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test | 001-174624 | ENG | HRV | CHAMBER | 2,017 | CASE OF RAMLJAK v. CROATIA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković | 5. The applicant was born in 1962 and lives in Sinj. 6. On 29 December 2005 M.R. brought a civil action against the applicant before the Sinj Municipal Court (Općinski sud u Sinju), seeking that a will be declared null and void. M.R. was represented by lawyers, V.Lj. and Ž.V. 7. On 8 December 2006 the Sinj Municipal Court adopted a judgment in the applicant’s favour. 8. The plaintiff lodged an appeal with the Split County Court (Županijski sud u Splitu). The Civil Division of that Court has over forty judges. On 27 August 2009 a panel of three judges presided over by Judge D.P., sitting in a closed meeting, reversed the first-instance judgment and upheld the appeal. It held that the first-instance court had correctly established the facts but had wrongly applied the relevant law. 9. The applicant lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) alleging, inter alia, that she had not had a fair hearing before an independent and impartial tribunal because Judge D.P. was the father of a trainee lawyer working at the law office of V.Lj. and Ž.V., who had both represented the plaintiff in the proceedings. 10. On 14 September 2011 the Supreme Court dismissed the applicant’s appeal on points of law as unfounded and upheld the second-instance judgment. It held in particular: “The case file shows that N.P., Judge D.P.’s son, did not participate in any manner in the proceedings at issue. This court therefore considers that there are no circumstances which put the impartiality of Judge D.P. in such doubt as to exclude his participation in the adoption of the appeal judgment.” 11. In a constitutional complaint of 29 June 2012 the applicant argued that even though N.P. had not participated at the hearings held in the proceedings at issue, there were no indications that he had not been otherwise involved in the case. He had been in a relationship of subordination (employer-employee) to the opposing party’s legal representative and the law office concerned had employed only a very small number of people. The applicant noted that the first-instance judgment in her favour had also later been reversed on appeal. The constitutional complaint was declared inadmissible on 3 October 2012 by the Constitutional Court. | 1 |
test | 001-164963 | ENG | BGR | CHAMBER | 2,016 | CASE OF SHAHANOV AND PALFREEMAN v. BULGARIA | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Pavlina Panova;Síofra O’Leary;Yonko Grozev | 6. Mr Shahanov, who was born in 1977, is serving a life sentence in Plovdiv Prison. 7. Mr Palfreeman, who was born in 1986, is serving a sentence of twenty years’ imprisonment in Sofia Prison. 8. In 2011, when serving his sentence in Plovdiv Prison, Mr Shahanov was sharing a cell with eight other inmates. On 24 October 2011 he made two complaints to the Minister of Justice: one written by him personally and one written on his behalf by his wife. In the complaints he stated, inter alia, that another inmate in his ward, X, was bragging that two prison officers, Y and Z, were relatives of his; was threatening and intimidating the other inmates and fomenting intrigues and tension among them; was often making unwarranted complaints to get special attention and treatment; and was planning to escape from prison with the help of his relatives. Mr Shahanov requested that steps be taken to move X to a prison where he did not have relatives. 9. An inquiry was opened pursuant to Mr Shahanov’s complaints, and written statements were taken from X, other inmates, Y, Z, and other prison officers. 10. In a letter of 28 November 2011, the head of the Chief Directorate for the Execution of Sentences informed the governor of Plovdiv Prison that the inquiry had not found familial relationships or improper contacts between X and any of the prison officers, or a risk for Mr Shahanov. The letter went on to say that the governor should advise all inmates that making defamatory statements about, or false allegations against, prison officers was a disciplinary offence under section 100(2)(7) of the Execution of Sentences and Pre-Trial Detention Act 2009 (see paragraph 27 below). 11. The next day, 29 November 2011, the governor of Plovdiv Prison ordered that Mr Shahanov be placed in solitary confinement for ten days for making defamatory statements and false allegations against prison officers, contrary to the above-mentioned provision. 12. On 30 November 2011 Mr Shahanov sought judicial review of the order. 13. The Plovdiv District Court heard Mr Shahanov’s claim on 2 December 2011 and, in a final decision of the same date (опр. oт 02.12.2011 г. по ч. н. д. № 8203/2011 г., РС-Пловдив), upheld the order. It held that it was lawful and that, in view of the results of the inquiry carried out pursuant to Mr Shahanov’s complaints and the evidence gathered in the proceedings before it, the prison governor had been correct to find that Mr Shahanov had made defamatory statements and false allegations against prison officers. The court went on to say that the punishment matched the seriousness of the offence. 14. Mr Shahanov asserted that his correspondence was routinely opened and read by the prison authorities. In support of his assertion, he submitted seven letters sent in 2012, six of which were addressed to his counsel, whose envelopes bore the stamp “checked” on their backs. For their part, the Government submitted a letter from the administration of Plovdiv Prison according to which Mr Shahanov’s correspondence was being controlled in the manner envisaged in the applicable regulations, which meant that the prison authorities only checked the physical content of the letters, not their text. All letters were sealed and opened by a prison officer in front of the prisoner. The stamp “checked” affixed on the back of an envelope only meant that the letter had been physically inspected for the presence of prohibited items. 15. On 23 May 2012 Mr Palfreeman was visited by two journalists. At the same time, a fellow inmate of Israeli nationality also had a visitor. After the visits, Mr Palfreeman learned that his visitors had been treated rudely, and that his fellow inmate’s visitor had had personal items stolen from lockers in the prison where he had left them during the visit. 16. The next day, 24 May 2012, with the help of another inmate who knew Bulgarian, Mr Palfreeman wrote the following complaint to the governor of Sofia Prison: “On 23 May 2012, during the midday visit, personal items of visitors were stolen from the visitors’ lockers, which are only accessible to the guards. The stolen items are a mobile telephone case, MP3 headphones, a mobile telephone battery, and a sum of money. Also, the guards behaved very rudely and coarsely with the visitors, yelling at them and insulting them for no reason. Could you please carry out an inquiry into the conduct of that shift, and take measures to ensure that the guards work in a disciplined way and with respect towards inmates and others.” 17. Disciplinary proceedings were opened against Mr Palfreeman in relation to that complaint. On 11 June 2012 a hearing took place before the prison’s disciplinary commission. 18. In an order of 12 June 2012, the governor of Sofia Prison noted that an inquiry carried out pursuant to Mr Palfreeman’s complaint had shown that the two persons who had visited him had not left any items in the visitors’ lockers, and had not made any complaints about missing items on their way out of the prison. There was no evidence that they had been treated rudely by prison staff either. By making allegations to that effect, Mr Palfreeman had therefore acted contrary to section 100(2)(7) of the Execution of Sentences and Pre-Trial Detention Act 2009 (see paragraph 27 below). The nature and the gravity of the offence, Mr Palfreeman’s attitude towards his act, and his overall conduct and state of health militated in favour of punishing him with three months’ deprivation of the right to receive food parcels from outside prison. 19. Mr Palfreeman appealed to the head of the Chief Directorate for the Execution of Sentences and sought judicial review. He argued, inter alia, that his disciplinary punishment was in breach of section 90(5) of the 2009 Act (see paragraph 25 below) and this Court’s case-law, that deprivation of the right to receive food parcels was a serious sanction in view of the insufficient quantity of food provided by the prison, and that it was an attempt to cow him into not making complaints against the prison administration. 20. On 14 August 2012 the head of the Chief Directorate for the Execution of Sentences dismissed the appeal. Noting that the inquiry into Mr Palfreeman’s allegations had not confirmed any of them, he found that, by deliberately making false allegations, the applicant had committed the disciplinary offence under section 100(2)(7) of the 2009 Act. The sanction fully corresponded to the nature and the gravity of his act, his attitude towards it, and his previous conduct. 21. In a final decision of 19 July 2012 (опр. от 19.07.2012 г. по н. ч. д. № 13436/2012 г., СРС), the Sofia District Court held that it could not deal with Mr Palfreeman’s claim for judicial review, as only orders imposing solitary confinement were amenable to such review. All other types of disciplinary punishments were only subject to appeal before the head of the Chief Directorate for the Execution of Sentences (see paragraphs 30-32 below). | 1 |
test | 001-156230 | ENG | SVK | ADMISSIBILITY | 2,015 | BUZINGER v. SLOVAKIA | 4 | Inadmissible | Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant, Mr Martin Buzinger, is a Slovak national, who was born in 1971 and lives in Bratislava. In addition to the present case, he was the applicant in six and represented applicants in seven other cases before the Court. 2. In the present case, he was represented before the Court by Ms M. Lukačovičová, a lawyer practising in Bratislava. 3. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant is a practicing lawyer. He provided legal services in association with a partner, A., with whom he shared premises. 6. On 2 September 2002 he filed a criminal complaint stating that, the previous night, A. had unlawfully removed various items of office equipment from their law firm and that the criminal offence of theft might have been committed in that connection. He specified the value of the damage thus suffered and submitted a claim against A. for compensation. 7. Subsequently an investigation was opened into a suspicion of theft having been committed by one or more persons unknown. The investigation was terminated because there was no case to answer, but that decision was quashed following the applicant’s complaint. The ensuing new investigation into a suspicion of embezzlement was terminated twice, the former termination being quashed following the applicant’s appeal. The applicant’s appeal against the latter termination was rejected on 11 December 2012 for being belated. 8. On 28 October 2009 the Constitutional Court rejected a complaint in which the applicant had challenged the length of the criminal proceedings, in so far as they concerned his claim for damages. 9. From the observations of the Government on the admissibly and merits of the application, it transpired that, in parallel to claiming damages in the context of the above criminal proceedings, on 3 September 2004 the applicant had filed an action for damages against A. before the civil courts. 10. On 17 June 2010 the Bratislava I District Court partly granted and partly dismissed the action. The judgment was however quashed by the Bratislava Regional Court on 31 January 2012 following appeals by both parties. The matter was thus remitted to the first-instance for re-examination and it has been pending there since. 11. In all the above proceedings, the applicant was or has been represented by a practicing lawyer or a law firm. | 0 |
test | 001-173774 | ENG | BGR | CHAMBER | 2,017 | CASE OF KRASTEVA AND OTHERS v. BULGARIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev | 5. The applicants were born in 1932, 1929, 1965 and 1956 respectively and live in Sofia. 6. On 15 January 1968 the second applicant, together with the antecedents of the other applicants, bought from the then existing local agricultural co-operative a plot of land situated on the outskirts of Sofia measuring 953 square metres. Until 2002 the applicants or their antecedents enjoyed undisturbed possession of that land. 7. On 10 May 2002 a group of persons, the heirs of Mr T.S., Mr G.S. and Ms K.S., brought against the applicants a rei vindicatio action, stating that the plot of land was theirs. They stated that the plot, once the property of their antecedents, had been collectivised in the years after 1945, but had been returned to them within the context of the process of the restitution of agricultural land by a decision of the relevant body, the local land commission, dated 27 December 1999. They claimed that under section 10(13) of the Agricultural Land Act (see paragraph 13 below), the fact that the second applicant and the remaining applicants’ antecedents had purchased the land in 1968 could not be held against them. 8. Initially, the Sofia District Court (its judgement is undated) dismissed the action against the applicants. After an appeal by the heirs of Mr T.S., Mr G.S. and Ms K.S., on 5 November 2009 the Sofia City Court overturned that ruling, allowed the rei vindicatio claim and ordered the applicants to surrender possession of the plot. It found in particular that the land commission’s decision of 27 December 1999 was sufficient to render the claimants the owners of the disputed land. It pointed out that of the two rival claims to the same plot the law – namely section 10(13) of the Agricultural Land Act – gave priority to the one based on restitution, and thus had the effect of rendering devoid of any legal force the contract under which the second applicant and the remaining applicants’ predecessors had bought the plot. 9. In a final decision of 18 June 2010 the Supreme Court of Cassation declined to entertain a cassation appeal by the applicants. 10. On an unspecified date soon after that the applicants surrendered possession of the plot. | 1 |
test | 001-175664 | ENG | RUS | COMMITTEE | 2,017 | CASE OF SHESTAKOV v. RUSSIA | 4 | No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Dmitry Dedov;Luis López Guerra | 5. The applicant was born in 1979 and lives in Perm. 6. On 21 October 2006 the applicant was arrested on suspicion of extortion, kidnapping and fraud. Two days later the Leninskiy District Court of Perm authorised his detention. 7. On 21 December 2006 the District Court held a hearing on extension of the applicant’s detention. The applicant asked to postpone the hearings for five days because his counsel was sick and could not attend. The District Court dismissed the request, assigned lawyer N. to represent the applicant, proceeded with the hearing and extended the applicant’s detention. The applicant’s objection to the participation of N. on account of their different defence strategies and N.’s limited knowledge of the case-file was also dismissed. 8. The applicant and his counsel appealed, complaining, in particular, about a breach of the applicant’s right to defend himself through legal assistance of his own choosing. On 18 January 2007 the Perm Regional Court upheld the detention order of 21 December 2006, having also noted that the legal aid lawyer N. had been appointed because the detention matter “had to be examined immediately”. 9. On 19 January 2007 the District Court once again extended the applicant’s detention. On 8 February 2007 the Regional Court held the appeal hearing without informing the applicant in advance about the hearing date. The applicant’s counsel attended the appeal hearing and made oral submissions. The Regional Court dismissed the appeal and upheld the detention order of 19 January 2007. 10. The applicant’s detention was further extended on several occasions. In particular, on 16 March 2007 the measure of restraint was prolonged until 4 April 2007. 11. On 21 March 2007 the applicant was committed to stand trial before the Regional Court. Five days later, on 26 March 2007, the trial court scheduled a preliminary hearing for 3 April 2007 and ruled that, in the meantime, the measure of restraint in respect of the applicant should remain unchanged until the preliminary hearing. The decision was delivered in a written procedure (without the parties being present). 12. The applicant appealed, complaining, among other matters, that that decision in the part relating to his detention was unlawful and that it had been delivered in his and his lawyer’s absence. On 14 May 2007 the Supreme Court of the Russian Federation upheld the decision, having found, in particular, that the trial judge’s decision was no more than a restatement of the detention order of 16 March 2007 extending the applicant’s detention until 4 April 2007 (see paragraph 10 above). 13. At the preliminary hearing on 3 April 2007 the trial court extended the applicant’s detention until 21 September 2007. 14. On 1 June 2007 the applicant was convicted. On 22 September 2008 the Supreme Court upheld his conviction on appeal. | 0 |
test | 001-183121 | ENG | ALB | CHAMBER | 2,018 | CASE OF HYSI v. ALBANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström | 6. The applicant was born in Qesarat, Tepelenë, in 1977. He is currently serving a prison sentence. 7. On 14 January and 10 November 2005, following proceedings in absentia, the Gjirokastër District Court and the Court of Appeal, respectively, convicted the applicant of attempted theft resulting in death in collusion with others and sentenced him to seventeen years’ imprisonment. That decision became final on 9 February 2007 after the Supreme Court dismissed an appeal by the applicant’s lawyer. It appears that the applicant was represented by a lawyer appointed by his family throughout the court proceedings. 8. It appears that on 30 March 2007 the applicant was extradited from Greece to Albania. 9. On 3 May 2007 the Gjirokastër District Court allowed a request by the applicant to appeal out of time and he lodged an appeal against his conviction in absentia. 10. On 12 November 2007 the Gjirokaster Court of Appeal while requalifying the charges against the applicant on the basis of the evidence obtained during the proceedings in absentia, upheld the applicant’s conviction, ruling that it had become res judicata. 11. By a final decision of 7 October 2009 the Supreme Court upheld the applicant’s conviction as decided in the Gjirokastër District Court’s decision of 2005, ruling that it had become res judicata and that the facts and law in the case had been examined previously. It further noted that leave to appeal out of time should not have been granted as the case had become res judicata. 12. On 21 February 2011 the applicant lodged a constitutional appeal with the Constitutional Court against the Supreme Court’s decision, complaining, inter alia, about the fact that the domestic courts had not given him the possibility of a fresh factual and legal determination of the criminal charge. 13. On 9 May 2011 the applicant’s lawyer was notified of the Constitutional Court’s decision to dismiss his appeal. | 1 |
test | 001-155826 | ENG | HRV | CHAMBER | 2,015 | CASE OF MAFALANI v. CROATIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 5. The applicant was born in 1982 and is currently serving a prison sentence in Lepoglava. 6. On 23 October 2008 I.P., a well-known Croatian journalist, and his business associate N.F. were killed by the explosion of an improvised device placed under I.P.’s car, which was parked in front of his publishing company. The explosion also caused injuries to two employees of the publishing company and considerable material damage on the surrounding buildings and nearby parked cars. 7. On 23 October 2009 the State Attorney’s Office for the Suppression of Corruption and Organised Crime (Ured za suzbijanje korupcije i organiziranog kriminaliteta; hereinafter: the “State Attorney’s Organised Crime Office”) indicted several persons in the Zagreb County Court (Županijski sud u Zagrebu) on charges of conspiracy to kill I.P. and for putting that into action. The applicant was indicted for having participated in the group by aiding and abetting the direct perpetrators. 8. On 3 November 2010 the Zagreb County Court found the applicant guilty as charged and sentenced him to sixteen years’ imprisonment. 9. The applicant’s conviction was upheld by the Supreme Court (Vrhovni sud Republike Hrvatske) on 8 February 2012. 10. Following the attack against I.P. and his publishing company, the intelligence available to the police showed that the applicant and several other persons could be implicated in the events and it was therefore decided to arrest them. 11. The Police Director (Glavni Ravnatelj Policije) issued an oral order that the arrests be carried out by an antiterrorist team of the Special Police Forces (Specijalna policija, Antiteroristička jedinica Lučko; hereinafter: the “ATJ”). 12. On 29 October 2008, at around 6.05 p.m., the ATJ stormed into the applicant’s flat, where he was at the moment together with his sister and grandmother. 13. According to the applicant, immediately after breaking into the flat, the AJT officers threw him on the floor and started punching him over the head and body. 14. According to the Government, an ATJ team of six officers broke into the applicant’s flat and ordered him to lie down. As he started resisting, the police officers applied the throwing technique of “foot sweep”, which made the applicant to lose his balance and while falling on the ground he hit the table with his head. He was immediately offered medical assistance but he refused. 15. A report available to the Court signed by the Commander-in-chief of the Special Police Forces (Zapovjednik Specijalne Policije) of 30 October 2008, which is essentially a verbatim of a report of one of the arresting ATJ officers (see paragraph 36 below), in its relevant part concerning the circumstances of the applicant’s arrest, reads: “... the intervention with a view to arrest [the applicant] started by the ATJ officers forceful breaking the front doors using the [battering ram]. Inside the flat they found the suspect and an older woman to whom they issued several orders: “Police, lie down on the floor”. As the suspect resisted, two officers approached him and grabbed him by the arms but he continued to resist. [The officers] then applied the technique of foot sweep and pulled him to the ground. As he was still trying to set himself free he was handcuffed. While he was falling on the ground he hit the table with his face ... Afterwards ... [the officers] offered to the suspect medical assistance but he refused it saying that he felt good.” 16. According to the applicant, following his arrest he was blindfolded and taken to a remote place by a river, where he was again beaten up and his head was immersed in the water, forcing him to confess to the murders of I.P. and N.F. and some other crimes. The police officers also continued to beat him up while taking him to the police station. 17. According to the Government, following the applicant’s arrest he was taken to the parking area of the police station used by the Organised Crime Unit of the Zagreb Police Department (Policijska uprava zagrebačka, Sektor kriminalističke policije, Odjel organiziranog kriminaliteta; hereinafter: the “police”) where he was kept in the minivan of the ATJ in the period between 6.45 and 8.30 p.m., awaiting other suspects to be arrested and brought to the police station. 18. The available report of the arresting ATJ officer (see paragraph 36 below) in this respect indicates that the applicant was brought to the parking area of the police station at 7.00 p.m. where he was kept in the minivan of the ATJ until 7.40 p.m. and then surrendered to the police inspectors. 19. Once when he was brought to the police station on 29 October 2008 at around 8.30 p.m. the applicant was placed in a room under the control of two police inspectors M.A. and M.M. 20. According to reports of these two police inspectors dated 18 April and 14 May 2012 respectively, the applicant was for a while guarded by an ATJ officer but then, at unspecified time, they requested that officer to leave the room. The police inspectors also submitted that the applicant had been handcuffed when he was brought to the police station and then, at unspecified time but sometimes soon after his arrival, the handcuffs were taken off. They also acknowledged that they had seen visible injuries on the applicant’s head and nose for which he had been allegedly offered medical assistance but he had refused it. The emergency had been called in only after the order of their superiors. 21. The emergency service came to the police station on the same day at 10.55 p.m. The relevant record of the applicant’s examination, in so far as legible, reads: “Brought to the police station. Visible open injury above the left eye; 1,5 centimetre long. Contusion and haematoma of the nose with the possible fracture. Regular general status. The patient refuses to go to the hospital and further treatment.” 22. The applicant stayed in the police station until 30 October 2008 at 8.30 p.m. During that period he was taken to searches of his house and car and he was questioned by the police inspectors M.A. and M.M. in the presence of a lawyer and a Deputy at the State Attorney’s Organised Crime Office. 23. According to the applicant, throughout his stay in the police station he was tightly constrained, beaten and threatened that he should make no problems concerning his injuries. 24. According to the Government, during his stay in the police station the applicant was kept in one of the offices ordinarily used by the police officers. Apart from several minutes upon his arrival to the police station, the applicant was not handcuffed. He also had access to the toilet and drinking water. He was obliged to sit on a chair as there were no beds but it was impossible to take him to the detention unit as the investigative actions were still ongoing. In any case, he had an opportunity to ask for a rest and food but he did not make any such request. 