining the location tracking data of the mobile phone which he had allegedly used. 16. The trial bench dismissed the applicant’s request as unfounded and decided to continue with the examination of evidence. It heard two witnesses and an expert witness and adjourned the proceedings in order for the defence to obtain copies of the secret surveillance recordings. 17. At a hearing on 26 November 2009 the applicant argued that a list of incoming and outgoing calls for the mobile phones allegedly used by the defendants should be obtained doubts as to the identification of one of the speakers as one of the applicant’s co-accused. 18. At a hearing on 14 December 2009 the trial bench heard further secret surveillance audio recordings. The defence had no particular objections to the recordings but requested that some additional evidence and recordings be examined at the trial. 19. Further hearings were held on 2 and 19 February 2010 at which the trial bench examined the secret surveillance recordings. The applicant reiterated his request for an expert telecommunications report to establish the location of his mobile phone at the moment of the alleged offence. The defence also challenged the credibility of a police report concerning the applicant’s surveillance, expressing doubts as to the reasons why there were no recordings accompanying that report. In this connection the trial bench heard evidence from the police officer in charge of the operation, Z.H., who explained that no recordings had been made for fear that, in the circumstances, the suspects might have noticed that they were being followed. The trial bench also heard evidence from another police officer, B.V., who explained the method of identifying the mobile phones used by the defendants. Following B.V.’s questioning, the trial bench dismissed all further requests for the examination of evidence and adjourned the hearing for the preparation of the defendants’ closing statements. 20. On 26 February 2010 the trial bench heard the parties’ closing arguments. 21. By a judgment of 1 March 2010 the Slavonski Brod County Court found the applicant guilty as charged and sentenced him to five years’ imprisonment. As to the applicant’s arguments concerning the alleged unlawfulness of the secret surveillance orders, that court held that the orders had outlined reasons for believing that the applicant had probably participated in the commission of the offence at issue and that the investigation could not have been conducted by other means. 22. The Slavonski Brod County Court further held that all doubts on the part of the defence as to the accuracy of the recordings had been clarified by questioning the police officers, who had explained the manner in which the recordings had been obtained and documented. It also found that the available police reports on covert monitoring provided sufficient information as to the defendant’s location at the moment of the commission of the offence and that there was therefore no need to obtain further evidence, such as mobile phone location data, in that respect. It therefore dismissed the applicant’s objections to the use of the evidence obtained by secret surveillance and proceeded with its detailed assessment when determining the applicant’s guilt. 23. On 21 April and 6 July 2010, relying on the case-law of the Constitutional Court ‒ according to which secret surveillance orders needed to be properly reasoned in order to satisfy the requirement of lawfulness under the relevant domestic law ‒ the applicant lodged an appeal against the first-instance judgment with the Supreme Court (Vrhovni sud Republike Hrvatske). He also complained about the use of the evidence thereby obtained in securing his conviction. 24. On 21 September 2010 the Supreme Court dismissed the applicant’s appeal and upheld the first-instance judgment. It stressed in particular that the alleged lack of reasoning justifying the secret surveillance orders could not result in the unlawfulness of the evidence obtained by the use of such secret surveillance.’s conviction had been based on a proper and convincing assessment of evidence and the relevant facts. 25. On 23 November 2010 the applicant lodged a constitutional complaint with the Constitutional Court complaining that his right to respect for private life and confidentiality of correspondence, as guaranteed under Articles 35 and 36 § 1 of the Constitution, had been breached by the unlawful and unjustified secret surveillance, and that his right to a fair trial under Article 29 of the Constitution had been breached by the use of the evidence thereby obtained in the criminal proceedings against him. 26. On 11 July 2012 the Constitutional Court dismissed the applicant’s constitutional complaint as unfounded, endorsing the reasoning of the Supreme Court. It considered in particular that the criminal proceedings against the applicant, taken as a whole, had not been unfair. The decision of the Constitutional Court was served on the applicant on 11 September 2012. | 1 |
test | 001-166491 | ENG | HUN | CHAMBER | 2,016 | CASE OF T.P. AND A.T. v. HUNGARY | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading punishment;Inhuman punishment) (Substantive aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 6. The first applicant, Mr T. P. was born in 1981 and is currently serving his prison term in Sátoraljaújhely. 7. On 22 November 2006 the Nógrád County Regional Court convicted the first applicant of murder committed with special cruelty and abuse of firearms. The applicant was sentenced to life imprisonment with no possibility of parole. 8. On 28 June 2007 the Budapest Court of Appeal upheld the judgment, adding that the murder had been committed for ‘villainous’ reasons, namely, the applicant was considered to have killed the victim in a particularly atrocious manner, so as to prevent her from reporting the initial abduction and stabbing and thereby to cover up a previous crime. 9. On 14 February 2008 the Supreme Court dismissed the first applicant’s petition for review. 10. On 5 November 2013 the President of the Republic dismissed the applicant’s request for pardon, by which he sought commutation of his life sentence to twenty years fixed-term imprisonment as well as allowing the possibility of his release on parole. 11. The second applicant, Mr A.T. was born in 1985 and is currently serving his prison term in Sátoraljaújhely. 12. On 14 May 2010 the Borsod-Abaúj-Zemplén County Regional Court convicted the second applicant of double murder and abuse of firearms. He was sentenced to life imprisonment with no possibility of parole. 13. On 9 November 2010 the Debrecen Court of Appeal upheld this judgment. 14. On 13 September 2011 the Supreme Court dismissed the second applicant’s petition for review. 15. On 23 October 2014 the President of the Republic dismissed the applicant’s request for pardon, by which he sought commutation of his life sentence to twenty years fixed-term imprisonment as well as allowing the possibility of his release on parole. | 1 |
test | 001-164515 | ENG | CHE | GRANDCHAMBER | 2,016 | CASE OF AL-DULIMI AND MONTANA MANAGEMENT INC. v. SWITZERLAND | 1 | Preliminary objection dismissed (Article 35-3 - Ratione personae);Preliminary objection dismissed (Article 35-3 - Ratione materiae);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Civil rights and obligations);Damage - claim dismissed (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Dean Spielmann;Dmitry Dedov;Egidijus Kūris;Guido Raimondi;Helen Keller;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Luzius Wildhaber;Mark Villiger;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen;Robert Spano;Vincent A. De Gaetano | 10. The first applicant was born in 1941 and lives in Amman (Jordan). According to the Security Council of the United Nations (UN), he was head of finance for the Iraqi secret services under the regime of Saddam Hussein. The second applicant is a company incorporated under the laws of Panama and having its registered office in Panama, the first applicant being its managing director. 11. After Iraq invaded Kuwait on 2 August 1990, the UN Security Council adopted Resolution 661 (1990) of 6 August 1990 and Resolution 670 (1990) of 25 September 1990, calling upon UN member States and nonmember States to apply a general embargo against Iraq and on any Kuwaiti resources confiscated by the occupier, together with an embargo on air transport. 12. On 7 August 1990 the Swiss Federal Council adopted an ordinance providing for economic measures against the Republic of Iraq (the “Iraq Ordinance”; see paragraph 36 below). The applicants alleged that since that date their assets in Switzerland had remained frozen. 13. On 10 September 2002 Switzerland became a member of the United Nations. 14. On 22 May 2003 the UN Security Council adopted Resolution 1483 (2003), superseding Resolution 661 (1990), among others (see paragraph 46 below). Paragraph 23 of Resolution 1483 (2003) reads as follows: “The Security Council ... Decides that all Member States in which there are: (a) funds or other financial assets or economic resources of the previous Government of Iraq or its state bodies, corporations, or agencies, located outside Iraq as of the date of this resolution, or (b) funds or other financial assets or economic resources that have been removed from Iraq, or acquired, by Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction, shall freeze without delay those funds or other financial assets or economic resources and, unless these funds or other financial assets or economic resources are themselves the subject of a prior judicial, administrative, or arbitral lien or judgement, immediately shall cause their transfer to the Development Fund for Iraq, it being understood that, unless otherwise addressed, claims made by private individuals or non-government entities on those transferred funds or other financial assets may be presented to the internationally recognized, representative government of Iraq; and decides further that all such funds or other financial assets or economic resources shall enjoy the same privileges, immunities, and protections as provided under paragraph 22.” 15. The Iraq Ordinance of 7 August 1990 underwent numerous amendments, in particular on 30 October 2002, following the entry into force of the Federal Law of 22 March 2002 on the application of international sanctions (the Embargo Act, in force since 1 January 2003), and on 28 May 2003, to take account of Resolution 1483 (2003). Article 2 of the Iraq Ordinance provided in substance for the freezing of assets and economic resources belonging to the former Iraqi Government, to senior officials thereof and to companies or bodies under the control or management of that Government or its officials. Pursuant to the Ordinance, any person or organisation holding or managing assets covered by the freezing measure must immediately declare them to the State Secretariat for Economic Affairs (the “SECO”) (see Article 2a § 1 of the Iraq Ordinance, paragraph 36 below). 16. On 24 November 2003 a sanctions committee created by Security Council Resolution 1518 (2003) (“the 1518 Sanctions Committee”), and consisting of representatives of all members of the Council, was given the task of listing the individuals and entities concerned by paragraph 23 of Resolution 1483 (2003) (see paragraph 46 below). For that purpose, the Committee was to keep up to date the lists of individuals and entities already compiled by the former sanctions committee, created under Resolution 661 (1990), which had been adopted during the armed conflict between Iraq and Kuwait. 17. On 26 April 2004 the 1518 Sanctions Committee added to the list of individuals and entities, respectively, the second applicant, which had its registered office in Geneva, and the first applicant, who was the managing director of the latter. 18. On 12 May 2004 the applicants’ names were added to the list of individuals, legal entities, groups and organisations concerned by the national measures under Article 2 of the Iraq Ordinance. On 18 May 2004 the Federal Council also adopted, under Article 184, paragraph 3, of the Federal Constitution, an ordinance on the confiscation of the frozen Iraqi assets and economic resources and their transfer to the Development Fund for Iraq (“the Confiscation Ordinance”; see paragraph 37 below). That Ordinance was initially valid until 30 June 2010 and was then extended until 30 June 2013. 19. The applicants indicated that a confiscation procedure had been initiated in respect of their assets in Switzerland, which had been frozen since 7 August 1990, by the Federal Department for Economic Affairs, when the Confiscation Ordinance had entered into force on 18 May 2004. 20. The first applicant, wishing to apply directly to the 1518 Sanctions Committee for the removal of his name from the list, called upon the Federal Department for Economic Affairs, in a letter of 25 August 2004, to suspend the confiscation procedure in respect of his assets. In a letter of 5 November 2004 to the Chair of the Committee, the Swiss Government, through their Permanent Representative to the United Nations, supported that application. In a letter of 3 December 2004 the Chair informed the applicants that the Sanctions Committee had received their application and that it was under consideration. He asked them to send supporting documents and any additional information that might substantiate the application. 21. The first applicant replied in a letter of 21 January 2005 that he wished to give oral evidence to the Sanctions Committee. As no action was taken on the request, the applicants, in a letter of 1 September 2005, sought the continuation of the confiscation procedure in Switzerland. 22. On 22 May 2006 the Federal Department for Economic Affairs sent the applicants a draft decision on the confiscation and transfer of the funds that were deposited in their names in Geneva. In observations of 22 June 2006 the applicants challenged that decision. 23. In three decisions of 16 November 2006 the Federal Department for Economic Affairs ordered the confiscation of the following assets: (a) the sum of 86,276.85 Swiss francs (CHF) belonging to the first applicant, representing the liquidation dividend of a company (not the second applicant) of which he had been the sole shareholder, and deposited in the “client” account of a Swiss law firm which represented him; (b) a total of CHF 164,731,213 deposited in the applicant company’s name with bank X; (c) a total of CHF 104,739,882.57 deposited in the applicant company’s name with bank Y. 24. The Federal Department for Economic Affairs stated the conditions in which the sums would be transferred, within ninety days from the entry into force of the decisions, to the bank account of the Development Fund for Iraq. In support of its decisions, it observed that the applicants’ names appeared on the lists of individuals and entities drawn up by the Sanctions Committee, that Switzerland was bound by the resolutions of the Security Council and that it could only delete a name from the annex to the Iraq Ordinance where the relevant decision had been taken by the Sanctions Committee. The Federal Department further observed that the applicants had discontinued their discussions with the Sanctions Committee. It indicated that an administrative-law appeal could be lodged with the Federal Court against its decisions. 25. On 19 December 2006 the Security Council, being committed to ensuring that fair and clear procedures existed for placing individuals and entities on sanctions lists, including those of the 1518 Sanctions Committee, and for removing their names, as well as for granting humanitarian exemptions, adopted Resolution 1730 (2006), which created a delisting procedure (see paragraph 48 below). 26. The applicants lodged separate administrative-law appeals with the Federal Court against each of the Federal Department’s three decisions of 16 November 2006, seeking their annulment. In support of their submissions, they argued that the confiscation of their assets breached the property right guaranteed by Article 26 of the Federal Constitution and that the procedure leading to the addition of their names to the lists provided for by Resolution 1483 (2003) and annexed to the Iraq Ordinance had breached the basic procedural safeguards enshrined in Article 14 of the International Covenant on Civil and Political Rights (ICCPR) of 16 December 1966, in Articles 6 and 13 of the Convention and in Articles 29 to 32 of the Federal Constitution. The applicants took the view that the Federal Court, and before that the Federal Department for Economic Affairs, had jurisdiction to review the legality and the conformity with the Convention and the ICCPR of the 1518 Sanctions Committee’s decision to add their names to the list provided for in paragraph 23 (b) of Resolution 1483 (2003). They submitted that there was no incompatibility or conflict between the obligations under the Charter and the rights guaranteed by the Convention or the ICCPR. 27. On 10 December 2007 the applicants filed additional observations limited to an assessment of the impact of a judgment of the Federal Court dated 14 November 2007 (in the case which ultimately led to the Nada v. Switzerland judgment ([GC], no. 10593/08, ECHR 2012)) on the merits of their own appeals. They further sought the opportunity to present oral argument on that point. A copy of these observations was sent to the Federal Department for Economic Affairs for information purposes. 28. On 18 January 2008 the applicants wrote to the Federal Court drawing its attention to the opinion delivered on 16 January 2008 by the Advocate General in the case of Yassin Abdullah Kadi, then pending before the Court of Justice of the European Communities (“the CJEC”, which on 1 December 2009 became known as the Court of Justice of the European Union, “the CJEU”), and reiterating their request of 10 December 2007 to present oral argument. 29. In three almost identical judgments, the Federal Court dismissed the appeals, confining itself to verifying that the applicants’ names actually appeared on the lists drawn up by the Sanctions Committee and that the assets concerned belonged to them. The relevant parts of those judgments read as follows (unless otherwise stated, this is the text of the judgment concerning the first applicant): “5.1 On 10 September 2002 Switzerland became a member of the United Nations and ratified the United Nations Charter of 26 June 1945 (the Charter; RS 0.120). Article 24, paragraph 1, of the Charter provides that, in order to ensure prompt and effective action by the United Nations, its members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf. Under Article 25 of the Charter, the members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the Charter. The binding nature of Security Council decisions concerning measures taken in accordance with Articles 39, 41 and 42 to maintain or restore international peace and security also stems from Article 48, paragraph 2, of the Charter, which provides that such decisions must be carried out by the members of the United Nations directly and through their action in the appropriate international agencies of which they are members. The mandatory effect of Security Council decisions is the basis for the similar effect of decisions taken by subsidiary organs such as the sanctions committees (see Eric Suy and Nicolas Angelet in Jean-Pierre Cot, Alain Pellet and Mathias Forteau, La Charte des Nations Unies, commentaire article par article, 3rd edition, Economica 2005, Article 25, pp. 915 et seq.). 5.2 It was under Chapter VII (Articles 39 to 51) of the Charter that the Security Council adopted Resolution 1483 (2003): having regard to the situation in Iraq, the Security Council considered that it had to take measures ‘to maintain or restore international peace and security’. Those measures included, in particular, the decisions stated in paragraphs 19 and 23 of the Resolution: in particular, the Security Council decided that member States were required to freeze and transfer to the Development Fund for Iraq the assets described in paragraph 23 of the Resolution. It also decided that the 1518 Sanctions Committee would have the task of identifying the individuals and entities referred to in paragraph 23. 5.3 At the outset, the 1518 Sanctions Committee published a set of guidelines for the application of paragraphs 19 and 23 of Resolution 1483 (2003) (see http://www.un.org/french/sc/committees/1518/indexshtml); they described the manner in which the lists of individuals and entities would be drawn up and disseminated. In that document the Committee requests as follows: ‘The names of individuals and entities proposed for identification should be accompanied by, to the extent possible, a narrative description of the information that forms the basis or justification for taking action pursuant to resolution 1483 (2003)’. The procedure is then described in the following terms. The Committee will reach decisions by consensus. If consensus cannot be reached, the Chairman should undertake such further consultations as may facilitate agreement. If after these consultations, consensus still cannot be reached, the matter may be submitted to the Security Council. Given the specific nature of the information, the Chairman may encourage bilateral exchanges between interested member States in order to clarify the issue prior to a decision. Where the Committee agrees, decisions may be taken by a written procedure. In such cases, the Chairman will circulate to all members of the Committee the proposed decision of the Committee, under the ‘no-objection’ procedure within three working days. If no objection is received within such a period, the decision will be deemed adopted. 5.4 Company S. SA and [the first applicant] appear on the lists of entities and individuals drawn up by the 1518 Sanctions Committee under number ... for the company and ... for the latter, on the ground that its managing director is [the first applicant], the head of finance, at the time, of the Iraqi secret services, who also controls the companies H., K. SA and M. [the second applicant], three entities entrusted with the management of the assets of the former regime and its high-ranking members. The decision taken on 16 November 2006 by the Federal Department for Economic Affairs to confiscate the appellant’s assets pursuant to the Iraq Ordinance and the Confiscation Ordinance is thus based on Resolution 1483 (2003).” The two judgments concerning the second applicant: “5.4 The [second applicant] appears on the lists of entities and individuals drawn up by the 1518 Sanctions Committee under number ..., on the ground that its managing director is [the first applicant], who also controls H. and K. SA, two entities entrusted with the management of the assets of the former regime and its high-ranking members. The decision taken on 16 November 2006 by the Federal Department for Economic Affairs to confiscate the appellant’s assets pursuant to the Iraq Ordinance and the Confiscation Ordinance is thus based on Resolution 1483 (2003).” The judgment concerning the first applicant (continued): “6.1 Since 28 November 1974 Switzerland has been a Contracting Party to the European Convention on Human Rights. However, even though it signed, on 19 May 1976, the additional Protocol No. 1 of 20 March 1952, which guarantees in particular the protection of property (Article 1), it has not ratified it to date. That Protocol has not therefore entered into force in respect of Switzerland. Consequently, in Switzerland, the protection of property is guaranteed by the Federal Constitution alone (Article 26). Under Article 1 ECHR, the High Contracting Parties undertake to secure to everyone within their jurisdiction the rights and freedoms defined in Section I of the Convention (Articles 2 to 18 ECHR). Article 6 § 1 ECHR, in particular, grants everyone the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, in the determination of an individual’s civil rights and obligations or of any criminal charge against him or her. Under Article 13 ECHR, everyone whose rights and freedoms as set forth in the Convention are violated is entitled to an effective remedy before a national authority. ... 6.4 Even though he relies on the guarantee of the protection of property and points out that restrictions on property are possible only under the conditions laid down in Article 36 of the Constitution, the appellant is in reality only complaining of a breach of procedural safeguards and not of a violation of Articles 26 and 36 of the Constitution. He observes that restrictions on the enjoyment of his possessions, such as the confiscation of his property, can be ordered only after due process under domestic law, including a substantive examination of the legal conditions for such restriction, while ensuring the observance of fundamental rights, basic procedural safeguards, and defence rights, or the right to be heard, and in compliance with the requirement to state reasons, the prohibition of any denial of justice, and the equality of arms and adversarial principles (see appellant’s observations, ch. 76-80). He complains that the reasons for his inclusion on the list of the 1518 Sanctions Committee were never brought to his knowledge and that he was not able to comment on them or defend himself in adversarial proceedings before an independent and impartial judicial body, this not being disputed – quite rightly – by the Department for Economic Affairs in the light of the listing procedure (see above, point 4.3). In this connection, the appellant is of the opinion that Switzerland is required to apply Resolution 1483 (2003), but also the provisions of the European Convention on Human Rights and those of the International Covenant on Civil and Political Rights concerning procedural safeguards; he argues that there is no contradiction between those various obligations, and that for this reason the decision appealed against should be quashed and the matter referred back for fresh confiscation proceedings before the Swiss courts, which would examine the merits of the measure in compliance with basic procedural safeguards. It is therefore appropriate to examine the procedural safeguards that Switzerland is required to comply with, having regard to its obligations under the Charter and Resolution 1483 (2003), in the proceedings initiated by the Federal Department for Economic Affairs leading to the confiscation of the appellant’s assets. 7.1 Pursuant to Article 5 paragraph 4, of the Constitution, the Confederation and the Cantons comply with international law. Under Article 190 of the Constitution, the Federal Court and the other authorities are required to apply federal laws and international law. International law, within the meaning of Article 190 of the Constitution, is defined by jurisprudence as the entire body of international law that is binding on Switzerland, comprising international agreements, customary international law, the general rules of the law of nations and the decisions of international organisations that have mandatory effect in Switzerland. Accordingly, the Federal Court is in principle required to comply with the provisions of the Charter, United Nations Security Council resolutions, the European Convention on Human Rights and the International Covenant on Civil and Political Rights. 7.2 Article 190 of the Constitution does not, however, provide for any rule of conflict between the various norms of international law that are equally binding on Switzerland. However, under Article 103 of the Charter, in the event of a conflict between the obligations of the members of the United Nations under the Charter and their obligations under any other international agreement, their Charter obligations prevail. This primacy is also enshrined in Article 30 § 1 of the Vienna Convention on the Law of Treaties of 23 May 1969 (‘VCLT’; RS 0.111; entered into force in respect of Switzerland on 6 June 1990). According to legal opinion and case-law, this is an absolute and general primacy which applies regardless of the nature of the treaty which is in conflict with the Charter, whether it is bilateral or multilateral, or whether the treaty entered into force before or after the entry into force of the Charter. The primacy is granted not only to the obligations expressly laid down in the Charter, but also, according to the International Court of Justice, to those that stem from binding decisions of United Nations organs, in particular the binding decisions taken by the Security Council pursuant to Article 25 of the Charter (see the case concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie, ICJ Reports 1992, p. 15, paragraph 39; see also Felipe Paolillo in Les conventions de Vienne sur le droit des traités, commentaire article par article, Olivier Corten and Pierre Klein (eds.), Bruylant, Brussels 2006, no. 33 on Article 30 VCLT and the numerous references cited). This primacy does not render null and void the treaty which is in conflict with the Charter obligations, but merely suspends the treaty for as long as the conflict remains (see Eric Suy in Les conventions de Vienne sur le droit des traités, op. cit., no. 15 on Article 53 VCLT and the references cited). Moreover, neither the European Convention on Human Rights nor the International Covenant on Civil and Political Rights contains clauses which would, in themselves or by virtue of another treaty, prevail over the conflict clause that is enshrined in both Article 103 of the Charter and Article 30 § 1 VCLT. Article 46 ICCPR certainly provides that ‘[n]othing in the present Covenant shall be interpreted as impairing the provisions of the Charter of the United Nations and of the constitutions of the specialized agencies which define the respective responsibilities of the various organs of the United Nations and of the specialized agencies in regard to the matters dealt with in the present Covenant’. However, according to legal opinion, this provision simply means that the International Covenant on Civil and Political Rights cannot hinder the task of the political organs and specialised agencies which have been entrusted under the Charter with duties relating to human rights (see Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, Kehl 2005, no. 3, on Article 46 ICCPR, p. 798). It does not therefore establish any hierarchy between the decisions of the Security Council and the rights guaranteed by the ICCPR – the United Nations as such is not a party to the latter in any event. It cannot be concluded that the International Covenant on Civil and Political Rights prevails over Charter obligations. 7.3 Consequently, in the event of any conflict between Switzerland’s obligations under the Charter and those deriving from the European Convention on Human Rights or the International Covenant on Civil and Political Rights, the Charter obligations in principle prevail over the latter, as the appellant has not in fact denied. He takes the view, however, that this principle is not absolute. In his opinion, the obligations arising from the Charter, in particular those imposed by Resolution 1483 (2003), lose their binding character if they contravene the rules of jus cogens. 8. The appellant argues that the procedural safeguards under Article 14 ICCPR and Article 6 ECHR constitute jus cogens norms. He submits that, in breaching those safeguards, Resolution 1483 (2003) should lose its binding effect. 8.1 Under the heading ‘Treaties conflicting with a peremptory norm of general international law (jus cogens)’, Article 53 VCLT provides that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law, that is, a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Moreover, Article 64 VCLT provides that, if a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates. Article 71 VCLT governs the consequences of the invalidity of a treaty in such cases. 8.2 Article 53 VCLT does not contain any examples of peremptory norms of general international law (Report of the International Law Commission, Commentary on Art. 50, ILC Yearbook 1966 II, pp. 269 et seq.). The words ‘by the international community of States as a whole’ do not mean that a norm must be accepted and recognised as peremptory by States unanimously. A significant majority is sufficient. By way of example, the norms concerning the prohibition of the use of force, slavery, genocide, piracy, unequal treaties and racial discrimination are generally cited (see Eric Suy, op. cit., no. 12 on Article 53 VCLT, p. 1912; Nguyen Quoc Dinh, Patrick Daillier, Alain Pellet, Droit international public, 7th edition, LGDJ 2002, no. 127, pp. 205 et seq.; and Joe Verhoeven, Droit international public, Larcier 2000, pp. 341 et seq.). This list of examples does not include the rights deriving from Article 14 ICCPR and Article 6 ECHR, which are relied upon by the appellant. Their mere recognition by the International Covenant on Civil and Political Rights and the European Convention on Human Rights does not go so far as making them peremptory norms of general international law. It transpires, moreover, from the preparatory work in respect of Article 53 VCLT and the wording of that provision that in principle there can be no regional jus cogens norms (see Eric Suy, op. cit., no. 9 on Article 53 VCLT, p. 1910; this is a controversial matter in legal opinion, see inter alia: Eva Kornicker, Ius cogens und Umweltvölkerrecht, Thesis Basle 1997, pp. 62 et seq. and the numerous references cited therein). 8.3 It is true that, in the event of a public emergency which threatens the life of the nation, Article 4, paragraphs 1 and 2, ICCPR authorises, under certain conditions, measures that derogate from the obligations under the Covenant, except for those deriving from Articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 (right to life, prohibition of torture, prohibition of slavery, prohibition of imprisonment on the ground of inability to fulfil a contractual obligation, prohibition of retrospective criminal legislation, recognition of legal personality, freedom of thought, conscience and religion). Article 15, paragraphs 1 and 2, ECHR also contain a public emergency clause permitting derogation from Convention obligations, similarly excluding any derogation from Articles 2, 3, 4 (paragraph 1) and 7 (right to life, prohibition of torture, prohibition of slavery, no punishment without law). Some authors take the view that the rights and prohibitions listed in Article 4, paragraph 2, ICCPR and Article 15, paragraph 2, ECHR correspond to the core human rights and could therefore be regarded as peremptory norms of general international law (see Stefan Oeter, ‘Ius cogens und der Schutz der Menschenrechte’, in Liber amicorum Luzius Wildhaber 2007, pp. 499 et seq. and pp. 507 et seq.); for other authors the provisions merely point in that direction (see Eva Kornicker, op. cit., pp. 58 et seq.). The latter opinion seems to correspond to that of the (former) Commission on Human Rights [recte: Human Rights Committee], which found that the list of non-derogable rights in Article 4, paragraph 2, ICCPR might admittedly be related to, but not identical with, the question whether certain human rights corresponded to peremptory norms of general international law (General Comments 29/72 of 24 July 2001 under Article 40, paragraph 4, ICCPR, ch. 11, in Manfred Nowak, U.N. Covenant on Civil and Political Rights, CCPR Commentary, Kehl 2005, pp. 1145 et seq. at 1149). In the present case it is not necessary to settle this question in so far as Article 14 ICCPR and Article 6 ECHR do not, in any event, appear in the lists given in Article 4, paragraph 2, ICCPR and Article 15, paragraph 2, ECHR. 8.4 Consequently, contrary to what the appellant has claimed, neither the fundamental procedural safeguards, nor the right to an effective remedy, under Articles 6 and 13 ECHR and Article 14 ICCPR, have per se the nature of peremptory norms of general international law (jus cogens), in particular in the context of the confiscation procedure affecting the appellant’s property (see, to the same effect, the judgment of the Swiss Federal Court no. 1A.45/2007 of 14 November 2007 in the case of Nada v. DFE, point 7.3; judgment of the Court of First Instance of the European Communities, 21 September 2005, Yusuf and Al Barakaat International Foundation v. Council and Commission, T-306/01 Reports 2005 II, p. 3533, paragraphs 307 and 341; judgment of the Court of First Instance of the European Communities, 21 September 2005, Kadi v. Council and Commission, T-315/01 Reports 2005 II p. 3649, paragraphs 268 and 286; judgment of the Court of First Instance of the European Communities, 12 July 2006, Ayadi v. Council, T-253/02 Reports 2006 II p. 2139, paragraph 116; judgment of the Court of First Instance of the European Communities, 12 July 2006, Hassan v. Council and Commission, T-49/04 Reports 2006 II p. 52, paragraph 92). As to the rights guaranteed by Articles 29 et seq. of the Constitution, this is a matter of domestic law which cannot constitute jus cogens or hinder the implementation by Switzerland of Resolution 1483 (2003). 