25. On 30 October 2008, at around 8.30 p.m., the applicant was taken to the Police Detention and Escort Unit (Jedinica za zadržavanje i prepratu; hereinafter: “JZP”) for a rest. A report accompanying his transfer, signed by the Chief of the police and dated 30 October 2008 indicated, inter alia, that he had no visible injuries. 26. A report signed by the on-duty officer at JZP, dated 30 October 2008, indicated that the applicant was admitted to the detention unit with visible injuries of his face. 27. According to the applicant, during his stay in JZP he was offered a sandwich but he could not eat due to a strong jaw pain. 28. According to the Government, during his stay in JZP the applicant was placed in a room which was equipped with beds and sanitary facility. The room was appropriately heated and ventilated and had access to natural and artificial light. The hygiene and sanitary conditions were good and the applicant was provided with food and water. 29. On 31 October 2008 at 9.15 a.m. the police took the applicant from JZP to participate in a further search of his premises. 30. On the same day, at around 6.45 p.m., the applicant was brought for questioning before an investigating judge of the Zagreb County Court. He decided to remain silent concerning the charges held against him, but with regard to his injuries the applicant stressed: “The only thing I would point out is that before I was taken in [to the police station] I fell in my flat and according to the findings of the doctors who were called in to the police station, I sustained a nose fracture, most probably with dislocation. I refused the medical assistance in order to get out from the police station as soon as possible.” 31. The investigating judge put no additional questions concerning this matter nor did he take any further actions in that respect. 32. Following the applicant’s questioning, an investigation into the explosion was opened in respect of him and several other persons. At the same time, an investigating judge of the Zagreb County Court ordered his pre-trial detention. 33. On 3 November 2008 the applicant was examined in Zagreb Prison Hospital (Zatvorska bolnica u Zagrebu) and several medical records were drafted. 34. One medical record available to the Court indicates that the applicant sustained his injuries after a fall on 30 October 2008, whereas two other medical reports refer to several blows on the applicant’s head and nose. 35. Based on his medical examination in Zagreb Prison Hospital, the applicant was diagnosed with contusions of head, nose and shoulder and a nose fracture without dislocation, as well as a distortion of a metal implant in his hand related to an old injury. His general medical condition at the time was regular and he had a smaller hematoma on the left side of his head and nose and smaller hematomas below both eyes. He also had a smaller hematoma on the left shoulder and a visible dislocation of the metal implant in his hand but without a fresh fracture. In July 2009 the applicant again saw a doctor who indicated testicular problems. 36. On 29 October 2008 one of the arresting ATJ officers reported on the applicant’s arrest to the Commander of the ATJ. In his report, he indicated that the ATJ had been requested to arrest the applicant in connection with a suspicion of double murder. The report also provides the details of the arrest already observed above (see paragraphs 15 and 18 above). 37. On 30 October 2008 the Commander of the ATJ requested the Commander-in-chief of the Special Police Forces to assess the lawfulness of the ATJ’s actions; and the latter forwarded that request to the Police Director. 38. On the same day the Police Director assessed the reports concerning the ATJ actions by indicating the following: “This is to inform you that I find the use of force, namely the physical force and the measures of restraint, used by the ATJ team on 29 October 2008 during the arrest of Amir Mafalani ... lawful within the meaning of sections 54, 55 and 57 of the Police Act and sections 30, 31, 32 and 35 of the By-law on the police conduct.” 39. In October 2011 the applicant, through lawyers, requested Zagreb Prison Hospital and the emergency services to provide him the relevant medical records concerning the injuries he had sustained during his arrest on 29 October 2008. He also requested the police to provide him the relevant documents related to his arrest. 40. On 2 November 2011 the police replied that all relevant reports were confidential and could not be disclosed. This reply was forwarded for information to the State Attorney’s Organised Crime Office. 41. On 11 November 2011, after receiving the reply, the applicant complained to the State Attorney’s Organised Crime Office asking why an effective investigation, within the meaning of Article 3 of the Convention, had not been conducted. 42. The State Attorney’s Organised Crime Office replied on 16 November 2011, indicating that the applicant should consult the relevant domestic law on the use of police force and that, in case of any complaint to that effect, he could always lodge a criminal complaint with the competent State Attorney’s Office. 43. In the meantime, the applicant obtained the requested medical records. 44. On 15 February 2012 the applicant lodged a criminal complaint with the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) against unidentified perpetrators alleging ill-treatment during his arrest and stay in the police station. 45. On 20 February 2012 the Zagreb Municipal State Attorney’s Office informed the applicant that his criminal complaint had been forwarded to the Zagreb County State Attorney’s Office (Županijsko državno odvjetništvo u Zagrebu) for further examination. 46. On 3 March 2014 the Zagreb County State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that there was no reasonable suspicion that a criminal offence had been committed. It relied on a written report of the Police Director and written reports of the police inspectors M.A. and M.M. It also observed the applicant’s medical documentation and search and seizure records as well as the interrogation records in the criminal proceedings against him. 47. On 31 January 2012 the applicant instituted civil proceedings in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) against the State claiming damages in connection with his alleged ill-treatment by the police during his arrest and stay in the police station. 48. The Zagreb Municipal State Attorney’s Office, representing the State, challenged the applicant’s civil action on the grounds that the police had acted in accordance with the law and that their use of force had been caused by the applicant’s conduct. 49. During the proceedings, the Zagreb Municipal Civil Court heard the applicant and several witnesses, including the applicant’s sister and grandmother, one of the applicant’s co-suspects and the police inspectors M.A. and M.M. , as well as the Police Director. 50. The applicant’s grandmother testified that she had seen the police officers immediately attacking and hitting the applicant as they had entered the flat, and his sister confirmed that she had heard him screaming and had also seen him being dragged around by the police. 51. The applicant’s co-suspect in his testimony submitted that he had seen the applicant seriously injured in the police station, while the police inspectors M.A. and M.M. denied any ill-treatment, as did the Police Director who also stated that the police had monopoly of the use of force. 52. In his statement of 14 January 2015 the applicant contended that during his arrest he had been severely beaten by the ATJ officers all over his head and body. Afterwards he had been taken near a river and again beaten, subjected to mock execution and immersed in the water. When he was finally brought to the police station, the uniformed police officers continued to beat him with the acquiescence of the police inspectors M.A. and M.M. He was also tightly constrained to a chair and at one point, while he was dragged from one office to another, he felt strong pain in his shoulder. Later on, during his transfer to the investigating judge, two uniformed police officers who escorted him said that he should say nothing about the ill-treatment and that he would soon go home. In the ensuing period, he started feeling various health problems related to the ill-treatment and has been seeing doctors regularly. 53. The civil proceedings are still pending. | 1 |
test | 001-145366 | ENG | RUS | CHAMBER | 2,014 | CASE OF RAKHIMOV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Uzbekistan);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 5 - Right to liberty and security (Article 5-1-f - Expulsion);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 6. The applicant was born in 1971. Prior to his arrest he was residing in the Moscow Region. 7. On an unspecified date in 1999 the applicant arrived in Russia and settled in Moscow. Between 1 and 18 November 2009 he travelled to Uzbekistan (see paragraphs 43-44 below). It appears from the domestic judgment of 18 September 2013 (see paragraph 39 below) that he was registered with the local migration authorities from 20 November 2009 to 18 February 2010. 8. On 3 March 2010 the National Security Department of the Samarkand Region of Uzbekistan brought criminal proceedings against the applicant on suspicion of his alleged membership between 1990 and 1998 of Hizb utTahrir (“HT”), a transnational Islamic organisation, banned in Russia, Germany and some Central Asian republics, and making public calls to overthrow the constitutional order of Uzbekistan and to establish an Islamic state in its place. 9. On 6 April 2010 the applicant was charged in absentia in Uzbekistan with attempting to overthrow the Uzbek State’s constitutional order (Article 159 § 3 (b) of the Criminal Code of the Republic of Uzbekistan); storage and disseminating of documents containing ideas of religious extremism, separatism and fundamentalism, and threats to national security and public order (Article 244-1 § 3 (a) of the Code); and participation in and direction of religious, extremist, separatist and other prohibited organisations (Article 244-2 § 1 of the Code). The statement of charges indicated that between 1990 and 1998 the applicant, as a member of HT, had regularly held unlawful religious gatherings with three other persons at which they had made “public calls to overthrow the existing constitutional order” in their home country and “made use of materials containing ideas of religious extremism”. The applicant had shown a video-recording of an address by Yu., the leader of the religious extremist “Islamic Movement of Uzbekistan”. Furthermore, since 1990 the applicant had systematically participated in religious studies and physical training sessions of a “shahid belt community”, as well as meetings organised by R. at which public calls for the replacement of the Uzbek Government by an Islamic state in the form of a recreated Caliphate had been made. 10. On the same date the Samarkand Town Court ordered the applicant’s arrest, and his name was put on the cross-border list of wanted persons. 11. On 17 April 2013 the applicant was arrested by the police in Moscow as a person wanted by the Uzbek authorities. On the same date the National Security Department of the Samarkand Region of Uzbekistan confirmed their intention to request the applicant’s extradition and requested that he be remanded in custody. 12. When interviewed by the police on the same date after his arrest, the applicant stated that he had moved to Russia in 1999 to look for work. He had not registered as a foreign national temporarily residing in the country and had not applied for refugee status in Russia. He was unaware of the reasons for his criminal prosecution in Uzbekistan and had not been persecuted on political grounds in his home country. His wife and four minor children lived with him in the Moscow Region. 13. On 13 May 2013 the Deputy Prosecutor General of the Republic of Uzbekistan submitted a formal request for the applicant’s extradition. The request contained assurances that the applicant would be prosecuted only for the offences for which he was being extradited, that he would be able to freely leave Uzbekistan once he had stood trial and served any sentence, and that he would not be expelled or extradited to a third State without the consent of the Russian authorities. The Uzbek prosecutor’s office further assured its Russian counterpart that the applicant would not be prosecuted in Uzbekistan on political or religious grounds, or subjected to torture or other inhuman or degrading treatment, that he would be provided with an opportunity to defend himself, inter alia, through legal assistance, that the criminal proceedings against him would be conducted in compliance with the domestic law of the Republic of Uzbekistan, and that he would receive any medical treatment required. 14. On 1 July 2013 the applicant’s representative filed objections against the extradition request. She argued that according to independent international observers, illtreatment was widespread in the Uzbek prison system and fair-trial guarantees were not respected. Referring to the Court’s caselaw on the matter (Yakubov v. Russia, no. 7265/10, 8 November 2011; Rustamov v. Russia, no. 11209/10, 3 July 2012; and Zokhidov v. Russia, no. 67286/10, 5 February 2013), as well as to the reports by UN bodies and NGOs cited in paragraphs 64, 65, 67, 68, 70 and 71 below, she submitted that the applicant, who had been charged with religious and political offences, including membership of HT, would run an increased risk of illtreatment and would be deprived of the minimum fair-trial guarantees if extradited to the requesting country. The applicant’s representative also referred to a report of 2009 by the CIS Department of the Ministry of Foreign Affairs of the Russian Federation in which the department, referring to various international NGO reports, pointed out that criminal proceedings in Uzbekistan depended to a considerable extent on self-incriminating statements. She further referred to a letter of 2011 from the same CIS Department, which stated that any extradition to Uzbekistan would be in breach of Article 3 of the Convention from the point of view of the European Court. 15. According to a letter from the prosecutor’s office of 30 July 2013 (see paragraph 19 below), on 24 July 2013 the Prosecutor General’s Office refused to order the applicant’s extradition, since his criminal prosecution had become time-barred. According to the applicant, neither he nor his representatives had been informed about the refusal at that point. The parties have not submitted a copy of the relevant decision. 16. On 19 April 2013 the Kuntsevskiy District Court of Moscow ordered the applicant’s detention pending extradition until 17 May 2013. The decision was not appealed against. 17. On 16 May 2013 the Kuntsevskiy District Court of Moscow ordered an extension of the applicant’s detention until 17 October 2013 in order to ensure his extradition. 18. On 29 May 2013 the Moscow City Court upheld the decision on appeal. 19. By a letter of 30 July 2013 the head of the extradition department of the Prosecutor General’s Office informed the Kuntsevskiy InterDistrict prosecutor of Moscow that on 24 July 2013 the Prosecutor General’s Office had refused to order the applicant’s extradition to Uzbekistan since his criminal prosecution had become time-barred, and requested that the applicant be immediately released from custody. The letter continued as follows: “At the same time, [I] ask you to check the lawfulness of Mr Rakhimov’s residence in Russia and his compliance with the immigration laws. [I] ask you to send a copy of the release order, as well as information about the results of the check, to the extradition department of the city prosecutor’s office no later than 31 July 2013 by fax and mail.” 20. A hand-written note on the letter, apparently made by the addressee, indicated that it would be necessary “to conduct a migration check under Article 18 § 8 [of the Code of Administrative Offences] if there are grounds [for it]”. 21. By a decision of 30 July 2013 the Kuntsevskiy InterDistrict prosecutor’s office ordered the applicant’s release from detention, because on 24 July 2013 the extradition proceedings had been discontinued. At 6.45 p.m. on that date the applicant was released from a remand centre in Moscow. 22. According to the applicant, at 6.45 p.m. on 30 July 2013 he was apprehended by the police at the exit of the remand centre, immediately after his release from detention, and taken into custody. 23. According to the administrative offence record (see paragraph 25 below), the applicant was arrested at 8.10 p.m. by an officer of the Department of the Interior of the Mozhaiskiy District of Moscow in connection with a violation of the immigration laws (Article 18-8 of the Code of Administrative Offences (“the CAO”)). 24. At 8.10 p.m. on 30 July 2013 an officer of the Mozhaiskiy District Department of the Interior recorded that the applicant had been arrested “for the purpose of drawing up an administrative record”. In the part of the record reserved for comments the applicant wrote that he objected to the arrest and that he could not be removed to Uzbekistan since he ran a risk of torture there. Furthermore, proceedings were pending in respect of his refugee status. 25. At some point on the same date an administrative-offence record was drawn up on account of the applicant’s failure to leave Russia after 12 July 2011. The applicant, in a hand-written comment made in the relevant part of the record, conceded that he had breached the migration laws but claimed that he could not be removed to Uzbekistan because he would be tortured in his home country. 26. On the same date the case file was forwarded to the Kuntsevskiy District Court of Moscow. By a separate petition the head of the Mozhaiskiy District Department of the Interior requested the court to order the applicant’s detention pending administrative removal, since he had been residing in Russia unlawfully and in breach of the immigration laws and had been avoiding leaving Russia; accordingly there were grounds to believe that he would continue to breach the immigration laws. 27. On 31 July 2013 the Kuntsevskiy District Court of Moscow examined the applicant’s case. 28. During the hearing the defence acknowledged that the applicant had failed to register with the migration authorities or leave Russia, contrary to the requirements of the immigration laws. However, they submitted that, in accordance with Article 28.1 of the CAO, administrative proceedings should have been brought against him as soon as sufficient data indicating the occurrence of an administrative offence had been obtained. When the applicant had been arrested on 17 April 2013, the authorities had already been in possession of sufficient information on the applicant’s immigration status. However, administrative proceedings had not been brought against him until three months and two weeks later, once the term of his detention pending extradition had expired. In those circumstances, the defence considered that the administrative removal of the applicant, if ordered, would amount to a form of extradition in disguise. 29. The defence further submitted that in any event the applicant’s expulsion could not be ordered, since proceedings were pending in respect of his refugee status. They pointed out in this connection that the applicant’s request for refugee status had been accepted for examination (see paragraph 40 below), and that he had received no response by the time of the events. 30. Lastly, the defence made a detailed argument to the effect that the applicant was wanted by the Uzbek authorities in connection with charges relating to religious offences, and would therefore run a risk of illtreatment if expelled to Uzbekistan. They referred to reports by the UN and international nongovernmental organisations (cited in paragraphs 64, 6768 and 72-73 below), as well as the Court’s case-law in support of that position. 31. The Kuntsevskiy District Court found the applicant guilty of the administrative offence of breaching the immigration regulations (Article 18 § 8 of the CAO). The court considered that the administrative-offence record had been compiled by a competent officer and in accordance with the domestic law. It rejected as irrelevant the applicant’s arguments to the effect that the authorities had been aware of the impugned breach of the immigration laws as early as 17 April 2013, arguing that on that date the applicant had been arrested on different grounds. The court took note of the applicant’s submissions concerning his request for refugee status and dismissed them as having no bearing on the administrative offence under examination. The lack of information on the progress of the proceedings in respect of refugee status did not preclude the court from applying an administrative sanction under Article 18 § 8 of the CAO. 32. When deciding on the sanction to be applied, the court took note of “the information on the applicant’s personality”, as well as of the fact that he had admitted breaching the immigration laws. On the other hand, it observed that the applicant had been unlawfully residing in Russia for a considerable period of time and that he did not have a permanent residence or job in Russia. In accordance with Article 18 § 8 of the CAO the court fined the applicant 2,000 Russian roubles (RUB) and ordered his administrative removal from Russia. 33. Lastly, the court granted the request of the head of the Mozhaiskiy District Department of the Interior for the applicant’s placement in detention pending removal. It reiterated that the applicant had been residing in Russia in breach of the law and had avoided – and was likely to further avoid – leaving Russia of his own will. The court decided that the applicant should be detained in a special detention centre for foreigners of the Moscow Department of the Interior until his administrative removal. No specific timelimit for the applicant’s detention was given by the court. 34. On 5 and 26 August 2013 the defence submitted their points of appeal before the Moscow City Court. In addition to their initial arguments, they submitted, first, that the first-instance court had incorrectly established the facts of the case, including in respect of the applicant’s arrest. Contrary to the case materials, on 30 July 2013 the applicant had only just been let out of the remand centre when he was immediately arrested at the exit of the detention facility. They argued that the administrative-offence record had been forged and therefore was inadmissible. Secondly, they maintained that the applicant’s expulsion would amount to his “extradition in disguise”. They pointed out, with reference to the letter of 30 July 2013 (see paragraph 19 above) that the very initiative to conduct an urgent check of the applicant’s migration status had been taken by the prosecutor’s office, that is the authority in charge of his extradition case. The interest the prosecutor’s office displayed in the carrying out of the migration check – a matter clearly outside their competence – could be interpreted as an indication of that authority’s interest in ensuring the applicant’s return to Uzbekistan. However, the applicant, if removed to his home country, would be unable to benefit from the minimum guarantees he could have in extradition proceedings. 35. Thirdly, the defence maintained that domestic law prohibited the expulsion of a person who had applied for refugee status until a final decision in that respect had been made. However, the domestic court had omitted to elaborate on that aspect of the case. They argued that, contrary to the first-instance court’s findings, the requirement to take into account the proceedings in respect of the applicant’s refugee status had had no effect on the lower court’s findings as to whether an administrative offence had – or had not – taken place. However, it could have had a bearing on the determination of the administrative sanction. In that regard, they drew the appeal court’s attention to the fact that administrative removal constituted a sanction additional to an administrative fine. 36. Fourthly, the defence stressed that the first-instance court had failed to make any assessment of their ill-treatment argument. Having referred to the Court’s case-law, they reiterated their extensive submissions as regards the risk of ill-treatment if the removal order were to be enforced. They complained that the first-instance court had refused to admit to the case the reports by reputable NGOs, the Russian courts’ decisions, or the Court’s decisions in similar cases. 37. Lastly, the defence submitted that the decision ordering the applicant’ s detention did not contain any time-limit and was therefore in breach of Article 5 of the Convention. 38. The examination of the case was initially scheduled for 2 September 2013 but was adjourned in order to obtain updated information on the proceedings in respect of the applicant’s refugee status from the Federal Migration Service. 39. On 18 September 2013 the Moscow City Court upheld the judgment of 31 July 2013, finding it lawful and justified. It held that the first-instance court had been right in finding that the applicant’s actions had constituted an administrative offence. The appeal court upheld the administrative sanction as lawful and found no grounds to amend it. The court rejected the applicant’s argument to the effect that he could not be removed from Russia in the absence of a final decision in the refugee-status proceedings as irrelevant, since “the examination of the respective appeal did not have a bearing on the event or the legal qualification of the administrative offence”. The court further noted that, in any event, on 27 August 2013 his application for refugee status had been refused. As regards the applicant’s argument about the authorities’ failure to bring the administrative proceedings against him in a timely manner, the court considered that this circumstance did not constitute a ground for quashing the lower court’s judgment. It argued that that violation had been insignificant, since the time at which the respective record of the administrative offence had been drawn up had not had a “preclusive effect («не является пресекательным»)”. 