9. According to the appellant, Switzerland should have sufficient latitude, even in the light of its obligations vis-à-vis the Security Council, to fulfil its duties under Article 14 ICCPR and Article 6 ECHR. In his view it is necessary to distinguish between the question of the deletion of his name from the list of the 1518 Sanctions Committee and that of the confiscation of the frozen assets: the question of confiscation could be dealt with in fair proceedings without contravening the Charter obligations. 9.1 That opinion cannot be upheld. The description of the measures (freezing of funds or other financial assets, immediate transfer thereof to the Development Fund for Iraq), of the individuals and entities concerned (previous Iraqi government, Saddam Hussein or other senior officials of the former Iraqi regime and their immediate family members, including entities owned or controlled, directly or indirectly, by them or by persons acting on their behalf or at their direction), and of the mandate given to the 1518 Sanctions Committee (to enumerate the individuals and entities mentioned in paragraph 23), is detailed and leaves no room for interpretation. Similarly, the list of individuals and entities drawn up by the 1518 Sanctions Committee is not indicative in nature. It is not a matter of deciding whether the appellant’s name should be, or is legitimately, included on that list; it is simply a question of observing that his name does appear on the list in question, which must be transposed into Swiss domestic law. In asserting that it should be possible to deal separately with the question of the confiscation of his assets, the appellant overlooks the fact that the measures imposed on member States include the immediate transfer of the frozen assets to the Development Fund for Iraq. This order does not call for any interpretation, nor does it grant any latitude in the result that it requires of member States as to the treatment of the frozen assets of persons who, like the appellant, are included in particular on the list of the 1518 Sanctions Committee. Being clearly ascertained, those assets must be transferred to the Development Fund for Iraq. From that perspective, the present case differs from a case examined by the Court of First Instance of the European Communities, Organisation des Modjahedines du peuple d’Iran v. Council of the European Union. It concerned Resolution 1373 (2001) of 28 September 2001 laying down strategies to combat terrorism, which required the member States of the United Nations – in that case the European Community – to identify individuals, groups and entities whose funds had to be frozen, because the Resolution itself did not provide any list of the latter. The Court of First Instance found that procedural safeguards had to be observed in the keeping of such a list (judgment of the Court of First Instance of the European Communities, 12 December 2006, Organisation des Modjahedines du peuple d’Iran v. Council, T-228/02, not yet reported). 9.2 In those circumstances, contrary to what the appellant has claimed, the implementation of Resolution 1483 (2003) requires Switzerland to adhere strictly to the measures introduced and to the decisions of the 1518 Sanctions Committee, which, unless found by the Security Council to be in breach of jus cogens norms, does not leave any room, even on the grounds of ensuring the procedural safeguards provided for in the European Convention on Human Rights, the International Covenant on Civil and Political Rights or the Swiss Constitution, for an examination of the procedure by which the appellant’s name was added to the list issued by the 1518 Sanctions Committee, or for verification of the justification for such addition. 10. The appellant further argued that Article 4 of the Confiscation Ordinance granted the Federal Court full jurisdiction to deal with the various aspects of the matter, enabling it to find that the authority below had failed to ascertain the merits of the confiscation of his assets or, in other words, that the authority had wrongly accepted their confiscation solely on the basis that his name appeared on the list annexed to Resolution 1483 (2003), without remedying the breach of his procedural rights under, inter alia, Articles 29 et seq. of the Constitution. 10.1 According to the foregoing considerations, Article 4 of the Confiscation Ordinance cannot authorise the Federal Court, any more than the authority below, to verify whether the appellant’s inclusion on the list issued by the 1518 Sanctions Committee complied with the procedural safeguards of Article 14 ICCPR, Article 6 ECHR and Article 29 et seq. of the Constitution. With the exception of an examination of a possible breach of jus cogens norms, as shown above, Switzerland is thus not authorised to scrutinise the validity of Security Council decisions, and in particular that of Resolution 1483 (2003), not even in terms of compliance with procedural safeguards, or to provide redress for any defects in such decisions. For that could have the effect of depriving Article 25 of the Charter of any effectiveness, as would be the case if the appellant’s frozen assets were not confiscated and transferred to the Development Fund for Iraq (see Eric Suy and Nicolas Angelet in La Charte des Nations Unies, Commentaire article par article, Jean-Pierre Cot, Alain Pellet and Mathias Forteau (eds.), 3rd edition, Economica 2003, Art. 25, p. 917). 10.2. However, with that reservation, Switzerland is free to choose how it transposes into domestic law the obligations arising from Resolution 1483 (2003) and the arrangements for transferring the frozen assets. The Federal Council has made use of this discretion in distinguishing between the measures introduced for the freezing of the assets and those governing the transfer of frozen assets. The Federal Department, for its part, suspended the confiscation procedure at the request of the appellant, who sought to have the matter examined by the Sanctions Committee, and resumed it only upon his express application. With the same reservation, the Federal Council was entitled to guarantee the right of the frozen asset-holders to be heard before the confiscation decision was taken. It was also entitled to make available an administrative-law appeal against such decisions. In the present case, the appellant made full use of his right to be heard because he obtained access to the file of the Federal Department for Economic Affairs, or at least to the relevant bank documents, and had the opportunity to express himself before that authority. He also fully availed himself of the right provided for in Article 4 of the Confiscation Ordinance by lodging the present administrative appeal. As to that matter, falling as it does within the jurisdiction of Switzerland, it should be noted that the applicant has not submitted any complaint of a violation of Articles 26 and 36 of the Constitution in respect of the confiscation procedure (see point 5.4). In a further complaint, lastly, the appellant contended that the refusal to annul the decision of the Federal Department for Economic Affairs of 16 November 2006 for a breach of procedural safeguards ran counter to the position defended on many occasions by Switzerland, the Federal Council or the Federal Department for Foreign Affairs, asserting an intangible principle of respect for human rights. He argued that this was an ‘indivisible’ position in relation to other Nations which had been disregarded by the decision of the Federal Department for Economic Affairs of 16 November 2006. 10.3 The appellant seems to be unaware of the meaning that should be given to indivisibility (in the area) of human rights. According to legal opinion, the principle of indivisibility of human rights means that States cannot choose between human rights in order to give priority to some over others. The aim of this principle is to prevent governments from claiming to defend human rights by choosing from the list, as they see fit, those they accept and those they ignore (see Françoise Bouchet-Saulnier, Droits de l’homme, droit humanitaire et justice internationale, Actes Sud 2002, pp. 23 and 27 et seq.). 10.4 In the present case, to the extent that his position can be understood, the appellant is complaining more about Switzerland’s attitude, which he regards as contradictory. This opinion disregards the fact that the positive legal order, as set out above, is mandatory under Article 190 of the Constitution for reasons of legal certainty. Switzerland cannot, by itself, delete the appellant’s name from the list drawn up by the Sanctions Committee, which has sole competence for that purpose, even if the procedure for that purpose is not fully satisfactory (see judgment 1A.45/2007 of 14 November 2007, point 8.3). Moreover, it is not contradictory for the federal authorities to find the system deficient and yet, as in the present case, to advocate and act on a political level in favour of intangible respect for human rights, especially in relation to the listing and delisting procedures applied by the 1518 Sanctions Committee. Switzerland’s conduct does not therefore breach Articles 26 and 29 et seq. of the Constitution, Articles 6 and 13 ECHR or Article 14 ICCPR, under that head either. 11. The appeal must accordingly be dismissed. The Federal Court finds, however, that, in the context of Switzerland’s power and freedom of implementation (see point 10.2), the authority below should grant the appellant a brief and final period of time, before implementing the decision of 16 November 2006 – which enters into force with the dismissal of the present appeal – to allow him to apply, should he so wish, to the 1518 Sanctions Committee for a new delisting procedure in accordance with the improved arrangements of Resolution 1730 (2006) of 19 December 2006, the appellant not having had the opportunity to make use of the latter because he wrongly placed all his hopes in the present administrative-law appeal. 12. The appeal is thus dismissed for the foregoing reasons ...” 30. On 13 June 2008 the applicants lodged a delisting application in accordance with the procedure introduced by Resolution 1730 (2006). The application was rejected on 6 January 2009. 31. In a favourable opinion issued by the SECO on 26 September 2008, the applicants were informed that they would be authorised to make use of the assets frozen in Switzerland to pay the fees charged by a lawyer in the United States, that lawyer’s activities being confined to their defence in connection with the Swiss confiscation procedure and the delisting procedure. Since 2007, on four occasions (the last being on 26 February 2009), the SECO, on the basis of Article 2, paragraph 3, of the Iraq Ordinance, granted the applicants’ requests and authorised the release of certain sums for the payment of lawyer’s fees in respect of the confiscation decisions. According to the information provided by the Swiss Government and not denied by the applicants, the SECO has released about CHF 850,000 in respect of lawyers’ fees and over CHF 200,000 in respect of court costs. 32. On 6 March 2009 the Swiss authorities stayed the execution of the confiscation decisions pending the judgment of the European Court of Human Rights, and that of the Federal Court on an application to reopen the domestic proceedings if the Court were to find a violation of the Convention. 33. In its Resolution 1956 (2010) of 15 December 2010 the Security Council decided to terminate the Development Fund for Iraq no later than 30 June 2011 and to transfer the proceeds from that Fund to the Government of Iraq’s “successor arrangements account or accounts”. The Sanctions Committee set up under Resolution 1518 (2003) continued to operate. 34. On 20 December 2013 the Federal Department for Economic Affairs issued two other confiscation decisions in respect of assets in the name of the first applicant that were frozen in two banks, to be paid into the successor funds of the Iraqi Government. Referring to the Federal Council’s decision of 6 March 2009 (paragraph 32 above), the Department decided that the assets concerned would remain frozen and would be transferred to the funds in question only if and when the present application was rejected by the European Court of Human Rights, “or when the confiscation decisions of 16 November 2006 ... were confirmed by the Federal Court in the event of review”. An appeal was lodged against those decisions before the Federal Administrative Court which, on 7 May 2014, suspended the proceedings pending the judgment of the Grand Chamber of the European Court of Human Rights. | 1 |
test | 001-162850 | ENG | RUS | ADMISSIBILITY | 2,016 | SOYUPOVA v. RUSSIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 1. The applicant, Ms Sanet Soyupova, is a Russian national, who was born in 1944 and lives in Zakan-Yurt, a village in the Chechen Republic. summarised as follows. 3. The applicant is a Chechen. In 1944, during the Second World War, the USSR State Defence Committee issued a decree (Постановление ГОКО № -5073сс от 31 января 1944 г.) by which it ordered the deportation of her family and other Chechens to a special settlement in the Kazakh Soviet Republic and placed them under police surveillance. In 1956 the Presidium of the Supreme Soviet of the USSR allowed the deportees out of exile, but banned them from returning to their homeland and ruled out the return of confiscated property. In 1958 the applicant left the special settlement. 4. In 1991, after the break-up of the Soviet Union, Russia passed the Law on the Rehabilitation of Victims of Political Persecution (Закон “О реабилитации жертв политических репрессий”), whose preamble provided for the rehabilitation of victims and compensation for material damage and personal suffering. 5. In 2005 the mention of personal suffering was removed from the preamble. 6. In 2008 the applicant was recognised as a victim of Soviet political and ethnic persecution and in 2014 she sued the State for 5,000,000 Russian roubles (RUB) (about 98,000 euros) in damages for the suffering she had undergone in her childhood. 7. On 13 March 2015 the Achkhoy-Martan District Court dismissed her claim. The applicant appealed to the Supreme Court of the Chechen Republic. Relying on Article 1 of Protocol No. 1 to the Convention, she argued that the Law had given her a “legitimate expectation” of redress. 8. On 16 June 2015 the Supreme Court upheld the judgment of the lower court, considering that the applicant had had no legitimate expectation: the Law had not provided for compensation for people who had been deported as they had not been “deprived of their liberty” within the meaning of section 15; the Law had made no promise of damages for personal suffering, nor could such damages be awarded under the Civil Code because the Code had introduced the notion of personal suffering into Russian law long after the persecution had taken place. 9. At the heart of the present case lie differences between two versions of the Law on the Rehabilitation of Victims of Political Persecution: the original version (18 October 1991) and the one in force at the time of the applicant’s claim (30 November 2011). “This Law aims to rehabilitate all victims of political persecution ... and to compensate them ... for their material damage and personal suffering.” “This Law aims to rehabilitate all victims of political persecution ... and to compensate them ... for their material damage.” “Those who have been persecuted by way of deprivation of liberty and rehabilitated ... shall be paid RUB 180 per month of captivity, but no more than RUB 25,000 ...” “Those who have been persecuted by way of deprivation of liberty or forced psychiatric custody and rehabilitated ... shall be paid RUB 75 per month of captivity ... but no more than RUB 10,000.” 10. Article 4 § 1 of the Civil Code of 1994 reads: “Provisions of civil legislation shall have no retroactive effect and shall be applied to legal relationships which have arisen after [the provisions] have entered into force ...” 11. On 24 September 2012 the Constitutional Court found the 2011 version of section 15 of the Law compatible with the Constitution and confirmed that the compensation mentioned in the Law aimed to provide redress for the most severe acts of political persecution, that is, imprisonment and forced psychiatric custody (judgment 1765-O). | 0 |
test | 001-180492 | ENG | UKR | CHAMBER | 2,018 | CASE OF BOYETS v. UKRAINE | 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) | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1955 and lives in Kharkiv. 6. At the time of the events she worked as a passport registration officer (паспортист) in one of the municipal housing and public utilities’ offices (КПЖРЕП) in Kharkiv. 7. On 6 February 2004 a certain M. went to the passport registration office where the applicant worked to apply for a passport for her son, who had reached the age of sixteen. As M. subsequently mentioned to the police (see paragraphs 13 and 17 below), she had already applied to the applicant in the past. According to M., when she was waiting in the queue, she heard people saying that the applicant was known for taking bribes and that her “usual rate” was 100 United States dollars (USD). Given the considerable number of visitors, M. could not get an appointment that day. She waited for the applicant in the corridor after work and explained the situation to her. The applicant allegedly told M. that it might be time-consuming to settle the matter, in particular because of the fact that M.’s son had been born in Russia and his original birth certificate was not available. However, according to M., the applicant agreed to help her to speed up the procedure with the higher authority, where she would need to pay USD 100 to the official in charge. 8. According to the applicant’s version of events, she did indeed have a late visitor in the corridor that day, whom she advised to come back during working hours, with no further exchange taking place. 9. On 7 February 2004 M. made a written statement to the Kharkiv Kyivskyy District Police that the applicant had asked for a bribe of USD 100 to speed up the passport issuance procedure. M. confirmed that she was aware of the criminal liability for knowingly making a false report about a crime. According to the police records, the above statement was made at 5 p.m. However, as subsequently established (see paragraph 59 below), that was an error and the actual time of the statement was about 10 a.m. 10. M. provided the police with a banknote of USD 100, two banknotes of USD 20 and one of USD 10. A detective officer put a special luminescent fluid on the banknotes and returned them to M. That act took place in the presence of two attesting witnesses and was documented in a report. It is not known why it was decided to mark the additional banknotes, not only the USD 100 note. 11. At about 1 p.m. on the same day M. entered the applicant’s office and emerged a few minutes later, indicating to the investigator and the attesting witnesses that she had given the USD 100 banknote to the applicant. As it was the end of the working day, the applicant locked her office and began to leave. However, the investigator stopped her and suggested she return to her office, which they did together in the presence of the two attesting witnesses. The investigator asked the applicant whether she had received any money from M. She stated that she had and took the banknote from her purse. The police officer then checked the applicant’s hands with a special device and found traces of the luminescent liquid. They were wiped off with cotton pads, which were then packed and sealed as material evidence. Such traces were also found on the banknote of USD 100 in the applicant’s purse and on the purse itself. Lastly, several passports and other papers with various banknotes inserted, varying from two Ukrainian hryvnias (UAH) (equivalent to about 0.28 euros (EUR) at the time) to UAH 50 (equal to about EUR 7), were found in the applicant’s bag and were seized. The investigator drew up an inspection and seizure report. The serial number of the USD 100 banknote seized from the applicant, as indicated in the report, differed by one letter (out of eleven characters) from the one noted in the report on marking the bill with the luminescent fluid drawn up earlier that day (see paragraph 10 above). 12. The applicant wrote an explanation, stating that she had indeed taken USD 100 from M., which she had intended to pay to an unspecified official at the local passport registration authority with a view to speeding up the issuance of the passport for M.’s son. The applicant also stated that she had voluntarily complied with the police’s request to give them the banknote in question. She noted that she had studied the inspection and seizure report and that she agreed with its contents. Lastly, she stated that she had no complaints against the police and that she regretted her actions. 13. Also on 7 February 2004, following the police operation, the investigator collected “explanations” from M. and the attesting witnesses. M. supplemented her initial statement to the police with further factual details (see paragraphs 7 and 9 above). Both attesting witnesses described the police operation which they had observed, as summarised in paragraphs 10 and 11 above. 14. On 10 February 2004, during her questioning by the investigator, the applicant changed her account of the events as follows. On 7 February 2004, when she had been about to leave work at 1 p.m., M. had entered the office. She had brought some documents in order to get a passport for her son. The applicant had informed her that certain documents were missing. The applicant had also clarified that she would be working in a different office from Monday, 9 February 2004. While collecting her papers and belongings before leaving, the applicant had noticed that M. had thrown something on the table and had run out of the office. The applicant had seen that it was a USD 100 banknote. She had taken it and had tried to get an explanation from M. However, she had already left. When the applicant had looked out into the corridor, she had only seen a man waiting there. It was T., one of the attesting witnesses. Given that different people would be working in the office on the following working day and because she knew her manager was away, the applicant had decided to keep the banknote in order to return it to M. later. 15. Furthermore, the applicant explained that her initial statement (see paragraph 12 above) had been made in a state of shock and had not been truthful. Allegedly, the investigator had dictated the statement to her. 16. On 11 February 2004 a criminal case was opened against the applicant on suspicion of incitement to bribery. 17. On the same date M. gave written explanations to the Kyiv District Prosecutor’s Office with her account of the events, which was the same as before (see paragraphs 7 and 9 above). 18. On 16 February 2004 the applicant expressed a wish to be represented by the lawyer Zh. and the latter was admitted to the proceedings. When questioned in her lawyer’s presence on the same day, the applicant admitted that on 7 February 2004 she had hinted to M. that the examination of her application was likely to take time and that the applicant would be prepared to speed up the procedure before the higher authority, which she had not intended to do in reality. However, she had seen M. putting a USD 100 banknote on the table and had decided to take advantage of the situation given her own financial difficulties. She explained the difference between her latest account and her earlier submissions by shock and stress, and expressed remorse for what had happened. 19. On the same date, 16 February 2004, M. was also questioned. As indicated in the report of the questioning, she was registered as living in Kharkiv. 20. On 26 February 2004 an expert report established that the traces of luminescent liquid on the USD 100 banknote and on the applicant’s hands were the same. 21. On 28 February 2004 fraud was added to the charges against the applicant, given that she had promised to M. to act as an intermediary in bribing a higher-level official, whereas in reality she had meant to keep the money for herself. 22. On 28 February 2004 formal charges were brought against the applicant and her status changed from being a suspect to an accused. 23. On the same day the applicant changed her lawyer. When questioned that day in the presence of her new lawyer (K.), she returned to the account of events she had given on 10 February 2004 (see paragraphs 14 and 15 above). She submitted that she had stated differently in the presence of her previous lawyer (see paragraph 18 above) because she had “considered it useless to prove [her] case and feared that nobody would believe [her]”. 24. On the same day the investigator returned the USD 100 banknote to M., who wrote a receipt in confirmation. She also undertook to keep the banknote until the end of the proceedings. 25. On 29 February 2004 the Kyivskyy District Prosecutor’s Office approved the bill of indictment against the applicant. It contained the following list of persons to be summoned to court: the applicant, the victim (M.) and the two attesting witnesses (G. and T.). 26. On 10 November 2004 the Kyivskyy Court dropped the charge of incitement to bribery. It also ruled to relieve the applicant of criminal liability in respect of the fraud charge and terminated proceedings on that point on the grounds that she was not a danger to society (see paragraph 60 below). 27. The applicant appealed, seeking the termination of the criminal proceedings against her owing to the absence of the constituent elements of a crime in her actions. She denied asking for or receiving any money from M. and maintained that the latter had simply thrown the banknote on her table. Overall, the applicant considered “everything that had happened to [her] as a provocation on the part of the law-enforcement authorities”. She also complained that she had not been able to cross-examine M. 28. On 14 April 2005 the Kharkiv Regional Court of Appeal (“the Court of Appeal”) quashed the above decision. It held that the first-instance court had not been entitled to terminate the proceedings in the way it had done without the applicant’s consent. The appellate court also noted that the applicant’s argument about her inability to cross-examine M. had not been examined. The case was remitted to the same first-instance court for fresh examination by a different panel. 29. The Kyivskyy Court adjourned hearings in the case several times owing to the absence of M. and the two attesting witnesses. On 18 July 2005 it decided that it was impossible to complete its judicial investigation in their absence and ordered the police to ensure their attendance. 30. The police found out that M. had sold her house in Kharkiv on an unspecified date in 2004 and had moved to Russia, with her new address being unknown. G. had moved to a different city in Ukraine, but eventually attended one of the hearings. The other attesting witness, T., was always away from home when visited by the police and his neighbours had not seen him for some time. Eventually, the police located him and on 14 October 2005 he made a written statement that he would appear at a hearing scheduled for 17 October 2005 (with no further details available). 31. As stated in a note issued by a clerk of the Kyivskyy Court on 17 October 2005, the hearing scheduled for that day was postponed to 6 December 2005 given the judges’ involvement in a different case. It is not known whether there was a hearing on 6 December 2005. It is an established fact, however, that T. did not attend any of the hearings. 32. In January 2006 the applicant enquired with the Kharkiv Kyivskyy District Military Enlistment Office as to whether M.’s son was registered there. On 24 January 2006 she received a reply that he had appeared before that office in April and May 2005, and that the army conscription commission had found him unfit for military service in peacetime by a decision of 6 May 2005. The son had not changed the place of his military registration. The applicant brought the above information to the knowledge of the trial court dealing with her case. 33. On 26 January 2006 the Kyivskyy Court once again ordered the police to ensure the presence of M. and the two attesting witnesses at the trial. 34. On 8 February 2006 it decided to continue the examination of the case in the absence of M. as it appeared impossible to establish her whereabouts. In reaching that conclusion, the court referred to the fact that she was no longer registered as being resident in the Kharkiv region and that the police had information that she had emigrated to Russia. By the same ruling, the Kyivskyy Court ordered the prosecution authorities to ensure the mandatory presence of T. 35. On 16 February 2006 the Kyivskyy Court found the applicant guilty of fraud and incitement to bribery and sentenced her to a fine of UAH 5,000 (then equivalent to EUR 830). Although the applicant pleaded innocent, the court considered her guilt to be proved by the totality of the evidence. It relied on the statements of M., the aggrieved party, made during the pretrial investigation, and those of the attesting witnesses, made by G. before the court and by T. during the pre-trial investigation. The court stated that it had “no grounds for questioning the credibility of the aggrieved party and the witnesses whose statements [were] corroborated by other objective [...] evidence”. The trial court also relied on the inspection and seizure report of 7 February 2004 (see paragraph 11 above) and the forensic expert examination report of 26 February 2004 (see paragraph 20 above). The verdict noted that the applicant had initially confessed to the offences, but had later retracted her confession for no apparent reason other than an attempt to escape liability. Her initial statement was considered, however, more plausible. 36. On 3 March 2006 the applicant appealed and on 25 April 2006 she submitted further “written explanations to [her] appeal”. She complained, in particular, that her conviction had been based mainly on the statements of M., who had never appeared before the court and whom the applicant had never been able to cross-examine. She argued that the first-instance court had not shown due diligence in finding and summoning M. The applicant also complained that the Kyivskyy Court had wrongly relied on her initial confession, which had been dictated to her by the police before the institution of criminal proceedings against her. 37. The applicant did not refer in her appeal or in its supplement to her inability to examine T. or to have him examined. At the same time, on 7 April 2006, she lodged a written application to the appellate court to summon T. given that he “was an attesting witness” and that he “had made statements against [the applicant]”. 38. On 25 April 2006 the Court of Appeal upheld the judgment of 16 February 2006. It considered that the applicant had initially made a confession of her own free will and that she had failed to give any convincing explanation about her subsequent change in position. Furthermore, the appellate court noted that the whereabouts of M. and T. could not be established. There were no reasons to question the veracity of the statements they had made during the pre-trial investigation. Nor were there any reasons to suspect any intention by them to falsely accuse the applicant. In sum, the appellate court did not discern any procedural flaws which warranted quashing the verdict. 39. The applicant appealed on points of law. She argued that the covert operation of 7 February 2004 had been unlawful because it had not been duly authorised and had taken place in the absence of any criminal proceedings against her, even prior to the formal registration of M.’s statement. The applicant also complained that her rights under Article 6 § 3 (d) of the Convention had been breached on account of her inability to cross-examine M. and T. 40. On 18 October 2007 the Supreme Court dismissed the applicant’s appeal on points of law and upheld the lower courts’ decisions. Its general conclusion was that no violations of the law of criminal procedure had been established. 41. On 27 March 2009 the Kyivskyy Prosecutor’s Office opened a criminal case against the applicant for a failure to comply with the judgment of 16 February 2006 (see paragraph 35 above and paragraph 61 below). 42. On 10 November 2009 the applicant was placed under an undertaking not to leave her town of residence as a preventive measure pending trial. 43. In the absence of any formal charges against her, the preventive measure ceased to apply ten days later, on 20 November 2009 (see paragraph 62 below), a fact of which the applicant was not aware. It is not known if there was any formal decision lifting the measure in question. 44. On 7 December 2009 the criminal proceedings were terminated for lack of the constituent elements of a crime in the applicant’s actions. On 11 December 2009 that decision was quashed and the case was returned for additional investigation. The case file does not contain any documents regarding the preventive measure then applicable to the applicant, if any. 45. On 12, 15 and 18 June 2012 the applicant, who considered herself still bound by the undertaking not to leave her town of residence of 10 November 2009, requested leave to travel outside the Kharkiv region from the investigator. On 22 June 2012 the investigator sent her a letter stating that her request could not be granted because she had not provided any address or other details about the planned trip. 46. On 5 July 2012 the criminal proceedings against the applicant were discontinued again. However, two days later the investigation was resumed. 47. On 12 October 2012 the investigator terminated the criminal proceedings against the applicant for lack of the constituent elements of a crime in her actions. It was concluded that she had not evaded paying the fine, but that it had been impossible for her to do so given her low income. By the same ruling, the preventive measure in respect of the applicant was lifted, without further details. 48. On 20 November 2012 a new Code of Criminal Procedure (“the CCP”) entered into force. Instead of opening a criminal case, it provided for the initiation of an investigation by way of making an entry in the Unified Register of Pre-trial Investigations. 49. On 22 March 2013 a criminal investigation into the applicant’s failure to comply with the judgment of 16 February 2006 was launched again and was registered in the Unified Register of Pre-trial Investigations. On an unspecified date the proceedings were discontinued. On 8 April 2013 they were, however, resumed. 50. On 5 June 2013 those proceedings were discontinued once again on the grounds that there were no constituent elements of a crime in the applicant’s actions. The case file contains no information about any further developments. 51. On 26 February 2013 the applicant lodged a claim against the State Treasury, seeking compensation for non-pecuniary damage sustained as a result of her allegedly unlawful criminal prosecution from 27 March 2009 to 12 October 2012. She enclosed copies of the two rulings of those dates, by which the investigator had opened and had discontinued the criminal proceedings against her. The applicant also mentioned, in general terms, that she had been unlawfully placed under an undertaking not to leave her town, without further details. 52. The prosecutor submitted objections. He stated that on 20 November 2009 the investigator dealing with the applicant’s case had revoked the impugned preventive measure, given that no charges had been brought against her within ten days of 10 November 2009 (see paragraphs 43 above and 62 below). The prosecutor also noted that the criminal proceedings against the applicant had been reopened on 8 April 2013 (see paragraph 49 above) and remained pending. 53. On 17 May 2013 the Kyivskyy Court rejected the applicant’s claim as unsubstantiated. As regards her undertaking not to leave the town, the court concluded that it had only been applicable from 10 to 20 November 2009. 54. The applicant appealed. She submitted, in particular, that “the [firstinstance] court had not given any legal assessment to the fact that the criminal proceedings against [her] had been instituted on 27 March 2009 and discontinued on 12 October 2012, and that all that time [she] had been under an undertaking not to abscond, which had been lifted by the ruling on the termination of the criminal proceedings of 12 October 2012, that being confirmed by [the investigator’s] letter of 22 June 2012” (see paragraph 45 above). The applicant indicated in brackets the page number of the letter concerned in the case file. She further argued, in general terms, that the court had incorrectly interpreted Article 1176 of the Civil Code (see paragraph 63 below) and that it had not calculated, as prescribed under the Compensation Act (see paragraph 64 below), an amount of compensation in respect of non-pecuniary damage to which she was entitled. The applicant did not enclose any documents with her appeal. 55. On 18 June 2013 the Court of Appeal upheld the decision of the Kyivskyy Court. It noted that the sole fact that the criminal proceedings against the applicant had been discontinued did not imply that she had suffered non-pecuniary damage and she had failed to prove otherwise. The appellate court further observed that the applicant “[had] not proved when exactly she had been placed under the undertaking not to leave the town as a preventive measure. Therefore, her submission that she had been restrained in her liberty of movement for more than three years [could] not be taken into consideration”. 56. The applicant lodged an appeal on points of law, in which she indicated, in particular, that the applicability of the undertaking not to leave the town from 10 November 2009 to 12 October 2012 had been established by documents. She reiterated her earlier argument that no assessment had been given to the investigator’s refusals of her requests for leave to travel outside the Kharkiv region in June 2012. This time the applicant enclosed a copy of the letter referred to. 57. On 22 July 2013 the Higher Specialised Court for Civil and Criminal Matters rejected the applicant’s request for leave to appeal on points of law. 58. On 17 April 2006 the applicant sought the institution of criminal proceedings against the police officers involved in the undercover operation of 7 February 2004. Her main argument was that M.’s complaint had been registered only at about 5 p.m. that day, which had been after the completion of the police operation and thus had undermined its lawfulness. 59. The prosecution authorities refused to open a criminal case against the police on several occasions. It was established that M.’s complaint had indeed been registered, by mistake, at 5 p.m. instead of 10 a.m. on 7 February 2004, for which the respective officer had been reprimanded. However, there was no indication of a criminal offence. | 1 |