40. At some point in May 2013 the applicant applied to the Moscow Department of the Federal Migration Service (“the Moscow FMS”) for refugee status in Russia on the grounds of fear of persecution on account of fabricated charges against him relating to a religious offence. He submitted that the accusations against him were unfounded. On 24 June 2013 his case was accepted for consideration. 41. On 6 August 2013 the Russian Office of the United Nations High Commissioner for Refugees (UNHCR) concluded, in a letter to the applicant’s representative, that there existed a real risk of ill-treatment of persons whose extradition was sought in connection with politically motivated charges of a religious nature. 42. On 27 August 2013 the Moscow FMS rejected the applicant’s application for refugee status. According to a copy of the decision as submitted by the parties, it observed that the applicant was wanted in Uzbekistan in connection with his alleged membership of HT and noted that “the initiator of the search had confirmed its intention to claim extradition”. The authority reiterated that it was for a petitioner to adduce persuasive arguments why there existed an individual risk of persecution on the grounds of nationality, religious beliefs or membership of a social group. The authority took note of both the administrative removal order of 31 July 2013 (see paragraph 31 above) and the indication by the Court of an interim measure in the applicant’s case (see paragraph 4 above). The Moscow FMS found as follows: “It transpires from the case materials that after the death of the applicant’s mother in 1999 the applicant’s father married another woman. In order to obtain the father’s heritage, in 2002 she complained to the local police that some time before the applicant had come to Uzbekistan to kill his father. However, according to the applicant, criminal proceedings had not been brought against him. However, in 20092010 she wrote a new complaint, this time accusing the applicant of extremism. It may be concluded from the above that the reason for which, according to the applicant, unfounded charges had been brought against him was a domestic conflict.” 43. The Moscow FMS also noted that the applicant had deliberately hidden the fact of the State border transfer between 1 and 18 November 2009 and that he had not applied for refugee status until his arrest, even though he had learned of the extremism charge against him in 2010. The authority also observed that the applicant’s brother was living in Uzbekistan and had not been persecuted. It therefore concluded that the applicant had lodged a request with the sole purpose of avoiding criminal prosecution in Uzbekistan and that he did not satisfy the refugee criteria. 44. On 26 October 2013 the defence lodged an appeal against the refusal with the Russian FMS office, arguing that the FMS Moscow had omitted to take into account the political and religious nature of the charges against him and to analyse the specific circumstances of his case. They submitted, in response to the regional authority’s findings (see paragraph 42 above), that it was immaterial who had brought the complaint against the applicant. Nor was the situation of his brother of relevance, since no criminal case had been opened against him in Uzbekistan. Contrary to the migration authority’s findings, the applicant had not learned about the exact nature of the charges or the stage of the proceedings against him in Uzbekistan until his arrest. The fact of his border crossing in 2009 was of little relevance and did not undermine his statement that since 1999 he had not left Russia for a considerable period of time. The Moscow FMS in its decision had referred to the extradition proceedings but had omitted to note the crucial point, namely the fact that extradition had been refused in the meantime (see paragraph 15 above). Lastly, the defence reiterated that the practice of torture against detainees in Uzbekistan could be described as systemic and that there was no evidence of any improvement in recent years. The defence referred, in particular, to the concluding observations of the UN Human Rights Committee of 2010, as well as the Human Rights Watch reports of 2011 and 2013 (see paragraphs 67-68 below), the Amnesty International reports published in May and July 2013 (see paragraphs 71-72 below), and other material (see paragraphs 64 and 66 below). They maintained that the applicant, charged with membership of HT, ran a particularly serious risk of illtreatment and detention in his home country. 45. On 25 December 2013 the Russian FMS rejected the applicant’s appeal. The federal migration authority considered that the Moscow FMS had thoroughly analysed all the relevant circumstances and had taken a wellfounded and lawful decision that the applicant did not meet the refugee criteria. The Russian FMS further noted that it was not competent to conduct investigative activities within a criminal case or to doubt the wellfoundedness of the materials submitted by the Prosecutor’s Office of the Russian Federation about the criminal case brought by the Uzbek authorities. 46. By the same decision the Russian FMS instructed the Moscow FMS to examine the issue of granting the applicant temporary asylum in Russia, with regard to the indication made by the Court under Rule 39 of the Rules of Court (see paragraph 4 above). The parties have not informed the Court of any follow-up to that instruction. 47. On 26 February 2014 the defence challenged the decision of 25 December 2013 before the Basmannyy District Court of Moscow as unlawful and unfounded. They reiterated their earlier submissions regarding the risk of ill-treatment in the event of the applicant’s expulsion (see paragraphs 40 and 44 above) and referred, in addition to the international material cited in their earlier submissions, to the World Report released by Human Rights Watch in January 2014 (see paragraph 69 below). They argued that the federal migration authority had failed to address the foreseeable consequences of the applicant’s removal to Uzbekistan, and above all the risk of ill-treatment run by the applicant in the event of his removal. Instead of conducting such an analysis, the migration authority argued that they were not competent to conduct an investigation or review the extradition materials, even though that issue had been clearly outside the scope of the applicant’s request. That attitude, in the applicant’s view, rather demonstrated that the Russian FMS were relying on the presumption of his guilt in the criminal proceedings brought against him by the Uzbek authorities. 48. It appears that the appeal proceedings are pending to date. 49. After his arrest on the evening of 30 July 2013 (see paragraph 22 above) the applicant was placed in a cell at the Mozhaiskiy District police station of Moscow. 50. According to the applicant, the cell measured 4.5 sq. m and accommodated, during the applicant’s detention there, between four and fifteen detainees. It was separated from the main corridor by a barred grill. The applicant did not have an individual sleeping place, since the cell was equipped with only one metal bench instead of beds. There were no windows in the cell, so he had no access to natural light and air. The cell was not equipped with a lavatory or toilet facilities. No linen or mattresses were available. The applicant received food and water once a day. 51. According to the Government, the cell measured 5.46 sq. m. The applicant was provided with food and bed linen. 52. At 12.10 p.m. on 5 August (according to the Government) or on 6 August 2013 (according to the applicant) the applicant was transferred to the Moscow special detention centre for foreigners. The parties have not submitted documents in respect of the date of that transfer. 53. The applicant is detained in the Moscow special detention centre for foreigners to date. | 1 |
test | 001-172855 | ENG | GRC | COMMITTEE | 2,017 | CASE OF CELA AND OTHERS v. GREECE | 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) | Armen Harutyunyan;Ledi Bianku | 4. The applicants were detained in Korydallos Prison in Athens when they lodged their application with the Court. 5. The first applicant was detained in Korydallos Prison on 7 March 2013, and was still in detention at the time his observations to the Court were submitted. His detention in Korydallos Prison was temporarily interrupted when he was transferred to Ioannina Prison from 3 July 2013 until 11 July 2013, and to Komotini Prison from 2 December 2013 to 17 December 2013. The second applicant was detained in Korydallos Prison on 22 March 2013 and the third applicant on 21 August 2013; they were still in detention when they submitted their observations to the Court. The fourth applicant was detained in Korydallos prison from 26 June 2013 to 1 May 2014, except for the periods from 17 July 2013 to 3 September 2013, from 27 November 2013 to 10 December 2013, and from 6 February 2014 to 17 February 2014, during which time he was detained in Chania Prison. The fifth applicant was detained in Korydallos Prison from 22 May 2013 to 19 June 2014, except for the period between 20 March 2013 and 28 March 2013. The sixth applicant was detained in Korydallos Prison from 30 January 2013 to 15 August 2014. 6. The applicants alleged that the prison held 2,400 prisoners, while it had been designed to accommodate 700. The applicants were detained in wings A and D in various cells which all measured 9 sq. m, including the space for sanitary facilities, and accommodated three or four prisoners; the living space for each prisoner was therefore less than 3 sq. m. 7. The toilet facilities were partially separated from the rest of the cell. In addition, there was insufficient heating and hot water. Inmates had to use a washbasin to wash themselves, as well as their dishes and clothes. Cells were dirty and overrun with cockroaches and other pests, and no attempt was made to exterminate them. Rubbish was not properly collected and food remains were left in the cells and corridors for days. Prisoners were not sufficiently separated according to their health conditions or whether or not they were drug users. There was no adequate medical care, in particular as regards psychological health. 8. The inmates were confined to their cells for sixteen hours per day, as recreational or educational activities were not provided. They had to take their meals, which were poor in terms of quality and nutritional value, inside their cells. 9. Moreover, the prison was understaffed and unable to secure the prisoners’ safety. 10. The Government asserted that the first to fifth applicants had been detained in various cells in wings A and D. All cells measured 9.60 sq. m. and accommodated three or, on rare occasions, four detainees. The first applicant had also been detained in two cells in wing E: one which measured 10.44 sq. m., and another which measured 42.78 sq. m. and accommodated ten to twenty-two detainees, although it had only accommodated twenty-two detainees for a short period of time. 11. All cells had a window ensuring sufficient light. Every cell was furnished with a washbasin, a toilet, beds, a table, chairs and, usually, wooden shelves. Wings A, B, C and D had twelve communal showers each, and wing E had nine communal showers. Each wing could provide 2,000 litres of hot water every day. Detainees were provided with sheets and blankets, except for when they chose to use their own. 12. The prison had a central heating system, and inmates were provided with fans during the summer. Cells were regularly disinfected and cleaned twice a day by cleaning crews consisting of detainees. All wings had rubbish bins. 13. All detainees had access to the prison’s infirmary, which was open twenty-four hours per day, and there were eighteen doctors with different areas of specialism and three nurses who offered appointments to the prisoners. When inmates’ conditions could not be dealt with in the infirmary, they were transferred to Korydallos Prison Hospital, Korydallos Psychiatric Hospital or an external hospital. The Government submitted the applicants’ medical records, to demonstrate that they had been treated on various occasions. Additionally, the prison’s social services took care of detainees’ needs, including those of the applicants, who had used those services on a number of occasions. 14. As regards prisoners’ meals, the Government submitted the menu for ten days selected at random to demonstrate that meals were varied. 15. Prisoners were able to spend four to five hours in the prison yard every day, practising sport. They were allowed to have a television in the cells, and the prison had a lending library and a book club. In addition, detainees had the opportunity to take one of the available jobs or attend “second chance” school. 16. The Government did not submit observations concerning the sixth applicant (see below, paragraphs 24-26). | 1 |
test | 001-181866 | ENG | TUR | CHAMBER | 2,018 | CASE OF ŞAHİN ALPAY v. TURKEY | 1 | Preliminary objection joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law;Article 5-1-c - Reasonable suspicion);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano | 11. The applicant was born in 1944. He is currently detained in Istanbul. 12. The applicant is a journalist who had been working since 2002 for the daily newspaper Zaman, which was viewed as the principal publication medium of the “Gülenist” network and was closed down following the adoption of Legislative Decree no. 668, issued on 27 July 2016 in connection with the state of emergency (see paragraphs 14-18 below). From 2001 onwards, he also lectured on comparative politics and Turkish political history at a private university in Istanbul. 13. In the years leading up to the attempted military coup of 15 July 2016 the applicant had been known for his critical views on the serving government’s policies. 14. During the night of 15 to 16 July 2016 a group of members of the Turkish armed forces calling themselves the “Peace at Home Council” attempted to carry out a military coup aimed at overthrowing the democratically elected parliament, government and President of Turkey. 15. During the attempted coup, soldiers under the instigators’ control bombarded several strategic State buildings, including the parliament building and the presidential compound, attacked the hotel where the President was staying, held the Chief of General Staff hostage, attacked television channels and fired shots at demonstrators. During the night of violence, more than 300 people were killed and more than 2,500 were injured. 16. The day after the attempted military coup, the national authorities blamed the network linked to Fetullah Gülen, a Turkish citizen living in Pennsylvania (United States of America) and considered to be the leader of a terrorist organisation known as FETÖ/PDY (“Gülenist Terror Organisation/Parallel State Structure”). Several criminal investigations were subsequently initiated by the appropriate prosecuting authorities in relation to suspected members of that organisation. 17. On 20 July 2016 the government declared a state of emergency for a period of three months as from 21 July 2016; the state of emergency was subsequently extended for further periods of three months by the Council of Ministers, chaired by the President, most recently with effect from 19 January 2018. 18. On 21 July 2016 the Turkish authorities gave notice to the Secretary General of the Council of Europe of a derogation from the Convention under Article 15. 19. On 27 July 2016, in the course of one of the criminal investigations initiated in respect of suspected members of FETÖ/PDY, the applicant was arrested at his home in Istanbul and taken into police custody. 20. On 30 July 2016 the applicant, assisted by his lawyer, was questioned at the Istanbul Security Directorate. During the questioning the applicant denied that he belonged to an illegal organisation. Later that day, the Istanbul public prosecutor sought a judicial order for the applicant’s pre-trial detention on suspicion of belonging to an illegal organisation. 21. On the same day, several editors and columnists of the daily newspaper Zaman, including the applicant, were brought before the Istanbul 4th Magistrate’s Court. The magistrate questioned the applicant about his alleged acts and the accusations against him. The applicant stated that he had joined Zaman in order to be able to express his opinions; that he was in favour of a democratic system corresponding to European standards; that he was a secular person; that he had not been aware of the threat posed by Fetullah Gülen’s movement until after the attempted military coup of 15 July 2016; and that he was opposed to any attack on democracy. 22. At the end of the hearing, the magistrate, taking into account the contents of the articles written by the applicant – and finding that they had promoted the terrorist organisation in question, even after 17 December 2013 – ordered his pre-trial detention. He noted in that connection that although criminal proceedings had been instituted against E.D. (the editor-in-chief of Zaman) before the attempted military coup, the applicant had continued to work for the newspaper and within the organisation’s media structure. In the reasons given for ordering the applicant’s pre-trial detention, the magistrate took the following factors into consideration: the strong suspicions against him; the nature of the alleged offence and the fact that it was among the offences listed in Article 100 § 3 of the Code of Criminal Procedure (“the CCP”) – the so-called “catalogue offences”, for which a suspect’s pre-trial detention was deemed justified in the event of strong suspicion; the risk of absconding; the state of the evidence and the risk of its deterioration; and the risk that alternative measures to detention might be insufficient to ensure the applicant’s participation in the criminal proceedings. 23. On 5 August 2016 the applicant lodged an objection against the order for his pre-trial detention. He argued that there was no justification for detaining him. He also contended that his state of health was incompatible with the conditions in the prison where he was being held. In a decision of 8 August 2016 the Istanbul 5th Magistrate’s Court dismissed the applicant’s objection. 24. On 17 October 2016 the applicant lodged a fresh application for his release. In a decision of 19 October 2016 the Istanbul 10th Magistrate’s Court rejected the application. In his decision, the magistrate stated in particular that it was an established fact that in order to prepare the ground for a military coup, the instigators needed to create the perception that the leaders of the country concerned were dictators. In his view, the applicant’s articles accusing the President of Turkey of being a dictator and calling for him to leave office had contributed to propaganda of that kind. 25. On 10 April 2017 the Istanbul public prosecutor filed a bill of indictment with the Istanbul Assize Court in respect of several individuals, including the applicant, who were suspected of being part of the FETÖ/PDY media network, in particular accusing them, under Articles 309, 311 and 312 in conjunction with Article 220 § 6 of the Criminal Code (“the CC”), of attempting to overthrow the constitutional order, the Turkish Grand National Assembly and the government by force and violence, and of committing offences on behalf of a terrorist organisation without being members of it. The public prosecutor sought the imposition of three aggravated life sentences and a sentence of up to fifteen years’ imprisonment on the suspects, including the applicant. As evidence, he produced six articles written by the applicant in 2013 and 2014. 26. The public prosecutor submitted that the articles by the applicants and other individuals being charged in the same criminal proceedings against leading members of FETÖ/PDY’s media wing could not be regarded as an expression of the authors’ opposition to or criticism of the government. In the applicant’s case, the public prosecutor contended that the expressions he had used had gone beyond the limits of freedom of the press in that they had undermined the rights of the official authorities and endangered social peace and public order. The public prosecutor found that the applicant had not hesitated to call for a possible military coup in his articles and, in short, had discharged functions serving the interests of the terrorist organisation in question. 27. During the criminal proceedings, the applicant denied having committed any criminal offence. 28. The criminal proceedings are currently pending before the Istanbul 13th Assize Court. 29. On 8 September 2016 the applicant lodged an individual application with the Constitutional Court. He complained that he had been placed in pre-trial detention on account of his articles and alleged that this infringed his right to liberty and security and his right to freedom of expression and of the press. He also contended that his state of health was incompatible with the conditions of his continued detention since he was suffering from benign prostate hyperplasia, hyperlipidaemia, hyperuricemia, a multinodular goitre and sleep apnoea. On that account he asked the Constitutional Court to indicate an interim alternative measure to detention, thus allowing him to be released pending trial. 30. In a decision of 26 October 2016 the Constitutional Court refused to apply an interim measure of that kind. In reaching that decision, it noted firstly that the applicant’s health had been regularly monitored from the start of his pre-trial detention, and that there was a State hospital inside the prison where he was being held. In that connection, it noted that on 4 October 2016, following a request he had made to that effect the previous day, the applicant had been examined in prison by a general practitioner and had then been transferred to the urology department of the State hospital, where he had undergone a medical examination on 20 October 2016, and that his next appointment had been scheduled for 22 March 2017. In those circumstances, the Constitutional Court found that keeping the applicant in pre-trial detention did not currently constitute a danger to his life or health. It added that should there be a change in his health or the conditions of his detention, he would be entitled to make a further application for an interim measure to secure his release. 31. On 11 January 2018 the Constitutional Court gave a judgment (no. 2016/16092) in which it held, by eleven votes to six, that there had been a violation of the right to liberty and security and the right to freedom of expression and of the press. 32. With regard to the applicant’s complaint concerning the lawfulness of his pre-trial detention, the Constitutional Court noted firstly that the evidence forming the basis for his detention had included: (i) an article entitled “As if it were a religious war” (“Din Savaşıymış”), published on 21 December 2013; (ii) an article entitled “The President must not remain a spectator” (“Cumhurbaşkanı Seyirci Kalamaz”), published on 24 December 2013; (iii) an article entitled “Between Erdogan and the West” (“Erdoğan ile Batı Arasında”), published on 28 December 2013; (iv) an article entitled “Yes, both the crime and the punishment are individual” (“Evet Suç da Ceza da Şahsidir”), published on 8 February 2014; (v) an article entitled “This nation is not empty-headed” (“Bu Millet Bidon Kafalı Değildir”), published on 1 March 2014; and (vi) an article entitled “The solution is a government without Erdoğan” (“Çıkar Yol Erdoğan’sız Hükûmet”), published on 29 March 2014. After examining the substance of these articles, the Constitutional Court found that they mainly dealt with matters relating to the “17-25 December [2013]” criminal investigations. In them the applicant had set out his opinion that the government members implicated in the criminal investigation in question should be brought to justice and that it was the responsibility of the President and the ruling party’s leaders to take action to that end. He had contended that the government’s reaction to the investigation had been unjust. The Constitutional Court also observed that the applicant had written that if the investigation in question had been carried out on the orders of suspected members of FETÖ/PDY, they too should be the subject of a criminal investigation. However, he had maintained that it was unfair to accuse all members of the Gülenist movement. The Constitutional Court further noted that in the articles in question, the applicant had not argued that the government should be overthrown by force. On the contrary, he had asserted that the ruling party would lose in the next elections. The Constitutional Court also found that the article published one day before the attempted military coup suggested that the applicant was opposed to coups d’état. It held that he had been expressing opinions on a topical issue that were similar to those of the opposition leaders. In the Constitutional Court’s view, the investigating authorities had been unable to demonstrate any factual basis that might indicate that the applicant had been acting in accordance with the aims of FETÖ/PDY. It added that the fact that he had expressed his views in Zaman could not in itself be deemed sufficient to infer that the applicant was aware of that organisation’s goals. Accordingly, it concluded that “strong evidence that an offence had been committed” had not been sufficiently established in the applicant’s case. Next, the Constitutional Court examined whether there had been a violation of the right to liberty and security in the light of Article 15 of the Constitution (providing for the suspension of the exercise of fundamental rights and freedoms in the event of war, general mobilisation, a state of siege or a state of emergency). On this point, it noted firstly that in a state of emergency, the Constitution provided for the possibility of taking measures derogating from the guarantees set forth in Article 19, to the extent required by the situation. It observed, however, that if it were accepted that people could be placed in pre-trial detention without any strong evidence that they had committed an offence, the guarantees of the right to liberty and security would be meaningless. Accordingly, it held that the applicant’s pre-trial detention was disproportionate to the strict exigencies of the situation and that his right to liberty and security, as safeguarded by Article 19 § 3 of the Constitution, had been breached. 33. Next, with regard to the complaint concerning freedom of expression and of the press, the Constitutional Court observed that the applicant’s initial and continued pre-trial detention on account of his articles amounted to interference with the exercise of that right. Taking into account his arguments regarding the lawfulness of his pre-trial detention, the Constitutional Court held that such a measure, which had serious consequences since it resulted in deprivation of liberty, could not be regarded as a necessary and proportionate interference in a democratic society. It further noted that it could not be clearly established from the reasons given for ordering and extending the applicant’s pre-trial detention whether the measure met a pressing social need or why it was necessary. Lastly, it found that it was clear that the applicant’s pre-trial detention could have a chilling effect on freedom of expression and of the press, in so far as it had not been based on any concrete evidence other than his articles (see paragraph 140 of the Constitutional Court’s judgment). Regarding the application of Article 15 of the Constitution, it referred to its findings concerning the lawfulness of his pre-trial detention (as set out in paragraphs 108-10 of the Constitutional Court’s judgment – see paragraph 32 above) and held that there had also been a violation of freedom of expression and freedom of the press as enshrined in Articles 26 and 28 of the Constitution. 34. With regard to the applicant’s complaint that the conditions of his detention were incompatible with respect for human dignity, the Constitutional Court noted that he had access to the treatment required for his condition within the prison where he was being held, and declared this complaint inadmissible as being manifestly ill-founded. 35. The applicant did not submit a claim for compensation in respect of non-pecuniary damage. Accordingly, the Constitutional Court made no award under that head. The applicant claimed an unspecified sum in respect of the pecuniary damage he had allegedly sustained. The Constitutional Court found no causal link between the violation established and the damage alleged on that account and dismissed the claim. However, it held that the applicant was to be awarded 2,219.50 Turkish liras (TRY – approximately 500 euros (EUR)) in respect of costs and expenses. 36. As the applicant was still in pre-trial detention on the date of delivery of its judgment, the Constitutional Court decided to transmit the judgment to the Istanbul 13th Assize Court so that it could take “the necessary action”. 37. On 11 January 2018 the applicant’s lawyer applied to the Istanbul 13th Assize Court for his client’s release. 38. On the same day, the Istanbul 13th Assize Court rejected the application, on the grounds that it had not yet received official notification of the Constitutional Court’s judgment. 39. On 12 January 2018 the Istanbul 13th Assize Court, having observed that the Constitutional Court’s judgment had been published on its website, examined of its own motion the question of the applicant’s pre-trial detention. Noting firstly that the examination of the merits of an individual application to the Constitutional Court against a judicial decision entailed determining whether there had been a violation of fundamental rights and what measures would be appropriate to put an end to the violation, and secondly that grounds of appeal on points of law could not be examined by the Constitutional Court in the context of an individual application, it found that the Constitutional Court did not have jurisdiction to assess the evidence in the case file. On that account, the Constitutional Court’s judgment no. 2016/16092 was not in compliance with the law and amounted to usurpation of power (görev gasbı). Regarding the effects of the Constitutional Court’s judgments, the Assize Court added that only judgments that were in accordance with the Constitution and the law should be deemed to be final and binding. It noted, moreover, that more extensive reasoning could be given to justify keeping the applicant in pre-trial detention and that the file contained sufficient evidence against him in that regard. However, this would create the risk of prejudging the case (ihsas-ı rey), seeing that a detailed explanation of the reasons justifying continued detention could be seen as an expression of the judges’ opinions before they had determined the merits of the case. Accordingly, the Assize Court held that it was impossible to accept the Constitutional Court’s judgment. Lastly, reiterating that the judgment in question amounted to usurpation of power, it held, by two votes to one, that there was no need for it to give a decision on the applicant’s pre-trial detention. 40. The judge in the minority observed in his dissenting opinion that he agreed with the majority’s conclusion that the Constitutional Court’s judgment was not in compliance with the law. However, noting that the Constitutional Court’s judgments were final and binding on the Assize Court, he expressed the view that the applicant’s release should be ordered. 41. On 12 January 2018 the applicant lodged an objection with a view to securing his release. 42. In a decision of 15 January 2018 the Istanbul 14th Assize Court unanimously dismissed the applicant’s objection, essentially on the same grounds as the 13th Assize Court had done. 43. On 1 February 2018 the applicant lodged a further individual application with the Constitutional Court. Relying on Articles 5, 6 and 18 of the Convention, he complained mainly that he had been kept in pre-trial detention despite the Constitutional Court’s judgment of 11 January 2018. | 1 |
test | 001-169201 | ENG | TUR | CHAMBER | 2,016 | CASE OF BELGE v. TURKEY | 4 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1982 and lives in Şırnak. 6. On 3 September 2005 a demonstration was held in the Gemlik district of the city of Bursa by the Association for the Solidarity of Prisoners’ and Convicts’ Relatives (Tutuklu ve Hükümlü Yakınları Yardımlaşma ve Dayanışma Derneği – “Tuhay-Der”) in order to protest about the conditions of detention in prisons, and in particular those of Abdullah Öcalan, the leader of the PKK (the Workers’ Party of Kurdistan), an illegal armed organisation. 7. On 5 September 2005 a group who had attended the demonstration in Gemlik returned to Cizre, a district of Şırnak, and a gathering was held in front of the building of the Cizre branch of the People’s Democratic Party (Demokratik Halk Partisi – “DEHAP”). The applicant, as president of the Şırnak branch of the DEHAP, made a speech during that gathering. 8. On 6 October 2005 the Cizre public prosecutor filed a bill of indictment with the Cizre Criminal Court against the applicant and four others. The applicant was charged with disseminating propaganda in favour of a criminal organisation and its goals, proscribed by Article 220 § 8 of the Criminal Code, on account of his speech on 5 September 2005. The public prosecutor submitted that the following passages in the speech constituted propaganda in favour of an illegal organisation: “... We want peace in this country. Those who wish for war prevent us from having peace. As you know, Mr Abdullah Öcalan, the leader of the Kurdish people, called for a ceasefire six years ago. The Government have failed to take a proper view of that six-year unilateral ceasefire and therefore the war has re-started. We have once again started to receive the bodies of guerrillas and soldiers. We want an end to the crying of the mothers of guerrillas and soldiers. We want peace. Mr Abdullah Öcalan has not been able to meet his lawyers or members of his family for the last three months. We believe that that sanction is harmful to the peace process.” 9. On 7 October 2005 the Cizre Criminal Court accepted the bill of indictment. 10. On 24 July 2006 upon the request of the Cizre Criminal Court, the Şırnak Criminal Court obtained the applicant’s defence statements. The applicant contended that he had not praised an illegal organisation in his speech and that he had not intended to disseminate propaganda. He noted that he had only thanked those who had made an effort to bring about peace. The applicant finally stated that the slogans chanted by the crowd during his speech had promoted peace. 11. The Cizre Criminal Court held nine hearings on the merits of the case and obtained a report by an expert on the video-recordings of the gathering of 5 September 2005, which stated that the applicant had made a speech to a crowd. Subsequently, on 22 December 2006, the Cizre Criminal Court issued a decision that it lacked jurisdiction as it considered that the acts of the accused should be examined under the Prevention of Terrorism Act (Law no. 3713). The case was transferred to the Diyarbakır Assize Court. 12. On 7 April 2007 the Diyarbakır Assize Court ordered an expert to examine the video-recordings of the gathering of 5 September 2005. 13. On 8 May 2007 the applicant made a statement to the Diyarbakır Assize Court. He contended that he had not disseminated propaganda during his speech but had only thanked those who had worked for peace and had also condemned Abdullah Öcalan’s solitary confinement. The applicant denied the allegation that he had referred to Abdullah Öcalan as the leader of the Kurdish people. He further noted that there had been no violent incidents during or after his speech. Following his speech the demonstrators had dispersed quietly and the slogans that had been chanted while he spoke had been peaceful. 14. According to the report, dated 21 May 2007, on the examination of the police video-recordings of the gathering of 5 September 2005 submitted by the expert to the first-instance court, the applicant had made the following speech: “... Friends, I would like to say a few words about how grateful we are to you. First of all, as you already know, we left Şırnak to go to the peace meeting, Gemlik meeting which was organised by Tuhay-Der. As a result of the arbitrary security measures taken by the security forces and the fact that we were forced to wait two and a half hours at each checkpoint for identity checks, we were not able to travel as fast as we wanted. For us, those who conducted themselves in such a manner are the people who do not want peace in this country (his speech is interrupted by applause and ululations). Subsequently, we were taken into police custody because of our democratic reaction to the search order. We were kept in police custody for one night and then taken before a court. The court released us. However, it took a decision to place me under judicial control. I have to go to give my signature every Monday and I am banned from travelling abroad (His speech is interrupted by boos and the slogan ‘Barışa uzanan eller kırılsın’ (‘May those hands which aim to damage peace be broken’). We condemn with contempt the mentality which obstructed the meeting in Gemlik; we condemn with contempt the fact that Mr Abdullah Gül, the Minister of Foreign Affairs, called us ‘provocateurs’ as well as the mentality which prevented the peace meeting from taking place and which blocked and attacked the crowds. Two vehicles were burned. A person lost his life and hundreds were injured. We condemn with contempt the mentality which is against your and the Kurdish people’s sensibility, your wish for peace and the meeting on peace. We want peace in this country. We want harmony. Those who are against unity and solidarity in this country and those who do not want this country to reach modernity, that is to say, who obtain an unjustified gain out of this war, prevent us from having peace ... As you know, Mr Abdullah Öcalan, the leader of the Kurdish people (His speech is interrupted by the slogan ‘Biji Serok Apo’ (‘Long live President Öcalan’) called for a ceasefire six years ago. The Government have failed to take a proper view of that six-year unilateral ceasefire and therefore the war has re-started. We have once again started to receive the bodies of guerrillas and soldiers. We want an end to the crying of the mothers of guerrillas and soldiers in this country. We want peace in this country. We will continue our struggle for peace. The demonstration organised by Tuhay-Der will contribute to peace because a one-month ceasefire has been declared. Mr Abdullah Öcalan has not been able to meet his lawyers or members of his family for the last three and a half months. We believe that that sanction is harmful to the peace process. That is why we participated in the peace march that was organised by Tuhay-Der. We thank those who attended that demonstration for their wish for peace and for their determination, despite injustice and obstructions. We hope that our friends who were injured will recover soon. We condemn with contempt those who obstructed the peace march. We want peace and we will continue to struggle for peace. I thank you all. You can disperse now in silence ...” 15. According to the report, the demonstrators waved yellow, red and green pieces of cloth and carried photographs of Abdullah Öcalan. Some of the applicant’s co-accused were seen chanting slogans or carrying photographs of Abdullah Öcalan. In particular, one of them chanted the slogans “Biji Serok Apo” (“Long live President Öcalan”) and “Dişe diş kana kan, seninleyiz Öcalan” (“A tooth for a tooth, blood for blood, we are with you Öcalan”) for periods of thirty-seven and ten seconds respectively. Another accused was seen chanting the slogans “Dısa dısa serhildan serokeme Öcalan” (“Rise up again and again, our president is Öcalan”), “Baskılar bizi yıldıramaz” (“We will not be defeated by oppression”), “PKK halktır. Halk burada.” (“The PKK is the people. The people are here.”), “Şırnak ovası PKK’nin yuvası” (“Şırnak is the home of the PKK”) for periods of between six and fifteen seconds while waving a photograph of Abdullah Öcalan. Some other demonstrators also chanted the slogan “Savaşta barışta seninleyiz Öcalan” (“In war and in peace we are with you Öcalan”). 16. On 19 February 2008 the Diyarbakır Assize Court delivered its judgment. The court noted that those who disseminated propaganda in favour of the PKK were expressing their support and approval for the PKK, whose methods were those of terrorism and violence. The court accordingly considered that the dissemination of propaganda in favour of that organisation essentially amounted to incitement to violence and the use of terrorist methods. The first-instance court further noted that it was a well-known fact that during illegal demonstrations and meetings PKK members and supporters disseminated propaganda by way of waving photographs of the leader of the PKK and yellow, red and green pieces of cloth, symbolising the so-called flag of the PKK. The court thus concluded that on 5 September 2005 the accused had disseminated propaganda by acting in support of the PKK’s aims and by their acts in front of the building of the Cizre branch of the DEHAP. 17. As regards the applicant, the Diyarbakır Assize Court also noted that he had referred to Mr Öcalan as “the leader of the Kurdish people” and to members of the PKK who had been killed as “guerrillas”. The court also found it established that the applicant had directed the demonstrators who had chanted slogans in favour of the PKK, waved yellow, red and green pieces of cloth and carried photographs of Abdullah Öcalan. The Diyarbakır Assize Court further noted that section 7(2), as amended by Law no. 5532, which had entered into force on 18 July 2006, was more favourable to the applicant than the previous version of the same provision in force on the date the applicant had committed the acts that constituted the basis for his conviction (see paragraph 19 below). As a result, the first-instance court convicted the applicant of disseminating propaganda in favour of a terrorist organisation under section 7(2) of Law no. 3713, as amended by Law no. 5532, and sentenced him to ten months’ imprisonment. The court also ordered that Article 53 §§ 1, 2 and 3 of the Criminal Code should apply in respect of the applicant (see paragraph 20 below). 18. On 13 July 2010 the Court of Cassation upheld the Diyarbakır Assize Court’s judgment. | 1 |
test | 001-174459 | ENG | NLD | ADMISSIBILITY | 2,017 | M.M. AND OTHERS v. THE NETHERLANDS | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 1. A list of the applicants is set out in the appendix. The President decided that the applicants’ identities were not to be disclosed to the public (Rule 47 § 4 of the Rules of Court). The Government of the Netherlands were represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties and in so far as relevant, may be summarised as follows. 3. The applicant is an Afghan national who was born in 1950. He has been residing in the Netherlands since 1997. He was represented before the Court by Mr P. Schüller, a lawyer practising in Amsterdam. 4. On 24 June 1997 the applicant 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”). On the same day the immigration authorities held a first interview (eerste gehoor) with the applicant about his identity, nationality and travel itinerary. A written record of this interview report was drawn up and the applicant was given an opportunity to submit corrections and additions. 5. On 21 August 1997 the immigration authorities held a further interview (nader gehoor) with the applicant about his reasons for seeking asylum. A written record of this interview was drawn up and on 8 September 1997 a lawyer submitted corrections and additions on the applicant’s behalf. 6. In his asylum statement, the applicant stated that he was from Kabul. After he had graduated from the Kabul military academy in 1974, he had worked as teacher at a Kabul aviation academy until 1985 when he had been transferred – he then held the rank of major after periodic promotions – to the Afghan security service, the KhAD/WAD, where he had worked until 1992 as chief financial officer of the logistics directorate. His last held rank had been that of colonel. He further stated that he had been a member of the communist People’s Democratic Party of Afghanistan (the PDPA) since 26 May 1987. 7. After having lived in hiding from 16 August 1992 to 5 January 1995, he had been arrested by Jamiat-e Islami militia forces operating in Burhanuddin Rabbani. He had been held captive until 27 September 1996 when he had been able to escape after the mujahideen had fled from the approaching Taliban. After first having hidden in the home of a friend, he had left Afghanistan for Pakistan. At the end of September or the beginning of October 1996, he had heard from a maternal aunt that the Taliban had been searching for him. Having not found him at home, the Taliban had taken captive his brother, who had been executed by the Taliban five days before the applicant’s flight to Pakistan. After having stayed for several months in Pakistan, he had travelled by air – via Moscow – to the Netherlands. His wife and their six children, the latter born between 1982 and 1992, had remained in Afghanistan and were living with his wife’s parents. 8. By a decision of 31 October 1997, the applicant was granted asylum in the Netherlands. Having been granted a provisional residence visa (machtiging tot voorlopig verblijf) for the Netherlands, his wife and six children joined him about a year later and they were all granted an asylumderived residence permit (see paragraph 91 below). 9. On 3 December 2002 a special 1F unit of the Immigration and Naturalisation Service (see A.A.Q. v. the Netherlands ((dec.), no. 42331/05, § 47, 30 June 2015) asked to be provided with the applicant’s case file in view of a possible application of Article 1F of the 1951 Refugee Convention. The applicant was informed accordingly on 9 December 2002 and on 17 February 2003 a supplementary interview (aanvullend gehoor) was held with him. 10. On 28 October 2003 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie) notified the applicant of her intention (voornemen) to revoke his asylum-based residence permit under Article 1F of the 1951 Refugee Convention. Noting that the applicant had worked between 1985 and 1992 as an officer of the KhAD/WAD, his asylum statement had been considered in the light of an official report (ambtsbericht) drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs (Ministerie van Buitenlandse Zaken) on “Security Services in Communist Afghanistan (1978-92), AGSA, KAM, KhAD and WAD” (Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD). On the basis of this report, the Netherlands immigration authorities had adopted the position that Article 1F of the 1951 Refugee Convention could be applied in respect of virtually every Afghan asylum-seeker who had worked during the communist regime for the KhAD or its successor the WAD and held the rank of third lieutenant or higher. 11. The Minister then proceeded to an elaborate analysis of the applicant’s individual responsibility under Article 1F of the 1951 Refugee Convention, based on the prescribed and so-called “knowing and personal participation” test. Noting, inter alia, the applicant’s steady career path in the KhAD/WAD, the Minister excluded the possibility of the applicant not having known or not having been involved in human-rights violations committed by the KhAD/WAD. Relying on the official report of 29 February 2000, the Minister underlined the widely known cruel practices of the KhAD/WAD, its lawless methods, the grave crimes it had committed such as torture and other human-rights violations as well as the climate of terror which it had spread throughout the whole of Afghan society. The Minister lastly emphasised that the applicant had done nothing to shirk from his duties for the KhAD/WAD. 12. On 8 December 2003 and 5 March 2004, the applicant submitted written comments (zienswijze) on the Minister’s intended decision and, on 20 February 2004, he was once more heard before an official board of enquiry (ambtelijke commissie). 13. On 28 April 2004, the Minister revoked the applicant’s residence permit. The notice of intent of 28 October 2003 was added to the decision and formed part of it. The Minister did not deviate, in the relevant part, from her earlier conclusions in the notice of intent and went on to confirm them on all points, dismissing the applicant’s rebuttals. However, as regards Article 3 of the Convention, the Minister accepted that it was possible that the applicant would in the then circumstances run a real risk of being subjected to treatment prohibited by this provision if expelled to Afghanistan and that, for this reason, he would not be expelled for the time being. The Minister added that, should the situation in Afghanistan change, a fresh decision on the applicant’s removal would be taken and that that decision could be appealed against. 14. The applicant lodged an appeal to the Regional Court (rechtbank) of The Hague. In its judgment of 20 April 2005, the Regional Court allowed the appeal and annulled the impugned decision. Noting that the Minister had acknowledged that in Afghanistan the applicant would be exposed to a risk of treatment proscribed by Article 3 of the Convention, it held the Minister should also have examined whether Article 3 of the Convention constituted a sustained obstacle to his expulsion to Afghanistan. Consequently, as the Minister’s examination had been incomplete, it returned the case to the Minister for a fresh decision. 15. On 7 June 2005 a supplementary further interview (aanvullend nader gehoor) was held with the applicant on the subject of his fear of being subjected to treatment prohibited under Article 3 if returned to Afghanistan. A written record of this interview was drawn up and on 23 June 2005 the applicant’s lawyer submitted written corrections and additions on the applicant’s behalf. 16. On 7 July 2006 the Minister notified the applicant of her renewed intention to revoke his asylum-based residence permit under Article 1F of the 1951 Refugee Convention. She further notified him of her intention to also impose an exclusion order (ongewenstverklaring) on him. The applicant submitted written comments on this intended decision on 17 August, 9 October and 7 November 2006. On 13 December 2006 the applicant was heard before an official board of enquiry. 17. By a decision of 22 February 2007, the Minister of Justice (Minister van Justitie) revoked anew the applicant’s asylum-based residence permit, under Article 1F of the 1951 Refugee Convention. In addition, the Minister imposed an exclusion order. As regards Article 3 of the Convention, the Minister held that it could not be concluded from the applicant’s account – viewed against the background of the then political and social situation in Afghanistan – that there existed a real and foreseeable risk that the applicant, if returned to Afghanistan, would be subjected to treatment in breach of Article 3 of the Convention. As he had only been able to state the possible problems he feared he would experience in Afghanistan in general terms without any specific evidence, the Minister concluded that the applicant had not demonstrated the alleged Article 3 risk which was found to be based on assumptions by the applicant and not on anything concrete. 18. On 26 February 2007 the applicant lodged an objection (bezwaar) with the Minister to the decision to impose an exclusion order, and on the same day applied to the Regional Court of The Hague to have issued a provisional measure (voorlopige voorziening) allowing the applicant to remain in the Netherlands pending the determination of his objection. In addition, also on 26 February 2007, the applicant lodged an appeal and an accompanying application for a provisional measure with the Regional Court of The Hague against the decision to revoke his asylumbased residence permit under Article 1F. 19. On 30 October 2007 the Regional Court of The Hague, sitting in ’sHertogenbosch, declared inadmissible the applicant’s appeal against the revocation of his residence permit. It held that, as long as an exclusion order was imposed on him, the applicant had no legal interest in a determination of the merits of his appeal. It took into account that, in the proceedings on the imposed exclusion order, the applicant’s arguments based on Articles 3 and 8 of the Convention could be entertained. Although possible, the applicant did not lodge a further appeal with the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). 