test | 001-142829 | ENG | POL | ADMISSIBILITY | 2,014 | BŁOŃSKA v. POLAND | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | 1. The applicant, Ms Krystyna Błońska, is a Polish national, who was born in 1950 and lives in Olsztyn. She was represented before the Court by Mr W. Wrzecionkowski, a lawyer practising in Olsztyn. 2. The applicant is the mother of Mr Przemysław Błoński (PB) who died on 2 December 2006. 3 4. On 19 November 2006 PB met with two friends (MG and SG) in a pub in Olsztyn and later took them home in his Ford car. 5. At about 8.20 p.m. on 19 November 2006 a police patrol was informed that a Ford car was driving dangerously in a district of Olsztyn. The police patrol, comprised of officers DD and BC, moved into the area and passed the information on to another patrol. They were in an unmarked police car. 6. The unmarked police car was overtaken by a speeding Ford. The police patrol turned on the flashing lights and the siren and gave chase. Officers DD and BC gave signals to the driver of the Ford to stop but they were not respected. A second unmarked police car, with officers LL and IP, joined the chase. At some point the first police car overtook the Ford and blocked the nearest junction by parking the car sideways across the road. The Ford stopped but as officer DD tried to get out of the car the driver of the Ford suddenly accelerated and hit the back of the police car. Officer DD gave a warning “Stop police!” and ordered the driver to stay still. 7. Subsequently, the Ford reversed and the two police officers (DD and BC) got out of their car. Officer DD ran to arrest the driver of the Ford but when he was near the driver, he suddenly accelerated in reverse. In reaction, officer DD had to jump aside to avoid being hit. He found himself in front of the Ford. Officer DD held his hand on the holster and shouted to the driver to stop the engine. The driver started moving in the direction of police officer DD who jumped to the right and later towards officer BC. Officer DD, who found himself at the back of the Ford, fired three shots aiming at the left wheel of the car. The Ford drove for another 100 metres and then hit a tree. 8. PB was taken to a hospital with a gunshot wound to the back of his head. A bullet was removed from his head. On 2 December 2006 PB died in hospital. 9. On 19 November 2006 the on-duty officer of the Olsztyn Police informed the Olsztyn-Południe District Prosecutor’s Office about the incident involving PB. Prosecutor JJ arrived at the scene of the incident shortly after. 10. The police secured the firearms of the police officers present during the incident and three cartridges. 11. The District Prosecutor opened an investigation into the alleged excess of authority by the police. 12. The prosecutor ordered that a forensic report be prepared. On 4 December 2006 the forensic expert submitted his report describing PB’s injuries, in particular a gunshot entry wound to the back of the head (right side). The cause of the death was acute heart failure related to the gunshot injuries of the brain. 13. The prosecutor heard PB’s mother (the applicant) and his sister. They stated that PB had been afraid of the policemen because a former officer MH had threatened him in the past. Officer DD denied having known PB. He stated that he had used the gun (aiming at the back tyre) because PB had attempted to knock him and officer BC down. Officer BC confirmed this version of events. She stated that PB had not obeyed their commands. 14. On 11 December 2006 a reconstruction of the incident was staged with officer DD. He demonstrated his position at the time of firing. The position of officer DD corresponded to the location of the cartridges found on the site of the incident. 15. The prosecutor ordered that a report by a firearm expert be prepared in order to establish, inter alia, the trajectory of the bullet removed from PB’s head. In his opinion of 9 January 2007, the firearm expert found that the bullet had been fired from officer DD’s gun. The shape of the bullet could indicate that it had ricocheted before entering PB’s body. Three cartridges found on the spot had also been fired from officer DD’s gun. Two remaining bullets had missed the car. 16. In his supplementary opinion of 19 January 2007, the firearm expert found that PB had been shot in his head by a bullet fired by officer DD, which ricocheted from the road. The findings of the firearm expert were supported by a reconstruction of the incident. In the course of the reconstruction a crack had been found in the road where the bullet had ricocheted. 17. The prosecutor also ordered a report by a car expert. The expert established that damage to the police car confirmed the version of events as presented by officers DD and BC. 18. Having regard to the above evidence, the prosecutor found that the police officers, including officer DD had acted lawfully in the pursuit of the driver of the Ford. When police officers DD and BC attempted to arrest PB, he started driving the car in their direction thus exposing them to a direct danger to their life and limb. Officer DD had fired 3 times aiming at the back wheel of the car seeing that the driver (PB) was driving towards officer BC. The prosecutor established that the version of events put forward by officers DD and BC was consistent with the findings of the experts. 19. The prosecutor established that officer DD had not exceeded his authority when firing at the car. The driver of the car had not obeyed police orders and had resisted police attempts to arrest him. He further endangered directly the life of officer BC. The use of a firearm had been justified under sections 17 § 1 (1) and 17 § 1 (6) of the Police Act. Accordingly, the prosecutor found that officer DD had used his firearm in accordance with the law (both grounds were present) and thus had not transgressed his authority. 20. On 7 February 2007 the Olsztyn-Południe District Prosecutor discontinued the investigation in the case since no crime had been committed. 21. The applicant appealed. She alleged that the district prosecutor had relied exclusively on the testimonies of officers DD and BC and had omitted to refer to testimonies of other witnesses who had given a different account of the relevant events. She also claimed that at the relevant time there had been no justification for the use of firearms in the absence of a direct danger to life. 22. On 13 July 2007 the Olsztyn District Court quashed the decision to discontinue the investigation. It found that the prosecutor had not addressed all the MH. The latter officer had been in conflict with PB and had allegedly threatened PB. Secondly, the prosecutor had to explain why the radio communications between the police officers and the on-duty officer had not been recorded. Thirdly, it was necessary to establish the precise course of the events in view of the ambiguous testimonies of the two police officers (DD and BC) including a drawing of the movements of the cars and persons involved. Fourthly, it was necessary to establish whether the use of the firearm had been justified by a risk to the life of officer BC at the relevant time. 23. On 3 July 2007 the applicant requested the Białystok Appellate Prosecutor’s Office that all prosecutors of the Olsztyn District and Regional Prosecutor Offices be excluded from the examination of the case. The request was granted and the subsequent investigation was conducted by the Łomża District Prosecutor. 24. The prosecutor ordered that an additional opinion by a firearm expert be prepared. In his opinion of 18 October 2007, the firearm expert presented his version of the consecutive stages of the incident, accompanied by drawings, which were based on the testimony of the two officers (primarily of officer DD). The expert observed that it was likely that the car had been moving at the time of firing and for this reason the bullets had missed the wheel and ricocheted. 25. On 22 November 2007 the Łomża District Prosecutor discontinued the investigation concerning the abuse of authority by police officer DD. The prosecutor followed the instructions of the district court in respect of the additional evidence to be obtained. It was also established that PB’s blood contained 2.84 mg of alcohol per litre. 26. On the basis of the additional expert report the prosecutor established that officer DD had fired three shots aiming at the left back wheel of the Ford (at the time DD had been behind the car). The distance between him and the car was of 4 to 6 metres. He had not hit the tyres and the bullet had ricocheted. The incident took place in the evening on an unlit road. It was not possible to have regard to the communications between the police officers and the on-duty officer because the relevant recording device had been defective for a few years. The two other police officers had been too far from the site to see precisely what happened. 27. The prosecutor accepted all the expert opinions obtained in the case. The most relevant were the opinions of the firearm expert which explained the trajectory of the bullet, and the opinion prepared following the reconstruction of the incident. The analysis of the telephone traffic and of other evidence led the prosecutor to conclude that the former police officer MH had not been in any way involved in the incident. 28. Officer DD stated that he had used his firearm because the driver of the Ford had attempted to run him and officer BC over. Officer BC confirmed this version of events. With regard to certain inconsistencies in the accounts of the witnesses, the prosecutor noted that the incident had taken place in the late evening and in bad visibility. In addition, the events unfolded speedily and had been very stressful. The prosecutor found officer DD’s testimony most comprehensive. This testimony was supported by the material evidence in the case. 29. The prosecutor found that the use of the firearm by police officer DD had been justified under sections 17 § 1 (1) (illegal attempt on the life or health of a person) and 17 § 1 (6) (direct pursuit of a person posing danger to someone’s life or health) of the Police Act. In accordance with the Ordinance of the Council of Ministers of 19 July 2005 (“the 2005 Ordinance”) on the specific conditions of the use of firearms by the police no further warnings of the police were necessary in situations governed by section 17 § 1 (1) of the Police Act (as in the case). 30. The prosecutor established that officer DD had fired three shots at the back wheel of the car in the situation of a direct danger to the life and limb of the police officer BC. This version of events was supported by other evidence collected in the case, and in particular, by the expert evidence. According to the prosecutor, the police officer DD had not exceeded his authority in the situation when PB had not obeyed police commands and had continued carrying out dangerous car manoeuvres. The police officer DD had used his firearm in order to protect the life of his fellow officer PB and had aimed at the wheels of the car. He could not have predicted that one of the bullets would rebound against the surface of the road and would hit the driver. 31. On 18 December 2007 the applicant filed a private bill of indictment against the police officer DD, alleging that he had exceeded his authority when using his firearm. She claimed that at the critical time there had been no direct danger to the life and limb as PB had been driving away from the scene. 32. Prosecutor JJ was heard as one of many witnesses. She testified that when she arrived at the scene of the incident officers DD and BC had already left. Some other police officers, including senior ones, were present. The prosecutor asked in vain for the firearm to be handed over. She alleged that the police failed to respect the relevant procedures because they had not waited for her arrival before commencing investigative work. Later, she went to the hospital where officers DD and BC had been taken. Certain police officers had objected to the questioning of BC directly after the incident but the questioning had taken place. It was terminated in the early hours of the morning. The prosecutor excluded that the questioning had been influenced by third parties. The prosecutor wanted to hear also officer DD. After consultation with a doctor she decided not to question him. 33. On 22 May 2009 the Olsztyn Regional Court acquitted officer DD. It considered credible the evidence of the accused as it had been confirmed by various expert reports in the case and the evidence of officer BC. The credibility of the statements of officer BB had been supported by the evidence of prosecutor JJ who had questioned her directly after the incident and the police psychologist EKS. It appeared from the protocol that prosecutor JJ had arrived at the scene of the incident at 22.05 hours, which was just over one hour after the incident. There were no indications that her arrival at the scene had been delayed or that some evidence at the scene had been destroyed. The court held that there had been no evidence indicating that the police had obstructed or interfered with the investigation into the incident. 34. Two other police officers confirmed the circumstances concerning the pursuit of the Ford and the dangerous manoeuvres of the driver. They had not seen the moment of shooting. The court attached significant weight to the evidence of the expert in ballistics and the results of the reconstruction of the incident. They confirmed that PB had been shot in his head with a bullet ricocheting from the road. The court noted that telephone calls between officers DD and BC were normal. It also noted that that officer DD had worn a vest with a sign “Police” on it. 35. The court held that the accused had not breached the relevant rules concerning the use of firearms by the police. The use of a firearm had been justified under section 17 § 1 (6) in conjunction with section 17 § 1 (1) of the Police Act. PB had exposed third parties to direct danger to their life and limb by his dangerous driving. Subsequently, he posed danger to the life of the police officers when they had attempted to arrest him. In conclusion, the accused was acquitted. 36. The applicant appealed. She argued that the use of firearms had been unlawful since at the critical time PB had not endangered the life of the police officers. In addition, the police officer DD had not complied with the rules set out in the 2005 Ordinance as he had failed to give a verbal warning and to fire a warning shot. 37. On 13 October 2009 the Białystok Court of Appeal upheld the firstto fire a warning shot. He had been solely required to give a verbal warning “police” which he had done. 38. The applicant filed a cassation appeal. She claimed that the use of firearm had been unlawful. 39. On 22 September 2010 the Supreme Court quashed the Court of Appeal’s judgment and remitted the case. It found that the lower court had failed to address the argument of the private prosecutor (the applicant) that officer DD had not been exempted from the requirement to fire a warning shot. The Supreme Court found that at the time of firing there had been no direct danger to the life or limb of the police officers. It had been established by the lower courts that at the critical time the Ford had been driving away from the scene. This situation was controlled therefore by section 17 § 1 (6) of the Police Act (direct pursuit of a person). Under the relevant provisions of the 2005 Ordinance in such a case the police officer had been required to give a verbal warning and to fire a warning shot. The Supreme Court accepted that the first of these requirements appeared to have been complied with since officer DD had given a warning “stoppolice” and had kept his right hand on the holster. There was no doubt, however, that the second requirement (warning shot) had not been complied with. 40. On 10 March 2011 the Court of Appeal again upheld the Regional Court’s judgment. Following the instructions of the Supreme Court, it concentrated its review on the lawfulness of the use of a firearm. The Court of Appeal found that the dynamic nature of the incident did not permit to distinguish precisely between an attempt on life of the police officers and the pursuit of the driver. In fact, these two elements of the case overlapped considerably. It was important to note that officer DD had aimed at the wheel and had had no intention of causing injury. The Court of Appeal noted that since the incident unfolded in a matter of seconds it would have been unrealistic to expect of officer DD to comply strictly with the 2005 Ordinance by giving first a verbal warning and then firing a warning shot. It was important to note that officer DD had given a warning “stop-police” which had been evidently ignored. The Court of Appeal found that the use of the firearm in order to immobilise the Ford had been justified by the circumstances. Although, the use of firearms by the police had to comply with the relevant regulations it was necessary to have regard to specific circumstances of each case. The court held that officer DD had not abused his authority in such a way that his criminal liability was called for. The Court of Appeal, contrary to the lower court, found that at the critical time the actions of PB had entered the phase of “escaping”. Accordingly, from the formal point of view specified in the 2005 Ordinance the use of a firearm should have been preceded by a verbal warning and a ’s failure to comply with these rules did not amount to a criminal offence since there had been no causal link between this omission and the unfortunate result of the use of a firearm. Furthermore, there was no criminal intent in the behaviour of officer DD. Accordingly, officer DD could not be held criminally liable for the offence of abuse of authority. 41. The applicant appealed. She argued that the Court of Appeal had failed to heed the instructions of the Supreme Court. She also alleged that the Court of Appeal had wrongly found that the use of the firearm had been justified despite the failure to give a verbal warning and to fire a warning shot. Lastly, she alleged a breach of Article 2 § 2 (b) of the Convention. In this respect, she claimed that the Court of Appeal had found that shooting at the escaping car had been justified and that the firearm could be used despite a failure to comply with all relevant requirements. She relied on Nachova v. Bulgaria. 42. On 15 December 2011 the Supreme Court dismissed the applicant’s cassation appeal. It noted that the Court of Appeal had followed its instructions. In particular, the Court of Appeal found that the firearm had been used at the time when PB began to escape the location. Secondly, the Court of Appeal analysed whether the failure to comply with the relevant requirements of the 2005 Ordinance applicable to the situation of escaping could have resulted in holding officer DD criminally liable for the offence of the abuse of authority. The Supreme Court noted that one of the constitutive elements of this offence was acting to the detriment of a public or individual interest. However, the Supreme Court concurred with the lower court that officer DD had not intended to deprive the victim of his life and had not been able to foresee that his action would result in such an unfortunate outcome. 43. With regard to the applicant’s argument concerning the failure to fire a warning shot, the Supreme Court noted that the lower court had acknowledged this failure, but had found no causal link between the latter and PB’s death. The issue of a verbal warning had been already determined in the earlier judgment of the Supreme Court. Lastly, the Supreme Court dismissed as unfounded the argument concerning a breach of Article 2 § 2 (b) of the Convention. A deprivation of life shall not be regarded as incompatible with this provision if it resulted from the use of force which was absolutely necessary in order to effect a lawful arrest. 44. The Supreme Court noted that the use of a firearm in respect of an escaping driver could be justified by the danger to which he exposed other persons. The Strasbourg case-law indicated that the police should fire at the tyres, but not at the windows and the body of an escaping car. In the present case these conditions were met. It was justified to fire at the tyres of the escaping car because its driver had not reacted to police orders and created danger for the life and limb of the other persons on the road as well as to the police officers attempting his arrest. 45. Section 16 of the Police Act of 6 April 1990 (Ustawa o Policji) reads, in so far as relevant: “1. If a lawful order given by a police authority or police officer has not been complied with, a police officer may apply the following coercive measures: 1) physical, technical and chemical means to restrain or escort persons or to stop vehicles; 2) truncheons; 3) water cannons; 4) police dogs; 5) rubber bullets fired from firearms. 2. Police officers may apply only such coercive measures as correspond to the exigencies of a given situation and are necessary to ensure that their orders are obeyed.” 46. Section 17 of the Police Act provides: “1. If the coercive measures mentioned in section 16 (1) prove insufficient, or their use in the circumstances is not possible, a police officer may use firearms exclusively: 1) in order to fend off a direct and illegal attempt on the life, health or liberty of a police officer or other person, or to prevent activities directly related to such an attempt, 2) against a person who fails to obey an order to drop immediately a weapon or another dangerous instrument whose use poses a threat to the life, health or liberty of a police officer or other person, ... 6) in the direct pursuit of a person in relation to whom the use of firearms was lawful under paragraphs 1-3 or 5, or who is reasonably suspected of committing a crime, an attempted act of terrorism, abduction in order to obtain a ransom or other demand, mugging, robbery, violent assault, intentional serious bodily injury, rape, arson or other intentional threat to public security, life and/or health, ... 3. Firearms shall be used so as to cause minimum damage to the person targeted, and without any intention of depriving that person of his or her life and without endangering the life or health of others. 4. The Council of Ministers shall issue a resolution defining the conditions and operational procedural requirements for the use of firearms by the organised Police detachments mentioned in paragraph 2.” 47. The Ordinance of the Council of Ministers of 19 July 2005 (“the 2005 Ordinance”) on the specific conditions of the use of firearms by the police specified in § 3.1 that prior to the use of a firearm a police officer shall (1) give a verbal warning “police”, (2) give a verbal warning “stop – I shoot” and (3) fire a warning shot. Pursuant to § 3.2 of the Ordinance the above requirements were not applicable to situations foreseen in section 17 § 1 (1), (3), (5) and (8) of the Police Act. | 0 |
test | 001-142516 | ENG | RUS | CHAMBER | 2,014 | CASE OF PEREVEDENTSEVY v. RUSSIA | 3 | Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicants were born in 1962 and 1963 respectively and live in Snovo-Zdorovo, a village in the Ryazan Region. 6. On 26 May 2003 the applicants’ son, Mr Mikhail Perevedentsev (“M.P.”), born on 12 January 1985, was drafted into the army to perform two years’ mandatory military service. He was assigned to military unit no. 52157 in the village of Mulino-1 in the Volodarskiy District of the Nizhniy Novgorod Region. 7. The applicants regularly received letters from their son. In those letters he described various abuses that he and his fellow new recruits were suffering at the hands of more senior conscripts (Dedy) (under a system called dedovshchina or “rule of the grandfathers”): extortion, beatings, deprivation of sleep, and so on. 8. In a letter dated 29 June 2003 M.P. wrote: “Stodnevka [the last hundred days before a recruit is demobilised] is hard here, guys have paid 1000 roubles each in ten days. I can’t imagine where I’m going to get such money ...” 9. In his next letter (undated) he wrote: “It’s been a nightmare here, the dembels are not being discharged. And we dukhi have our own problems. We are being punished, each of us has to find 1000 roubles [to be paid] to the cherpaks. It’s probably going to be like that every month ...” 10. In the following letter M.P. wrote: “The Dedy were offended that I did not bring them vodka and money, and now I do work-outs at night for two hours, the sweat is pouring ...” 11. In a letter dated 17 November 2003 he wrote: “Our demobbees have left and tough times have begun. Flying in the day and working out at night. I counted that I slept eight hours [this] week. That is supposed to be a soldier’s sleep per day .... [No more easy life for us], we get bullied every day, so that it has become a routine, even though I think I’ve got a broken rib [as] I can hardly breathe, but they stop us from seeing the medics and they have dislocated my jaw, which creaks like a rusty cart. ... Mum, I’ll wait for you for one and a half weeks and then I’ll go on the run on my own, maybe with a friend. I don’t know, maybe you won’t understand, but this will be for the best as the dedy are getting wilder by the hour.” 12. In a letter dated 30 December 2003 M.P. wrote: “Although I’ve left the battery I’m still assigned to it and continue to carry out my stodnevka. I now owe 2000 roubles. The Dedy say that I have to pay off 500 roubles a month and have given me a deadline of 15 January. If I don’t pay I’ll be in trouble. Mum, I understand that this is a lot of money, but believe me [when] I come back home [I will pay it back].” 13. In a letter dated 11 January 2004 he wrote: “The Dedy are waiting for my payment, I borrowed 500 roubles here and gave them some. I am lucky that I have at least given them some, as some guys here got in trouble, half of them are in the medical unit with injuries and the other half all have bruises, and our commander cannot do anything about it.” 14. On 16 February 2004, at 11.30 a.m., M.P. was found dead with a noose around his neck. 15. On the same date the Military Prosecutor’s Office of the Mulino Garrison (“the Garrison Prosecutor’s Office”) instituted criminal proceedings into the death of M.P. under Article 110 of the Russian Criminal Code (Incitement to suicide). An on-site inspection and an inspection of M.P.’s body were carried out. 16. Also on the same date, sergeant Kolyadova O., M.P.’s immediate superior, was questioned. She stated that she was in charge of the guard dogs’ kennels to which M.P. had been assigned in November 2003. He had been responsible for helping Kolyadova O. to take care of the dogs and the premises. According to Kolyadova O., M.P. was only at the kennels during the day; from 6 p.m. to 9 a.m. he was at the watch house. M.P. was lazy and unreliable, neither too communicative nor too reserved. His behavior was normal; he never expressed suicidal thoughts or voiced any plans of running away from the military unit. Kolyadova O. had been told by M.P. that he had grown up in a happy, well-to-do family; he regularly received letters from home. He also regularly received money transfers and parcels from his parents. She knew that he had received over 1,000 Russian roubles (RUB) for his birthday and RUB 1,500 recently. Kolyadova O. criticised M.P. for asking his parents for money. She was unhappy with M.P.’s work, and often told him so. She also warned him that if he did not change his attitude she would ask the commander to send him back to the battery. Yet nothing changed. Kolyadova O. again reprimanded M.P. on 14 February [2004] and asked for his parents’ telephone number. She noticed that M.P. became frightened and asked her why she needed it. She replied that she wanted to inform M.P.’s parents of his attitude to his military service and request them not to send him so much money. M.P. reluctantly gave Kolyadova O. his mother’s mobile phone number. That evening Kolyadova O. telephoned M.P.’s mother, the first applicant, told her that M.P. was lazy and did not want to work, and asked her not to send him money too often. She also asked M.P.’s mother to come to the military unit to try and influence her son. Kolyadova O. arrived at work on the morning of 16 February 2004 to find that the kennels were once again uncleaned and the dogs unfed. She again reprimanded M.P. and told him about her conversation with his mother. M.P. took her words calmly. Kolyadova O. then left on business. On leaving it did not appear to her that M.P. was disturbed. She got back at around 10 a.m. The gate to the kennels was locked from the inside. It could be opened from the outside, but a new dog whom Kolyadova O. was still afraid of was running loose. She called to M.P., but he did not respond. Kolyadova O. thought that M.P. had gone out and started looking for him, but could not find him. She then asked the warrant officer to assign her a soldier to help her catch the dog. Afterwards Kolyadova O. entered the kennels and saw M.P. with a noose around his neck. 17. Again on 16 February 2004, the commander of the 22nd guards army, general lieutenant Merkuryev A. submitted to the commander in chief of the Moscow Military Command, general lieutenant Yefremov I. the following report: “On 16 February 2004 at about 2 p.m., in the 99th mobile artillery unit of the 3rd mobile artillery division private M.P, was found hanged .... Facts of the matter: At about 2.40 p.m. private M.P. was found hanging under the roof of a wooden shed ... by [sergeant] Kolyadova O. ... At about 3 p.m. the commander of 99th mobile artillery unit, lieutenant colonel Mamakin I., reported the incident to the commander of the 3rd mobile artillery division and the Garrison Prosecutor’s Office. During the inspection of the body by representatives of the Garrison Prosecutor’s Office and forensic medical experts, no abrasions or other injuries were discovered. Amongst [M.P.’s] personal items was found a letter from [M.P’s] friend [informing the latter] that his girlfriend had cheated on him. [M.P.] received positive references during his military service. However, the results of a psychological examination which was carried out in June and December 2003 showed that the soldier belonged to the third group in respect of psychological stability [out of four, the fourth group being for the least psychologically stable who were at the highest risk for nervous breakdown]; [he] was reserved, uncommunicative, had no friends among his fellow soldiers. ... The Garrison Prosecutor’s Office instituted criminal proceedings in connection with [M.P.’s] death. On-the-spot inquiries are being carried out by the deputy commander of the educational unit, colonel Lazarev V. ... The causes of the incident: 1. The possible reason for [M.P.’s] death could be suicide resulting from momentary nervous breakdown fuelled by a breakup with his girlfriend. 2. Serious omissions in the work of the command of the unit in studying the individual features of the soldiers. 3. Failure to take the necessary measures by the unit officials for the psychological monitoring of soldiers in need of increased psychological and pedagogical care. Measures taken: 1. (Institution of criminal proceedings in connection with [M.P.’s] death.) 2. The circumstances and possible causes of the incident reported to [the command]. 3. Additional measures by the deputy commanders of the military units and formations and military psychologists for the detection of soldiers with an increased risk of suicide to be carried out until 25 February 2004.” 18. On 17 February 2004 a post-mortem examination of M.P.’s body was completed. It was established that M.P. had died as a result of strangling which could have been caused by the noose submitted for examination. M. P. could have applied the noose himself. He had no traces of any injuries typical of self-defence. M.P. had died twenty to twenty-four hours prior to the examination. No alcohol was detected in his body. 19. On 18 February 2004 private Shuper V., a driver in the military unit, submitted that he had known M.P. since November 2003 when the latter had started working at the kennels. According to him, M.P. was calm, communicative and kindhearted. He had many friends and never complained about his military service. M.P. never told Shuper V. that he had been subjected to any bullying by other conscripts, but M.P. constantly clashed with sergeant Kolyadova O., who was in charge of the kennels. She always reprimanded M.P. for his work even though, in the opinion of Shuper V., M.P. carried out his work dutifully. In the opinion of Shuper V., M.P. had committed suicide because of his conflict with sergeant Kolyadova O., who shouted at him every day and had threatened to send him back to the battery and to telephone his mother. 20. On the same date, major Ogorodov N., who had been carrying out military service in military unit no. 52157 on a contract basis since 27 January 2004, submitted that on 16 February 2004, at approximately 9.30 a.m., he had heard loud noise, a crash as if something had fallen, and a woman shouting “You vagabond, not doing what you’ve been told to ...”. The shouting was coming from the kennels. He saw the door open and a soldier come out, followed by a woman shouting; her right arm was holding a ladle lifted against the soldier. Ogorodov N. then saw the woman hit M.P. on the back of his head and throw the ladle at him. He later found out that the woman was the head of the kennels and the soldier was M.P., who later the same day committed suicide by hanging himself. 