20. Also on 30 October 2007 a provisional-measures judge (voorzieningenrechter) of the Regional Court of The Hague, sitting in ‘sHertogenbosch, rejected the applicant’s application for a provisional measure which had accompanied his appeal and, in a separate decision, his application for a provisional measure which had accompanied his objection. In the latter decision, the judge noted that the applicant had admitted that he had worked as an officer of the KhAD/WAD and held that the Minister had correctly applied Article 1F in the applicant’s case. As regards Article 3, the judge found that the applicant had not established that he would be exposed to a real risk of being subjected to treatment proscribed by this provision, either on account of the general situation in Afghanistan or his individual circumstances. 21. On 27 November 2007 the applicant’s objection of 26 February 2007 was rejected by the Deputy Minister of Justice (Staatssecretaris van Justitie). On 30 November 2007 the applicant lodged an appeal with the Regional Court of The Hague. He submitted his written grounds of appeal on 7 December 2007 and additional grounds of appeal on 4 January 2008. 22. By a judgment of 9 September 2008, following a hearing held on 14 April 2008, the Regional Court of The Hague, sitting in Dordrecht, dismissed the applicant’s appeal against the decision of 27 November 2007. In so far as the applicant had relied on Article 3, it decided – as the arguments based on this provision had not been raised in the applicant’s written grounds of appeal itself but only for the first time during the hearing of 14 April 2008 – not to take them into account. 23. The applicant’s further appeal to the Administrative Jurisdiction Division was declared inadmissible on 19 November 2008 as, despite having been provided with an opportunity to repair this failure, the applicant had failed to pay the statutorily prescribed court fees (griffierecht) within the time-limit fixed for this purpose. 24. On 9 December 2008 the applicant was placed in immigration detention, which he unsuccessfully challenged. On 3 March 2009 he was informed that his removal to Afghanistan had been scheduled for 30 March 2009. On 2 March 2009, after having been informed that arrangements for an escorted removal were being made, the applicant lodged an objection to an action aimed at his effective removal (daadwerkelijke uitzettingshandeling). Under the terms of section 72(3) of the Aliens Act 2000 (Vreemdelingenwet 2000), such an action can be equated with a formal decision within the meaning of the General Administrative Law Act which can be challenged in administrative-law appeal proceedings. The applicant further lodged an application with the Regional Court of The Hague for a provisional measure (stay of removal pending the determination of his objection). 25. On 24 March 2009 a provisional-measures judge of the Regional Court of The Hague, sitting in Amsterdam, rejected the application. The judge found, in so far as the applicant had invoked Article 3 of the Convention, that it had not been demonstrated that he would risk treatment contrary to this provision in Afghanistan. 26. On 26 March 2009 the President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Afghanistan for the duration of the proceedings before the Court. 27. The applicant’s objection of 2 March 2009 was declared inadmissible. An appeal by the applicant against that decision was rejected by the Regional Court of The Hague on 20 December 2010. It declared the appeal unfounded as the applicant did not risk removal to Afghanistan for as long as the Rule 39 interim measure was in force. No information has been submitted as to whether the applicant has lodged a further appeal with the Administrative Jurisdiction Division. 28. The applicant is an Afghan national who was born in 1955. He has been residing in the Netherlands since 1997. He was represented before the Court by Ms M. de Boer, a lawyer practising in Lelystad. 29. On 22 November 1997 the applicant, his spouse and their five children (born between 1984 and 1996) applied for asylum in the Netherlands, claiming to fear persecution within the meaning of the 1951 Refugee Convention. In his interviews with the Netherlands immigration authorities, the applicant stated that he had been a member of the PDPA from 1980 to 1992 and that he had worked for the KhAD/WAD from 1981 to 26 April 1992; one day after Mr Yaqubi – who had headed the KhAD/WAD – had been killed. The applicant had simply not returned to work, where he had held the rank of lieutenant-colonel. In July 1992, while searching for the applicant, who had been living there at the time and who had been absent at that moment, mujahideen forces had searched the house of his aunt. He had then left Kabul and gone into hiding in a village near Jalalabad. He had learned on 12 October 1997 that his brother had been arrested by the Taliban in Jalalabad. The Taliban had arrived in Jalalabad on 24-25 September 1996. They had searched for the applicant but had taken his brother prisoner instead; thus the applicant had managed to flee to Peshawar, Pakistan on 22 October 1997. After his arrival there, he learned that his brother had been killed. In the period from 1992 to 1997, the applicant himself had not been bothered by any of the groups who had been looking for him because he had been living in hiding. The applicant also stated that he had learned that the KhAD/WAD had been responsible for having tortured people but he had never seen or done this himself. 30. On 25 March 1998 the Deputy Minister of Justice rejected the applicant’s asylum claim for being manifestly unfounded (kennelijke ongegrondheid). The applicant challenged that decision in administrative appeal proceedings in which the final – for the applicant negative – decision was taken on 20 July 2000 by the Regional Court of The Hague, sitting in Amsterdam. 31. However, the Deputy Minister of Justice did grant the applicant and his family on 25 March 1998 a conditional residence permit (voorwaardelijke vergunning tot verblijf) which was valid for one year from 22 November 1997 on the basis of a temporary categorical protection policy (categoriaal beschermingsbeleid) in respect of Afghanistan. 32. On 22 November 2000, the situation in Afghanistan not having sufficiently improved, the applicant’s conditional residence permit was converted into an unrestricted residence permit (vergunning tot verblijf zonder beperkingen). Subsequently, with the entry into force of the Aliens Act 2000 on 1 April 2001, the permit held by the applicant was transformed into an indefinite residence permit for the purpose of asylum (verblijfsvergunning asiel voor onbepaalde tijd). 33. On 21 February 2003 the applicant was informed that a special 1F unit of the Immigration and Naturalisation Service had reviewed his case, that it had been decided to undertake a further investigation and that a supplementary interview would be held with him. Supplementary interviews were held with the applicant on 4 and 16 April 2003. A written record of these interviews was drawn up and on 28 May 2003 a lawyer submitted corrections and additions on the applicant’s behalf. 34. On 6 November 2003 the Minister for Immigration and Integration notified the applicant of her intention to revoke his asylum-based residence permit under Article 1F of the 1951 Refugee Convention. Noting that the applicant had worked between 1981 and 1992 as an officer for the KhAD/WAD, his asylum statement had been considered in the light of an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on the security services in communist Afghanistan (see paragraph 10 above). 35. The Minister then proceeded to an elaborate analysis of the applicant’s individual responsibility under Article 1F of the 1951 Refugee Convention based on the prescribed and so-called “knowing and personal participation” test. The Minister noted inter alia that – on his lawyer’s advice – the applicant had decided to give no statement during the supplementary interviews about his activities for the KhAD/WAD. However the applicant did belong to a group of persons in respect of whom Article 1F was generally applied and he had not demonstrated that in his case a significant exception should be made. The Minister concluded that Article 1F was to be applied in the applicant’s case. The Minister took into account the applicant’s promotions in the KhAD/WAD and found that the applicant had known or should have known that the KhAD/WAD had been involved in the systematic commission on a large scale of serious crimes referred to in Article 1F. On 25 April 2004 the applicant submitted written comments on the Minister’s intended decision. 36. On 19 April 2005 the Minister notified the applicant of her supplementary intention (aanvullend voornemen) to revoke his residence permit under Article 1F. The applicant submitted written comments on the Minister’s supplementary intended decision on 23 May and 15 June 2005. 37. On 30 March 2006 the Minister further notified the applicant of her intention also to impose an exclusion order on him. The applicant submitted written comments on this intended decision on 19 April 2006. 38. On 11 May 2006 the Minister revoked the applicant’s residence permit and, in addition, imposed an exclusion order. On 12 May 2006 the applicant lodged an appeal against the revocation of his residence permit and an accompanying application for a provisional measure with the Regional Court of The Hague. On 6 June 2006, the applicant lodged an objection with the Minister to the decision to impose an exclusion order. 39. On 3 October 2006 the Regional Court of The Hague, sitting in Dordrecht, declared inadmissible the applicant’s appeal against the revocation of his residence permit. It held that, as long as an exclusion order was imposed on him, the applicant had no legal interest in a determination of the merits of his appeal. It took into account that, in the proceedings on the imposed exclusion order, the applicant’s arguments based on Article 3 of the Convention could be entertained. Although possible, the applicant apparently did not lodge a further appeal with the Administrative Jurisdiction Division against the ruling of 3 October 2006. Also on 3 October 2006, a provisional-measures judge of the Regional Court of The Hague, sitting in Dordrecht, declared inadmissible the applicant’s application for a provisional measure. 40. The applicant’s objection to the decision to impose an exclusion order was dismissed by the Minister on 29 January 2007. The applicant’s appeal to the Regional Court was withdrawn on 7 May 2007 after he had been informed that the impugned decision had been withdrawn and that a fresh decision would be taken. 41. In a fresh decision taken on 10 December 2007, after the applicant had been heard on his objection before an official board of enquiry, the Deputy Minister of Justice rejected the applicant’s objection to the decision to impose an exclusion order. In so far as the applicant had invoked Article 3 of the Convention, the Deputy Minister held that the applicant had failed to demonstrate that he would be exposed to a real and personal risk of being subjected to treatment contrary to Article 3 of the Convention if expelled to Afghanistan. According to an official report of the Ministry of Foreign Affairs of 31 January 2007 (DPV/AM-424/06/902099) not all former members of the PDPA and people who had worked for the KhAD/WAD ran such a risk. Many of them were working for the present Government of Afghanistan, including the security service. The applicant had failed to establish that specific groups, such as the Taliban or mujahideen, had been looking for him, or that he would be exposed to an Article 3 risk on account of him being of Tajik ethnicity. 42. As regards Article 8 of the Convention, the Deputy Minister noted that the applicant was living in the Netherlands together with his spouse and their five children who in the meantime had obtained Netherlands nationality. Consequently, there was “family life” within the meaning of Article 8. However, taking into account the criteria formulated in the cases of Boultif v. Switzerland (no. 54273/00, ECHR 2001IX) and Üner v. the Netherlands ([GC], no. 46410/99, ECHR 2006XII), the Deputy Minister found that public interest considerations (public order, national security, prevention of crime and protection of the rights and freedoms of others) outweighed the applicant’s personal interests in enjoying family life in the Netherlands. On this point, the Deputy Minister considered that it was unlikely that the applicant’s spouse had not known about the applicant’s work for the KhAD/WAD whose brutal working methods were known to large parts of the Afghan population. The Deputy Minister also found no objective obstacles to them exercising their right to family life in Afghanistan, taking into account that the applicant’s wife and children had not been admitted to the Netherlands as refugees fearing persecution on the basis of their individual circumstances but entered instead under a temporary categorical protection policy. Furthermore, like the applicant, the applicant’s spouse came from Afghanistan, spoke the local language and was familiar with Afghan society. The Deputy Minister found no reason why she could not follow the applicant to Afghanistan or why their family life could not be carried on in a third country. 43. On 12 December 2007 the applicant lodged an appeal and an accompanying application for a provisional measure with the Regional Court of The Hague. On 26 September 2008, following a hearing held on 29 August 2008, the provisional-measures judge of the Regional Court of The Hague, sitting in Dordrecht, rejected the applicant’s application for a provisional measure. 44. On an unspecified date the applicant was placed in immigration detention and his removal to Afghanistan was scheduled for 25 May 2009. 45. On 22 May 2009 the President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Afghanistan for the duration of the proceedings before the Court. 46. In its judgment of 27 April 2010, following a hearing held on 9 February 2010, the Regional Court of The Hague, sitting in Dordrecht, allowed the applicant’s appeal, annulled the impugned decision of 10 December 2007 and returned the case to the Deputy Minister for a fresh decision on the applicant’s objection. On 25 May 2010, both the Deputy Minister and the applicant lodged further appeals with the Administrative Jurisdiction Division. 47. In its ruling of 8 November 2010, the Administrative Jurisdiction Division rejected the applicant’s further appeal on summary grounds, holding: “What has been raised in the [applicant’s] grievances ... does not provide grounds for annulling the impugned ruling. Under section 91(2) of the Aliens Act 2000, no further reasoning is called for, since the arguments submitted do not raise questions which require determination in the interest of case-law consistency, legal development or legal protection in the general sense.” 48. The Administrative Jurisdiction Division allowed the further appeal lodged by the Deputy Minister, quashed the judgment of 27 April 2010 and rejected for being unfounded the applicant’s appeal of 12 December 2007. It stated, in particular, that it agreed with the reasoning given by the Deputy Minister for rejecting the applicant’s arguments under Article 8. 49. No further appeal lay against that decision. 50. The applicant is an Afghan national, who was born in 1954. He has been residing in the Netherlands since 1999. He was represented before the Court by Mr H. Teunissen, a lawyer practising in Venlo. 51. On 11 November 1999 the applicant applied for asylum in the Netherlands, claiming to fear persecution within the meaning of the 1951 Refugee Convention. His spouse and their three children (born in 1989, 1991 and 1993) had already arrived in the Netherlands and applied for asylum on 3 November 1999. On 14 March 2003, the applicant’s spouse and their three children were granted a residence permit under the then section 29(1)(c) of the Aliens Act 2000, on the basis of a special protection policy for a specific category of asylum-seekers from Afghanistan. 52. In his interviews with the Netherlands immigration authorities, the applicant claimed to fear persecution within the meaning of the 1951 Refugee Convention from the side of the Taliban, who had detained him for about one year and about whose crimes he had written a book. He further feared persecution on account of his communist past. He stated that he had been a member of the PDPA since 1976 or 1977 and joined the Parcham faction, that – after having done his military service – he had studied from 1974 to 1980 at the Leningrad Polytechnic Institute in the former Soviet Union, that he had worked successively as secretary of the provincial committee of B. province, as deputy head of the central council of the Association of Agrarians in Kabul, and as Deputy District Governor of one of the districts in B. province. Between 1987 and mid-1994, he had worked in the private sector as – being a supporter of Babrak Karmal – he had preferred not to work for President Najibullah. From 1994 until September or October 1998 he had been commander of a militia brigade of about 2,000-3,000 troops under the command of the Mazar-e Sharif garrison. He had been captured by the Taliban during a surprise attack in September 1998. He had remained in Taliban detention until 20 October 1999 when he had been released after the intervention of an influential uncle. On 26 October 1999, he had left Mazar-e Sharif for Turkmenistan from where he had travelled by air – via the United Arab Emirates – to the Netherlands. 53. On 14 March 2003 the Minister for Immigration and Integration notified the applicant of his intention to deny the applicant asylum under Article 1F of the 1951 Refugee Convention. Noting that the applicant’s career path had included the important posts of secretary of the provincial committee of B. province and Deputy District Governor of a district in the same province, his asylum statement had been considered in the light of an official report on Afghanistan issued on 16 September 1999 by the Netherlands Minister of Foreign Affairs (DPC/AM 63314) as well as a person-specific official report (individueel ambtsbericht) (DPC/AM 663248) not concerning the applicant but containing information about the provincial committees and secretaries to these committees. According to this information, provincial secretaries were of an equal rank to a governor and were the most important party functionaries of the PDPA at provincial level. They were responsible for all party decisions in a province, including recruiting members, propaganda, intelligence activities within and outside the party, recruiting members for paramilitary activities and contacts with the KhAD/WAD. In the period of 1978-92, provincial party secretaries played an active role in suppressing freedom of expression and in detecting and arresting political opponents and having them tortured and executed. Furthermore, according to another person-specific official report (DPC/AM 669362) not concerning the applicant himself, deputy governors had to lend support in the detection of political and military opponents of the communist regime, such as by supplying information to the KhAD/WAD. 54. Following a lengthy analysis of the applicant’s individual responsibility under Article 1F of the 1951 Refugee Convention, based on the prescribed “knowing and personal participation” test, the Minister concluded that Article 1F was to be applied in the applicant’s case. On 11 April 2003 the applicant’s lawyer submitted written comments on the Minister’s intended decision. 55. In his decision of 12 May 2003 the Minister denied the applicant asylum under Article 1F. The Minister did not deviate, in the relevant part, from his conclusions in the notice of intent of 14 March 2003 and maintained them on all points. The applicant’s comments were dismissed as not warranting another finding. However, as regards Article 3 of the Convention the Minister accepted that it could not be excluded – in view of the positions the applicant had held during the communist regime – that if expelled to Afghanistan, he would be exposed to a real risk of being subjected to treatment prohibited by Article 3 of the Convention. For this reason, he would not be expelled for the time being. The applicant was, nevertheless, because Article 1F had been held against him, not eligible for a residence permit. 56. On 9 June 2003 the applicant lodged an appeal against that decision with the Regional Court of The Hague. In its judgment of 24 November 2004, the Regional Court of the Hague, sitting in Maastricht, allowed the appeal and annulled the impugned decision. Although it agreed with the Minister’s decision to hold Article 1F of the 1951 Refugee Convention against the applicant, it also held – referring to a ruling given on 2 June 2004 by the Administrative Jurisdiction Division and noting that the Minister had acknowledged the existence of an Article 3 risk for the applicant in Afghanistan – that the Minister should also have examined whether the applicant had established that Article 3 of the Convention constituted a sustained obstacle to his expulsion to Afghanistan. Consequently, the Minister’s examination had been incomplete. 57. The applicant’s further appeal to the Administrative Jurisdiction Division, which mainly concerned his denial of having been a Deputy District Governor, was rejected on 6 June 2005. The Division upheld the impugned judgment of 24 November 2004, ruling that a fresh decision had to be taken on the applicant’s asylum claim. 58. On 8 September 2005 the applicant’s spouse and their three children were granted Netherlands nationality. 59. On 12 March 2008, after a supplementary interview had been held with the applicant on 6 December 2005, the Deputy Minister of Justice notified the applicant of her renewed intention – having explained why she did not believe the applicant’s new submissions to the effect that he had never been a Deputy District Governor – to deny him asylum under Article 1F of the 1951 Refugee Convention. As regards Article 3, the Deputy Minister found – having taken into account a paragraph about excommunists in an official country assessment report on Afghanistan released on 31 January 2007 by the Ministry of Foreign Affairs (DPV/AM424/06/902099) – that the applicant had not demonstrated the existence of a risk of treatment in violation of Article 3 in case of his return to Afghanistan from the side of two particular mujahideen commanders who had confiscated houses and land belonging to the applicant, or from the side of mujahideen groups or the Taliban. The Deputy Minister concluded that there was no longer an Article 3 obstacle to the applicant’s removal to Afghanistan. In so far as the applicant had relied on Article 8 of the Convention on the basis of his family life with his spouse in the Netherlands, the Deputy Minister held that as asylum proceedings offered no scope for such arguments these arguments could not be entertained in the present asylum proceedings. 60. On 10 and 11 April 2008 the applicant’s lawyer submitted written comments on the Deputy Minister’s intended decision. 61. On 13 June 2008 the Deputy Minister denied the applicant asylum under Article 1F. The Deputy Minister maintained her findings on all points and – reiterating, inter alia, that this had been found established in the Regional Court’s judgment of 24 November 2004 which had become final when the Administrative Jurisdiction Division had upheld that ruling on 6 June 2005 – rejected the applicant’s claim that he had never been a Deputy District Governor. As to the applicant’s reliance on Article 3, the Deputy Minister held that, although the general human-rights situation remained a matter of concern, it was not such that any removal there would necessarily breach Article 3 of the Convention. The Deputy Minister further found that the applicant had not demonstrated that, on the basis of his personal circumstances, he would risk treatment proscribed by Article 3 in Afghanistan. The Deputy Minister also held that the applicant should raise his arguments based on Article 8 of the Convention in an application for a residence permit based on his family life with his spouse and his children. 62. The applicant’s appeal against that decision was rejected on 13 November 2008 by the Regional Court of The Hague, sitting in Roermond. It upheld the impugned decision. 63. The applicant’s further appeal was rejected on 27 May 2009 by the Administrative Jurisdiction Division on summary grounds. No further appeal lay against that ruling. 64. On an unspecified date the applicant was placed in immigration detention and his removal to Afghanistan was scheduled for 27 June 2009. 65. On 24 June 2009 the President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Afghanistan pending the proceedings before the Court. 66. On 21 February 2014 the Deputy Minister of Justice notified the applicant of his intention to also impose an entry ban (inreisverbod – see K. v. the Netherlands (dec.), no. 33403/11, § 24, 25 September 2012) on the applicant. On 10 June 2014, following a hearing held on 23 April 2014, the Deputy Minister imposed an entry ban on the applicant. An appeal by the applicant against that decision was rejected on 29 January 2015 by the Regional Court of The Hague. Although possible, the applicant did not lodge a further appeal against this judgment with the Administrative Jurisdiction Division. 67. The applicant is an Afghan national who was born in 1969. He has been residing in the Netherlands since 1998. He was represented before the Court by Mr J. Walls, a lawyer practising in Breda. 68. On 13 March 1998 the applicant as well as his spouse and their two daughters (born in 1992 and 1993) applied for asylum in the Netherlands. The applicant claimed to fear persecution within the meaning of the 1951 Refugee Convention. 