21. On 19 February 2004 sergeant Kolyadova O. was questioned again. She submitted that on 14 February 2004 [Saturday] she had come at work at about 10 a.m. She had instructed M.P. to clean the kennels and gone to the commander to discuss the issue of a money transfer which had arrived for M.P. The commander told her that M.P. would not get any money until his mother telephoned to explain what the money was for. At about 1 p.m. Kolyadova O. returned to the kennels and saw the gate closed and a dog running loose. She then called M.P. and asked him to lock up the dog. Then, together with M.P., she entered the kennels and saw that nothing had been done. She asked M.P. what he had been doing, to which the latter replied that she would see his work on Monday. Then she told M.P. that if he continued doing nothing she would send him back to the battery, to which he responded that he would then run away. She knew that he was very afraid of going back to the battery. Kolyadova O. then ordered M.P. to chop some wood and to clean everything up until Monday, and went home. 22. On the same date, the statements of the witness Ogorodov N. were verified at the scene. 23. Also on the same date, the witness Ms Buzunova (M.P.’s aunt) submitted that she had seen and read M.P.’s letters to the applicants in which he had informed them about the beginning of stodnevka and asked them to send him money. She further submitted that the first applicant had sent M.P. RUB 1,050 in November 2003, RUB 1,000 in January 2004 and RUB 1,500 at the beginning of February 2004. 24. Again on 19 February 2004, the witness Mr Buzunov (M.P.’s uncle) submitted that he had known M.P. since he was eight years old. According to him M.P. was very calm, polite, and communicative; he did not suffer from any serious illnesses, had had no head injuries and had never been called to account for any administrative or criminal offences. On 26 May 2003 M.P. had been drafted into the army. In September or October 2003 Mr Buzunov had learned from the first applicant that M.P. was being subjected to beatings and extortion in the army, but that it was bearable. Later he learned that M.P. had been transferred to the kennels, that he felt much better there and was not complaining. Some time went by and then M.P. started writing in his letters that money was being extorted from him; he did not specify by whom. Then there started telephone calls from a mobile phone; but M.P. did not have a mobile phone; M.P. asked the first applicant to put credit on the account of the phone he was calling from and also to send him some credit. Once a senior conscript from M.P.’s military unit called the first applicant’s mobile phone and asked her to put credit on that telephone account. The first applicant was receiving calls on her mobile phone at all times of the day and night. In the first applicant’s last telephone conversation with M.P. he asked her to send him RUB 1,500, which he needed in order to repay a debt and to give RUB 1,000 to senior conscripts. On 14 February 2004 a woman dog handler called the home number of M.P.’s grandmother and told her that M.P. had broken a radio and that M.P.’s family needed to contact a staff officer to settle the issue by reimbursement. On 15 February 2004 the first applicant tried to contact this woman, but, when she did, the woman did not give her any clear information. The first applicant became very worried. On 16 February 2004 she tried to contact the command staff, but without success, and became even more worried. On 17 February 2004 she managed to contact the staff office and was told that M.P. had hanged himself. Mr Buzunov could not believe it, because M.P. had been a normal, even-tempered person. 25. On 20 February 2004 M.P.’s personal items were inspected. No money was found among them. 26. On 10 March 2004 lance sergeant Yelkin Ye., performing his mandatody military service since June 2003 and in military unit no. 52157 since October 2003, submitted that there were three senior conscripts in the battery – sergeant Brovkin R., private Kosarev A. and private Prudnikov Ye., all three calm and communicative. He submitted that he had not known of any brutalisation by them of the new recruits. Yelkin Ye. had not known private M.P., as the latter had always been at the kennels, and could not therefore give any impressions of him. He further submitted that he did not know when stodnevka had started for Brovkin R., Kosarev A. and Prudnikov Ye., because it did not affect his military service. 27. On the same date private Stryukov A., performing his mandatody military service since June 2003 and in military unit no. 52157 since November 2003, submitted that he had known M.P. for about ten days, after which the latter had been transferred from the battery to the kennels. He characterised M.P. as reserved, uncommunicative and calm. He further submitted that he had not witnessed any brutalisation of M.P. by senior conscripts Brovkin R., Kosarev A. and Prudnikov Ye., or by any other conscripts. He further submitted as follows: “On 17 December [2003] stodnevka began for Brovkin R., Kosarev A. and Prudnikov Ye. Stodnevka began as usual. We made their beds, whichever of us was free. One of them would approach the recruits and tell them to bring them 200 roubles. They never approached me about money and never demanded money from me. Once when a parcel from home arrived for me, I decided to share it with Brovkin R., Kosarev A. and Prudnikov Ye. so that they would not touch me. I took cheese, biscuits and sweets and we ate everything together; they did not threaten me with any violence.” Stryukov A. further submitted that M.P. would not have wanted to be transferred back to the battery, because he had been reserved and had liked it better at the kennels. 28. On the same date (10 March 2004), private Pavlyukovskiy V., carrying out his mandatory military service in military unit no. 52157 since November 2002, submitted that in November 2003 he had had ten days’ home leave. While at home he bought himself a mobile phone. Upon his return to the military unit he at first used his Moscow SIM card, then decided that it was too expensive and decided to buy a local (Nizhniy Novgorod) SIM card. He went to lieutenant Pestsov A., gave him some money and asked him to buy him the local SIM card; he had got the money from his parents. Lieutenant Pestsov A. bought the card at some time between 20 and 25 January 2004. Pavlyukovskiy V. used the mobile phone mostly himself and did not tell anyone that he had it for fear that the officers might take it away from him as the soldiers were not allowed to use mobile phones. Pavlyukovskiy V. had known M.P. since January 2004. According to him the latter had been reserved, uncommunicative, calm and slightly untidy. They had met at the beginning of January 2004 when M.P. had invited Pavlyukovskiy V. for tea at the kennels. The latter had told M.P. that he had a mobile phone and had decided to leave it with M.P. so that nobody would see it and steal it. He let M.P. make phone calls home. He also gave his mobile phone to privates Belov D. and Koshkin D. He never charged M.P., Belov D. or Koshkin D. for calls. At the end of January-beginning of February 2004 M.P. asked Pavlyukovskiy V. for the mobile phone to call his mother. He overheard M.P. asking his mother to send him RUB 1,500. When Pavlyukovskiy V. asked M.P. why he needed the money, the latter told that he wanted to buy himself a mobile phone. Knowing that stodnevka was beginning, Pavlyukovskiy V. asked M.P. whether he had been subjected to extortion or bullied by anyone, to which he received a negative reply. A day later Pavlyukovskiy V. received a text message informing him that his mobile phone account had been credited with RUB 100. Belov D. told him that it was his sister who had put the money on the account. M.P. also suggested calling his mother to ask her to credit Pavlyukovskiy’s mobile phone account, because he wanted to communicate with his family and friends by text messages. Pavlyukovskiy V. gave M.P. the details of his SIM card. When Pavlyukovskiy V. asked M.P. why he did not want to go back to the battery, the latter answered that he was better off at the kennels and that stodnevka had started in the battery and he did not want to be bullied by the senior conscripts. On 14 February 2004 Pavlyukovskiy V. took the mobile phone from M.P. On 16 February 2004 he was going to leave the phone with M.P. to charge the battery; however, he learned from another soldier that M.P. had committed suicide. On 18 February 2004 he received a phone call from an unknown number and a man’s voice asked: “Sanyek, is that you?”, and then “Sanya Pestsov, is that you?” Pavlyukovskiy replied to the man that he had the wrong number. The man started threatening him and he hung up. The same man called several more times on the same day. When Pavlyukovskiy answered the man introduced himself as Ismail Ibragimov. Pavlyukovskiy came to the conclusion that he had been calling about M.P. He became frightened and switched off the mobile phone. He subsequently destroyed the SIM card. 29. Again on 10 March 2004, private Belov D., carrying out his mandatory military service in military unit no. 52157 since 18 June 2002, gave statements identical to the statements of Pavlyukovskiy V. 30. Again on the same date, private Shkola V., carrying out his mandatory military service since 29 June 2003 and in military unit no. 52157 since 20 November 2003, submitted that he had known M.P. as reserved, uncommunicative and quiet. Mr Shkola further characterised Brovkin R., Kosarev A. and Prudnikov Ye. as calm and communicative and submitted that he did not know of any brutalisation by them of new recruits. He submitted that on 17 December 2003 stodnevka had started for Brovkin R., Kosarev A. and Prudnikov Ye., but that he had not seen them approaching any new recruits and extorting money from them. He personally had never had money demanded from him. Neither he nor other conscripts in the battery had been subjected to any violence by Brovkin R., Kosarev A. or Prudnikov Ye. 31. On the same date, private Kozarezov S., carrying out his mandatory military service in military unit no. 52157 since May 2003, gave statements identical to those given by the witness Shkola V. 32. Also on the same date the applicants asked the Garrison Prosecutor’s Office to grant them victim status in the proceedings. 33. On 11 March 2004 M.P.’s medical record was examined. Lieutenant Kolentsov S. and private Andriyantsev D., carrying out their mandatory military service in military unit no. 52157 since August 2002 and May 2003 respectively, were questioned. They gave statements similar to those given by the witnesses Shkola V. and Kozarezov S. 34. On 12 March 2004 sergeant Kolyadova O. was questioned again. She confirmed that she had phoned the first applicant on 14 February 2004 asking her to come and talk to M.P. because he had not been complying with his duties and risked being transferred back to the battery. The first applicant replied that she could not come because she had been feeling unwell. Then Kolyadova O. told the first applicant to call the commander and explain the reason for the money transfer made to M.P. and that otherwise M.P. would not get the money. She further stated that on 16 February 2004 she had come to work at about 9 a.m. She had seen that the dogs had been left unfed, and that the kennels had not been cleaned. She had started scolding M.P. and had told him that she had spoken to his mother, that he had squeezed the last money out of his mother and was unwilling to do anything himself. When M.P. had gone outside she had lightly and unintentionally thrown a ladle in his direction. M.P. had not paid any attention to this, and Ms Kolyadova had gone to the commander to discuss the issue of M.P.’s transfer back to the battery. 35. On the same date the commander of military unit no. 52157, major Ivanov A., submitted as follows: in November 2003 private M.P. was transferred to the kennels. From January 2004 sergeant Kolyadova O. began complaining that M.P. was not complying with his duties. The commander repeatedly spoke to M.P. so that the latter might change his attitude to his service duties. M.P. had been receiving money transfers from home in the amount of RUB 1,000 each time. The last money transfer had been in the amount of RUB 1,500. He had personally asked M.P. why he needed this money and asked him to get his mother to phone him, to which M.P. had replied that he wanted to buy a mobile phone and that his mother would certainly phone. On 14 February 2004 major Ivanov had called for M.P. to find out why his mother had still not contacted him. M.P. replied that she would do so. After that Ivanov had not spoken to M.P. and had received no telephone call from the first applicant. 36. On 15 March and 17 March 2004 privates Pribylov V. and Nikitin D., carrying out their mandatory military service in military unit no. 52157 since November 2003, submitted that by the time they joined the battery M.P. had already left for the kennels. Their subsequent statements were identical to those given by the witnesses Shkola V., Kozarezov S., Kolentsov S. and Andriyantsev D. 37. On 17 March 2004 sergeant Brovkin R. and lance sergeant Prudnikov Ye., carrying out their mandatory military service since June 2002 and in military unit no. 52157 since November 2002, denied having subjected M.P. or any other conscripts to any violence or extortion. 38. On 22 March 2004 M.P.’s fellow recruits Chemusov V. and Tsyganov A. made statements identical to those made by the witnesses Shkola V., Kozarezov S., Kolentsov S., Andriyantsev D., Pribylov V. and Nikitin D. 39. In the meantine, on 23 March 2004 the investigator in charge refused to grant victim status to the first applicant since the investigation had failed to identify those responsible for her son’s death. No reply followed with regard to the second applicant’s request. 40. On 24 March 2004 captain Volkhin S., who had been carrying out his military service in military unit no. 52157 on a contract basis since April 2000, submitted that he used to go to the kennels twice a week to check how M.P. was carrying out his military service. It was always dirty there and he made M.P. clean up. He knew from M.P.’s fellow recruits that M.P. was often reprimanded by the head of the kennels for failure to comply with his duties and forgetting to feed the dogs. He did not know if M.P. had had money extorted from him by Brovkin R., Kosarev A. and Prudnikov Ye. 41. On 26 March 2004 the head of the medical unit, captain Gusev V., submitted that M.P. had never come to the medical unit with any fractures. 42. On 29 March 2004 M.P.’s fellow recruits, Mironov K., Fedotov M., Tikhonov S. and Koryabin P., made statements identical to those made by the witnesses Shkola V., Kozarezov S., Kolentsov S., Andriyantsev D., Pribylov V., Nikitin D., Chemusov V. and Tsyganov A. 43. On 30 March 2004 M.P.’s fellow recruits Podkopayev V., Kozhemyakin A., Kosarev A. and Tibayev A. made statements identical to those made by the witnesses Shkola V., Kozarezov S., Kolentsov S., Andriyantsev D., Pribylov V., Nikitin D., Chemusov V., Tsyganov A., Mironov K., Fedotov M., Tikhonov S. and Koryabin P. 44. On 2 April 2004 the first applicant was questioned. She submitted that from November 2003 M.P. had started to complain in his letters that senior conscripts were making him do push-ups at night, that he had slept only eight hours in a whole week, that it had become unbearable in the military unit, and that he was planning to run away. Later M.P. wrote a letter informing the applicants that he had been transferred from the battery to the kennels, and that he was okay. M.P. informed the applicants that on 17 December 2003 stodnevka had started for senior conscripts and that he had to pay them RUB 1,000 every month. For the first payment he had borrowed RUB 500 from another recruit. The first applicant had sent M.P. RUB 1,050. In January 2004 the first applicant sent M.P. RUB 1,000 and in February 2004 RUB 1,500. M.P. told her that out of this sum he was planning to pay RUB 1,000 to senior conscripts and with the rest of it he was planning to buy a mobile phone. On 14 February 2004 the first applicant spoke to the woman in charge of the kennels on the phone. The latter informed the first applicant that some soldiers had broken everything at the place where M.P. was staying, including a radio. The first applicant replied that she had sent M.P. RUB 1,500 and that RUB 300 could be taken for the broken radio and the remaining sum given to M.P. The first applicant was told that she should contact the commander to resolve the money issue. When she phoned on 16 February 2004 she was told that M.P. had committed suicide. She submitted that she had not complained about the beatings and extortion because M.P. had told her that if she did, the senior conscripts would kill him. 45. On 6 April 2004 forensic medical expert L. submitted that aside from marks from the strangling there were no injuries of traumatic origin or signs of struggle on M.P.’s body 46. On 5 April 2004 attesting witnesses Sannikov A. and Mavledshin Ay., who had taken part in the on-site inspection and the inspection of M.P.’s body, submitted that they had seen no injuries on M.P.’s body. 47. On 12 April 2004 a post-mortem psychological and psychiatric expert report was drawn up in respect of M.P. It established that M.P.’s decision to commit suicide could have been influenced by his individual psychological peculiarities, such as immature mental processes, difficulty adapting to new conditions, sensitivity, emotionalism and a tendency to overdramatise events. M.P. had been frightened of going back to the battery because of the more difficult conditions of service there and fears of possible oppression by fellow conscripts. M.P. had been in a depressed mood and because of the immaturity of his mental processes he had not been able to constructively resolve the possible problems and had therefore consciously committed an act of autoagression. The experts excluded that M.P. could have committed suicide owing to a breakup with a girlfriend or as a result of his conflict with sergeant Kolaydova O. 48. On 16 April 2004 investigator B. of the Garrison Prosecutor’s Office discontinued the criminal proceedings owing to lack of any evidence that a crime had been committed. It was established that M.P. had committed suicide of his own accord on account of his individual psychological makeup and for fear of being transferred back to the battery where the conditions of service were more difficult and where he feared oppression by his fellow recruits. The decision relied on the record of the on-site inspection, the record of the inspection of M.P.’s body, a forensic medical examination report, the statements of witnesses Kolyadova O., Shuper V., Pavlyukovskiy V. and other fellow recruits of M.P., and M.P.’s post-mortem psychological and psychiatric report. 49. In September 2004 the applicants applied to the Military Court of the Mulino Garrison (“the Garrison Court”) seeking the setting aside of the decision of 23 March 2004. 50. On 22 October 2004 the Garrison Military Court held that since those responsible for the applicants’ son’s death had not been identified during the pre-trial investigation, there was no evidence that a crime had been committed and hence no victims. 51. On 21 December 2004 the Military Court of the Moscow Command quashed the decision of 22 October 2004 and referred the matter back to the Garrison Court. 52. On 21 January 2005 the Garrison Court allowed the applicants’ claim and instructed the Garrison Prosecutor’s Office to grant them victim status in the criminal proceedings instituted in connection with their son’s death. 53. On 22 March 2005 the Military Court of the Moscow Command upheld that decision on appeal. 54. In May 2005 the applicants asked the Garrison Prosecutor’s Office to provide them with copies of the court decisions regarding the instituting of the criminal proceedings, the granting to them of victim status and the termination of the proceedings. 55. On 16 June 2005 the Deputy Prosecutor of the Mulino Garrison refused to enforce the decision of 21 January 2005 granting the applicants victim status. He justified the refusal on the grounds that the criminal casefile was still with the court and the proceedings had not been resumed. 56. On 1 July 2005 the applicants’ representative asked the Garrison Prosecutor’s Office to send the case file to the applicants. 57. On 6 July 2005 the applicants were provided with copies of the decisions on the institution and termination of the criminal proceedings. They were further informed that there was no possibility that the instructions of the court granting them victim status would be enforced, because the criminal case was still with the court and, therefore, criminal proceedings had not been resumed. 58. On 9 January 2006 the applicants challenged the investigator’s decision of 16 April 2004 before the Garrison Court. 59. On 31 January 2006 the Garrison Court granted the applicants’ claim and ordered the Garrison Prosecutor’s Office to quash the decision of 16 April 2004. The court held as follows: “... As established at the court hearing, by a judgment of 21 January 2005, upheld on appeal on 22 March 2005, the Military Prosecutor’s Office of the Mulino Garrison was ordered to grant [the applicants] victim status in the criminal proceedings. However, at the present moment they have not been granted victim status, [they] are not acquainted with the material in the case file, [they] have had no opportunity to give evidence, to file applications or challenges, or to exercise other powers provided for by the law. [The aforesaid], in the court’s opinion, represents a substantial violation of [the applicants’] rights. For this reason the court considers the decision to drop the criminal proceedings to be unjustified ...” 60. In autumn 2007 the applicants again tried to see the case file, but in vain. 61. In spring 2008 the case file was submitted to the Military Prosecutor’s Office of the Ryazan Region, and the applicants’ representative photographed the documents it contained with a digital camera. 62. On 18 August 2009 the acting head of the Military Investigations Department of the Investigative Committee of the Garrison Prosecutor’s Office quashed the decision of 16 April 2004 discontinuing the criminal proceedings. On the same day the criminal investigation into the death of the applicants’ son was resumed. 63. On 1 September 2009 the applicants were granted victim status in the proceedings. 64. On 18 September 2009 investigator S. of the Garrison Prosecutor’s Office discontinued the criminal proceedings owing to lack of evidence that a crime had been committed. The decision was worded identically to the decision of 16 April 2004. 65. On 22 September 2009 the deputy head of the Military Investigations Department of the Investigative Committee of the Garrison Prosecutor’s Office quashed the decision of 18 September 2009. It found that the investigation was incomplete, the circumstances of the death of the applicants’ son had not been fully investigated, and the decision was unjustified and perfunctory. In particular, the applicants had not been informed of the decision of 1 September 2009 granting them victim status in the proceedings and they had not been questioned. The criminal proceedings were resumed. 66. On 4 October 2010 the applicants were again granted victim status. 67. On 6 October 2010 the applicants were informed of the decision of 4 October 2010 and were questioned by investigator Kh. of the Military Investigations Department of the Investigative Committee of the Garrison Prosecutor’s Office. 68. On 11 October 2010 the proceedings were yet again discontinued owing to the absence of any evidence that a crime had been committed. The decision was worded identically to the decisions of 16 April 2004 and 18 September 2009. | 1 |
test | 001-181879 | ENG | RUS | COMMITTEE | 2,018 | CASE OF MATVEYEV v. RUSSIA | 4 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) | Alena Poláčková;Helen Keller;Pere Pastor Vilanova | 4. The applicant was born in 1977 and lived in Naberezhniye Chelny, Tatarstan Republic, before his conviction of an unrelated criminal offence. 5. On 7 April 2008 the applicant notified the executive committee of Naberezhniye Chelny of his intention to hold a public event in the form of a hunger strike in front of the local prosecutor’s office beginning from 21 April 2008. On the same day the applicant was informed that his notice did not comply with the requirements of the law. 6. On 16 April 2008 the applicant lodged an addendum to his notice in which he indicated the place, the timing and the goal of the planned event as well as the information about its organiser. He also asked to ensure the protection of a tent (to be positioned near the prosecutor’s office) from 9 p.m. to 9 a.m. daily and the twenty-four-hour presence of an ambulance at the venue of the event. 7. On 17 April 2008 the head of the public relations department of the local executive committee informed the applicant that his planned public event amounted to a “picket” within the meaning of the Public Events Act (hereinafter “PEA”). In breach of the PEA the notice about the event did not contain information about the number of participants or arrangements to be made for preventing disorder and providing medical aid during the event. The applicant was required to align his notice with the PEA in that connection but, according to the Government, he failed to do so. 8. According to the applicant, on 22 April 2008 he started to hold a solo demonstration at noon and continued it until 4 p.m., when he was arrested by the police. 9. According to the Government, on 22 April 2008 at 3.15 p.m. the applicant set up on the lawn in front of the prosecutor’s office a tent and a poster reading “Hunger strike. Call for signatures”. He gathered passers-by and voiced his claims to them. At 3.40 p.m. a police officer drew up a record of an administrative offence allegedly committed by the applicant. He was accused of the breach of the procedure for the organisation of public events, an offence under Article 20.2 § 1 of the Code of Administrative Offences (hereinafter “CAO”). The case file was then submitted to a justice of the peace, who adjourned the hearing so that the applicant could retain a counsel. It is unclear whether the applicant was arrested by the police or otherwise deprived of his liberty at any moment prior to appearing before the justice of the peace. 10. At 8 p.m. on the same day the applicant returned to the site near the prosecutor’s office and resumed his demonstration. The police ordered him to terminate this allegedly unlawful public event, but he refused. They compiled an administrative offence record, stating that the applicant had committed an offence under Article 19.3 § 1 of the CAO; they also compiled an administrative arrest record (протокол административного задержания). The applicant was then taken to the central police station of Naberezhniye Chelny where he was detained until 24 April 2008 in the afternoon. 11. On 24 April 2008 the justice of the peace of the 8th Court Circuit of Naberezhniye Chelny found the applicant guilty under Article 20.2 § 1 of the CAO and imposed a fine of 1,000 Russian roubles ((RUB), equivalent to 27 euros (EUR) at the time). The court noted that the applicant had intended to hold a non-stop hunger-strike making use of posters for an indefinite period of time; on 22 April 2008 he had held an unlawful picket by way of setting up a tent and a poster reading “Hunger strike. Call for signatures” as well as by gathering passers-by and “campaigning” among them. In breach of the PEA he had failed to specify his arrangements for preventing disorder or providing medical aid during the event. Moreover, the applicant had intended to hold a twenty-four-hour picket in breach of the PEA’s ban on public events between 11 p.m. and 7 a.m. The court concluded that the applicant breached the procedure for the organisation of his public event. 12. The applicant appealed to the Naberezhniye Chelny Town Court. By a decision of 7 May 2008 the Town Court upheld the judgment of the justice of the peace. 13. In separate proceedings, on 7 May 2008 the justice of the peace of the 1st Court Circuit of Naberezhniye Chelny found the applicant guilty under Article 19.3 § 1 of the CAO. The justice of the peace found it established, on the basis of testimony of two eyewitnesses and police officers, that at 8 p.m. on 22 April 2008 the applicant being aware of the administrative offence proceedings pending against him under Article 20.2 of the CAO, had nevertheless disobeyed the lawful police order to stop the picket being held in breach of the PEA. The court sentenced him to seven days of administrative detention. The applicant’s detention from 9 p.m. on 22 April to 3.35 p.m. on 24 April 2008 counted towards his sentence of administrative detention. 14. The applicant appealed against the judgment to the Naberezhniye Chelny Town Court. On 8 May 2008 the Town Court upheld the judgment in a summary manner. 15. On 3 June 2008 the applicant lodged a supervisory-review appeal against the judgment of 7 May 2008. On 8 July 2008 the Deputy President of the Supreme Court of the Tatarstan Republic dismissed it, fully endorsing the findings of the lower courts. | 1 |
test | 001-144550 | ENG | SRB | ADMISSIBILITY | 2,014 | PETROVIĆ v. SERBIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Mileta Petrović, is a Serbian national, who was born in 1955 and lives in Čačak. 2. The Serbian Government (“the Government”) were represented by their Agent, Mr S. Carić. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 15 March 2003 B.D. demolished a part of the ventilation system of the applicant’s restaurant. 5. On 17 March 2003 the applicant filed a civil trespass claim (tužba zbog smetanja poseda) against B.D. 6. On 14 April 2004 the Municipal Court (Opštinski sud) in Čačak ruled in favour of the applicant, ordering B.D. to reconstruct the ventilation system in question, in accordance with the original project design and under the supervision of mechanical and construction engineering experts, as well as to pay 109,800 Serbian dinars (“RSD”) (approximately 1,570 euros (“EUR”) at the relevant time) on account of the costs incurred. 7. By 23 July 2004 this decision became both final and enforceable. 8. On 8 September 2004, following the applicant’s request of 30 July 2004, the Municipal Court (hereinafter “the enforcement court”) issued an enforcement order. On 26 October 2004 the enforcement order was upheld on the appeal. 9. On 10 November 2004 the applicant requested the enforcement court to order B.D. to advance the costs of the construction works. By 30 June 2005 the enforcement court held a hearing, appointed two experts and requested their opinion on two different occasions, assessed the costs, collected offers, selected building contractors and finally, considered at two instances and enforced the decision ordering B.D. to advance the costs and authorising the applicant to undertake the necessary construction works thereof. The applicant objected to the experts’ reports and refused to collect the advance deposited with the enforcement court. 10. Between 20 September 2005 and 17 May 2006 the enforcement court ordered the applicant to commence with the construction works, appointed new experts and obtained two of their reports as to the modalities of the enforcement, held three hearings and examined witnesses in connection with the original construction works on the ventilation system, and twice ordered the applicant to have his building contractor provide an estimate of the building costs. The applicant objected to the experts’ reports, lodged a request for the protection of legality against the court order and refused to abide by it. 11. On 2 June 2006 the enforcement court terminated the enforcement proceedings. On the applicant’s appeal, this decision was quashed on 28 June 2006 and the enforcement court was instructed to prevent the parties’ abuse of procedural rights by undertaking the required actions in their stead. 12. In the period from 30 June 2006 to 29 January 2008 the enforcement court proceeded with the enforcement and scheduled ten hearings, two of which were adjourned due to the applicant’s and B.D.’s ill-health, one because of a mistake in summons, the other one for unspecified reasons and the last two as a result of the applicant’s request for a relinquishment to another court and for the failure of one of the experts to appear, who was therefore fined. In addition, the enforcement court appointed new experts, requested expert opinions on three different occasions, considered the applicant’s independent expert report and consulted a case-file from the administrative body which had issued the construction and use permits for the applicant’s restaurant. The applicant’s building contractor failed to provide project documentation specifically requested by the court three times. 13. In the meantime, the applicant lodged numerous complaints about the length of the enforcement proceedings with the President of the District Court (Okružni sud) in Čačak and the Ministry of Justice and filed several requests for the reclusion of, and criminal complaints against the judges and experts. 14. On 29 February 2008 the enforcement court terminated the enforcement proceedings. The court found in particular that, since the demolished ventilation system had not been constructed in line with the original project design, the supervision of its reconstruction was impossible and that, therefore, the Municipal Court decision of 14 April 2004 could not be enforced. On 30 June 2008 this decision was upheld on the appeal. 15. On 6 June 2005 the applicant instituted civil proceedings against B.D. and the respondent State for compensation for damage due to the excessive length of the enforcement proceedings. 16. On 21 April 2009 the Municipal Court (Prvi opštinski sud) in Belgrade rejected the applicant’s claim for compensation for lost earnings and declared the applicant’s claim for compensation for non-pecuniary damage withdrawn. 17. On 25 August 2011 the Appeals Court (Apelacioni sud) quashed the judgment of 21 April 2009 in the part rejecting the applicant’s claim against B.D. and remitted that part of the case to the first-instance court for reconsideration. At the same time the Appeals Court upheld the remainder of the judgment of 21 April 2009. 18. It would appear that the proceedings are still pending. 19. On 5 August 2008 the applicant filed a constitutional appeal complaining about the non-enforcement of the Municipal Court decision of 14 April 2004. 20. On 20 April 2011 the Constitutional Court (Ustavni sud) of the Republic of Serbia rejected the applicant’s constitutional appeal. | 0 |
test | 001-179881 | ENG | ESP | CHAMBER | 2,018 | CASE OF LÓPEZ RIBALDA AND OTHERS v. SPAIN | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. At the time of the events the applicants were all working as cashiers for M.S.A., a Spanish family-owned supermarket chain. 7. At the beginning of February 2009 the applicants’ employer noticed some irregularities between the supermarket stock levels and what was actually sold on a daily basis. In particular, the shop supervisor identified losses in excess of EUR 7,780 in February, EUR 17,971 in March, EUR 13,936 in April, EUR 18,009 in May and EUR 24,614 in June 2009. 8. In order to investigate and put an end to the economic losses, on 15 June 2009 the employer installed surveillance cameras consisting of both visible and hidden cameras. The purpose of the visible cameras was to record possible customer thefts and they were pointed toward the entrances and exits of the supermarket. The purpose of the hidden cameras was to record and control possible employee thefts and they were zoomed in on the checkout counters, which covered the area behind the cash desk. The company gave its workers prior notice of the installation of the visible cameras. Neither they nor the company’s staff committee were informed of the hidden cameras. 9. On 25 and 29 June 2009 all the workers suspected of theft were called to individual meetings. During those meetings the applicants admitted their involvement in the thefts in the presence of the union representative and the company’s legal representative. 10. Hereafter and for the sake of clarity, the applicants will be referred to as the first, second, third, fourth and fifth applicants (see the attached Annex). 11. On 25 and 29 June 2009 the applicants were dismissed on disciplinary grounds: they had been caught on video helping co-workers and customers steal items and stealing them themselves. According to their letters of dismissal, the security cameras had caught them scanning items from the grocery baskets of customers and co-workers and afterwards cancelling the purchases. Security cameras had also caught them allowing customers and co-workers to leave the store with merchandise that had not been paid for. 12. On 22 July 2009 the first applicant brought proceedings for unfair dismissal before the Granollers Employment Tribunal no.1 (hereinafter “the Employment Tribunal”). The same day the second applicant brought similar proceedings before the Employment Tribunal in a joint application with the third, fourth and fifth applicants (see paragraph 20 below). 13. In the framework of the proceedings both applicants objected to the use of the covert video surveillance, arguing that it had breached their right to protection of their privacy. 14. On 20 January 2010 the Employment Tribunal issued two judgments ruling against the applicants, declaring both dismissals fair. The main evidence supporting the fairness of their dismissals was the recordings resulting from the covert surveillance, as well as the witness statements of co-workers dismissed for their involvement in the thefts, the shop manager, the union representative and the company’s legal representative. 15. The Employment Tribunal found in both judgments – as regards these two applicants in particular – that the use of covert video surveillance in the workplace without prior notice had been in accordance with Article 20 of the Labour Regulations (Estatuto de los Trabajadores), which allowed an employer to use monitoring and surveillance measures which he or she deemed appropriate to verify that an employee was fulfilling his or her employment duties, as long as the employer respected “human dignity”. This had been confirmed by the Constitutional Court in several judgments (see, among other authorities, judgment no. 186/2000 of 10 July 2000). According to the Constitutional Court’s case-law, an employer’s right to adopt organisational arrangements and act as a disciplinary authority had to be weighed against an employee’s fundamental right to privacy recognised under Article 18 of the Constitution. In cases where there were substantiated suspicions of theft, special circumstances justified interference with an employee’s right to privacy, which was considered to be appropriate to the legitimate aim pursued, necessary and proportionate. Following this case-law, the Employment Tribunal, having regard to the evidence before it, found that the employer had had sufficient grounds to conclude that the applicants’ conduct amounted to a “breach of contractual good faith and abuse of trust” and thus declared both dismissals fair in conformity with Article 54.2.d of the Labour Regulations. 16. The applicants appealed before the High Court of Justice of Catalonia on 16 and 22 March 2010 respectively. On 28 January and 24 February 2011 the court upheld both first-instance judgments, referring to the Constitutional Court’s case-law and endorsing the Employment Tribunal’s finding that the defendant party had been authorised to carry out the covert video surveillance of the cash desks. While acknowledging that it was possible that the employer could face an administrative sanction for not informing its employees and the staff committee in advance of the installation of the cameras, that fact alone had no relevance from a constitutional point of view, since from that perspective the covert video surveillance had been justified (in that there had been reasonable suspicions of theft), appropriate to the legitimate aim pursued, necessary and proportionate. Consequently, their dismissals had been justified on the same grounds as already stated by the Employment Tribunal. 17. The applicants brought cassation appeals, which were declared inadmissible on 5 October 2011 and 7 February 2012 respectively. Ultimately the applicants lodged amparo appeals with the Constitutional Court, which were declared inadmissible on 27 June and 18 July 2012 respectively, due to the “non-existence of a violation of a fundamental right”. 18. On 25 and 29 June 2006 the applicants were dismissed on disciplinary grounds: they had been caught on video helping co-workers and customers steal items and stealing them themselves. According to the employer, the security cameras had caught the third applicant scanning items from the grocery baskets of customers and co-workers and afterwards voiding the receipts. Security cameras had also caught her allowing customers or co-workers to leave the store with merchandise that had not been paid for. As regards the fourth and fifth applicants, security cameras had caught them stealing goods with the help of their co-workers, such as the second applicant. 19. On the days that they were dismissed all three applicants signed a document called a “settlement agreement” (acuerdo transaccional), by which they committed themselves not to bring proceedings against their employer for unfair dismissal, while the employer committed itself not to bring criminal charges against them for theft. In the meetings at least one union representative and the company’s legal representative were also present. 20. Despite the settlement agreements, on 22 July 2009 the applicants, together with the second applicant (see paragraph 12 above), brought proceedings for unfair dismissal before the Employment Tribunal. According to the applicants, the settlement agreements had to be declared void. They claimed that the consent they had given was not valid, since they had been under duress at the time they had signed the settlement agreements (a company representative had allegedly threatened to bring criminal proceedings against them if they did not sign the agreements). They also argued that the evidence derived from the covert video surveillance had been obtained illegally. 21. On 20 January 2010 the Employment Tribunal ruled against the applicants and declared the dismissals fair. It carefully analysed the settlement agreements signed by the applicants. In particular, it addressed their allegation of invalid consent, finding that there was no evidence proving the existence of any kind of duress or intention to commit a crime (dolo) at the time the applicants had signed the settlement agreements. The court concluded that the applicants had signed the settlement agreements freely and voluntarily with the clear purpose of avoiding criminal proceedings for the alleged thefts they had been accused of (and to which they had already confessed). Further evidence as to the lack of any threat or coercion was the fact that other employees in the same situation as the applicants (such as the first and second applicants) had refused to sign the settlement agreements. Accordingly, the settlement agreements were declared valid under Article 1.809 of the Civil Code and, consequently, the Employment Tribunal ruled against the third, fourth and fifth applicants. As the signing of the settlement agreements rendered their dismissals fair, the use and analysis of the impugned videos as evidence in the proceedings was deemed unnecessary. 22. The applicants appealed before the High Court of Justice of Catalonia on 16 March 2010. On 24 February 2011 it upheld the first-instance judgment and endorsed the Employment Tribunal’s finding that the settlement agreement signed by the applicants was valid. The court also analysed, for the sake of clarity, the legality of the covert video surveillance. Referring to the Constitutional Court’s case-law, it confirmed that the defendant party had been authorised to carry out the covert video surveillance on the applicants. 23. The applicants brought a joint cassation appeal, which was declared inadmissible on 7 February 2012. Ultimately, they lodged a joint amparo appeal with the Constitutional Court, alleging a violation of Articles 18 and 24 of the Constitution. It was declared inadmissible on 18 July 2012 due to the “non-existence of a violation of a fundamental right”. | 1 |
test | 001-155007 | ENG | RUS | CHAMBER | 2,015 | CASE OF MUKHITDINOV v. RUSSIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Extradition) (Uzbekistan);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations);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);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award (Article 41 - Just satisfaction) | Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 9. The applicant, Mr Lutpiddin Bakhritdinovich Mukhitdinov (a.k.a. Sattarov, see below), was born in 1967 in the Uzbek SSR of the USSR. He claims to have lived in Uzbekistan until 1992 when he left for Saudi Arabia. 10. Since 1997 the applicant has been living in Russia. In 2001, he acquired Russian nationality and changed his name to Sattarov. 11. On 7 May 2013 the Tyumen division of the Federal Migration Service determined that the applicant had obtained Russian nationality by fraud and cancelled his Russian passport. On 25 December 2013 the Tyumen Regional Court upheld, in the final instance, the decision of the Migration Service. 12. According to the letter from the police chief in Namangan, Uzbekistan, dated 8 April 2013, the applicant forfeited his Uzbek nationality because of his unaccounted absence from the country for more than five years. 13. On 7 May 1998 a criminal case was instituted against the applicant in Uzbekistan on the charge of illegal crossing of the Uzbek State border, an offence under Article 223 of the Uzbek Criminal Code. 14. On 15 December 2009 further charges were levelled against the applicant under Article 159 § 3 of the Uzbek Criminal Code (“Infringement of the constitutional order of Uzbekistan”) and Article 242 § 1 (“Organisation of a criminal enterprise”). The charges related to the applicant’s alleged participation in the religious terrorist organisation The Islamic Movement of Uzbekistan (Wahhabii); he was suspected of meeting with its representatives during his stay in Saudi Arabia and of spreading the ideas of the organisation. 15. On 16 December 2009 the Namangan Criminal Court issued an arrest warrant. 16. On 30 June 2013 the applicant was arrested in Tyumen, Russia. 17. On 2 July 2013 the Kalininskiy District Court of Tyumen issued a detention order valid until 30 July 2013. On the latter date the District Court extended the authorised detention period until 30 December 2013. The extension was upheld by the Tyumen Regional Court on 15 August 2013. 18. On 11 December 2013 the Russian Prosecutor General approved the applicant’s extradition in relation to the offence of organising, and taking part in, the activities of the Islamic Movement of Uzbekistan, an extremist organisation (Article 244-2 § 1 of the Uzbek Criminal Code). It was noted that “the [applicant’s] extradition ... in relation to the extremist charges ... cannot be regarded as an obstacle for extradition since no procedural decision was taken in this respect by the competent Russian authorities” and further that the Uzbek authorities had provided “diplomatic assurances that [the applicant] ... would not be subject to torture, violence, other cruel or degrading treatment”. 19. On 26 December 2013 the District Court approved a further extension of the detention period until 30 March 2014. The applicant challenged the extension before the Regional Court, claiming that the maximum detention period in case of a medium-gravity offence, for which his extradition had been approved, was set by law at six months. By decision of 13 February 2014, the Regional Court quashed the extension order of 26 December 2013, finding that the District Court did not give any specific reasons for extending the applicant’s detention, and remitted the detention matter to the District Court. It directed that the applicant should remain in custody until 24 February 2014. 20. In the meantime, on 21 January 2014 the Tyumen Regional Court upheld the extradition order as being lawful and justified. The court noted that the Uzbekistan Prosecutor’s Office provided the appropriate assurances, that the Russian Ministry of Foreign Affairs had no information capable of preventing the applicant’s extradition, that the Russian Federal Security Service had no information about the applicant’s persecution in Uzbekistan for political motives and that counsel’s allegations of a real risk of illtreatment or torture in Uzbekistan were “unsubstantiated” (голословные). 21. On 21 February 2014 the District Court issued a new extension order by which the applicant’s detention was extended until 30 March 2014. The applicant challenged it on the same grounds as before. On 11 March 2014 the Regional Court granted the applicant’s complaint and released him from custody, finding that by virtue of Article 109 of the Code of Criminal Procedure his detention could not have been extended beyond the initial sixmonth period. 22. On 19 March 2014 the Supreme Court rejected at final instance the applicant’s challenge to the decision on his extradition to Uzbekistan. It stated that the arguments about a real risk of torture and political persecution were “unconvincing”. 23. In the early morning of 22 July 2014 the applicant was taken away from his home by seven uniformed officers of the Federal Migration Service. The applicant’s lawyer arrived immediately on the scene and attempted to follow them but was stopped by the traffic police. 24. When the applicant’s wife and son arrived at the local office of the Migration Service later on that day, they were told that he had already been released. 25. On 27 July 2014 the applicant’s representative before the Court sent a faxed letter to the Federal Security Service, the Border Control and the Prosecutor General’s Office, asking them to stop the applicant’s unlawful transfer to Uzbekistan. She stated that she had information that the applicant was detained in a police ward in Tyumen and that he might be placed on the next flight to Tashkent. 26. Further to the Court’s request for factual information (see paragraph 7 above), on 7 August 2014 the Government replied that the applicant’s current whereabouts were not known, that he had not been detained or transferred outside of the Russian territory by State agents and there was no information about him crossing of the State border. 27. On 20 August 2014 the Tyumen Regional Prosecutor’s office advised the applicant’s representative as follows: “As regards [your] allegation about an unlawful arrest of Mr Mukhitdinov, I inform you that on 22 July 2014 the officers of the Tyumen regional branch of the Federal Migration Service conducted, in accordance with the approval plan on combating illegal migration, checks in the places where foreign nationals and stateless persons live, including the premises of a mosque at 9, Zhdanova street, Tyumen. Following the check, three persons, including Mr Mukhitdinov, were brought to the immigration control department. Upon identification, he was released. According to the information provided, Mr Mukhitdinov (Sattarov) was not arrested by the police on 22 July 2014 or any other date; the police has no information about his whereabouts.” 28. On 1 September 2014 the Tyumen Regional Prosecutor’s office additionally informed the counsel that on 25 August 2014 the Tyumen Regional Investigations Committee instituted a criminal case into the applicant’s disappearance. | 1 |
test | 001-174214 | ENG | GBR | ADMISSIBILITY | 2,017 | MINTER v. THE UNITED KINGDOM | 4 | Inadmissible | Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 1. The applicant, Mr Martyn Minter, is a British national, who was born in 1975 and lives in Hampshire. He was represented before the Court by Mr P. Rule, counsel, a barrister practising in London. 2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Sagoo of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. When a person is sentenced to a determinate term of imprisonment, the normal practice is for that person to be released “on licence” after serving half of the sentence. The licence period usually lasts for the remainder of the sentence and during this period the person may be recalled to prison if he or she breaches the conditions of the licence. 5. When an offender is convicted of certain sexual or violent offences, the sentencing court may pass an “extended sentence” (see paragraphs 2326 below). In such cases, if the offender is sentenced to a determinate term of imprisonment he or she is usually released after serving half of that sentence. However, an additional licence period known as “the extension period” takes effect after the normal licence period ceases. This extension period can be of such length as the court considers necessary to protect members of the public from serious harm. 6. In England and Wales persons convicted of certain sexual offences are required to notify the police of various personal details. This includes the person’s current address, any change of address and any other address at which they stay for seven days or more. They must provide their national insurance numbers to the police and must allow the police to take their photograph and fingerprints for the purpose of verifying their identity. They must also give advance notice to the police of any foreign travel. 7. These notification requirements were first enacted in the Sexual Offences Act 1997 and subsequently re-enacted, with minor amendments, in sections 80–92 of the Sexual Offences Act 2003 (“the SOA 2003” – see paragraphs 27-31 below). The notification period varies according to the term of imprisonment imposed on the offender. For a person sentenced to a term of imprisonment of between six and thirty months, it is ten years from the date of conviction, but for a person sentenced to a term of imprisonment of thirty months or more it is indefinite. 8. In R v. S (Graham) [2001] Cr App R 111 the Court of Appeal, in observations which were subsequently treated as obiter, expressed the view that on plain construction the phrase “term of imprisonment” in the SOA 2003 did not include a sentence of extended licence. However, in R v. Wiles [2004] 2 Cr App (S) 467 the Court of Appeal held that in this respect R v. S (Graham) had been decided per incuriam and was wrong. In determining the length of the “qualifying sentence” for the purposes of making an order disqualifying an offender from working with children, the Court of Appeal found that the whole length of the extended sentence had to be taken into account. 9. On 16 August 2006 the applicant pleaded guilty to six offences of taking indecent photographs of a child, five offences of voyeurism and one of indecent assault. The maximum penalty for the offences of taking indecent photographs of a child and indecent assault was ten years’ imprisonment. 10. On 17 November 2006 the applicant was sentenced in respect of the most serious of the offences to an extended sentence. This extended sentence comprised a custodial term of eighteen months and an extension period of thirty-six months. Lesser sentences were imposed for the other offences. The sentencing judge gave the applicant credit for his early guilty pleas, his previous absence of any criminal convictions, his genuine remorse and his disgust at his own behaviour. 11. On 17 August 2007 the applicant was issued with a notice by the prison at which he was detained stating that he would be subjected to the sex offender notification requirements for a period of ten years. However, the notice warned that it was “not a complete statement of the law.” It went on to add: “It is suggested that you confirm this with the police when you make your notification on release from imprisonment. It is your responsibility to check this if you are not certain.” 12. The Chief Constable of Hampshire subsequently notified the applicant by letter of 22 September 2010 that he would be subjected to the notification requirements indefinitely. The Chief Constable reasoned that the applicant had been sentenced to a term of imprisonment of more than thirty months since the extended sentence was one of fiftyfour months (the custodial term of eighteen months plus the extension period of thirty-six months). 13. The applicant disagreed with the Chief Constable’s interpretation of the relevant statutory provisions. He considered that, when calculating the term of imprisonment, only the custodial term should have been counted and, given that this was less than thirty months, the notification period should only have been ten years. Accordingly, in December 2010 he sought judicial review of the Chief Constable’s decision. 14. In the course of the judicial review proceedings, the applicant also submitted that the legal framework in respect of the notification requirement lacked the degree of clarity and certainty required to be “in accordance with the law” within the meaning of Article 8 of the Convention; and that the Chief Constable’s interpretation of the relevant legislation constituted a disproportionate interference with his right to respect for his private life under that Article. He further submitted that there had been a breach of Article 14 taken in conjunction with Article 8 of the Convention because, after he had been sentenced, the sentencing regime had changed so that for persons sentenced after 14 July 2008 an extended sentence was no longer available unless they either had a previous conviction for a serious offence or the custodial term was at least four years’ imprisonment (see paragraph 26 below). As a consequence, someone in his position sentenced under the new sentencing regime would not receive the extended sentence he received. 15. In support of his Article 14 argument, the applicant relied on Clift v. the United Kingdom, no. 7205/07, 13 July 2010, in which the Court had accepted that the different treatment of different categories of prisoners depending on the sentences imposed on them was based on “other status”. 16. By judgment of 28 June 2011 the Divisional Court dismissed the applicant’s claim. Having reviewed both the domestic legislation and caselaw, it considered “it plain that the entirety of the extended sentence is a sentence of imprisonment ‘in respect of the offence’ for which it is imposed”. 17. Therefore, in respect of Article 8, the court held that the legal framework was sufficiently certain to satisfy the “in accordance with the law” requirement. Furthermore, as the purpose of the extension period was to manage and reduce the risk posed by an offender it was proportionate for the extension period to be included in any calculation of the notification period. The legislature had been entitled to fix the threshold for indefinite notification at thirty months. In doing so, it had struck a fair balance for the purposes of Article 8 of the Convention. 18. In respect of Article 14 taken in conjunction with Article 8, the court considered itself bound by the House of Lords’ judgment in R (Clift) v the Secretary of State for the Home Department [2007] 1 AC 484, which had ruled that the treatment of prisoners based on differences in length of sentence did not constitute differential treatment on the ground of “other status”, even though in Clift v. the United Kingdom this Court had subsequently reached the opposite conclusion. In any event, the Divisional Court found it “difficult to see how changes in the legislative regime referred to, affecting those sentenced at different dates, could give rise to discrimination”. 19. The Court of Appeal unanimously dismissed the applicant’s appeal on 1 May 2013. It upheld the Divisional Court’s finding that the prison term for the purpose of ascertaining the notification period was the aggregate term of the extended sentence. In this regard, it noted that “the Divisional Court was, with respect, plainly right on the short ground that the statutory language permits no other sensible conclusion”. 20. In respect of Article 8, the applicant had submitted that the imposition upon him of an indefinite notification requirement had been arbitrary and disproportionate. However, the court found that, given the purposes of the notification requirement and of extended sentences, there was nothing “arbitrary” or disproportionate in the imposition of an indefinite notification requirement in the applicant’s case. Moreover, it would, in time, be possible for the applicant to seek review of the indefinite notification period (see paragraph 34 below). 21. In respect of Article 14 taken in conjunction with Article 8, the court observed that all that had happened was that Parliament had altered its views as to the threshold for indefinite notification requirements. That did not generate retrospectively a good Article 14 argument. Furthermore, Laws LJ considered that the Court of Appeal, like the Divisional Court, was bound by the House of Lords’ judgment in R (Clift) v the Secretary of State for the Home Department. 22. On 17 March 2014, the Supreme Court refused the applicant permission to appeal. 23. In 2006, when the applicant was sentenced, extended sentences were regulated by section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 (“the 2000 Act”) which provided, as relevant: “85 Sexual or violent offences: extension of certain custodial sentences for licence purposes. (1) This section applies where a court — (a) proposes to impose a custodial sentence for a sexual or violent offence committed on or after 30th September 1998; and (b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of preventing the commission by him of further offences and securing his rehabilitation. (2) Subject to subsections (3) to (5) below, the court may pass on the offender an extended sentence, that is to say, a custodial sentence the term of which is equal to the aggregate of — (a) the term of the custodial sentence that the court would have imposed if it had passed a custodial sentence otherwise than under this section (“the custodial term”); and (b) a further period (“the extension period”) for which the offender is to be subject to a licence and which is of such length as the court considers necessary for the purpose mentioned in subsection (1) above. ... (4) The extension period shall not exceed —. (a) ten years in the case of a sexual offence; and (b) five years in the case of a violent offence. (5) The term of an extended sentence passed in respect of an offence shall not exceed the maximum term permitted for that offence.” 24. The Criminal Justice Act 2003 (“the CJA 2003”) subsequently enacted new provisions governing extended sentences for offences committed after 4 April 2005. 25. Before an extended sentence may be imposed under the new provisions the court must find that there is a significant risk to members of the public of serious harm occasioned by the commission by the offender of further specified offences (section 226A of the CJA 2003). 26. Further requirements for the imposition of an extended sentence were added as of 14 July 2008. These additional requirements are that the offender must either: (i) have a previous conviction for a serious offence (as defined in Schedule 15A to the CJA 2003); or (ii) have committed an offence or offences meriting a custodial term of four years (section 226A of the CJA 2003). 27. The notification requirements for those convicted of certain sexual offences are now contained in the Sexual Offences Act 2003 (“the SOA 2003”). Section 82 sets different notification periods. For a person sentenced to a term of imprisonment of more than six months but less than thirty months, the notification period is ten years. For a person sentenced to thirty months’ imprisonment or more, the notification period is indefinite. 28. A person subject to the notification requirements is required to give the police his biographical information (his name(s), date of birth, National Insurance number, his home address and any other address at which he regularly resides or stays) as well as any changes to that information (sections 83(5) and 84). Section 85 provides for periodic notification of the information specified in section 83(5). 29. Section 86 requires notification of any travel arrangements outside the United Kingdom, including the date on which the offender will leave, the country (or the first country) to which he will travel and his point of arrival in that country, and any other information which the offender holds about his departure from or return to the United Kingdom or his movements while outside the United Kingdom. 30. Section 87(4) provides that, where a notification is given, the relevant offender must, if requested to do so by a police officer or authorised person, allow the officer or person to take his fingerprints and/or photograph any part of him. 31. By section 91(1) it is an offence to fail, without reasonable excuse, to comply with these requirements. 32. The applicants in R (on the application of F) and Thompson had sought a declaration that in the absence of any mechanism for review, the indefinite notification period under the 2003 Act was incompatible with Article 8 of the Convention. A Divisional Court of the Queen’s Bench Division granted the declaration of incompatibility and the Court of Appeal upheld that decision. The Secretary of State appealed to the Supreme Court. 33. The Supreme Court dismissed the appeal. It accepted that the indefinite notification requirement under the SOA 2003 was capable of causing significant interference with the right to respect for private and family life and, in the absence of any provision for individual review of the requirement, it constituted a disproportionate interference with Article 8 of the Convention. 34. Following R (F) and Thompson, the SOA 2003 was amended so as to make provision for review of the indefinite notification requirement. In respect of England and Wales, the review provisions are set out in sections 91A-F. Pursuant to these provisions, an offender over eighteen years of age can, after fifteen years, apply to the Chief Officer of Police for the area in which he resides for a determination that he or she should no longer be subject to the indefinite notification requirement (section 91B). The offender must satisfy the relevant Chief Officer of Police that indefinite notification is no longer necessary for the purpose of protecting the public or any particular members of the public from sexual harm (section 91C(2)). There is a right of appeal to the local Magistrate’s Court against any negative determination by the Chief Officer of Police (section 91E). | 0 |
test | 001-147486 | ENG | HRV | ADMISSIBILITY | 2,014 | KARAJICA v. CROATIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 1. The applicants, Ms Ruža Karajica (“the first applicant”) who lodged the application on her own behalf and on behalf of her two underage children, her daughter Lucijana Karajica (“the second applicant”) and her son Jakov Karajica (“the third applicant”), are Croatian nationals who were born in 1974, 2000 and 2002 respectively, and live in Brdovec. They were represented before the Court by Ms I. Bojić, an advocate practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 10 April 1999 the first applicant married S.K. 5. On 7 September 2000 she gave birth to the second applicant, and on 29 July 2002 to the third applicant. 6. The first applicant and S.K. separated in November 2004 when he moved out of the matrimonial home. 7. On 11 January 2005 the first applicant instituted civil proceedings against S.K. in the Zaprešić Municipal Court (Općinski sud u Zaprešiću), seeking a divorce and the right to have the second and third applicants living with her (hereinafter “custody”). 8. On 9 March 2005 the Zaprešić Social Welfare Centre (Centar za socijalnu skrb Zaprešić – hereinafter “the local social welfare centre”), which participated in the proceedings as an independent intervener sui generis with a view to protecting the children’s interests, submitted its opinion and report. 9. By a judgment of 25 March 2005 the Municipal Court granted the divorce, awarded the first applicant custody of the second and third applicants, and granted S.K. access (contact) rights. 10. Following an appeal by S.K., on 23 November 2005 the Velika Gorica County Court (Županijski sud u Velikoj Gorici) quashed the first-instance judgment, except for the part granting the divorce, and remitted the case to the first-instance court. 11. In the resumed proceedings, the Zaprešić Municipal Court held hearings on 25 May and 12 December 2006, 20 February, 4 October and 14 December 2007 and on 11 June, 19 February and 18 July 2008. On 3 October 2006 it obtained a combined expert opinion from court experts in psychology and psychiatry, and on 1 April 2008 a fresh opinion and report from the local social welfare centre. 12. According to the combined expert opinion from experts in psychology and psychiatry the first applicant was mentally unstable and had demonstrated signs of a personality disorder, whereas her former husband, S.K., had shown no such signs and was sufficiently emotionally stable to take care of the children. In particular, the experts established that the first applicant lacked self-critical awareness and was unable to recognise and respond to the emotional needs of her children. They therefore recommended that custody of the second and third applicants be awarded to their father. Having regard to the importance of the role of a mother in the development of a child, and the fact that both children were very emotionally attached to her, the experts also suggested granting the first applicant extensive access rights, provided that she agree to seek psychiatric treatment. 13. In reply, the first applicant submitted an opinion by a psychiatrist who had been treating her since June 2005. The opinion, dated 29 November 2006, stated that she had been systematically abused by her former husband and, although mentally fragile, was not suffering from any mental illness, much less a personality disorder. 14. On 28 May 2007 the local social welfare centre, acting partly upon the opinion and court experts’ recommendations and partly of their own motion, instructed the first applicant to commence psychiatric treatment and to take the second and third applicants for psychotherapy. It also imposed various supervision measures in order to monitor the exercise of parental authority by her and S.K. 15. By a judgment of 18 July 2008 the Municipal Court awarded the first applicant custody of the second and third applicants, and granted S.K. access (contact) rights. Following an appeal by S.K., on 18 June 2009 the Velika Gorica County Court quashed the first-instance judgment and remitted the case. 16. On 10 January 2010 the Polyclinic for the Protection of Children – where the second and third applicants had been receiving psychiatric treatment – informed the local social welfare centre that it suspected the second and third applicants’ mental health was being neglected and that they were being emotionally abused by the first applicant. 17. According to a fresh expert opinion obtained by the Municipal Court in the resumed proceedings in November 2010 from two different court experts (a psychologist and psychiatrist), both the second and third applicants were very traumatised as a result of their parents’ – especially their mother’s – behaviour, and were in urgent need of psychotherapy. The experts also established that, although both parents were responsible for the situation, the first applicant, whose behaviour they regarded as “emotional abuse”, was more responsible. The inefficiency of the authorities had also contributed to the situation, by making it possible for the mother to manipulate the children. The experts further found that both parents had limited parenting capacities, but that the first applicant’s capacity was more limited. They initially could not recommend which parent should be awarded custody – handing the children to their father would worsen their mental state, whereas keeping them in their mother’s custody would intensify their hostility to their father and her influence over them. Thus, they first suggested that both parents undergo counselling to try to improve their own relationship and their relationship with their children, later proposing to award custody of the children to their mother for a period of six months and grant the father extensive access rights. 18. On that basis, on 27 December 2010 the court made an interim order whereby it awarded the first applicant custody of the children on a temporary basis and granted S.K. access rights, allowing him contact with the second and third applicants three times a week for two hours, every other weekend and for half of the school holidays. 