69. In his interviews with the Netherlands immigration authorities, the applicant stated that he had worked from 1987 to 1992 for the State-security directorate of the KhAD/WAD in Kabul. He had been regularly promoted and his final rank had been 1st lieutenant. His task had been the detection of drugs and weapons trafficking. He had transmitted information to higher officers who had taken further measures. He had also been responsible for combatting the smuggling of explosives. He had taken arrested smugglers to the directorate. He did not know what happened subsequently to these people. 70. In June 1992 he had moved to Mazar-e Sharif where he had worked in the administration of the same police department where his brother was already working at that time. After the arrival of the Taliban in the area in May 1997, his brother had disappeared and had been replaced by a member of the Taliban. The applicant had gone into hiding in Mazar-e Sharif until he had left on 6 February 1998. Whilst he had been in hiding, armed men had entered the home of his wife and their two children and enquired about the applicant’s whereabouts. Via Jalalabad, Pakistan and Peshawar, the applicant and his family had fled to Karachi, Pakistan from where they had travelled by air to the Netherlands. The applicant stated that he had fled because he had feared for his life on account of his work and that of his brother. 71. On 22 August 2000 the Deputy Minister of Justice rejected the applicant’s asylum claim under Article 1F of the 1951 Refugee Convention. After having examined the applicant’s asylum statement in the light of an official report, drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs, on “Security Services in Communist Afghanistan (197892), AGSA, KAM, KhAD and WAD” (see paragraph 10 above), the Deputy Minister proceeded to an elaborate analysis of the applicant’s individual responsibility under Article 1F of the 1951 Refugee Convention, based on the prescribed “knowing and personal participation” test, and concluded that Article 1F was to be applied in the applicant’s case. In reaching this conclusion, the Deputy Minister took into account, inter alia, the applicant’s voluntary choice to join the KhAD/WAD, his career in this service and the nature of his work. The Deputy Minister considered that the systematic and large-scale commission of serious human-rights violations by the KhAD/WAD had been common knowledge well before the applicant had joined this service and that therefore he could not have been ignorant of those acts as had been averred by him. The Deputy Minister further rejected the applicant’s arguments under Article 3 of the Convention. 72. On 4 October 2000 the applicant lodged an objection to that decision. On 9 January 2003 he was heard on his objection before an official board of enquiry. On 17 June 2003 the Minister for Immigration and Integration rejected the objection, having found nothing in the applicant’s submissions warranting another conclusion than the one set out in the impugned decision. However, as it could not be ruled out that the applicant, given his work in Afghanistan, would run a real risk of treatment contrary to Article 3 of the Convention if he were expelled to Afghanistan, the Deputy Minister further indicated that for the time being the applicant would not be removed to that State. However, this did not render him eligible for a nonasylumbased residence permit, including a residence permit on account of the duration of the proceedings on his asylum claim (tijdsverloop in de asielprocedure) as the application of Article 1F constituted a contraindication. 73. By a decision of 23 June 2003 the applicant’s spouse was granted an asylum-based residence permit and their four daughters (two of whom had been born after the applicant’s arrival in the Netherlands, in 1999 and 2002) were granted dependent residence permits. No information has been submitted as to whether that decision was based on the individual asylum statement of the applicant’s spouse or under a particular protection policy. 74. On 9 July 2003 the applicant lodged an appeal with the Regional Court of The Hague against the decision concerning his asylum claim and an objection with the Minister against the decision that he was not eligible for a non-asylum-based residence permit. On 19 January 2004 the Minister rejected the objection. On 13 February 2004 the applicant also lodged an appeal against the latter decision with the Regional Court of The Hague. 75. In its judgment of 23 May 2005, the Regional Court of The Hague, sitting in Alkmaar, allowed the appeals and annulled the two impugned decisions. Although it agreed with the Minister’s decision and pertaining reasoning to apply Article 1F of the 1951 Refugee Convention in the applicant’s case, it also held – referring to two rulings given on 2 June 2004 by the Administrative Jurisdiction Division (nos. 20030887/1 and 200308845/1) and noting that the Minister had acknowledged the existence of an Article 3 risk for the applicant in Afghanistan – that the Minister should also have examined whether the applicant had established that Article 3 of the Convention constituted a sustained obstacle to his expulsion to Afghanistan. It further found that the Minister had unjustly based the decision concerning the non-asylum-based residence permit on section 3.77 of the Aliens Decree 2000 (Vreemdelingenbesluit 2000). Consequently, the Minister’s examination had been incomplete. Accordingly it annulled the decisions of 17 June 2003 and 19 January 2004 and ordered the Minister to take fresh decisions within six weeks. 76. In a fresh decision taken on 30 August 2005 the Minister rejected the applicant’s objections of 4 October 2000 and 9 July 2003. Referring to the reasons given in the judgment of 23 May 2005, the Minister again rejected the applicant’s asylum claim regarding Article 1F. As regards Article 3 of the Convention, the Minister found that that it could not be concluded from the applicant’s asylum statement – viewed against the background of the current political and social situation in Afghanistan – that there existed a real and foreseeable risk that if returned to Afghanistan the applicant would be subjected to treatment in breach of Article 3 of the Convention. The Minister considered, inter alia, that the applicant had not encountered any tangible problems in Kabul or Mazar-e Sharif during the reign of the mujahideen. The Minister further considered that while the problems which had caused the applicant to flee Afghanistan had only begun after the arrival of the Taliban in Mazar-e Sharif, the Taliban were no longer in a position of power in Afghanistan. The Minister further found that, on the basis of the decision to apply Article 1F to his case, the applicant was not eligible for a non-asylum-based residence permit on the basis of the so-called three-year policy (driejarenbeleid) set out in paragraphs C2/9.3 and B1/2.24 of the Aliens Act Implementation Guidelines 2000 (Vreemdelingencirculaire 2000). Under this three-year policy a residence permit could be granted if an application for such a permit had not been determined within a period of three years for reasons not imputable to the petitioner and provided that there were no contraindications such as, for instance, the application of Article 1F. 77. On 27 September 2005 the applicant lodged an appeal with the Regional Court of The Hague. In its judgment of 18 April 2006, the Regional Court of The Hague rejected the appeal in so far as it was directed against the decision to deny the applicant asylum under Article 1F and the finding that there was no Article 3 obstacle to the applicant’s removal to Afghanistan. However, to the extent that the appeal was directed against the decision that the applicant was not eligible for a non-asylum-based residence permit, it found that the Minister had unjustly failed to hear the applicant on his objection. Accordingly, it annulled this part of the decision of 30 August 2005 and ordered the Minister to take a fresh decision on the applicant’s objection of 9 July 2003. 78. On 13 October 2006, after the applicant had been heard on 9 July 2006 before an official board of enquiry in respect of his objection of 9 July 2003, the Minister rejected this objection. On the same day, the Minister notified the applicant of her intention to impose an exclusion order on him. The applicant did not avail himself of the possibility to file written comments on this intention. On 17 October 2006 the applicant lodged an appeal with the Regional Court of The Hague against the Minister’s decision to reject his objection of 9 July 2003. 79. By a decision of 17 January 2007 the Minister imposed an exclusion order on the applicant. On 1 February 2007 the applicant lodged an objection to that decision with the Minister. As this objection did not have suspensive effect, the applicant also lodged on 1 February 2007 an application for a provisional measure with the Regional Court of The Hague. On 27 April 2007 the Regional Court of The Hague rejected the applicant’s application for a provisional measure, finding, inter alia, that Article 3 did not prevent the applicant’s removal to Afghanistan. 80. On 23 July 2007 the Regional Court of The Hague declared inadmissible the applicant’s appeal of 17 October 2006 against the Minister’s decision to reject his objection of 9 July 2003. 81. On 30 July 2008 the Deputy Minister of Justice rejected the applicant’s objection of 1 February 2007 to the decision to impose an exclusion order. The Deputy Minister rejected the applicant’s arguments under Article 3 for being unsubstantiated and with reference to the considerations and the conclusion on this point in the previous rulings given in the applicant’s case. As regards the applicant’s arguments under Article 8 of the Convention, the Deputy Minister considered, taking into account the criteria formulated in the cases of Üner (cited above) and Sezen v. the Netherlands (no. 50252/99, § 43, 31 January 2006), that Article 8 did not prevent the applicant’s removal to Afghanistan either. On this point, the Deputy Minister found, inter alia, that the applicant had substantial links with Afghanistan, where he had been born and raised and where he had lived for more than twenty-eight years, and that there was no appearance of an objective obstacle to carrying on the family life at issue in Afghanistan or in another country. 82. The applicant lodged an appeal against that decision with the Regional Court of The Hague. On 16 October 2009 the Regional Court allowed the appeal but also held that its legal consequences were still to stand. On 7 November 2009 the applicant lodged a further appeal. On 28 June 2010, pending these further appeal proceedings, the applicant was informed that the impugned decision of 30 July 2008 had been withdrawn and that a fresh decision would be taken on his objection of 1 February 2007. 83. In the meantime, on 21 April 2009, the applicant had lodged a fresh application for asylum on the basis of alleged newly emerged facts and circumstances. He had been interviewed on this application the same day. This fresh application had been rejected by the Deputy Minister of Justice on 27 April 2009. The applicant had lodged an appeal the next day, but had withdrawn it on 6 May 2009 for reasons undisclosed. 84. On 5 October 2009 the applicant’s wife and their four daughters were granted Netherlands nationality. 85. Furthermore, on 15 October 2009 the applicant informed the Court that his removal had been scheduled for 19 October 2009 and applied for an interim measure under Rule 39 of the Rules of Court. On 16 October 2009 the Acting President of the Section to which the case had been allocated decided to apply Rule 39 of the Rules of Court, indicating to the Government that the applicant should not be expelled to Afghanistan for the duration of the proceedings before the Court. 86. On 18 January 2011 a son was born to the applicant and his spouse. 87. On 25 January 2011, after the applicant had been heard on 11 January 2011 before an official board of inquiry, the Minister for Immigration, Integration and Asylum Policy took a fresh decision on the applicant’s objection of 1 February 2007 and again rejected it. With reference to the findings in respect of this provision made in four decisions and three judgments given previously in the applicant’s case, the Minister rejected the applicant’s arguments under Article 3 of the Convention, holding that it had not been demonstrated that the applicant, if returned to Afghanistan, would risk treatment in violation of Article 3. 88. In respect of the applicant’s arguments under Article 8 of the Convention, the Minister reiterated that Article 1F had been applied in respect of the applicant and that he thus represented a danger to public order. It should therefore be determined whether the interference with the applicant’s rights under Article 8 § 1 was necessary and justified in a democratic society. For this purpose the general interest was to be weighed against the applicant’s personal interest in staying in the Netherlands to enjoy his family life with his spouse and their children. The Minister concluded that the interference at issue, that is to say the imposition of the exclusion order, was justified under the terms of Article 8 § 2 of the Convention in that it was provided for in domestic law provisions and was necessary for the protection of public order and the prevention of crime. As regards the competing interests, the Minister – taking into account the guiding principles as formulated in the Court’s judgments in the cases of Boultif (cited above) and Üner (cited above) – held that public interest considerations in excluding the applicant from the Netherlands outweighed the applicant’s personal interests in being enabled to carry on his family life in the Netherlands. He noted that the applicant had been born and raised in Afghanistan and had lived there for twenty-eight years. This supposed the existence of ties with Afghanistan and thus the possibility to build up a life there again. Even if the applicant did not have a social network at present in Afghanistan, it would be easy for him to build up such a network after his return there. The Minister further considered that, even assuming that there would be an objective obstacle to the applicant’s spouse and their children enjoying their family life with the applicant in Afghanistan, it did not appear that it there would be an objective obstacle to him carrying on this family life in a third country. It had appeared from the hearing held on 11 January 2011 that the applicant had done nothing to explore that possibility. The applicant’s spouse and children were free to visit the applicant abroad or to settle with him in another country. The Minister therefore concluded that Article 8 did not prevent the applicant’s expulsion from the Netherlands. 89. An appeal by the applicant against this fresh decision was allowed on 3 November 2011 by the Regional Court of The Hague. It annulled the decision and ordered the Minister to take a fresh decision. A further appeal by the latter to the Administrative Jurisdiction Division was allowed on 21 January 2013. The court quashed the impugned judgment of 3 November 2011 and rejected the applicant’s appeal against the decision of 25 January 2011. No further appeal lay against that decision. 90. A general overview of the relevant domestic law and practice in respect of asylum proceedings, exclusion orders and enforcement of removals has been set out in K. v. the Netherlands (cited above, §§ 16-32). 91. Pursuant to the strict separation under the provisions of the Aliens Act 2000 between an asylum application and a regular application for a residence permit for another purpose than asylum, arguments based on Article 8 of the Convention cannot be entertained in asylum proceedings – unless they concern an application for an asylum-derived residence permit (verblijfsvergunning met een afgeleide asielstatus) for refugeefamily reunification (nareisvergunning – see Gereghiher Geremedhin v. the Netherlands (dec.), no. 45558/09, §§ 30-31, 23 August 2016) – but should be raised in, for instance, proceedings on a regular application for a residence permit (see Mohammed Hassan v. the Netherlands and Italy and 9 other applications (dec.), no. 40524/10, § 13, 27 August 2013; J. v. the Netherlands (dec.), no. 33342/11, § 9, 18 October 2011; and Joesoebov v. the Netherlands (dec.), no 44719/06, § 27, 2 November 2010) or in proceedings concerning the imposition of an exclusion order (see Üner v. the Netherlands (cited above), and Arvelo Aponte v. the Netherlands, no. 28770/05, 3 November 2011) or proceedings on an entry ban (see, on the entry ban, A.K.C. v. the Netherlands (dec.), no. 36953/09, §§ 1415, 30 August 2016). 92. The relevant domestic policy, law and practice in respect of asylumseekers from Afghanistan in respect of whom Article 1F of the 1951 Refugee Convention was found to be applicable have been summarised in A.A.Q. v. the Netherlands, cited above, §§ 37-52. 93. The most recent official country assessment report on Afghanistan was drawn up by the Netherlands Ministry of Foreign Affairs in November 2016. The relevant part of this report reads: “3.5.9 (Former) communists Under ‘potential risk profiles’ in the UNHCR Eligibility Guidelines [for assessing the international protection needs of asylum-seekers from Afghanistan, 19 April 2016] no information is given about persons who identify with the communist ideology (or who are suspected thereof). In the part ‘Exclusion from International Refugee Protection’ the UNHCR does give information about former members of the KhAD and WAD. Many former members of the People’s Democratic Party of Afghanistan (PDPA) and former employees of the former intelligence services the KhAD and the WAD are currently working for the Afghan Government. They have, for example, been appointed as governors of provinces, occupy high positions in the army [or] the police, or are mayors. Some former PDPA members have founded new parties. In so far as is known, ex-communists and their relatives have nothing to fear from the ... Government. It therefore cannot be said that the group of (former) communists as a whole has reasons to fear being in Afghanistan. It depends on each individual person whether someone has or has not reason to fear being in Afghanistan, and this also applies to former employees of the KhAD/WAD.” 94. Article 1F of the 1951 Refugee Convention reads: “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.” 95. On 4 September 2003 the United Nations High Commissioner for Refugees (UNHCR) issued the “Guidelines on International Protection No. 5: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”. They superseded “The Exclusion Clauses: Guidelines on their Application” (UNHCR, 1 December 1996) and “Note on the Exclusion Clauses” (UNHCR, 30 May 1997) and are intended to provide interpretative legal guidance for governments, legal practitioners, decision-makers and the judiciary, as well as UNHCR staff carrying out refugee status determination in the field. These guidelines state, inter alia, that where the main asylum applicant is excluded from refugee status, his or her dependants will need to establish their own grounds for refugee status. If the latter are recognised as refugees, the excluded individual is not able to rely on the right to family unity in order to secure protection or assistance as a refugee (paragraph 29). 96. An overview of the relevant guidelines and country operations profile on Afghanistan of the United Nations High Commissioner for Refugees (“the UNHCR”) have recently been summarised in A.G.R. v. the Netherlands (no. 13442/08, §§ 32-41, 12 January 2016). 97. The most recent update of the “UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan” was released on 19 April 2016 (“the April 2016 UNHCR Guidelines”) and replaced the August 2013 Guidelines. As in the latter guidelines, the April 2016 UNHCR Guidelines do not include persons who worked for the KhAD/WAD or the police during the former communist regime in the fifteen cited potential risk profiles, but again state that, as regards Article 1F of the 1951 Refugee Convention, careful consideration needs to be given in particular to, inter alia, former members of the armed forces and the intelligence/security apparatus, including the KhAD/WAD agents during the former communist regimes under Taraki, Hafizullah Amin, Babrak Karmal, and Najibullah, as well as former officials of those communist regimes. 98. In January 2016 the European Asylum Support Office (“the EASO”) released the country of origin information report “Afghanistan Update Security Situation”. This report, covering the period between 1 November 2014 and 31 October 2015, is an update of a previous report released by EASO in January 2015. It provides, inter alia, a general description of the security situation in Afghanistan, as well as a description of the security situation for each of the thirty-four provinces and Kabul. The report states, inter alia: “The general security situation in Afghanistan is mainly determined by the following four factors: The main factor is the conflict between the Afghan National Security Forces (ANSF), supported by the International Military Forces (IMF), and Anti-Government Elements (AGEs), or insurgents. This conflict is often described as an ‘insurgency’. The other factors are: criminality, warlordism and tribal tensions. These factors are often inter-linked and hard to distinguish. Several sources consider the situation in Afghanistan to be a non-international armed conflict ... Between 15 February and 31 July 2015, the UN recorded 11,129 security-related incidents relevant to the work, mobility and safety of civilian actors, a number consistent with the records for the same reporting period in 2014. Nevertheless, according to the UN, during the summer of 2015, the conflict grew in intensity and geographical scope, with a spike in high-profile attacks in Kabul. In July 2015, USAID reported that security conditions had worsened across Afghanistan due to increased Taliban attacks and renewed fighting.” 99. The United Nations Office for the Coordination of Humanitarian Affairs (“the OCHA”) reported in Humanitarian Bulletin Afghanistan of 31 May 2016 on humanitarian access and aid-worker incidents in the following terms: “The total number of incidents relating to NGOs, UN and International Organizations from 1 January to 31 May 2016 stands at 91 which is slightly less than 2015. To date in 2016, national and international NGOs are the most directly affected with 56 incidents. Six aid workers have been killed, 12 injured and 81 abducted. The number of security incidents across the country is consistent with 2015 numbers, but there has been a significant increase in armed clashes as a percentage of overall security incidents. This has manifested itself by way of increased large scale ground engagements which have led to a reduction in access to many areas and for longer periods of time.” 100. The report of the Secretary-General of the United Nations on “The situation in Afghanistan and its implications for international peace and security, 10 June 2016” (A/70/924-S/2016/532) of 10 June 2016 reads under the heading “Security”: “12. The security situation in Afghanistan deteriorated, with Taliban operations at an unprecedented high rate since the beginning of 2016. Armed clashes increased by 14 per cent in the first four months of the year compared with the same period in 2015 and were higher for each month compared with previous years. In April 2016, the highest number of armed clashes was reported since June 2014, a period that coincided with the presidential elections. 13. Notwithstanding the increase in armed clashes, overall security incidents decreased. Between 16 February and 19 May, the United Nations recorded 6,122 security incidents, representing a decrease of 3 per cent compared with the same period in 2015, attributed primarily to a reduction in incidents involving improvised explosive devices. The southern, south-eastern and eastern regions continued to account for the majority of incidents (68.5 per cent). Consistent with previous trends, armed clashes accounted for the majority of security incidents (64 per cent), followed by improvised explosive devices (17.4 per cent). Targeted killings decreased: from 16 February to 19 May, 163 assassinations, including failed attempts, were recorded, representing a decrease of 37 per cent compared with the same period in 2015. A total of 15 suicide attacks were reported, compared with 29 in the same period in 2015, as well as several high-profile incidents. The latter included a complex attack against the consulate of India in Jalalabad on 2 March, an attack against the residence of the acting Director of the National Directorate of Security in the city of Kabul on 21 March and the targeted killing of two high-ranking army commanders on 24 and 27 March in Kandahar and Logar provinces, respectively. The Taliban claimed responsibility for those two attacks. 14. Insurgent attacks increased notably after the beginning of the Taliban spring offensive, Operation Omari. In its declaration of 12 April launching the annual campaign, the Taliban pledged large-scale attacks against ‘enemy positions’ alongside tactical attacks and targeted killings of military commanders. Unlike in previous years, the movement did not threaten civilian government officials specifically. In the first two weeks of the offensive, the number of Taliban-initiated attacks almost doubled compared with the previous two weeks, resulting in the highest number of armed clashes recorded for the month of April since 2001. Since the beginning of the offensive, the Taliban has launched 36 attacks on district administrative centres, including a concerted push on the city of Kunduz. The Afghan National Defence and Security Forces repelled the vast majority of those attacks. The offensive gained further momentum with the completion of the seasonal poppy harvest in Helmand Province early in May, resulting in increased clashes in the southern region. The Taliban also concentrated efforts to seize strategically important parts of Uruzgan Province along the Kandahar-Tirin Kot highway and retook control of strategic areas of Baghlan Province, where security forces had conducted a clearance operation in January. 