19. It would appear that for the following six months, the father was unable to exercise his access rights because each time he went to collect the children they refused to go with him, a behaviour which the first applicant allegedly encouraged. 20. The last expert opinion obtained by the court in September 2011, which was prepared by the same psychologist and psychiatrist who had prepared the opinion of November 2010, recommended placing the second and third applicants into care. The experts suggested that the children be removed from their mother because she was harming their emotional development. Even though their father had better parenting capacity, for the time being he could not take over custody as the children, because of their mother’s influence, had a very negative attitude towards him, so any forced situation would have a negative impact. The experts therefore recommended placing the children into foster care, attending psychotherapy in a designated clinic, and granting each parent supervised access once a week. It was proposed that the measures would last for one year. 21. On 8 December 2011 the local social welfare centre lodged a motion seeking that the second and third applicants be temporarily removed from the first applicant for a period of one year, the child protection measure laid down in section 111 of the Family Act (see paragraph 56 below). On the same day it appointed one of its employees, Ms A.P., to act as their guardian ad litem and represent their interests in the proceedings, as required by section 121 of the Family Act (see paragraph 56 below). 22. On 21 December 2011 the Municipal Court adopted a judgment depriving the first applicant and S.K. of custody of the second and third applicants for a period of one year and awarding custody to St. Joseph’s House for Uncared Children (Kuća sv. Josipa za nezbrinutu djecu – hereinafter “St. Joseph’s House”), a children’s home run by the Catholic church. S.K and the first applicant were granted access (contact) rights, to be exercised on the premises of St. Joseph’s House in the presence of one of its employees. S.K. was entitled to see the children every Saturday from 10 a.m. to 12 noon and the first applicant every Sunday from 3 to 5 p.m. The court also decided that the judgment would be immediately enforceable, accordingly ordering the first applicant to entrust the second and third applicants to St. Joseph’s House immediately following service. 23. In making its decision the court, apart from relying on the abovementioned expert opinions, also took into account the fact that the first applicant had refused to act upon the instruction of the local social welfare centre to seek psychiatric treatment (see paragraph 14 above), had taken the children for treatment at the designated clinic only once, and had been obstructing execution of the supervision measures imposed by the centre, by refusing to cooperate with the social worker assigned to her case. 24. In particular, the court found that the mother’s refusal to seek psychiatric treatment (which was a precondition for the successful psychotherapy of her children), her and S.K.’s fixation on their mutual problems and their lack of communication and unwillingness to adapt and change, were making them insensitive to the emotional needs of their children. That was harmful for the physical and mental development of the children, who had been traumatised and manipulated by their parents’ attitude and behaviour. The parents had thus significantly neglected their duty to raise and educate them, as they had not taken sufficient care of their health within the meaning of section 111(1) and (2) of the Family Act (see paragraph 56 below). 25. The court therefore concluded that the first applicant and her former husband could not properly take care of their children and that temporarily depriving them both of custody was warranted. 26. The first applicant appealed against the court’s decision, arguing that she had been undergoing psychiatric treatment, albeit in a different clinic from the one recommended by the court experts. The reason she had refused to undergo counselling with her husband, as recommended by the court experts, was because he had been convicted of domestic violence against her (see paragraphs 46-49 below). Furthermore, she had taken her children for psychotherapy but in a different clinic from the one recommended by the experts and endorsed by the local social welfare centre. 27. On 21 March 2012 the Velika Gorica County Court (Županijski sud u Velikoj Gorici) dismissed the first applicant’s appeal and upheld the first-instance judgment . 28. By a decision of 13 June 2012 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed a constitutional complaint lodged by the applicants. 29. As the period of one year set forth in the judgment of 21 December 2011 was about to expire, on 17 December 2012 the Zaprešić Municipal Court adopted a decision containing the same custody and access arrangements as those in that judgment. The court found that the fact that the judgment had remained unenforced (see paragraphs 38-41 below) suggested that the circumstances that had warranted the imposition of the child protection measure ordered therein still existed. It thus refused to take (into account) any new evidence. The decision was immediately enforceable. 30. By a decision of 13 February 2013 the Velika Gorica County Court dismissed an appeal lodged by the first applicant and upheld the firstinstance decision. 31. The applicants did not lodge a constitutional complaint against this decision. 32. On 17 December 2013, a day before the period of one year fixed in its decision of 17 December 2012 was due to expire (see paragraph 29 above), the Zaprešić Municipal Court adopted identical decision with similar reasoning. It again refused to take any evidence. This decision was also immediately enforceable. 33. By a decision of 12 March 2014, the Velika Gorica County Court dismissed an appeal lodged by the first applicant and upheld the first-instance decision. 34. The applicants then lodged a constitutional complaint, alleging violations of their constitutional rights to a fair hearing and to respect for their family life. In so doing, they relied on Article 29 paragraph 1 and Article 35 of the Croatian Constitution (see paragraph 55 below) and Articles 6 § 1 and 8 of the Convention. 35. On 17 June 2014 the Constitutional Court found a violation of the applicants’ rights to a fair hearing and to respect for their family life, quashed the second-instance decision of 12 March 2014 and first-instance decision of 17 December 2013 (see paragraphs 32 and 33 above) and remitted the case to the Zaprešić Municipal Court. 36. In particular, the Constitutional Court found a violation of the procedural aspect of the right to respect for family life and a breach of the principle of equality of arms in that (a) the first-instance court, without giving valid reasons, had not held a hearing or taken any evidence before reaching its decision; (b) the ordinary courts had paid no heed to the first applicant’s argument that one of the court experts was her former husband’s therapist; (c) the first-instance court had not heard the children, even though their age and maturity permitted that they be heard; and (d) an employee of the local social welfare centre (the public authority that proposed the contested child protection measure, see paragraph 21 above), who had assumed a rather passive role in the proceedings and had not even contacted the children, had been appointed as the second and third applicants’ guardian ad litem, thus creating a conflict of loyalty between her employer and her wards (children under her care). 37. The Constitutional Court explained that taking new evidence had been particularly warranted in the circumstances, as children grew quickly and thus it could not have been assumed, as the first-instance court had done, that there had been no relevant developments in the two years that had passed between the first-instance judgment of 21 December 2011 and the decision of 17 December 2013. The best interests of the children required that evidence be taken to establish the current situation as regards the second and third applicants, which had been crucial for deciding whether to maintain or lift the impugned child protection measure of their temporary placement into care. 38. Meanwhile, as the first applicant refused to entrust the second and third applicants to the children’s home, on 10 February 2012 the local social welfare centre applied to the Zaprešić Municipal Court to have the judgment of 21 December 2011 (see paragraph 22 above) enforced. 39. On 14 February 2012 the Zaprešić Municipal Court issued a writ of execution (rješenje o ovrsi) ordering the first applicant to entrust the second and third applicants to St. Joseph’s House within eight days of service, or face a fine of 5,000 Croatian kunas (HRK). 40. On 18 July 2012 the Municipal Court fined the first applicant HRK 5,000 for disobeying the court order to entrust the second and third applicants to the children’s home, and ordered her to do so within eight days of service, or face an additional fine of HRK 6,000. 41. Since fining the first applicant with a view to forcing her to comply with the above judgment and entrust the children to the children’s home had no effect, on 18 November 2012 the Zaprešić Municipal Court, following an application by the local social welfare centre, issued a new writ of execution. This time it ordered an enforcement officer, with the assistance of the police, to physically remove the second and third applicants from the first applicant or a third party and place them in the care of St. Joseph’s House. 42. On 21 March 2013 at 1.30 p.m. the enforcement officer and five policemen attempted to remove the second and third applicants from their mother. The children resisted by screaming, crying and shouting that they did not want to go to a home and wanted to remain living with their mother. Given the children’s reactions, the enforcement officer eventually decided to adjourn the intervention. Immediately afterwards the first applicant took the second and third applicants to a doctor, who referred them to a psychiatrist. The psychiatrist who examined them that day found that they were suffering from shock. 43. On 19 April 2013, during a meeting held at the local social welfare centre, the first applicant promised to cooperate with the relevant authorities and undergo counselling with a view to improving her relationship with her former husband. 44. Following a motion by the centre, on 13 May 2013 the Zaprešić Municipal Court postponed enforcement until 29 July 2013. 45. On 25 July 2013 the centre lodged another motion to postpone enforcement, which the Zaprešić Municipal Court granted on 2 September 2013 by postponing enforcement until 25 October 2013. 46. On 21 October 2013 the centre lodged a third motion to postpone enforcement. This time the Zaprešić Municipal Court, on 30 October 2013, dismissed the motion, because under the domestic law it was not possible to postpone enforcement for more than six months at the request of the party seeking enforcement. Furthermore, since the centre as the party seeking enforcement had not applied for a continuation of enforcement in those six months, as was required by law, the court discontinued the enforcement proceedings. 47. Meanwhile, on 18 January 2005 the Zaprešić Minor Offences Court (Prekršajni sud u Zaprešiću) found S.K. guilty of domestic violence, after an incident against the first applicant on 29 November 2004. He was given a thirty-day suspended sentence, with a probation period of three years. 48. On 22 August 2006 the Zaprešić State Attorney’s Office (Općinsko državno odvjetništvo u Zaprešiću) indicted S.K. on two counts of domestic violence, a criminal offence punishable under Article 215a of the Criminal Code (see paragraph 57 below), relating to the incident of 29 November 2004 and a separate incident on 14 November 2004. 49. On 29 February 2008 the Zaprešić Municipal Court found S.K. guilty as charged and imposed a ten-month suspended sentence with a probation period of one year. 50. On 2 February 2009 the Velika Gorica County Court dismissed an appeal lodged by S.K. and upheld the first-instance judgment, which thereby became final. 51. On 26 August 2011 the Zagreb State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) indicted the first applicant before the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) for obstructing the execution of measures ordered to protect a child or minor, a criminal offence punishable under Article 215 of the Criminal Code (see paragraph 57 below). 52. On 6 June 2013 the Zagreb Municipal Criminal Court found the first applicant guilty as charged and imposed a six-month suspended sentence with a probation period of two years. 53. The first applicant appealed, and it would appear that the proceedings are currently pending before the Zagreb County Court (Županijski sud u Zagrebu) as the second-instance court. 54. Following a petition by the first applicant, on 8 May 2012 the Gender Equality Ombudsman (Pravobraniteljica za ravnopravnost spolova) advised the local social welfare centre that in instructing her to undergo various treatment and expert assessments, it had failed to take into account the fact that she was a victim of domestic violence. In particular, the Ombudsman noted that, by insisting that the first applicant attend counselling with her former husband, who had been convicted of domestic violence against her, the centre had treated the victim and the perpetrator equally. That constituted secondary victimisation and amounted to discrimination against her as a victim of domestic violence. The Ombudsman therefore suggested that the centre reformulate its recommendation to the court in the proceedings regarding custody and access rights, basing it on a fresh expert opinion from a different expert and bearing in mind the fact that the first applicant was a victim of domestic violence. 55. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette of the Republic of Croatia, no. 56/90 with subsequent amendments) read as follows: “In the determination of his rights and obligations or of any criminal charge against him or her, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law.” “Everyone shall be guaranteed respect for, and the legal protection of, his personal and family life ...” 2. Family Act 56. The relevant provisions of the Family Act (Obiteljski zakon, Official Gazette nos. 163/03, 17/04, 136/04, 107/07, 57/11, 61/11) read as follows: 3. Measures to protect the rights and welfare of the child “(1) The court shall, in non-contentious proceedings, deprive a parent of the right to live with and raise his or her child and shall entrust the child to another individual, an institution or another legal entity providing social services, if [that parent] significantly neglects [his or her duty] to raise and educate [the child], or if there is a risk to [him or her] being properly raised. (2) It is deemed that a parent is significantly neglecting the raising, upbringing and education of [his or her child] if the parent, for example, does not take sufficient care of the child’s diet, hygiene, clothing, health or regular school attendance, or does not deter the child from bad company, staying out late at night and breaking [night-time] curfews, or from vagrancy, begging or stealing.” “(3) The measures referred to in sections 111 and 112 of this Act shall last up to one year. (4) The proceedings for imposing the measures referred to in sections 111 and 112 of this Act shall be instituted [by the court] of its own motion or following an application by a social welfare centre or the child. (5) Imposition of the measures referred to in sections 111 and 112 of this Act does not terminate the other rights and duties of the parent toward [his or her] child. (7) An appeal lodged against decisions adopted on the basis of sections 110 to 112 of this Act does not suspend their enforcement.” “To protect the rights and welfare of the child, the social welfare centre shall appoint a special guardian in cases falling under section 111, 112 and 114 of this Act.” 57. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette no. 110/97 with subsequent amendments), in force from 1 January 1998 to 31 December 2012, reads as follows: “(1) Anyone who obstructs the execution of educational or other measures ordered by the court, social welfare centre or [other] State authorities, or fails to discharge its statutory duties to protect a child or minor in due time, shall be punished by a fine or imprisonment of up to one year.” “A family member, who by violence, abuse or particularly insolent behaviour, subjects another member of the family to degrading treatment, shall be punished by imprisonment of six months to five years.” | 0 |
test | 001-163624 | ENG | UKR | ADMISSIBILITY | 2,016 | KASHCHUK v. UKRAINE | 4 | Inadmissible | Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 1. The applicant, Mr Mykola Spyrydonovych Kashchuk, is a Ukrainian national who was born in 1955. His present place of residence is unknown. He was represented before the Court by Mr V.A. Struts, a lawyer practising in Mykolayiv. 2. The Ukrainian Government (“the Government”) were represented, most recently, by their Acting Agent Ms Olga Davydchuk. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The events relate to a house owned by the applicant in Zaliznychne village in the Mykolayiv region, where he lived with his wife and their two daughters (born in 1978 and 1985). 5. In February 1996 the village suffered extensive groundwater flooding. 6. In April 1996 (the exact date is illegible in the available documents) a technical survey of the applicant’s house was carried out. As stated in the survey report, the building was made of beaten earth walls and was constructed shortly after 1945. It had no foundations and measured twentythree square metres, of which nineteen square metres were living area. The building lacked basic amenities such as a lavatory, water supply, sewage system, gas supply or telecommunications. While the maximum habitable life of such buildings was up to thirty years, the applicant’s house had been in use for more than fifty years. Following the flood, its floors were covered with water (about forty-five centimetres deep) and the walls were damp. It was not deemed feasible to carry out repairs and demolition was deemed to be the only option. 7. On 26 April 1996 the Executive Committee of the Mykolayiv City Council (“the Mykolayiv Council”) issued an order “On measures for eliminating the consequences of the natural disaster in Zaliznychne village”. It noted that thirty-seven residential buildings had remained flooded with groundwater since February 1996. Twenty-seven of them were at risk of collapsing. A commission of experts was appointed to assess the situation and draw up recommendations for further measures. 8. On 18 June 1996 the commission issued its report. The applicant’s house was among those assessed as “having practically exhausted their capacity for use as a result of the groundwater flooding”. The commission noted that measures for lowering the level of the groundwater had been unsuccessful, that the condition of the houses was deteriorating and that they could collapse at any moment. Its conclusion was that the houses were dilapidated, uninhabitable and should be demolished. 9. On 28 June 1996 the Mykolayiv Council approved the above report, as well as a list of dilapidated and uninhabitable houses, including the one belonging to the applicant. It recommended that the local authorities dealing with housing issues, together with local companies, resettle the people concerned to hostels on a temporary basis. 10. The local authorities further recommended to the applicant that he turn to his employer, the Equator plant, for help in solving his housing problem. 11. On 30 August 1996 the Mykolayiv Council delivered a decision on the resettlement of the residents of the flooded houses, including the applicant’s family, to hostels. It guaranteed that within three years they would receive new accommodation, subject to applicable benefits and the available funding. The Equator plant was directed to resettle the applicant’s family. 12. On 16 September 1996 Equator’s administration and its trade unions proposed that the applicant’s family move temporarily to a flat at either 44a or 46a V. Street. The applicant declined the offer on the grounds of the poor condition of the buildings in question. 13. On 17 June and 31 October 1997 the Mykolayiv Council and the mayor’s office, respectively, wrote to the applicant in reply to his complaints about the failure to provide him with free accommodation, saying that he had declined the proposal of temporary resettlement to a flat at 46a V. Street for no good reason. Furthermore, the local authorities had provided the applicant’s daughter with a two-room flat, with partial amenities, for temporary resettlement. 14. On 27 November 1997 the applicant made a written statement to his employer that he was refusing the proposed accommodation at 44a V. Street owing to its poor condition. 15. On 1 June 1999 the Equator’s administration replied to his repeated requests for accommodation by writing to him that in January 1998 the housing fund of the plant had been transferred to the Mykolayiv city municipal property agency, apart from two buildings (44a and 46a V. Street). The building at 46a V. Street was indeed in a very poor, even critically bad, condition. As regards the building at 44a V. Street, the applicant had twice been offered a flat there, but had declined the offer. According to the information provided by the Government, the flat in question measured about fifty-five square metres, of which the living area was thirty-four square metres. However, according to the applicant, the only accommodation he was offered had been a small room without any amenities (see below). 16. On 23 June 1999 the applicant wrote to the Equator’s administration that the only offer he had actually received concerned a room measuring about ten square metres, without any amenities, at 46a V. Street. He emphasised, however, that he would have also declined any offer to be resettled in the building at 44a V. Street, where the conditions were equally poor. 17. On 20 September 2000 a technical survey of the buildings at 44a and 46a V. Street was carried out. Since their construction in 1947, they had not been refurbished and their general condition was considered as being very poor. 18. In May 2001 the applicant found out that he was number 147 on the plant’s general waiting list for accommodation. He complained about that to the Mykolayiv Council, which replied on 6 July 2001 that that was an error, that it should be corrected and that he was indeed entitled to be on the priority waiting list, pursuant to the decision of 28 June 1996. 19. On 27 August 2001 Equator’s administration moved the applicant from the general waiting list to the priority list, where he was at number 36. 20. On 22 February 2002 Mykolayiv Council wrote to the applicant that he was number 35 on its housing waiting list. All the families on the list before him continued to live in uninhabitable conditions and the applicant had to wait his turn. 21. On 22 May 2002 the applicant brought a civil claim against the Equator plant and the Mykolayiv Council, seeking the allocation of free accommodation for his family (by that time consisting of six people as the applicant’s elder daughter had married and given birth to a girl in 2001), as well as compensation in respect of non-pecuniary damage. 22. On 19 September and 20 December 2002 the Equator’s administration and the Mykolayiv Council removed the applicant from their housing waiting lists. 23. On 9 January 2003 the Zavodskyy District Court of Mykolayiv (“the Zavodskyy Court”) found against the applicant. It noted that he had declined two offers of resettlement. Furthermore, he had inherited some real estate in 1990, of which he had not informed the authorities. As a result, Equator’s administration and the Mykolayiv Council had rightly taken him off their housing waiting lists. 24. The applicant appealed. He submitted, in particular, that the property he had inherited consisted of less than six square metres and could not be regarded as alternative accommodation for his family. To corroborate his statement, he provided an expert’s technical survey. 25. On 1 April 2003 the Mykolayiv Regional Court of Appeal (“the Court of Appeal”) quashed the judgment of 9 January 2003 and remitted the case for fresh examination at first instance. It noted that the applicant’s claim concerned the allocation of free accommodation, rather than his exclusion from the housing waiting lists. 26. On 24 November 2003 the Zavodskyy Court allowed the applicant’s claim in part. It considered it established that his house had become uninhabitable as a result of a natural disaster. Accordingly, the court held that the applicant was entitled to free accommodation, pursuant to Article 46 of the Housing Code (see paragraph 32 below). The applicant was also awarded compensation in respect of non-pecuniary damage (1,000 Ukrainian hryvnias, which was then equivalent to about 150 euros, from each of the two defendants). 27. On 5 February 2004 the Court of Appeal quashed the first-instance court’s judgment following appeals by the defendants and adopted a new judgment which in the main dismissed the applicant’s claim. With reference to the decisions of Mykolayiv Council of 28 June and 30 August 1996 (see paragraphs 9 and 11 above), the Court of Appeal noted that the applicant’s house had been among those inspected by a technical commission following the flood and that Equator’s administration had been responsible for resettling his family. It considered that the case file did not contain any evidence proving that the applicant’s house had become uninhabitable as a result of a natural disaster and therefore concluded that Article 46 of the Housing Code was not applicable. However, the applicant was to be restored to the priority housing list, in accordance with Article 45 of the code, given that his house was uninhabitable. This restoration, according to the Court of Appeal, constituted sufficient compensation in respect of non-pecuniary damage. 28. The applicant appealed against the judgment on points of law. He insisted that his house had become uninhabitable as a consequence of the flood. 29. On 11 April 2006 the Supreme Court rejected the applicant’s cassation appeal, giving a concise reasoning that it had not discerned any violations of the law. 30. Article 5 stipulates that the State’s housing stock comprises that of local councils of people’s deputies (житловий фонд місцевих Рад) and that of ministries, state committees and institutions (відомчий житловий фонд). 31. Article 45 contains a non-exhaustive list of categories of people whose living conditions need to be improved and who are therefore entitled to free accommodation being placed on a priority housing list (першочергове надання жилих приміщень). As further set out in Article 60, approval of the rules of keeping records about people belonging to those categories was the responsibility of the Council of Ministers of the Ukrainian SSR and the Ukrainian Republican Council of Trade Unions. 32. Article 46 provides for categories of people entitled to free accommodation without being on a housing list (позачергове надання жилих приміщень), including “citizens whose dwelling has become uninhabitable as a result of a natural disaster”. The Article further states that such people shall be included on a separate waiting list. No time-limits are set down for the allocation of dwellings to such people. 33. Article 48 of the Housing Code states, in particular, that the minimum size of residential premises should comply with standards laid down by the Cabinet of Ministers and the Trade Union Federation. 34. According to Article 50, residential premises should comply with the relevant sanitary and technical standards. 35. Article 52 governs the allocation of flats from the institutional housing stock (відомчий житловий фонд). In particular, flats are allocated by a joint decision of the authorities and the trade union branches of the companies, institutions and establishments concerned, which either submit their decision to the relevant municipal council for approval or, in some cases, simply inform the council. On the basis of that decision, the executive committee of the municipal council issues the person concerned with an authorisation to occupy the flat (ордер), which constitutes the sole legal basis for taking possession of the allocated dwelling (Article 58). 36. “Rules of keeping records about people in need of improved living conditions and the allocation of free accommodation for them ...” (Правила обліку громадян, які потребують поліпшення житлових умов, і надання їм жилих приміщень ...), which were approved by Resolution of the Council of Ministers of the Ukrainian SSR and the Ukrainian Republican Council of Trade Unions no. 470 of 11 December 1984 (with further amendments), also contain several provisions of relevance. 37. More specifically, point 44 contains a list of categories of people on housing waiting lists who must be provided with free accommodation as a matter of priority. One such category concerns “people living in dilapidated buildings not subject to major repairs” (§ 14). Furthermore, point 46 (§ 1) reiterates the provisions of Article 46 of the Housing Code (see above). | 0 |
test | 001-155353 | ENG | ARM | GRANDCHAMBER | 2,015 | CASE OF CHIRAGOV AND OTHERS v. ARMENIA | 1 | Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Article 35-3 - Ratione loci);Preliminary objections dismissed (Article 34 - Victim);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;Possessions);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Just satisfaction reserved (Article 41 - Just satisfaction) | Alvina Gyulumyan;Christos Rozakis;Corneliu Bîrsan;Dean Spielmann;Egbert Myjer;Egidijus Kūris;Elisabet Fura;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Giorgio Malinverni;Guido Raimondi;Ineta Ziemele;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Luis López Guerra;Mark Villiger;Nicolas Bratza;Paulo Pinto De Albuquerque;Peer Lorenzen;Robert Spano;Sverre Erik Jebens;Ksenija Turković | 12. At the time of the demise of the USSR, the Nagorno-Karabakh Autonomous Oblast (“the NKAO”) was an autonomous province of the Azerbaijan Soviet Socialist Republic (“the Azerbaijan SSR”). Situated within the territory of the Azerbaijan SSR, it covered 4,388 sq. km. There was at that time no common border between Nagorno-Karabakh (known as Artsakh by its Armenian name) and the Armenian Soviet Socialist Republic (“the Armenian SSR”), which were separated by Azerbaijani territory, at the shortest distance by the district of Lachin, including a strip of land often referred to as the “Lachin corridor”, less than ten kilometres wide. 13. According to the USSR census of 1989, the NKAO had a population of 189,000, consisting of 77% ethnic Armenians and 22% ethnic Azeris, with Russian and Kurdish minorities. The district of Lachin had a different demographic, the great majority of its population of some 60,000 being Kurds and Azeris. Only 5-6% were Armenians. 14. In early 1988 demonstrations were held in Stepanakert, the regional capital of the NKAO, as well as in the Armenian capital of Yerevan, demanding the incorporation of Nagorno-Karabakh into Armenia. On 20 February the Soviet of the NKAO made a request to the Supreme Soviets of the Armenian SSR, the Azerbaijan SSR and the USSR that the NKAO be allowed to secede from Azerbaijan and join Armenia. The request was rejected by the Supreme Soviet of the USSR on 23 March. In June it was also rejected by the Supreme Soviet of Azerbaijan whereas its counterpart in Armenia voted in favour of unification. 15. Throughout 1988 the demonstrations calling for unification continued. The district of Lachin was subjected to roadblocks and attacks. The clashes led to many casualties, and refugees, numbering hundreds of thousands on both sides, flowed between Armenia and Azerbaijan. As a consequence, on 12 January 1989 the USSR Government placed the NKAO under Moscow’s direct rule. However, on 28 November of that year, control of the province was returned to Azerbaijan. A few days later, on 1 December, the Supreme Soviet of the Armenian SSR and the NagornoKarabakh regional council adopted a joint resolution, “On the reunification of Nagorno-Karabakh with Armenia”. As a result of this resolution a joint budget for the two entities was established in January 1990 and a decision to include Nagorno-Karabakh in the upcoming Armenian elections was taken in the spring of that year. 16. In early 1990, following an escalation of the conflict, Soviet troops arrived in Baku and Nagorno-Karabakh, and the latter province was placed under a state of emergency. Violent clashes between Armenians and Azeris continued, however, with the occasional intervention by Soviet forces. 17. On 30 August 1991 Azerbaijan declared independence from the Soviet Union. This was subsequently formalised by means of the adoption of the Constitutional Act on the State Independence of 18 October. On 2 September the Soviet of the NKAO announced the establishment of the Nagorno-Karabakh Republic (hereinafter the “NKR”), consisting of the territory of the NKAO and the Shaumyan district of Azerbaijan, and declared that it was no longer under Azerbaijani jurisdiction. On 26 November the Azerbaijani parliament abolished the autonomy previously enjoyed by Nagorno-Karabakh. In a referendum organised in Nagorno-Karabakh on 10 December, 99.9% of those participating voted in favour of secession. However, the Azeri population boycotted the referendum. In the same month, the Soviet Union was dissolved and Soviet troops began to withdraw from the region. Military control of NagornoKarabakh was rapidly passing to the Karabakh Armenians. On 6 January 1992 the “NKR”, having regard to the results of the referendum, reaffirmed its independence from Azerbaijan. 18. In early 1992 the conflict gradually escalated into full-scale war. The ethnic Armenians conquered several Azeri villages, leading to at least several hundred deaths and the departure of the population. 19. The district of Lachin, in particular the town of Lachin, was attacked many times. The applicants claimed that the attacks were made by troops of both Nagorno-Karabakh and the Republic of Armenia. The respondent Government maintained, however, that Armenia did not participate in the events, but that military action was carried out by the defence forces of Nagorno-Karabakh and volunteer groups. For almost eight months in 1991 the roads to Lachin were under the control of forces of Armenian ethnicity who manned and controlled checkpoints. The town of Lachin became completely isolated. In mid-May 1992 Lachin was subjected to aerial bombardment, in the course of which many houses were destroyed. 20. On 17 May 1992, realising that troops were advancing rapidly towards Lachin, villagers fled. The following day the town of Lachin was captured by forces of Armenian ethnicity. It appears that the town was looted and burned in the days following the takeover. According to information obtained by the respondent Government from the authorities of the “NKR”, the city of Lachin and the surrounding villages of Aghbulag, Chirag and Chiragli were completely destroyed during the military conflict. 21. In July 1992 the Armenian parliament decreed that it would not sign any international agreement stipulating that Nagorno-Karabakh remain a part of Azerbaijan. 22. According to a Human Rights Watch (HRW) report (“Seven Years of Conflict in Nagorno-Karabakh”, December 1994), the capture of the district of Lachin created approximately 30,000 Azeri displaced persons, many of them of Kurdish descent. 23. Following the capture of Lachin, ethnic Armenian forces continued to conquer four more Azerbaijani districts surrounding Nagorno-Karabakh (Kelbajar, Jabrayil, Gubadly and Zangilan) and substantial parts of two others (Agdam and Fizuli). 24. On 5 May 1994 a ceasefire agreement (the Bishkek Protocol) was signed by Armenia, Azerbaijan and the “NKR” following Russian mediation. It came into effect on 12 May. 25. According to the above-mentioned HRW report, between 1988 and 1994 an estimated 750,000–800,000 Azeris were forced out of NagornoKarabakh, Armenia, and the seven Azerbaijani districts surrounding Nagorno-Karabakh. According to information from Armenian authorities, 335,000 Armenian refugees from Azerbaijan and 78,000 internally displaced persons (from regions in Armenia bordering Azerbaijan) have been registered. 26. According to the respondent Government, the “NKR” controls 4,061 sq. km of the former Nagorno-Karabakh Autonomous Oblast. While it is debated how much of the two partly conquered districts is occupied by the “NKR”, it appears that the occupied territory of the seven surrounding districts in total amounts to some 7,500 sq. km. 27. Estimates of today’s population of Nagorno-Karabakh vary between 120,000 and 145,000 people, 95% being of Armenian ethnicity. Virtually no Azerbaijanis remain. The district of Lachin has a population of between 5,000 and 10,000 Armenians. 28. No political settlement of the conflict has so far been reached. The self-proclaimed independence of the “NKR” has not been recognised by any State or international organisation. Recurring breaches of the 1994 ceasefire agreement along the borders have led to the loss of many lives and the rhetoric of officials remains hostile. Moreover, according to international reports, tension has heightened in recent years and military expenditure in Armenia and Azerbaijan has increased significantly. 29. Several proposals for a peaceful solution of the conflict have failed. Negotiations have been carried out under the auspices of the OSCE (Organization for Security and Co-operation in Europe) and its so-called Minsk Group. In Madrid in November 2007 the Group’s three Co-Chairs – France, Russia and the United States – presented to Armenia and Azerbaijan a set of Basic Principles for a settlement. The Basic Principles, which have since been updated, call, inter alia, for the return of the territories surrounding Nagorno-Karabakh to Azerbaijani control, an interim status for Nagorno-Karabakh providing guarantees for security and self-governance, a corridor linking Armenia to Nagorno-Karabakh, a future determination of the final legal status of Nagorno-Karabakh through a legally binding referendum, the right of all internally displaced persons and refugees to return to their former places of residence, and international security guarantees that would include a peacekeeping operation. The idea is that the endorsement of these principles by Armenia and Azerbaijan would enable the drafting of a comprehensive and detailed settlement. Following intensive shuttle diplomacy by Minsk Group diplomats and a number of meetings between the presidents of the two countries in 2009, the process lost momentum in 2010. So far the parties to the conflict have not signed a formal agreement on the Basic Principles. 30. On 24 March 2011 the Minsk Group presented a “Report of the OSCE Minsk Group Co-Chairs’ Field Assessment Mission to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh”, the executive summary of which reads as follows: “The OSCE Minsk Group Co-Chairs conducted a Field Assessment Mission to the seven occupied territories of Azerbaijan surrounding Nagorno-Karabakh (NK) from October 7-12, 2010, to assess the overall situation there, including humanitarian and other aspects. The Co-Chairs were joined by the Personal Representative of the OSCE Chairman-in-Office and his team, which provided logistical support, and by two experts from the UNHCR and one member of the 2005 OSCE Fact-Finding Mission. This was the first mission by the international community to the territories since 2005, and the first visit by UN personnel in 18 years. In travelling more than 1,000 kilometers throughout the territories, the Co-Chairs saw stark evidence of the disastrous consequences of the Nagorno-Karabakh conflict and the failure to reach a peaceful settlement. Towns and villages that existed before the conflict are abandoned and almost entirely in ruins. While no reliable figures exist, the overall population is roughly estimated as 14,000 persons, living in small settlements and in the towns of Lachin and Kelbajar. The Co-Chairs assess that there has been no significant growth in the population since 2005. The settlers, for the most part ethnic Armenians who were relocated to the territories from elsewhere in Azerbaijan, live in precarious conditions, with poor infrastructure, little economic activity, and limited access to public services. Many lack identity documents. For administrative purposes, the seven territories, the former NK Oblast, and other areas have been incorporated into eight new districts. The harsh reality of the situation in the territories has reinforced the view of the CoChairs that the status quo is unacceptable, and that only a peaceful, negotiated settlement can bring the prospect of a better, more certain future to the people who used to live in the territories and those who live there now. The Co-Chairs urge the leaders of all the parties to avoid any activities in the territories and other disputed areas that would prejudice a final settlement or change the character of these areas. They also recommend that measures be taken to preserve cemeteries and places of worship in the territories and to clarify the status of settlers who lack identity documents. The Co-Chairs intend to undertake further missions to other areas affected by the NK conflict, and to include in such missions experts from relevant international agencies that would be involved in implementing a peace settlement.” 31. On 18 June 2013 the Presidents of the Co-Chair countries of the Minsk group issued a joint statement on the Nagorno-Karabakh conflict: “We, the Presidents of the OSCE Minsk Group Co-Chair countries – France, the Russian Federation, and the United States of America – remain committed to helping the parties to the Nagorno-Karabakh conflict reach a lasting and peaceful settlement. We express our deep regret that, rather than trying to find a solution based upon mutual interests, the parties have continued to seek one-sided advantage in the negotiation process. We continue to firmly believe that the elements outlined in the statements of our countries over the last four years must be the foundation of any fair and lasting settlement to the Nagorno-Karabakh conflict. These elements should be seen as an integrated whole, as any attempt to select some elements over others would make it impossible to achieve a balanced solution. We reiterate that only a negotiated settlement can lead to peace, stability, and reconciliation, opening opportunities for regional development and cooperation. The use of military force that has already created the current situation of confrontation and instability will not resolve the conflict. A renewal of hostilities would be disastrous for the population of the region, resulting in loss of life, more destruction, additional refugees, and enormous financial costs. We strongly urge the leaders of all the sides to recommit to the Helsinki principles, particularly those relating to the non-use of force or the threat of force, territorial integrity, and equal rights and self-determination of peoples. We also appeal to them to refrain from any actions or rhetoric that could raise tension in the region and lead to escalation of the conflict. The leaders should prepare their people for peace, not war. Our countries stand ready to assist the sides, but the responsibility for putting an end to the Nagorno-Karabakh conflict remains with them. We strongly believe that further delay in reaching a balanced agreement on the framework for a comprehensive peace is unacceptable, and urge the leaders of Azerbaijan and Armenia to focus with renewed energy on the issues that remain unresolved.” 32. The applicants have stated that they are Azerbaijani Kurds who lived in the district of Lachin, where their ancestors had lived for hundreds of years. On 17 May 1992 they were forced to flee from the district to Baku. They have since been unable to return to their homes and properties because of Armenian occupation. 33. Mr Elkhan Chiragov was born in 1950. He lived in the district of Lachin. In the original application, it was mentioned that he lived in the village of Chirag, but in the reply to the Government’s observations it was stated that his correct home village was Chiragli, where he worked as a teacher for 15 years. He claimed that his possessions included a large furnished house of 250 sq. m, 55 beehives, 80 head of small livestock and nine head of big livestock, and five handmade carpets. 34. On 27 February 2007, together with the applicants’ reply to the respondent Government’s observations, he submitted an official certificate (“technical passport”), dated 19 July 1985, according to which a two-storey, 12-bedroom dwelling-house with a total area of 408 sq. m (living area 300 sq. m and subsidiary area 108 sq. m) and a storehouse of 60 sq. m, situated on a plot of land of 1200 sq. m, had been registered in his name. 35. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, 16-room dwelling-house of 260 sq. m and a car, as well as a statement by A. Jafarov and A. Halilov, representatives of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Elkhan Chiragov had used to live in Chiragli village. 36. Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Chiragli and married there in 1978, birth certificates for his son and daughter, both born in Chiragli in 1979 and 1990 respectively, as well as a 1979 letter and a 1992 employment book issued by the Lachin District Educational Department, showing that he worked as a teacher in Chiragli. 37. Mr Adishirin Chiragov was born in 1947. He lived in the district of Lachin. In the original application, it was mentioned that he lived in the village of Chirag, but in the reply to the Government’s observations it was stated that his correct home village was Chiragli, where he worked as a teacher for 20 years. He claimed that his possessions included a large furnished house of 145 sq. m, a new “Niva” car, 65 head of small livestock and 11 head of big livestock, and six handmade carpets. 38. On 27 February 2007 he submitted a technical passport dated 22 April 1986, according to which a two-storey, eight-bedroom dwelling-house with a total area of 230.4 sq. m (living area 193.2 sq. m and subsidiary area 37.2 sq. m) and a storehouse of 90 sq. m, situated on a plot of land of 1200 sq. m, had been registered in his name. 39. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey dwelling-house with eight rooms, as well as a statement by A. Jafarov and A. Halilov, representatives of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Adishirin Chiragov had used to live in Chiragli village. 40. Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Chiragli and married there in 1975, birth certificates for his son and two daughters, all born in Chiragli in 1977, 1975 and 1982 respectively, as well as a USSR passport issued in 1981, indicating Chiragli as place of birth and containing a 1992 registration stamp designating Chiragli as place of residence. 41. Mr Ramiz Gebrayilov was born in Chiragli in 1960. In 1988 he graduated with a degree in engineering from the Polytechnic Institute in Baku. In 1983, while still studying in Baku, he visited the town of Lachin and was given a 5,000 sq. m plot of land by the State. He claimed that he built a six-bedroom house with a garage on it and lived there with his wife and children until he was forced to leave in 1992. There were also some cattle sheds. He also owned a car repair business called “Auto Service”, a shop and a café, which were situated on a further 5,000 sq. m of land that he owned. In addition, he had 12 cows, 70 lambs and 150 sheep. 42. Mr Gebrayilov had been unable to return to Lachin since his departure in 1992. In 2001 Armenian friends went to Lachin and videotaped the condition of the houses in the town. According to the applicant, he could see from the video that his house had been burnt down. He had also been informed by people who left Lachin after him that his house had been burnt down by Armenian forces a few days after he had left Lachin. 43. On 27 February 2007 Mr Gebrayilov submitted a technical passport dated 15 August 1986, according to which a two-storey, eight-bedroom dwelling-house with a total area of 203.2 sq. m (living area 171.2 sq. m and subsidiary area 32 sq. m), situated on a plot of land of 480 sq. m, had been registered in his name. 44. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey house with eight rooms, as well as a statement by V. Maharramov, representative of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Gebrayilov had used to live in his personal house in Lachin. 45. Before the Grand Chamber, the applicant submitted, inter alia, a birth certificate and a marriage certificate according to which he was born in Chiragli and married there in 1982, birth certificates for his daughter and two sons, all born in Lachin in 1982, 1986 and 1988 respectively, as well as an army book issued in 1979. 46. Mr Akif Hasanof was born in 1959 in the village of Aghbulag in the district of Lachin. He worked there as a teacher for 20 years. He claimed that his possessions included a large furnished house of 165 sq. m, a new “Niva” car, 100 head of small livestock and 16 head of big livestock, and 20 handmade carpets. 47. On 27 February 2007 he submitted a technical passport dated 13 September 1985, according to which a two-storey, nine-bedroom dwelling-house with a total area of 448.4 sq. m (living area 223.2 sq. m and subsidiary area 225.2 sq. m) and a storehouse of 75 sq. m, situated on a plot of land of 1600 sq. m, had been registered in his name. 48. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, nine-room dwelling-house as well as a stall for livestock and subsidiary buildings, as well as a statement by V. Maharramov, representative of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Hasanof had used to live in his personal house in Aghbulag. 49. Before the Grand Chamber, the applicant submitted a birth certificate, a USSR passport issued in 1976 and an employment book issued by the Lachin District Educational Department, indicating that he was born in Aghbulag and had worked as a teacher and school director in that village between 1981 and 1988. 50. Mr Fekhreddin Pashayev was born in 1956 in the village of Kamalli in the district of Lachin. After graduating with a degree in engineering from the Polytechnic Institute in Baku in 1984, he returned to the town of Lachin where he was employed as an engineer and, from 1986, as chief engineer at the Ministry of Transport. He claimed that he owned and lived in a twostorey, three-bedroom house in Lachin which he had built himself. The house was situated at no. 50, 28 Aprel Kucesi, Lachin Seheri, Lachin Rayonu. Mr Pashayev submitted that the current market value of the house would be 50,000 US dollars (USD). He also owned the land around his house and had a share (about ten hectares) in a collective farm in Kamalli. Furthermore, he owned some land by means of “collective ownership”. 51. On 27 February 2007 he submitted a technical passport dated August 1990, according to which a two-storey dwelling-house with a total area of 133.2 sq. m (living area 51.6 sq. m and subsidiary area 81.6 sq. m), situated on a plot of land of 469.3 sq. m, had been registered in his name. 52. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, four-room dwelling-house, as well as a statement by V. Maharramov, representative of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Pashayev had used to live in his own house at 28 Aprel Kucesi, Lachin. 53. Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Kamalli and married there in 1985, birth certificates for his two daughters, born in Kamalli in 1987 and in Lachin in 1991 respectively, a birth certificate for his son, registered as having been born in Kamalli in 1993, as well as an army book issued in 1978 and an employment book dated in 2000. He explained that, while his son had in fact been born in Baku, it was normal under the USSR propiska system to record a child as having been born at the parents’ registered place of residence. 54. Mr Qaraca Gabrayilov was born in the town of Lachin in 1940 and died on 19 June 2005. On 6 April 2005, at the time of submitting the present application, he stated that, when he was forced to leave on 17 May 1992, he had been living at holding no. 580, N. Narimanov Street, apt 128a in the town of Lachin, a property he owned and which included a two-storey residential family house built in 1976 with a surface of 187.1 sq. m and a yard area of 453.6 sq. m. He also claimed that he owned a further site of 300 sq. m on that street. Annexed to the application was a technical passport dated August 1985, according to which a two-storey house with a yard, of the mentioned sizes, had been registered in his name. 55. On 27 February 2007 the applicant’s representatives submitted, however, that he had been living at 41 H. Abdullayev Street in Lachin. Still, he owned the two properties on N. Narimanov Street. Attached to these submissions were a statement by three former neighbours and a statement by V. Maharramov, representative of Lachin City Executive Power of the Azerbaijan Republic, who stated that Mr Gabrayilov had used to live in his own house at H. Abdullayev Street, Lachin. Attached were also a decision of 29 January 1974 by the Lachin District Soviet of People’s Deputies to allocate the above-mentioned plot of 300 sq. m to the applicant and several invoices for animal feed, building materials and building subsidies allegedly used during the construction of his properties. 56. On 21 November 2007 Mr Sagatel Gabrayilov, the son of the applicant, stated that the family had used to live at N. Narimanov Street but that, on some unspecified date, the name and numbering of the street had been changed and their address was thereafter H. Abdullayev Street. Thus, the two addresses mentioned above referred to the same property. 57. Before the Grand Chamber, the applicant’s representatives submitted, inter alia, a birth certificate and a marriage certificate according to which he was born in Chiragli and married there in 1965, a birth certificate for his son, born in Alkhasli village in the district of Lachin in 1970, as well as an army book issued in 1963. 58. On the issue of whether the Republic of Armenia exercises authority in or control over the “NKR” and the surrounding territories, the applicants and the respondent Government as well as the third-party intervener, the Azerbaijani Government, have submitted extensive documentation and statements. The information thus received is summarised below, in so far as considered relevant by the Court. 59. In 1993 the United Nations Security Council adopted four resolutions relating to the Nagorno-Karabakh conflict. Resolution 822 of 30 April (S/RES/822 (1993)): “The Security Council, ... Noting with alarm the escalation in armed hostilities and, in particular, the latest invasion of the Kelbadjar district of the Republic of Azerbaijan by local Armenian forces, ... 1. Demands the immediate cessation of all hostilities and hostile acts with a view to establishing a durable cease-fire, as well as immediate withdrawal of all occupying forces from the Kelbadjar district and other recently occupied areas of Azerbaijan, ...” Resolution 853 of 29 July (S/RES/853 (1993)): “The Security Council, ... Expressing its serious concern at the deterioration of relations between the Republic of Armenia and the Azerbaijani Republic and at the tensions between them, ... Noting with alarm the escalation in armed hostilities and, in particular, the seizure of the district of Agdam in the Azerbaijani Republic, ... 3. Demands the immediate cessation of all hostilities and the immediate, complete and unconditional withdrawal of the occupying forces involved from the district of Agdam and other recently occupied districts of the Republic of Azerbaijan; ... 9. Urges the Government of the Republic of Armenia to continue to exert its influence to achieve compliance by the Armenians of the Nagorny-Karabakh region of the Azerbaijani Republic with its resolution 822 (1993) and the present resolution, and the acceptance by this party of the proposals of the Minsk Group of the [OSCE]; ...” Resolution 874 of 14 October (S/RES/874 (1993)): “The Security Council, ... Expressing its serious concern that a continuation of the conflict in and around the Nagorny Karabakh region of the Azerbaijani Republic, and of the tensions between the Republic of Armenia and the Azerbaijani Republic, would endanger peace and security in the region, ... 5. Calls for the immediate implementation of the reciprocal and urgent steps provided for in the [OSCE] Minsk Group’s “Adjusted timetable”, including the withdrawal of forces from recently occupied territories and the removal of all obstacles to communication and transportation; ...” Resolution 884 of 12 November (S/RES/884 (1993)): “The Security Council, ... Noting with alarm the escalation in armed hostilities as [a] consequence of the violations of the cease-fire and excesses in the use of force in response to those violations, in particular the occupation of the Zangelan district and the city of Goradiz in the Azerbaijani Republic, ... 2. Calls upon the Government of Armenia to use its influence to achieve compliance by the Armenians of the Nagorny Karabakh region of the Azerbaijani Republic with resolutions 822 (1993), 853 (1993) and 874 (1993), and to ensure that the forces involved are not provided with the means to extend their military campaign further; ... 4. Demands from the parties concerned the immediate cessation of armed hostilities and hostile acts, the unilateral withdrawal of occupying forces from the Zangelan district and the city of Goradiz, and the withdrawal of occupying forces from the other recently occupied areas of the Azerbaijani Republic in accordance with the “Adjusted timetable of urgent steps to implement Security Council resolutions 822 (1993) and 853 (1993)” ... as amended by the [OSCE] Minsk Group meeting in Vienna of 2 to 8 November 1993; ...” 60. The above-mentioned HRW report of December 1994 (see paragraph 22 above) contains accounts of the Nagorno-Karabakh conflict. While stating that “[a] Karabakh Armenian military offensive in May/June 1992 captured a large part of Lachin province”, it goes on to summarise the events in 1993 and 1994 as follows (at p. 58): “... Karabakh Armenian troops – often with the support of forces from the Republic of Armenia – captured the remaining Azerbaijani provinces surrounding Nagorno-Karabakh and forced out the Azeri civilian population: the rest of Lachin province, and Kelbajar, Agdam, Fizuli, Jebrayil, Qubatli, and Zangelan provinces.” The HRW report presents several pieces of information which point to an involvement of the army of the Republic of Armenia in Nagorno-Karabakh and the surrounding territories (pp. 67-73). Allegedly, Armenia had even sent members of its police force to perform police duties in the occupied territories. HRW spent two days in April 1994 interviewing Armenian uniformed soldiers on the streets of Yerevan. Thirty per cent of them were draftees in the army of the Republic of Armenia who had either fought in Karabakh, had orders to go to Karabakh or had ostensibly volunteered for service there. Moreover, on a single day in April 1994 HRW researchers had counted five buses holding an estimated 300 soldiers of the Armenian army entering Nagorno-Karabakh from Armenia. Other western journalists had reported to HRW researchers that they had seen eight more buses full of Armenian army soldiers heading for Azerbaijani territory from Armenia. According to HRW, as a matter of law, Armenian army troop involvement in Azerbaijan made Armenia a party to the conflict and made the war an international armed conflict between Armenia and Azerbaijan. 61. Several proposals for a solution to the conflict have been presented within the OSCE Minsk Group. A “package deal” proposal of July 1997 set out, under the heading “Agreement I – The end of armed hostilities”, a twostage process of withdrawal of armed forces. The second stage included the provision that “[t]he armed forces of Armenia will be withdrawn to within the borders of the Republic of Armenia”. The “step-by-step” approach presented in December 1997 also contained a two-stage withdrawal process and stipulated, as part of the second phase, that “[a]ll Armenian forces located outside the borders of the Republic of Armenia will be withdrawn to locations within those borders”. Substantially the same wording was contained in the “common state” proposal of November 1998. While these documents were discussed in Minsk Group negotiations, none of them led to an agreement between Armenia and Azerbaijan. 62. The applicants referred to statements by various political leaders and observers. For instance, Mr Robert Kocharyan, then prime minister of the “NKR”, stated in an interview with the Armenian newspaper “Golos Armenii” in February 1994 that Armenia supplied anti-aircraft weapons to Nagorno-Karabakh. Moreover, Mr Vazgen Manukyan, Armenian minister of defence in 19921993, admitted in an interview with British journalist and writer Thomas de Waal in October 2000 that the public declarations that the Armenian army had taken no part in the war had been purely for foreign consumption (see Thomas de Waal, “Black Garden: Armenia and Azerbaijan through Peace and War”, New York University Press 2003, p. 210): “You can be sure that whatever we said politically, the Karabakh Armenians and the Armenian Army were united in military actions. It was not important for me if someone was a Karabakhi or an Armenian.” 63. The annual report of the International Institute for Strategic Studies (IISS), “The Military Balance”, for the years 2002, 2003 and 2004 assessed that, of the 18,000 troops in Nagorno-Karabakh, 8,000 were personnel from Armenia. The 2013 report by the same institute expressed, inter alia, that “since 1994, Armenia has controlled most of Nagorno-Karabakh, and also seven adjacent regions of Azerbaijan, often called the ‘occupied territories’” (“The Military Balance” 2002, p. 66; 2003, p. 66; 2004, p. 82; and 2013, p. 218). 64. Mr David Atkinson, rapporteur of the Parliamentary Assembly of the Council of Europe, stated in November 2004 in his second report to the Political Affairs Committee concerning Nagorno-Karabakh (PACE Doc. 10364): “According to the information given to me, Armenians from Armenia had participated in the armed fighting over the Nagorno-Karabakh region besides local Armenians from within Azerbaijan. Today, Armenia has soldiers stationed in the Nagorno-Karabakh region and the surrounding districts, people in the region have passports of Armenia, and the Armenian government transfers large budgetary resources to this area.” Based on this report, the Parliamentary Assembly adopted on 25 January 2005 resolution 1416 in which it, inter alia, noted: “1. The Parliamentary Assembly regrets that, more than a decade after the armed hostilities started, the conflict over the Nagorno-Karabakh region remains unsolved. Hundreds of thousands of people are still displaced and live in miserable conditions. Considerable parts of the territory of Azerbaijan are still occupied by Armenian forces, and separatist forces are still in control of the Nagorno-Karabakh region. 2. The Assembly expresses its concern that the military action, and the widespread ethnic hostilities which preceded it, led to large-scale ethnic expulsion and the creation of mono-ethnic areas which resemble the terrible concept of ethnic cleansing. The Assembly reaffirms that independence and secession of a regional territory from a state may only be achieved through a lawful and peaceful process based on the democratic support of the inhabitants of such territory and not in the wake of an armed conflict leading to ethnic expulsion and the de facto annexation of such territory to another state. The Assembly reiterates that the occupation of foreign territory by a member state constitutes a grave violation of that state’s obligations as a member of the Council of Europe and reaffirms the right of displaced persons from the area of conflict to return to their homes safely and with dignity.” 65. In its report “Nagorno-Karabakh: Viewing the Conflict from the Ground” of 14 September 2005, the International Crisis Group (ICG) stated the following in regard to the armed forces in the “NKR” (pp. 9-10): “[Nagorno-Karabakh] may be the world’s most militarized society. The highly trained and equipped Nagorno-Karabakh Defence Army is primarily a ground force, for which Armenia provides much of the backbone. A Nagorno-Karabakh official told Crisis Group it has some 20,000 soldiers, while an independent expert [U.S. military analyst Richard Giragosian, July 2005] estimated 18,500. An additional 20,000 to 30,000 reservists allegedly could be mobilised. Based on its population, NagornoKarabakh cannot sustain such a large force without relying on substantial numbers of outsiders. According to an independent assessment [by Mr Giragosian], there are 8,500 Karabakh Armenians in the army and 10,000 from Armenia. ... Nevertheless, many conscripts and contracted soldiers from Armenia continue to serve in NK. The (de facto) minister of defence admits his forces have 40 per cent military contract personnel, including citizens of Armenia. He claims that no Armenian citizens are unwillingly conscripted and says 500,000 Armenians of Nagorno-Karabakh descent live in Armenia, some of whom serve in the NagornoKarabakh forces. Former conscripts from Yerevan and other towns in Armenia have told Crisis Group they were seemingly arbitrarily sent to NagornoKarabakh and the occupied districts immediately after presenting themselves to the recruitment bureau. They deny that they ever volunteered to go to NagornoKarabakh or the adjacent occupied territory. They were not paid a bonus for serving outside Armenia, and they performed military service in Nagorno-Karabakh uniform, under Nagorno-Karabakh military command. Young Armenian recruits’ opposition to serving in Nagorno-Karabakh has increased, which may help explain an apparent decrease in the numbers being sent to NK. There is a high degree of integration between the forces of Armenia and NagornoKarabakh. Senior Armenian authorities admit they give substantial equipment and weaponry. Nagorno-Karabakh authorities also acknowledge that Armenian officers assist with training and in providing specialised skills. However, Armenia insists that none of its army units are in Nagorno-Karabakh or the occupied territories around it.” The Armenian Government objected to the report of the ICG, which organisation had no office in Armenia or the “NKR”. Further, the statement on the number of Armenian servicemen in the “NKR” derived from an email communication with Mr Giragosian, who had been contacted by the Government and had given the following declaration: “While having this opinion I didn’t mean that the people serving in the Nagorno Karabakh armed forces are soldiers. I meant that approximately that number of volunteers are involved in the Nagorno Karabakh armed forces from Armenia and other states according to my calculations. As for the number mentioned by me I can’t insist that it’s correct as it is confidential information and nobody has the exact number. The background for my opinion was that in my opinion many Armenians from different parts of the world participate in the Nagorno Karabakh self-defence forces.” 66. On 19 April 2007 the Austrian newspaper “Der Standard” published an interview with the then foreign minister of Armenia, Mr Vartan Oskanyan. On the subject of the disputed territories, Mr Oskanyan reportedly referred to them as “the territories, which are now controlled by Armenia”. A few days later the Armenian Embassy in Austria issued a press release stating that Mr Oskanyan had been misinterpreted and that the correct expression was “the territories, which are now controlled by Armenians”. 67. On 14 March 2008 the UN General Assembly adopted a resolution on “The Situation in the occupied territories of Azerbaijan” (A/RES/62/243). Recalling the 1993 Security Council resolutions (see paragraph 59 above), it contained the following passages: “The General Assembly, ... 2. Demands the immediate, complete and unconditional withdrawal of all Armenian forces from all occupied territories of the Republic of Azerbaijan; 3. Reaffirms the inalienable right of the population expelled from the occupied territories of the Republic of Azerbaijan to return to their homes, and stresses the necessity of creating appropriate conditions for this return, including the comprehensive rehabilitation of the conflict-affected territories; ...” 68. In an interview with Armenia Today, published on 29 October 2008, Mr Jirayr Sefilyan, a Lebanese-born Armenian military commander and political figure who was involved in the capture of the town of Shusha/Shushi in early May 1992 and later continued to serve in the armed forces of both the “NKR” and Armenia, reportedly made the following statement: “We must turn the page of history, as starting from 1991 we have considered Karabakh as an independent state and declared that they should conduct negotiations. Who are we kidding? The whole world knows that the army of the NKR is a part of the armed forces of Armenia, that the budget of the NKR is financed from the budget of Armenia, the political leaders of the NKR are appointed from Yerevan. It is time to consider Karabakh as a part of Armenia, one of its regions. In the negotiation process the territory of Karabakh should be considered as a territory of Armenia and no territorial cession must be made.” 69. In a resolution of 20 May 2010 on the need for an EU strategy for the South Caucasus, the European Parliament expressed, inter alia, the following: “[The European Parliament is] seriously concerned that hundreds of thousands of refugees and IDPs who fled their homes during or in connection with the NagornoKarabakh war remain displaced and denied their rights, including the right to return, property rights and the right to personal security; calls on all parties to unambiguously and unconditionally recognise these rights, the need for their prompt realisation and for a prompt solution to this problem that respects the principles of international law; demands, in this regard, the withdrawal of Armenian forces from all occupied territories of Azerbaijan, accompanied by deployment of international forces to be organised with respect of the UN Charter in order to provide the necessary security guarantees in a period of transition, which will ensure the security of the population of Nagorno-Karabakh and allow the displaced persons to return to their homes and further conflicts caused by homelessness to be prevented; calls on the Armenian and Azerbaijani authorities and leaders of relevant communities to demonstrate their commitment to the creation of peaceful inter-ethnic relations through practical preparations for the return of displaced persons; considers that the situation of the IDPs and refugees should be dealt with according to international standards, including with regard to the recent PACE Recommendation 1877(2009), ‘Europe’s forgotten people: protecting the human rights of long-term displaced persons’.” 70. In April 2012 the European Parliament passed a further resolution which, inter alia, noted that “deeply concerning reports exist of illegal activities exercised by Armenian troops on the occupied Azerbaijani territories, namely regular military manoeuvres, renewal of military hardware and personnel and the deepening of defensive echelons”. The European Parliament recommended that negotiations on the EU-Armenia Association Agreements be linked to commitments regarding “the withdrawal of Armenian forces from occupied territories surrounding Nagorno-Karabakh and their return to Azerbaijani control” and “call[ed] on Armenia to stop sending regular army conscripts to serve in NagornoKarabakh” (European Parliament resolution of 18 April 2012 containing the European Parliament’s recommendations to the Council, the Commission and the European External Action Service on the negotiations of the EU-Armenia Association Agreement). 71. The applicants submitted that, on various occasions in 2012 and 2013, the Armenian president, the minister of defence and high-ranking military staff visited the disputed territories to inspect troops, attend military exercises and hold meetings with military and other officials in the “NKR”. In July 2013, Armenia’s top army generals and other military officials, including the Armenian minister of defence and the commanders of the armed forces of the “NKR”, held a meeting in Nagorno-Karabakh, focusing on efforts to strengthen the Armenian military. 