15. The Afghan National Defence and Security Forces remained under pressure, in particular in Baghlan, Faryab, Helmand, Kunar, Kunduz, Nangahar and Uruzgan provinces, and were reinforced by Afghan special forces and international military assets. Notwithstanding intensified efforts to strengthen army units, in particular in Helmand Province, significant shortcomings remained in the areas of command and control, leadership, logistics and overall coordination. In the first four months of 2016, reports indicated rising casualties among the security forces. The sustainability of the forces remains a challenge in the light of high attrition rates. Even though recruitment was on target, re-enlistment rates remained particularly low and needed to be increased to compensate for other losses. In April 2016, army troop levels and Afghan National Police numbers reached 87 per cent and 74 per cent respectively, of the levels projected for August 2016. Some progress was made in increasing air capacity, and the air force carried out a limited number of air missions. 16. Discussions on the presence of the Resolute Support Mission of NATO beyond 2016 and future funding arrangements for the Afghan National Defence and Security Forces continued ahead of the NATO summit in July. The Secretary-General of NATO, Jens Stoltenberg, visited the city of Kabul on 15 and 16 March, during which he met with the President and the Chief Executive of Afghanistan, Abdullah Abdullah, and reaffirmed the commitment of NATO to Afghanistan. On 11 May, NATO members and donor representatives discuss financial support for the Afghan National Defence and Security Forces up to 2020 in a meeting in Brussels of the board of the Afghan National Army Trust Fund. On 20 May in Brussels, ministers for foreign affairs of participating countries agreed on the extension of the Mission beyond 2016. 17. Other armed groups maintained small presences on Afghan territory, including the Islamic Movement of Uzbekistan in northern Afghanistan and the Islamic State in Iraq and the Levant-Khorasan Province (ISIL-KP) in the east. Since my previous report, operations by the Afghan National Defence and Security Forces, supported by international military air strikes, further reduced the presence of ISIL-KP in Nangarhar Province, where the group also faced pressure from the Taliban. This contributed to ISIL-KP establishing a small, secondary presence in neighbouring Kunar and Nuristan provinces in search of safe havens and recruitment. 18. A total of 25 recorded incidents had an impact on the United Nations, including 6 cases of intimidation, 3 incidents relating to an improvised explosive device and 6 criminal-related incidents. On 20 May, a guard contracted by the United Nations was killed in the city of Kabul and another guard and a United Nations staff member were injured in a shooting incident, the circumstances of which are under investigation.” 101. The German Federal Office for Migration and Asylum, Information Centre Asylum and Migration: Briefing Notes (27 June 2016) reported on Afghanistan: “Security situation In a report submitted to Congress, the U.S. Department of Defense notes a deterioration of security in view of the reduced international military presence and the weakness of the Afghan forces. While the Afghan government retained control of most city centres, the Taliban continued to expand their influence, especially in rural areas, the report says, demonstrating their resilience by attacks in Nangarhar, Herat, Kunduz and other northern provinces as well as in Helmand. Increasingly, the Taliban insurgents were launching major attacks in urban centres, the report continues. From January to May, a total of 2,496 civilian casualties including 760 deaths were documented, the report went on. In Nangarhar province, at least 135 rebels and 12 members of the security forces have died in a clash between the Afghan military and ISIS rebels. The fights started on 24 June 2016, when hundreds of ISIS insurgents attacked a military post in Kot district. Attacks On 20 June 2016, an attack on a member of the Kabul provincial council left 6 people wounded, among them the council member and his body guard. On the same day, a bomb planted in a motorbike killed 8 people and injured another 14 in a market in northern Badakhshan province. Intra-Taliban fighting On 22 June 2016, a spokesman of the governor of Herat province stated that 20 militants were killed in fights between a Taliban splinter faction supporting dissident Mullah Mohammed Rasool, who is opposing the appointment of Mullah Haibatullah Akhundzada as the new Taliban leader, and followers of Akhundzada. The clash did not result in any civilian casualties, it was stated. Bus passengers kidnapped On 22 June 2016, Taliban insurgents ambushed a series of buses and other vehicles in Gareshk district (southern Helmand province) and abducted around 60 passengers. Shortly afterwards, they let those go who were travelling with their families. In an internet message, the Taliban stated that they had detained ‘27 suspected individuals’. If these turned out to be working for the government, they would be submitted to the Islamic emirate’s courts, the Taliban said. Tribal elders intervened and succeeded in releasing all but two hostages.” | 0 |
test | 001-148498 | ENG | SVK | ADMISSIBILITY | 2,014 | BAŠISTOVÁ AND OTHERS v. SLOVAKIA | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. A list of the thirty-two applicants, who are all Slovak nationals, is set out in the appendix (“the applicants”). 2. The applicants were represented before the Court by Mr M. Hrouda, a lawyer practising in Košice. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. This application and three others (nos. 42812/10, 48554/10 and 44019/11) concern the regularisation of the relationship between ownership and use of real property located in the cadastral area of Košice-Sever. 5. Certain land in this area was expropriated in the 1980s by the (then socialist) State and a public sports centre was built on it. The sports centre comprises buildings and various other facilities, such as a tennis court, a grandstand, a water station and paved areas. 6. After the post 1989 political, constitutional and legal changes, litigation took place with a view to resolving various property claims made by the original owners (or their legal successors) against the entities that owned or operated the sports centre or various parts of it. 7. The land concerned is divided into a number of plots with various owners, many of whom are linked by family relations and history, and who had the same legal representation in the above-mentioned proceedings. Their lawsuits followed a similar pattern, but sometimes had varying results. They included the following proceedings. 8. The applicants in the present case are all successors in title to a plot of land in the above-mentioned area. They inherited their title from the original owner, who died in 1958. 9. On 3 October 1994 the applicants or, as the case might have been, their legal predecessors, represented then and throughout the proceedings by a laywer, lodged an action against the owner of a sports club seeking to obtain a court order for the removal of the constructions on the land. 10. The principal line of argument was that the expropriation decision of 24 February 1984 was invalid in law. The applicants were therefore the lawful owners of the land in question, in particular plot no. 10624 (recorded on sheet no. 1630 of the “old” records), and the defendant had no lawful title to have the constructions on the applicants’ land. 11. The action was subsequently amended to state that, alternatively, the applicants sought a judicial ruling establishing an easement on their land for the benefit of the owner of the sports centre in return for financial compensation payable to the applicants. It was also extended to two more defendants, a municipality and a private company, and to additional plots of land. 12. The action was examined and determined at first instance by the Košice I District Court (Okresný súd). In its judgment (rozsudok) of 24 November 2008, the District Court acknowledged that (i) the expropriation of 1984 was legally ineffective on account of procedural flaws; (ii) the applicants were the owners of the land in question; (iii) the constructions on it had been built without a valid legal title in so far as the land was concerned; and (iv) the applicants were entitled to seek redress under general civil law, that is to say Article 135c of the Civil Code (Law no. 40/1964 Coll., as amended), which was not subject to any statute of limitation, unlike the special legislation on restitution, which contained specific time-limits. 13. As regards the options available under Article 135c of the Civil Code for resolving the discrepancy between the ownership and use of the land and the constructions concerned, the District Court found that, for practical reasons, it was out of the question to have the applicants established as the owners of the constructions and to order them to pay the current owners financial compensation. Furthermore, in the circumstances, it was likewise not practical to order the physical removal of the constructions in question. The establishment of an easement for the benefit of the owners of the constructions in return for compensation payable by them to the applicants was therefore an option. 14. However, in that connection, on the basis of expert evidence, the District Court observed that part of the land concerned lay under a construction that fell within the definition of a “building” in terms of the law, whereas the remainder of the impugned land was not underneath “buildings” under the said definition. 15. However, the District Court held that an easement over land could only be established for the benefit of the owner of a building in terms of civil law. 16. A distinction therefore had to be made between the part of the land that was under buildings, in respect of which the action was granted and an easement for the benefit of the owner of the buildings was established, and the remainder of the land, in respect of which the action was dismissed. At the same time, the District Court transferred the claim for compensation for the easement established by the former ruling to another set of proceedings. 17. The applicants challenged the first-instance judgment by means of an appeal (odvolanie) to the Košice Regional Court (Krajský súd). They argued in particular that the District Court had failed to appreciate that the property in question was a part of a large complex serving a single purpose; that a number of claims had been raised in respect of that property; that the legal nature of those claims was identical to those raised by the applicants, differing only in the technical parameters of the specific plots at stake; and that in its judgment in case no. 15C 251/94, the District Court had established an easement in respect of plots of land comprising the sports centre, without differentiating between plots that had “buildings” on them and those that did not (see paragraphs 23 et seq. below). 18. On 20 April 2009, the Regional Court, sitting in chambers, dismissed the applicants’ appeal and upheld the first-instance judgment. It summarised in detail the written, oral and expert evidence taken and fully endorsed the factual and legal conclusions of the District Court, providing further detailed explanations of the position taken, accompanied by references to the existing judicial practice. It also observed that the applicants could have asserted their property rights by other means, for example by lodging actions aimed at obtaining declaratory rulings and orders for compensation in respect of unjustified enrichment. However, they had not done so and the courts were bound by the legal classification of the claims they had pursued in the present proceedings. Nevertheless, the Regional Court provided no specific answer to the arguments that the buildings and the adjacent facilities belonged to a single integrated complex and that a different conclusion had been reached in case no. 15C 251/94. 19. On 24 June 2009 the applicants, except for the twenty-third applicant, lodged a complaint with the Constitutional Court (Ústavný súd) under Article 127 § 1 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended). Citing similar grounds to those mentioned above, coupled with the lack of a judicial response to what they considered to be crucial arguments, the applicants complained that the outcome of the proceedings had been arbitrary and alleged that their rights under, inter alia, Article 6 § 1 of the Convention (access, fairness, adequate reasoning) and the constitutional equivalent of Article 1 of Protocol No. 1 had been violated. 20. On 8 September 2009 the Constitutional Court declared the complaint inadmissible as being manifestly ill founded. It observed that it was not a court of further appeal against decisions of the ordinary courts and found no constitutionally relevant unfairness, arbitrariness or irregularity in the impugned judgments. The decision was served on the applicants’ lawyer on 7 October 2009. 21. The position taken by the courts was subsequently fully endorsed by the Public Prosecution Service when it dismissed the applicants’ petition for an extraordinary appeal on points of law to be lodged on their behalf in the present case. 22. Article 135c deals with situations concerning so-called “unlawful constructions”, that is buildings (stavba) constructed on somebody else’s plot of land (pozemok) without an entitlement to do so. At the request of the owner of the land, the court has the power to order the removal of such buildings at the cost of the person who constructed them (paragraph 1). However, if the removal of the building is not practical, and subject to consent by the owner of the land, the court has the power to rule that the title to the building be transferred to the owner of the land in return for compensation (paragraph 2). The court also has the power to regularise the relationship between the owner of the land and the owner of the building by taking other measures, in particular by establishing an easement, which is necessary for the exercise of ownership rights in respect of the building, in return for compensation (paragraph 3). 23. In a case registered at the District Court under file no. 15C 251/94 a different group of claimants raised essentially the same claims as the applicants in respect of other plots of land under the same sports centre, the defendant being the respective municipality. 24. Before the case was resolved on the merits with final effect, the Supreme Court had determined the claimants’ appeal on points of law (dovolanie) (no. 3 Cdo 96/98) against a previous judgment of the Regional Court. In its judgment of 25 February 1999, the Supreme Court observed that before the action could be determined on the merits (of the claim for an easement), preliminary questions had to be answered as to whether the claimants were the owners of the property concerned and, if they were, whether they had standing to sue in the case. The Supreme Court further observed that, when dealing with those questions, the Regional Court had noted that the land in question had been expropriated in 1984. The Regional Court had therefore held that, even assuming that the expropriation had been flawed, it could only have been challenged by means of administrative-law remedies and within the timelimits prescribed for such remedies. That, however, had been beyond the scope of the case at hand and, therefore, the Regional Court held that the 1984 expropriation should be considered as being a matter of fact. 25. The Supreme Court disagreed with the Regional Court’s position described above. As was found in the present case (see paragraph 12 above), it found that the expropriation of 1984 was legally ineffective. As a consequence, the courts were bound to examine the preliminary question of the claimants’ ownership independently and irrespective of the expropriation decision. 26. The case was finally decided on the merits by the District Court on 13 March 2002. The action was granted and an easement was established for the benefit of the claimants in respect of the entire property covered by their claim, that is to say including some plots on which no “buildings”, in the sense explained above, were situated. The judgment was not appealed against and became final and binding on 3 May 2002. 27. The ensuing question concerning the financial compensation payable by the municipality to the claimants for the easement was resolved by the District Court in a judgment of 13 December 2006 (case no. 15C 717/02) on the basis of an expert assessment. 28. In another similar case concerning property in the same area as in the present case, the claimants raised in principle the same claims. The court took the same position as in the present case, that is to say that the claimants were entitled to assert their property claims under the general provisions of the Civil Code and the determinative factor was whether or not the land in question was under “buildings”. As that was not so, the action was dismissed. The respective judgments were given on 11 August 2008 (the District Court) and 2 February 2009 (the Regional Court), and the final decision was given by the Constitutional Court on 18 March 2010. 29. In a number of other cases concerning property in the same area and in a situation similar to the present case, the position was taken that the claimants could not assert their rights under the general provisions of the Civil Code, as those provisions constituted a lex generalis, and their application was excluded by virtue of the special legislation on the restitution of property, as a lex specialis. However, that position does not appear to be settled. 30. The relevant parts of the report state that, in order for the principle of legal certainty – essential for maintaining confidence in the judicial system and the rule of law – to be achieved, the State must make the law easily accessible and must also apply the laws it has enacted in a foreseeable and consistent manner. As the existence of conflicting decisions within the highest courts may be contrary to this principle, it is necessary for these courts to establish mechanisms to avoid conflicts and ensure the coherence of their case-law. 31. The relevant parts of the Opinion read as follows: “47. While recognising the judges’ power to interpret the law, the obligation of the judges to promote legal certainty has also to be remembered. Indeed legal certainty guarantees the predictability of the content and application of the legal rules, thus contributing in ensuring a high quality judicial system. 48. Judges will apply the interpretative principles applicable in both national and international law with this aim in mind. ... In civil law countries, they will be guided by case law, especially that of the highest courts, whose task includes ensuring the uniformity of case law. 49. Judges should in general apply the law consistently. However when a court decides to depart from previous case law, this should be clearly mentioned in its decision.” | 0 |
test | 001-166486 | ENG | TUR | CHAMBER | 2,016 | CASE OF ERKENOV v. TURKEY | 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 5-2 - Information on reasons for arrest);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković | 5. The applicant was born in 1972. He was detained at the Gaziantep Foreigners’ Removal Centre (“the Gaziantep Removal Centre”) at the time of the events giving rise to this application. His current address is unknown. 6. In 2000 the applicant fled to Turkey because he was being searched for by the Russian authorities. It appears that shortly before his escape, he had lost his right leg in a bomb attack that struck a mosque in Chechnya. 7. Subsequent to his departure from Russia, criminal proceedings were brought against the applicant by the Russian authorities before the Cerkessk City Court on the following charges: (i) participation in an armed insurrection and membership of an armed organisation with the purpose of overthrowing the constitutional order and violating the territorial integrity of the Russian Federation and (ii) possessing firearms and ammunition. It appears that the Cerkessk City Court issued a detention order in respect of the applicant in his absence. 8. On 24 January 2008 the applicant was taken into police custody in Istanbul in the context of an operation against al-Qaeda. He was subsequently taken to Gaziantep, where he was placed in pre-trial detention at the Gaziantep H-Type Prison upon the order of the Gaziantep Magistrate’s Court. 9. On an unspecified date criminal proceedings were commenced against the applicant before the Adana Assize Court. 10. On 28 January 2009 the Adana Assize Court ordered the applicant’s release from the Gaziantep H-Type Prison. There is no further information in the case file as regards the outcome of the criminal proceedings. 11. Following his release from prison on 28 January 2009, the applicant was placed in detention at the Gaziantep Removal Centre, which is attached to the Gaziantep Security Directorate. 12. On an unspecified date the Russian authorities requested the extradition of the applicant. On 3 April 2009 the Gaziantep Assize Court refused that request, holding that the offences in question were of a political nature and that under international and national laws, alleged perpetrators of such offences could not be extradited. 13. On 23 October 2009 the applicant applied to the Gaziantep governor’s office with a request for asylum. On 26 April 2010 the applicant was notified that his request had been rejected. 14. In the meantime, on 8 April 2010 the applicant submitted a petition to the Ministry of the Interior (“the Ministry”), where he requested to be released and to be granted a residence permit. The applicant’s requests were dismissed by the Ministry. The applicant’s objection to that decision was further dismissed by the Ministry on 10 June 2010. 15. On 24 July 2010 the applicant was released from the Gaziantep Removal Centre, on the condition that he leave Turkey within fifteen days. It appears that the applicant left Turkey shortly after his release. 16. According to the information in the case file, the applicant met with his lawyer a total of nine times between 3 March 2009 and 27 July 2010 during his detention at the Gaziantep Removal Centre. | 1 |
test | 001-162115 | ENG | BGR | CHAMBER | 2,016 | CASE OF CHENGELYAN AND OTHERS v. BULGARIA | 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 (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 6. The applicants were born in 1950, 1979, 1988, 1958, 1947, 1927 and 1932 respectively. They live in Plovdiv, apart from Ms Asthig Hampartsum Bedrosyan, who lives in New York, United States of America. Before her death in 2014, Ms Anaiys Hampartsum Shirin lived in Burgas. 7. Ancestors of the applicants owned a plot of land measuring 246 square metres in the old part of Plovdiv, which had a two-storey house built on 160 square metres of it. In 1949 the building was declared a cultural monument. In 1966 the property was expropriated and the applicants’ ancestors received compensation. After that, the building was the subject of substantial renovation work, in particular after a fire destroyed part of it in 1978. 8. After the adoption of the Restitution of Property Expropriated under Building Planning Legislation Act (“the Restitution Act”) in 1992 (see paragraph 15 below), some of the applicants and other heirs of the original owners (from whom the remaining applicants succeeded in the course of the domestic proceedings) applied for the revocation of the expropriation. On 28 June 1993 they were informed that their application had been refused by the mayor of Plovdiv municipality, and on 7 July 1993 they applied for judicial review of that refusal. In a judgment of 9 October 1997 the Plovdiv Regional Court upheld the administrative decision. 9. However, in a final judgment of 2 October 1998 the Supreme Administrative Court reversed. It found that the applicants’ property had been taken under legislation regulating expropriations made with a view to carrying out public works, namely expropriations intended to be followed by the construction of new buildings or infrastructure. The property in issue, however, had been declared a cultural monument, and had been expropriated to be used as such, thus the expropriation had been in breach of the law. The fact that no construction work had ever been envisaged had to be assimilated to a situation where no public works within the meaning of the Restitution Act had ever been commenced. In addition, the renovation work carried out after the expropriation did not represent “public works” either, as it had only aimed to preserve the building. Lastly, it was noted that the property still existed. All of those factors meant that the preconditions for restitution had been fulfilled. On this basis, the Supreme Administrative Court revoked the expropriation, quashing the mayor’s refusal in that regard. 10. Following the above judgment, in order to make the restitution effective (see paragraph 16 below), on 21 May 1999 the applicants paid back to the municipality the monetary compensation received by their ancestors at the time of the expropriation. The parties disagreed as to whether the applicants had also received compensation in the form of other property at the time of the expropriation, and whether they had to return that as well. 11. In 2001 the applicants obtained a notarial deed, which named them as the property’s owners. 12. Despite the events described above, the applicants could not take possession of the property, because it was being held and used by the Plovdiv municipality, which in 1997 had declared it a public municipal property and had rented a room in the building to an organisation called “13 Centuries Bulgaria” National Endowment Fund (“the Fund”, see paragraphs 19-20 below). 13. After unsuccessfully attempting to negotiate an agreement, in December 2003 the applicants brought rei vindicatio proceedings against the Plovdiv municipality and the Fund. The action was dismissed by a final judgment of the Supreme Court of Cassation of 8 June 2007. In the first place, the domestic courts found that they were competent to examine the action. According to the second-instance Plovdiv Regional Court, the judgment of 2 October 1998 was open to indirect judicial review, because it was replacing the mayor’s administrative decision on the applicants’ request for restitution, and did not have a res judicata effect in proceedings specifically concerning the right to property. According to the Supreme Court of Cassation, the defendants to the rei vindicatio action, namely the Plovdiv municipality and the Fund, had not participated in the earlier judicial proceedings and therefore were not bound by the judgment of 2 October 1998. 14. Next, the domestic courts found that the reparation work carried out on the building which the applicants were claiming had been so substantial (the building’s appearance had been preserved, but the internal construction had been largely modified – the roof, some windows and other elements had also been replaced) that, within the meaning of the Restitution Act, it could not be said that the building still existed. In addition, the property was being used for the purpose for which it had been expropriated, namely as “a cultural monument”, which, in the courts’ view, constituted “public works” within the meaning of the same Act. Accordingly, none of the preconditions for restitution had been satisfied. | 1 |