72. On 15 January 2013 Armenian president Mr Serzh Sargsyan held a meeting with the leaders of the legislative, executive and judiciary branches of the Republic of Armenia Ministry of Defence. His speech given at the meeting was published the same day on the official website of the president of the Republic of Armenia. It contained, inter alia, the following statements: “It happened that from the first years of independence, the Army has been playing a special role in our society. It was the war, whose spirit was felt all over Armenia – in some places more than in the others. In those days, every family had a close or a distant relative in the Armenian Army; and the Army was in everyone’s heart. That feeling became stronger when our Army attained victory which was so important, which was vital. ... The ultimate goal of our foreign policy is the final legal formulation of the victory achieved in the aggressive war unleashed by Azerbaijan against Artsakh. The Republic of Nagorno Karabakh must be recognized by the international community since there is no logical explanation as to why the people, who have exercised their legal right for self-determination and later protected it in the uneven war, should ever be part of Azerbaijan. Why the destiny of these people should be defined by the illegal decision once made by Stalin? ... Armenia and Artsakh do not want war; however everyone must know that we will give a fitting rebuff to any challenge. The people of Artsakh will never face the danger of physical extermination again. The Republic of Armenia will guarantee against that. ... Security of Artsakh is not a matter of prestige for us; it is a matter of life and death in the most direct sense of these words. The entire world must know and realize that we, the power structures of Armenia and Artsakh stand against the army which pays wages to the murderers, if that horde can be called army in the first place.” 73. In an opinion drawn up at the request of the Armenian Government, Dr Hari Bucur-Marcu, a military expert of Romanian nationality, stated that he had found nothing in the Armenian military policy that envisaged any form of control over “NKR” forces nor any indications on the ground that Armenian forces were present or active in the “NKR”. He further concluded that there was no evidence that Armenia exercised control or authority over the “NKR” or its defence force or that Armenian forces exercised any control over the government or governance of the “NKR”. The Government stated that Dr Bucur-Marcu had been given the opportunity to interview senior military officers in Armenia and access their records. By arrangement with the “NKR” Ministry of Foreign Affairs, he had further been able to travel there and to talk to military and political officials and examine documents. 74. On 25 June 1994 an “Agreement on Military Co-operation between the Governments of the Republic of Armenia and the Republic of NagornoKarabakh” was concluded. It provides, inter alia, the following: “The Government of the Republic of Armenia and the Government of the Republic of Nagorno-Karabakh (hereinafter referred to as ‘the Parties’), having regard to mutual interest in the field of military co-operation, taking into account the need to develop bilateral relationships and mutual trust through cooperation between the armed forces of the states of the Parties, seeking to strengthen the military and military-technical co-operation, agreed on the following: ... Both Parties shall conduct the military co-operation in the following directions: (1) establishment of the army and reform of the armed forces; (2) military science and education; (3) military legislation; (4) logistics of the armed forces; (5) military medicine recovery of military servants and their family members; (6) cultural and sport activities, tourism. The co-operation in other directions shall be conducted upon mutual written agreement. The parties shall conduct co-operation through: (1) visits and working meetings at the level of Ministers of Defence, Chiefs of General Staff or other representatives authorised by the Ministers of Defence; (2) consultations, exchange of experience, training of military staff and increasing of qualification; (3) implementation of mutual military exercises; (4) participation in conferences, consultations, seminars; (5) exchange of information, documents and services upon specific arrangements; (6) cultural events; (7) provision of military services; (8) creation of conditions for mutual use of elements of infrastructure of the armed forces of the Parties within the framework of this Agreement; (9) education of highly qualified military and technical staff and specialists. Within the framework of co-operation under this Agreement the Parties shall agree that conscripts of the Republic of Armenia and the Republic of Nagorno-Karabakh have the right to serve their fixed-term military service in the Republic of NagornoKarabakh and the Republic of Armenia respectively. In case of serving the fixed-term military service in the territory of that state the person shall be considered exempt from the fixed-term military service in the country of his citizenship. Within the framework of this Agreement the Parties shall agree also that: (1) in case the citizens of the Republic of Armenia serving the fixed-term military service in the Republic of Nagorno-Karabakh commits a military crime, the criminal prosecution and trial against them shall be conducted in the territory of the Republic of Armenia by the authorities of the Republic of Armenia in accordance with the procedure established under the legislation of the Republic of Armenia; (2) in case the citizens of the Republic of Nagorno-Karabakh serving the fixed-term military service in the Republic of Armenia commits a military crime, the criminal prosecution and trial against them shall be conducted in the territory of the Republic of Nagorno-Karabakh by the authorities of the Republic of Nagorno-Karabakh in accordance with the procedure established under the legislation of the Republic of Nagorno-Karabakh. Within the framework of this Agreement the Parties will provide mutual technical support with regard to armament and recovery and maintenance of military equipment. Concluding agreements with those performing activities on armament and recovery and maintenance of military equipment, as well as ensuring the living conditions of the representatives of manufacturing enterprises in the territory of the states of the Parties shall be carried out by the Ministry of Defence of the client State. Other forms of cooperation shall be conducted upon mutual written agreement. ...” 75. The Armenian Government asserted that the Armenian conscripts who, pursuant to Article 4 of the 1994 agreement, performed their service in the “NKR” were mainly in the lower ranks and comprised no more than 5% (up to 1,500 persons) of the “NKR” defence force. However, the Government did not rule out the possibility that some Armenian nationals may have served in the “NKR” defence force on a contractual and voluntary basis. Among those serving in the “NKR” defence force, side by side with inhabitants of Nagorno-Karabakh, were also volunteers of Armenian origin from various countries where there is an Armenian diaspora. Allegedly, the Armenian soldiers serving in the “NKR” were under the direct command of the “NKR” defence force, which was the only armed force operational in the “NKR”. The Government maintained that the Armenian conscripts serving in the “NKR” under the 1994 agreement did so in accordance with their own wishes (see, however, the ICG report, paragraph 65 above). The Armenian Government further stated that the Armenian army and the “NKR” defence force co-operate in a defence alliance in matters such as intelligence sharing, visits of senior officers, seminars, joint military exercises, parade inspections and the like. 76. On 11 October 2007 the Court issued a partial decision as to the admissibility of the cases of Zalyan, Sargsyan and Serobyan v. Armenia (applications nos. 36894/04 and 3521/07), which concerns the alleged illtreatment and unlawful detention of three military servicemen. The facts of the case reveal that the applicants had been drafted into the Armenian army in May 2003 and had been assigned to military unit no. 33651, stationed near the village of Mataghis in the Martakert region of the “NKR”. Two servicemen of the same military unit were found dead in January 2004. A criminal investigation into their murders ensued and the applicants were questioned for a number of days in April 2004 in Nagorno-Karabakh – first at their military unit, then at the Martakert Garrison Military Prosecutor’s Office and finally at the Stepanakert Military Police Department – before being transported to Yerevan for further proceedings. The officers conducting the questioning of the applicants in Nagorno-Karabakh included two investigators of the Military Prosecutor’s Office of Armenia, an investigator of the Martakert Garrison Military Prosecutor’s Office and an Armenian military police officer. A chief of battalion of the military unit was also present at the first questioning. The applicants were subsequently charged with murder and the criminal trial against them commenced in November 2004 at the Syunik Regional Court, sitting in Stepanakert. The applicants were present at the trial. On 18 May 2005 the court found the applicants guilty of murder and sentenced them to 15 years’ imprisonment. 77. Similarly, as reported by the human rights organisation Forum 18 as well as HRW, Mr Armen Grigoryan, an Armenian citizen and conscientious objector, was taken from a military recruitment office in Yerevan in June 2004 and transferred to a military unit based in Nagorno-Karabakh. After having fled the unit, Mr Grigoryan was arrested and was eventually, by a court sitting in Stepanakert on 9 June 2005, found guilty of having refused military service and sentenced to two years’ imprisonment. 78. Several prominent Armenian politicians have held, at different times, high positions in both the Republic of Armenia and the “NKR” or have otherwise had close ties to Nagorno-Karabakh. The first president of the Republic of Armenia, Mr Levon Ter-Petrosyan, was a member of the Armenian “Karabakh Committee” which, in the late 1980s, led the movement for unification of Nagorno-Karabakh with Armenia. He was in April 1998 succeeded as president of Armenia by Mr Robert Kocharyan, who had previously served as prime minister of the “NKR” from August 1992 to December 1994, as president of the “NKR” from December 1994 to March 1997 and as prime minister of the Republic of Armenia from March 1997 to April 1998. In April 2008 Mr Serzh Sargsyan became the third president of Armenia. In August 1993 he had been appointed minister of defence of Armenia after having served from 1989 to 1993 as chairman of the “Nagorno-Karabakh Republic Self-Defense Forces Committee”. Furthermore, in 2007 Mr Seyran Ohanyan switched from being the minister of defence of the “NKR” to becoming the commander-in-chief of the Armenian armed forces. In April 2008 he was appointed minister of defence of Armenia. 79. The applicants claimed that the laws of the Republic of Armenia apply in the “NKR”. However, according to the Armenian Government, between January 1992 and August 2006 the “NKR” adopted 609 different laws, one of the first being “The Law on the Basis of Nagorno-Karabakh Republic State Independence”. Article 2 of this law provides that the “NKR decides independently all issues concerning the Republic’s political, economic, social and cultural, construction, administrative and territorial division policies”. Also in January 1992, bodies of executive and judicial power were created, including the Council of Ministers (the Government), the Supreme Court and the first instance courts of the “NKR” as well as the “NKR” prosecutor’s office. The “NKR” also has its own president, parliament and police force as well as bodies of local self-government, including administrations governing the territories surrounding the “NKR”, whose representatives are appointed by “NKR” authorities. Presidential and parliamentary elections are held. While several laws have been adopted from Armenian legislation, the Armenian Government maintained that they did not apply automatically, i.e. by decisions of Armenian courts, but were independently interpreted and applied by “NKR” courts, whether in the district of Lachin or elsewhere. 80. In its 2005 report (referred to above, paragraph 65), the ICG stated the following (pp. 12-13): “The economy of Nagorno-Karabakh was previously integrated into Soviet Azerbaijan’s but was largely destroyed by the war. Today it is closely tied to Armenia and highly dependent on its financial inputs. All transactions are done via Armenia, and products produced in Nagorno-Karabakh often are labelled “made in Armenia” for export. Yerevan provides half the budget. ... Nagorno-Karabakh is highly dependent on external financial support, primarily from Armenia but also from the U.S. and the world-wide diaspora. It cannot collect sufficient revenue to meet its budgetary needs, and in absolute terms is receiving increasing external support. The 2005 budget totalled 24.18 billion drams (some $53.73 million). Locally collected revenues are expected to total 6.46 billion drams (about $14.35 million), 26.7 per cent of expenditures. Since 1993 Nagorno-Karabakh has benefited from an Armenian ‘inter-state loan’. According to the Armenian prime minister, this will be 13 billion drams ($28.88 million) in 2005, a significant increase from 2002 when it was 9 billion drams ($16.07 million). However, Nagorno-Karabakh’s (de facto) prime minister argues that part of this loan – 4.259 billion drams (about $9.46 million) – is in fact Armenia’s repayment of VAT, customs and excise duties that Armenia levies on goods that pass through its territory, destined for Nagorno-Karabakh. The remainder of the loan has a ten-year repayment period at nominal interest. Though Armenia has provided such loans since 1993, nothing has been repaid. According to the Armenian prime minister, Stepanakert ‘is not yet in a position to repay... . In the coming years we will need to continue providing this loan to help them continue building their infrastructure ... we do not envision that they will be able to go ahead on their own anytime soon’. The U.S. is the only other state that provides direct governmental assistance. In 1998 Congress for the first time designated Nagorno-Karabakh a recipient of humanitarian aid distinct from Azerbaijan. The U.S. money is administered by its Agency for International Development (USAID), which has distributed it to such NGOs as the Fund for Armenian Relief, Save the Children, and the International Committee of the Red Cross. Through September 2004, the U.S. had pledged $23,274,992 to NagornoKarabakh and had spent $17,831,608. Armenian lobby groups have been influential in making these allocations possible.” The ICG further stated that the Armenian “inter-state loan” had accounted for 67.3% of the “NKR” budget in 2001 (according to the “Statistical Yearbook of Nagorno-Karabakh”) and 56.9% in 2004 (according to an ICG communication with the director of the “NKR” National Statistical Service). 81. The loan provided by the Republic of Armenia to the “NKR” for the years 2004 and 2005 amounted to USD 51,000,000. USD 40,000,000 went to rebuilding educational institutions and USD 11,000,000 to help the families of killed soldiers. 82. The Hayastan All-Armenian Fund was founded by an Armenian presidential decree on 3 March 1992. According to its official website, its mission is the following: “[T]o unite Armenians in Armenia and overseas to overcome the country’s difficulties and to help establish sustainable development in Armenia and Artsakh. In addition to [the] problems associated with the break-up of the Soviet Union, the government had to find solutions to the aftermath of the 1988 Spitak earthquake, an economic blockade and the rehabilitation of areas that had suffered from the Artsakh conflict.” The fund’s annual report for 2012 include messages from Mr Serzh Sargsyan, president of the Republic of Armenia, and Mr Bako Sahakyan, “president of the Republic of Artsakh”, which, inter alia, contain the following statements: Mr Sargsyan: “The Hayastan All-Armenian Fund is an embodiment of the unity between Armenia, Artsakh and the diaspora. As such, the fund is consistently, resolutely, and before our very eyes transforming our pan-national inner strength into tangible power.” Mr Sahakyan: “The year 2012 was a jubilee year for the Armenian people. As a nation, we celebrated the 20th anniversary of the founding of the NKR Defense Army and the liberation of Shushi, a magnificent victory which was made possible by the united efforts and indestructible will of the entire Armenian people, the selfless bravery and daring of its valiant sons and daughters.” The fund has 25 affiliates in 22 different countries. Its resources come from individual donations, mainly from members of the Armenian diaspora. It now raises about USD 21,000,000 annually. The Board of Trustees is the fund’s supreme governing body. Under the fund’s charter, the president of the Republic of Armenia is ex officio the president of the Board of Trustees. The board, which during its existence has had between 22 and 37 members, includes many prominent individuals and representatives of political, non-governmental, religious and humanitarian institutions from Armenia and the diaspora. In 2013 the board, in addition to the Armenian president Mr Sargsyan, comprised the former Armenian president Mr Kocharyan; the Armenian prime minister as well as the ministers of foreign affairs, finance and diaspora; the president, former president and prime minister of the “NKR”; the chairmen of the Armenian constitutional court, national assembly and central bank; four Armenian religious leaders, three representatives of Armenian political parties; a representative of the Union of Manufacturers and Businessmen (Employers) of Armenia; and representatives of four non-governmental organisations incorporated in the United States and Canada. The remainder of the 37person board was made up of 13 individuals from the Armenian diaspora. The composition of the Board of Trustees has been similar since the fund’s creation. The Hayastan All-Armenian Fund has financed and overseen numerous projects since its establishment, including the construction or renovation of roads, housing, schools, hospitals as well as water and gas networks. In the mid to late 1990s it constructed the highway linking the town of Goris in Armenia with Lachin and with Shusha/Shushi and Stepanakert in NagornoKarabakh. In 2001 it financed the construction of the north-south highway in Nagorno-Karabakh. According to the fund’s annual report for 2005, it had paid approximately USD 11,000,000 during the year to various projects, of which about USD 6,100,000 had gone to projects in NagornoKarabakh. According to figures provided by the Armenian Government, the not fully complete expenditure for 2012 amounted to USD 10,700,000 in Nagorno-Karabakh and USD 3,100,000 in Armenia. Also according to Government figures, in 1995-2012 the fund allocated about USD 111,000,000 in total – or about USD 6,000,000 annually – to projects in Nagorno-Karabakh. In 1992-2012 it allocated USD 115,000,000 to projects in Armenia. 83. The applicants and the Azerbaijani Government claimed that residents of the “NKR” and the surrounding territories are routinely issued with Armenian passports. The ICG has stated that “Armenia has given a majority of the inhabitants its passports for travel abroad” (2005 report, referred to above, p. 5). The Azerbaijani Government also pointed to the possibility for residents of the mentioned territories to acquire Armenian citizenship. They referred to Article 13 (“Citizenship by Naturalization”) of the Law of the Republic of Armenia on Citizenship of the Republic of Armenia, which provides as follows: “Any person 18 years of age and capable of working that is not an RA citizen may apply for RA citizenship, if he/she 1) has been lawfully residing on the territory of the Republic of Armenia for the preceding three years; 2) is proficient in the Armenian language; and 3) is familiar with the Constitution of the Republic of Armenia. A person who is not an RA citizen may be granted RA citizenship without being subject to the conditions set forth in points 1) and 2) of the first part of this article, if he/she: 1) marries a citizen of the Republic of Armenia or has a child who holds RA citizenship; 2) has parents or at least one parent that had held RA citizenship in the past or was born on the territory of the Republic of Armenia and had applied for RA citizenship within three years of attaining the age of 18; 3) is Armenian by origin (is of Armenian ancestry); or 4) has renounced RA citizenship of his/her own accord after January 1, 1995.” The Armenian Government, for their part, stated that both Armenia and the “NKR” have provisions for dual citizenship. Moreover, in accordance with a 24 February 1999 agreement with “NKR” on “the organisation of the passport system”, Armenia issues passports to residents of the “NKR” in certain circumstances. Article 1 of the agreement reads: “The Parties agree that their citizens have the right to free movement and residence on the territory of each of the Parties. Within the scope of this Agreement, until the Republic of Nagorno-Karabakh is internationally recognized, the citizens of the Republic of Nagorno-Karabakh willing to leave the territory of either the Republic of Nagorno-Karabakh or the Republic of Armenia may apply and obtain a passport of the Republic of Armenia. The Parties agree that within the scope of this Article obtaining a passport of the Republic of Armenia by the citizens of the Republic of Nagorno-Karabakh does not mean granting a citizenship of the Republic of Armenia. Those passports can be used only for travel outside of the territory of the Republic Armenia and the Republic of Nagorno-Karabakh by the citizens of the Republic of Nagorno-Karabakh, and cannot be used as an identification document internal use in the Republic of NagornoKarabakh and in the Republic of Armenia.” Regulations on the application of this agreement were also issued in 1999 and provide that an Armenian passport is issued to an “NKR” resident only in exceptional cases where the purpose for going abroad is medical treatment, education or another personal matter. The Armenian Government asserted that fewer than 1000 persons had been issued with a passport under the 1999 agreement. 84. The applicants and the Azerbaijani Government stated that the Armenian dram was the main currency in the “NKR”, whereas the Armenian Government maintained that the currencies accepted there included also euros, US dollars, pounds sterling and even Australian dollars. 85. The Azerbaijani Government pointed out that the National Atlas of Armenia, published in 2007 by the State Committee of the Real Estate Cadastre, adjunct to the Government of the Republic of Armenia and thus allegedly an official publication, consistently on various types of maps incorporated the “NKR” and the surrounding occupied territories within the boundaries of the Republic of Armenia. 86. The applicants and the Azerbaijani Government submitted that there is an Armenian Government policy of encouraging settlers to move to the “NKR” from Armenia and, more recently, Syria. February 2005 saw the publication of the “Report of the OSCE FactFinding Mission (FFM) to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh (NK)”. The mandate of the mission was to determine whether settlements existed in the territories; military structures and personnel as well as political considerations were strictly outside that mandate. In regard to settlements in the district of Lachin, the report concluded: “Generally, the pattern of settlers’ origins in Lachin is the same as in the other territories. Thus, the overwhelming majority has come to Lachin from various parts of Azerbaijan, mostly after years of living in temporary shelters in Armenia. A comparatively small minority are Armenians from Armenia, including earthquake victims. They heard about Lachin as a settlement options [sic] by word-of-mouth, through the media or from NGOs in Armenia and NK. There was no evidence of nonvoluntary resettlement or systematic recruitment.” The report further stated: “The direct involvement of NK in Lachin District is uncontested. NagornoKarabakh provides the Lachin budget and openly acknowledges direct responsibility for the district. Lachin residents take part both in local and NK elections. While the links between Nagorno Karabakh and the Republic of Armenia remain outside the purview of this report, the FFM found no evidence of direct involvement of the government of Armenia in Lachin settlement. However, the FFM did interview certain Lachin residents who had Armenian passports and claimed to take part in Armenian elections.” | 1 |
test | 001-155005 | ENG | ISL | CHAMBER | 2,015 | CASE OF ERLA HLYNSDOTTIR v. ICELAND (No. 3) | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano | 5. The applicant, Ms Erla Hlynsdóttir, is an Icelandic national who was born in 1978 and lives in Reykjavík. She is a journalist, working for the newspaper DV. 6. In May 2007 the Director of Public Prosecutions issued an indictment against two individuals for importing cocaine into Iceland. The cocaine had been hidden in a Mercedes Benz vehicle, where it had been discovered by customs officers. The police had removed the cocaine and put another substance in its place. One of the accused, Mr A, had collected the car from customs and had paid customs duties for it. He and the other accused had driven the vehicle to a garage, where the substance had been removed. 7. The newspaper DV published an article on 5 July 2007 on the ongoing criminal proceedings against Mr A and his co-accused before the Reykjavík District Court. A picture of Mr A was published on the front page of the newspaper showing him walking into the courtroom. There was a large headline under the photograph which read “Scared cocaine smugglers” and underneath that it was written that both the accused were afraid of retaliation by their accomplices and had therefore refused to identify them. Mr A´s name also appeared on the front page, with a report that he and his co-accused could expect prison sentences of seven to eight years and three to four years respectively for removing the substance. 8. The article itself was reproduced on page 2 of the newspaper and the applicant was identified as its author. Next to the article appeared another photograph of Mr A, again using his name. The article stated that Mr A had been afraid to reveal the identity of the man he claimed had actually been behind the importation, and that he feared for his family’s and his own safety. The article contained the following passage: “The Director of Public Prosecutions is requesting a punishment of seven to eight years´ imprisonment in respect of [Mr A], who has been indicted for importing nearly 3.8 kilograms of cocaine, intended for sale, together with an unknown accomplice. A punishment of three to four years is requested in respect of [Mr B], who is also charged in the case with removing the alleged drug from the vehicle, in cooperation with [Mr A],”. 9. In the next paragraph it was stated: “The cocaine was hidden in a vehicle which [Mr A] imported into the country and took possession of in February 2007, believing that the cocaine was still in the vehicle, but the police had already confiscated the cocaine and replaced it with a decoy drug.” This sentence was a verbatim rendering of a part of the description of the facts contained in the indictment, without explicit reference being made to that document. 10. By a judgment of 12 July 2007 the District Court acquitted both Mr A and his co-accused of all charges, and on 29 May 2008 the Supreme Court upheld the acquittal. 11. On 21 October 2008 Mr A lodged defamation proceedings before the Reykjavík District Court against the applicant and Mr S.M.E., who was the editor of DV at the time. In his writ he requested that the headline (“Scared cocaine smugglers”) which had appeared on the front page of the newspaper published by DV on 5 July 2007 and the passage quoted in paragraph 9 above be declared null and void. In addition, Mr A requested that the respondents jointly and severally be ordered to pay him 2,500,000 Icelandic krónur (ISK) in respect of non-pecuniary damage and ISK 500,000 to cover the costs of publishing the judgment in the case in three newspapers. 12. Mr A argued that the responsibility for the statements lay with the applicant as the author of the article, in accordance with section 15 (2) of the Printing Act no. 57/1956. No one had been identified as the author of the front-page headline, and therefore the publisher or editor was responsible for it (see section 15 (3) of the same Act, at paragraph 23 below). 13. By a judgment of 26 June 2009 the District Court found for the applicant and the editor. In its reasoning it referred to the right to freedom of expression and protection of private life, as guaranteed by the Icelandic Constitution. It further stated: “When there is an overlap of the defendant’s aforementioned interest in the enjoyment of freedom of expression and the plaintiff’s interest in the enjoyment of respect for his private life, it must be examined whether the publication of the material, for which the defendants are responsible, can be considered to have taken place in the context of a general public debate and therefore to be of interest to the public. The disputed comments appeared in newspaper coverage of public criminal proceedings in which the plaintiff had been accused of a serious crime. The proceedings were open to the public and to those who wanted to observe, in accordance with the usual practice, and the defendants’ account is in accordance with what was revealed at the proceedings. News reporting of criminal cases being tried before the domestic courts must be considered normal and part of a journalist’s work. It cannot be a requirement that news reporting must await the outcome of a trial before publication. It makes no difference that the plaintiff was later acquitted of the charges. It must therefore be held that the published material, at the time it was published, was relevant to the public and was newsworthy. Although the headline on the front page is sensationalist, it has to be kept in mind that it refers to what was revealed during the testimony of the plaintiff in the criminal case, namely that he did not want to reveal the name of the person on whose behalf he was acting in respect of the charge of importing the drugs, as he feared for his own and his family’s safety. In view of all this, the statements are not considered to have been insulting or hurtful to the plaintiff, as defined in Article 234 of the Penal Code, or to contain an insinuation, as in Article 235 of the same Code. Moreover, they will not be deemed to entail an illegal injury to his character and honour ...” Mr A appealed against the District Court’s judgment to the Supreme Court. 14. By a judgment of 11 March 2010, the Supreme Court overturned the District Court judgment. It declared null and void the words “cocaine smugglers” on the front page and the statement “... believing that the cocaine was still in the vehicle” and ordered the applicant and the editor jointly and severally to pay the appellant ISK 100,000 (approximately 575 euros (EUR)) in compensation for non-pecuniary damage, plus interest, and ISK 50,000 for the costs of publishing the judgment. Its judgment contained the following reasons: “When the statements at issue in the present case appeared in DV on 5 July 2007, the criminal proceedings against the appellant and another man were pending before the District Court. This was clearly stated in the article, in which the substance of the charges against them was reproduced, along with a few essential points from the prosecution’s evidence and the statements which they had given at the hearing. It is not argued that the narrative was in any way incorrect, with the exception of those statements which are at issue in this case. The material published concerned a serious criminal case, which was being tried at a public hearing. It was therefore not subject to any limitations under Article 10 of the Code of Criminal Procedure no. 19/1991, in force at the time, which would have prevented the media from utilising its freedom [of expression] under Article 73 of the Constitution, to report on the case, including freedom to identify the accused. However, in that discussion special weight ought to be attached to the fact that it is the role of the courts, not the media, to determine whether an accused person is guilty of an offence. ... The appellant was acquitted of the ... criminal charges by a judgment of the District Court exactly one week after the publication of the statements in DV, and that conclusion was unaltered after the adoption of the Supreme Court judgment of 29 May 2008. By virtue of that conclusion the courts had rejected the accusation that the appellant and the co-accused in this case had been guilty of being ‘cocaine smugglers’, and also that the appellant in February 2007 had taken possession of the aforementioned vehicle ‘believing that the cocaine was still in the vehicle’. However, these two assertions were made in the statements which the appellant seeks to have declared null and void, without any reservation being made with reference to the fact that the assertions were based on an indictment which was contested in court. Bearing in mind the outcome of the criminal proceedings that had been instituted by that indictment, the statements in question contained an insinuation against the appellant, and there is no ground for rejecting his request for them to be declared null and void. As regards the other statements which the appellant claims should be declared null and void, it must be held that the word ‘scared’ in the headline on the front page contained a value judgment, and was also supported by comments made by the appellant and the co-accused during the criminal proceedings. The narrative in the article inside the newspaper, stating that the cocaine had been hidden in the vehicle which the appellant had imported into the country and had taken possession of in February 2007, after the police had confiscated the drugs and replaced them with another substance, was merely a description of facts that were later substantiated during the criminal proceedings. There are therefore no grounds for declaring the statements relating to this matter null and void. The statements which are declared null and void were published in an article, of which [the applicant] was named as the author, except for one word [kókaínsmyglarar] in the headline on the front page. She is liable to pay compensation for them, as provided for in section 15(2) of the Printing Act. On the other hand, since the author of the front-page headline was not identified, liability to pay compensation for that statement falls on the defendant [Mr S.M.E.] as the editor of the newspaper, under section 15 (3) of the same Act. The statement in the front-page headline and those in the article on page two were linked to such a degree [voru þau tengsl] that the defendants must be ordered jointly to pay compensation for them. It is considered that since, in the present case, declaring the statements null and void alone rectifies the appellant’s position to a great extent, compensation in the amount of ISK 100,000 is appropriate, with default interest, as further specified in the operative part of the present judgment. With reference to Article 241 § 2 of the Penal Code, the defendants must also be ordered to pay ISK 50,000 to the appellant to cover the costs of publication of the outcome of this case; he has not claimed interest on that amount.” 15. After his acquittal, Mr A initiated proceedings before the domestic courts, seeking compensation from the Icelandic State for unlawful detention during the above-mentioned criminal investigation, but to no avail. The Supreme Court, in its judgment of 16 June 2010, found the detention to have been justified even though he was later acquitted. 16. In April 2009, Mr A was again arrested for involvement in importing drugs into Iceland, and in December 2009 he was sentenced by a final judgment to ten years´ imprisonment for his part in the crime. | 1 |
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