test | 001-173361 | ENG | ROU | ADMISSIBILITY | 2,017 | CAZACLIU AND OTHERS v. ROMANIA | 4 | Inadmissible | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The applicants, whose names and dates of birth are listed in the annex to this decision (“the applicants”), are seventy-six Romanian nationals of Roma ethnic origin who live or used to live in Tulcea. They were represented before the Court by the European Roma Rights Centre (“ERRC”), a non-governmental organisation based in Budapest. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Romanian Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants are or used to be residents of the town of Tulcea. They are of Roma ethnic origin. 5. Before July 1999 many of the applicants had lived in an informal Roma slum located in central Tulcea. In July 1999 their homes were destroyed by an accidental fire and they were rendered homeless. Afterwards they were forced to live outdoors in unsafe conditions and did not receive any assistance from the authorities. 6. In December 1999 the applicants moved, with the local authorities’ permission, into an unoccupied building in Tulcea that had belonged to a State-owned factory. 7. For years the applicants and other people continued to live in that building even though the living conditions were poor and overcrowded. Despite not having a lawful right to occupy the building, the applicants’ presence there was tolerated and they paid charges for water and electricity. 8. According to the applicants, they asked the local authorities on numerous occasions to assist them with regularising their status but their requests remained unsuccessful. 9. The applicants were temporarily evicted from the building for the first time in 2005 following a court order. After the eviction order was overturned, they returned to the building and continued to live there. 10. On an unspecified date the building was sold by its former owner to a private investor, namely the company E.V. Prior to selling the building, the former owner had allegedly attempted to donate the building to the local authorities, but his offer was refused by them. 11. On 29 July 2004 Tulcea Local Council adopted a decision concerning the allocation of social housing in Tulcea that made higher education a decisive criterion for examining potential applications. The decision concerned social housing located in the city. 12. On 30 September 2004 Tulcea Local Council again adopted a decision concerning the allocation of social housing in Tulcea that made higher education a decisive criterion for examining potential applications. This decision concerned social housing located on a particular street. 13. On 25 January 2006 the company E.V. brought eviction proceedings against some of the occupants of the building, namely the third, ninth, tenth, fifteenth, sixteenth, twenty-first, twenty-third, twenty-fifth, twenty-ninth, forty, forty-first, forty-seventh, sixty-second, sixty-seventh, seventy-first and seventy-second applicants. The remaining the applicants were not parties to the eviction proceedings. 14. By a judgment of 27 March 2006 the Tulcea District Court allowed the company’s action for eviction. It held that the company was the lawful owner of the building and had a right to enjoy its use. The occupants had no lawful right to occupy the building and therefore had to vacate it. The judgment was upheld by the Tulcea County Court on 17 August 2006 and by the final judgment of the Constanța Court of Appeal on 19 January 2007. 15. On an unspecified date the applicants who were parties to the eviction proceedings contested the eviction order issued against them on the basis of the judgment of 27 March 2006. 16. By a judgment of 24 October 2006 the Tulcea District Court dismissed the proceedings seeking to contest the eviction order on the grounds that the said order was lawful. There is no evidence in the file that any of the applicants appealed against the judgment. 17. In October 2006 the occupants of the building, including all the applicants, were evicted. Among the applicants there were children, elderly and less able people. 18. The only shelter option offered to the applicants by the local authorities was a former army barracks building that had been disused since the 1970s located four kilometres outside Tulcea and known as “Pichet”. The aforementioned building was in an advanced state of disrepair and had been transferred to the local authorities in May 2006 in order to be converted into social housing. The area around the building was heavily industrialised and there were no other residential buildings in the same location. A large number of the applicants moved into the building, while the remaining applicants had to live on the street for two months. In December 2006 those of the applicants who remained homeless after the eviction accepted the local authorities’ offer, as a temporary solution, to move into mobile homes that were placed on a former rubbish dump. 19. According to the applicants, when they moved to “Pichet” they found that the building was not connected to electricity, mains water or sewage facilities. The building had no doors or windows, no heating, a broken roof and damp and damaged walls. It was also infested by rats. The toilet facilities were communal and out of order and rubbish collection was rare. The available water supply had a visible heavy sediment and caused recurring stomach problems. Trucks unloaded bauxite and gravel directly behind the building. The trucks made a lot of noise and raised large quantities of dust which caused breathing difficulties. The noise caused by the nearby shipyard also affected the applicants’ psychological well-being. 20. According to the applicants, they lived in overcrowded conditions because each family was assigned only one room and therefore up to seven people had to share it. Some of them had to abandon their jobs or found it increasingly difficult to find employment and the children were no longer able to attend school or kindergarten because of the travelling distance into Tulcea and the infrequent and unreliable public transport. Some of the children were too small to return home from school on foot unaccompanied by an adult. Others had been harassed or abused by drivers or other individuals when they returned home from school after dark. 21. According to the applicants, the mobile homes that were placed on the former rubbish dump were not meant to serve as long-term habitation, especially during extreme weather conditions. They deteriorated quickly and had to be repaired repeatedly by the authorities. Although they were connected to electricity, they were not connected to running water or sewage facilities. They had no heating system, were poorly ventilated and damp, and were very cold in the winter and very warm in the summer. 22. The rubbish dump had been closed down in 2006 and the land had not been properly decontaminated before the mobile homes were placed on it. 23. In press statements published in the local newspapers Obiectiv and Tulcea Express on 14 May 2005, 26 October 2006 and on an unspecified date during their eviction in 2006, the mayor of Tulcea stated in respect of the applicants’ situation that: “... morally there could be a duty, but as mayor I have a duty towards law-abiding citizens, a duty towards the citizens who respect the community, a duty towards families with children who are gainfully employed. Some of them are living there without any papers to prove that they are citizens of Tulcea”. Also: “...Some citizens accused me of racism and some of positive discrimination. I did not set out to become the king of the gypsies in this town, because this is not why I have been elected. I have done a lot to meet the problems of this social category, but now it’s enough...”. And: “We are doing everything possible to provide them with some comfort at “Pichet”, where sixteen families have been relocated. For the rest other options were found. We have no houses available. Where would they like me to find a living space for them, at kilometre zero? Perhaps close to the market? Those who are not from Tulcea can go back to where they came from”. 24. In a press statement published on 17 October 2006 in the local newspaper Obiectiv the Tulcea Prefect stated that “We are looking at an option with mobile homes, but I would like to say that many of the Roma faced with these problems have created them themselves. Many of them sold their homes and afterwards asked the Mayor’s Office for new ones. Of course, the Roma are confronted with many problems, but they are not frequent visitors of the jobs markets. Be that as it may, many non-Roma are in a similar situation to that of the Roma population and have no homes, but they do not knock at the Prefect Office’s door; they try to rent, to work and so on. I think that your organisation should also be more involved this way and educate them to work”. 25. On 12 March 2007 the sixth, fifteenth, seventeenth, twenty-first, forty-first, forty-seventh, fifty-fourth, sixty-first, sixty-seventh, seventy-first and seventy-second applicants, all of whom were living in the “Pichet” building, brought proceedings against Tulcea Local Council to obtain an injunction ordering the local authorities to carry out the urgent maintenance work needed on their building. 26. By a final judgment of 1 October 2008 the Constanţa Court of Appeal allowed the action brought by the applicants. It held that Tulcea Local Council had signed lease contracts for the building with the applicants. Therefore, as a lessor, according to the relevant domestic legislation and the provisions of the lease contracts, it had an obligation to provide adequate living conditions, and to repair the building and keep it safe for the entire duration of the contract. However, according to the available testimonies at the time, the housing conditions had been unfit for habitation and the building had been in a poor state when the applicants moved into it. In March 2007 the building had still not been connected to the town’s electricity grid and the sewage system was never fully functional. The building materials brought on site by Tulcea Local Council after the applicants moved there did not constitute fulfilment by the lessor of its obligations to repair the building because the quantity of materials was too small to ensure the complete repair of the building. 27. The argument that the building’s problems were caused by some of the tenants themselves was not supported by any proof. In addition, the argument that the applicants failed to pay rent for long periods of time was irrelevant for the case, since the lessor could not use that argument to justify a breach of his contractual duty to maintain the building. Consequently, the court ordered Tulcea Local Council to repair the building and maintain it and the communal areas at an acceptable standard for the entire duration of the lease contract. 28. On 24 August 2007 sixty-eight of the applicants living both at “Pichet” and in the mobile homes – all except the third, eleventh, twelfth, twenty-fourth, forty-sixth, forty-seventh, fortyeighth, and forty-ninth applicants – and other people brought a general tort law action on the basis of Articles 998-999 of the Romanian Civil Code against Tulcea Local Council and the Tulcea mayor’s office seeking 245,000 Romanian lei (RON) (3,500 for each individual) (approximately 75,400 euros (EUR) (780 for each individual)) by way of compensation in respect of non-pecuniary damage sustained as a result of having their access to education restricted, the inadequacy of the living conditions in the social housing, and the interference with their health and social personality as a result of the inaction of the local authorities. 29. By a judgment of 20 October 2010 the Tulcea District Court dismissed the sixty-eight applicants’ action. It held that the applicants had not suffered any damage and therefore at least one of the conditions required for a general tort law action had not been met. The local authorities had taken steps to provide the applicants with suitable living conditions, even though they had failed to pay their outstanding taxes. Although the applicants had not paid their rent, the local authorities had not used the contract clause allowing them to terminate the lease contracts after the applicants’ failure to pay rent for three successive months. The means to help the disadvantaged were provided for by law. The responsibilities of Tulcea Local Council and the Tulcea mayor’s office did not include the duty to secure the necessary conditions in social housing belonging to persons of Roma ethnicity or their health. 30. The applicants appealed against the judgment. They did not submit reasons for their appeal but argued that the objectivity of the social investigation reports produced during the proceedings was doubtful because they were carried out by Tulcea Local Council employees. In addition, the social investigation reports had not reflected their living conditions as they had avoided providing details about the available utilities, furniture and living conditions by using the expression “equipped with the bare necessities”. 31. By a judgment of 14 December 2012 Tulcea County Court dismissed the applicants’ appeal and upheld the judgment of the firstinstance court. It noted that the applicants had failed to provide reasons supporting their appeal and had submitted only objections in respect of the social investigation reports. It held that according to the relevant domestic legislation the local authorities had to assign social housing to various categories of people in an order of priority set out by law. Consequently, homeless Roma could be assigned social housing only if the order of priority set out by law had been observed and if they met the monthly income criterion provided for by law. Therefore, the local authorities could not be forced to satisfy the social housing needs of all the applicants as long as such housing had to be assigned on a priority basis to other categories of people expressly provided for by law. The applicants’ needs could be met afterwards, if and when social housing became available. 32. The court further held that, even though the applicants had failed to pay their dues towards the State budget, some of them had nonetheless been provided with social housing. Consequently, the local authorities had already taken steps to ensure they had suitable living conditions. 33. As far as the applicants’ living conditions were concerned, the court noted that there was no evidence that the social housing was not connected to electricity or heating facilities, and this could also have been a consequence of the applicants’ failure to pay their monthly invoices. Moreover, the responsibilities of the local authorities did not include the duty to ensure adequate conditions in social housing belonging to persons of Roma ethnicity. 34. In respect of the applicants’ health, the court held that it was not proven that the alleged failure of the local authorities to fulfil their duties had caused the applicants’ state of health to deteriorate. 35. Finally, the court also noted that it had not been proven that the local authorities’ action – namely providing only some of the applicants with social housing based on availability – had restricted their access to education. 36. The applicants lodged an appeal on points of law against the judgment. They argued that according to the relevant domestic legislation the local authorities were responsible for assigning social housing for renting to disadvantaged persons, a category to which the applicants belonged. The authorities had a statutory responsibility to ensure decent living conditions for Tulcea’s citizens but they had failed to fulfil their duty by housing the applicants indefinitely in accommodation which was not connected to basic utilities. The absence of decent accommodation for Tulcea’s Roma was one cause of the applicants’ abandonment of school attendance and of their exclusion from the employment market. In these circumstances, the failure of the local authorities to fulfil their statutory obligations rendered them responsible for the non-pecuniary damage suffered by the applicants, estimated at RON 3,500 (approximately EUR 780) for each individual. 37. By a final judgment of 26 March 2014 the Constanța Court of Appeal allowed the applicants’ appeal on points of law in part, quashed the second instance court’s judgment, annulled the action lodged by the seventeenth applicant on account of her death and awarded each of the remaining applicants RON 2,000 (approximately EUR 450) in respect of non-pecuniary damage. It noted that the parties had submitted the final judgment of 1 October 2008 to it and that the seventeenth applicant had died on 28 February 2013 and that no relatives had accepted her inheritance. Moreover, it stressed that the object of the applicants’ action was strictly limited to the non-pecuniary damage claim of RON 3,500 for each individual in the light of having their access to education restricted, being provided with social housing offering inadequate living conditions, and the interference with their health and social personality resulting from the inaction of the local authorities. The applicants had not asked the court to examine the conditions in which their eviction in October 2006 had taken place. The aforementioned issue had been the object of another set of proceedings which were terminated by the final judgment of 18 May 2009. 38. The court held that the local authorities’ failure to fulfil all their statutory duties and ensure adequate living conditions for the applicants in the housing rented to them after their eviction in October 2006 amounted to a breach of their right to private and family life and home guaranteed by Article 8 of the Convention. It noted that, contrary to the applicants’ submissions, the local authorities’ decision to assign and rent homes to the applicants at “Pichet” had not been aimed at segregating the Roma families. Because winter was approaching when the applicants were evicted, the local authorities had actually been trying to urgently secure shelter for seventeen of the evicted families and their small children. According to Tulcea Local Council, the lack of social housing was endemic nationwide and particularly in Tulcea, where only ten social cases were solved yearly out of the two thousand five hundred pending requests for social housing. 39. As regards the “Pichet” building, the court held that, according to the available evidence, the building was functional and had offered adequate conditions for housing on the date when it was leased to the applicants. In particular, the building was connected to electricity, was fitted with stoves for heating, and running water was available from a tap located in the courtyard. In addition, on the date the applicants took over the building the local authorities provided the applicants’ representative, namely the ninth applicant, with some building materials in order to be able to carry out some maintenance work that was needed. However, according to the relevant domestic legislation it was not sufficient for a lessor to provide those who signed a lease contract with a functional building. The lessor had to provide during the entire period of the lease contract a building which was safe to use and which had functioning utililities. In the instant case, during the term of the lease contract the communal water, electric and sewage facilities were damaged. 40. Although the tenants reported the problems to the authorities, they had remained inactive and had failed to carry out repairs and the building had become unfit for habitation and a health hazard for the tenants. Although the Constanța Court of Appeal established on 1 October 2008 that the local authorities had failed to repair and maintain the building for the entire duration of the lease contract, and had ordered them to do so, the authorities had not demonstrated that they had complied with that judgment. Moreover, according to the available evidence, the building had become even more dilapidated and unfit for habitation. The fact that the building’s problems were caused by some of the tenants themselves could not exonerate the authorities or explain their inaction. The relevant domestic legislation provided for sanctions against tenants who damage a building, namely the cancellation of their lease contract. However, the local authorities had failed to take any punitive measures against those tenants. At the same time they had also failed to repair the building, thus creating an unsuitable living environment even for those tenants who had maintained their homes and had not damaged the building. 41. In respect of the mobile homes located on the former rubbish dump, the court held that they had represented an effective temporary solution for the applicants’ problems. However, given that the applicants have had to continue living there, the homes in question and their location amounted to a breach of the applicants’ right to enjoy their home in a healthy environment as guaranteed by Article 8 of the Convention. The mobile homes assigned to seven families were placed on a former rubbish dump, without any preliminary operation to decontaminate the soil or have the level of soil pollution measured by a specialist agency. The local authorities were responsible for taking measures to locate the mobile homes in an area of the city that would be appropriate for the applicants’ needs and would safeguard their right to a healthy environment. However, they had failed to fulfil their positive obligations under Article 8 of the Convention and to inform the applicants that the land in question had been used as a rubbish dump prior to 2006 and that their health and quality of life might be adversely affected by pollution. The failure of the local authorities to fulfil their duties and their passivity after 2006 also amounted to a breach of the applicants’ right to a home as guaranteed by Article 8 of the Convention. 42. Consequently, given the applicants’ living conditions, namely the overcrowded and unhealthy environment, and its effect on the applicants’ state of health throughout the long period of time they had to live under those conditions, combined with the general attitude of the authorities, the civil liability of the authorities could be engaged since the nature of the applicants’ living conditions had a negative impact on human dignity and the applicants’ right to private life and to a home. 43. In respect of the applicants’ claims that the local authorities had interfered with and restricted the applicants’ children’s right to education by renting them social housing located on the city’s outskirts, the court held that the local authorities were responsible for the applicants’ children’s inability to attend school regularly and liable for the damage thereby caused. 44. It noted that, according to the available evidence, the applicants’ children’s schools were located between three and three and a half kilometres from their homes. The absence of frequent public transport on those routes made travelling to school difficult and encouraged the abandonment of school attendance, particularly during adverse weather conditions. From 2006 to October 2008 there was no public transport connecting the “Pichet” building to the city centre and the form of transport referred to was introduced only after that date. In this context it pointed out that according to the case-law of the European Court of Human Rights (“the Court”), in cases where a general measure has a disproportionately prejudicial effect on a particular group of people, that measure could be deemed to be discriminatory even though it had not targeted that group of people. Consequently, even though the authorities’ cancellation of public transport in the area did not directly target the Roma and pursued a legitimate aim – namely to make public transport financially efficient – its effect did not strike a fair balance between the public interest and that of the applicants. By relying on the principles set out in the Court’s case-law concerning non-discrimination against people of Roma ethnicity and their right to education, the court concluded that the local authorities had indirectly breached the applicants’ children’s right to education by failing to discharge their duty of organising adequate public transport in the city. 45. In respect of the applicants’ claims that their health was affected, the court noted that they enjoyed free medical assistance without any discrimination or bias. However, it considered that, based on the available testimonial evidence, the authorities’ passivity in respect of the applicants’ inadequate living conditions, the lack of hygiene in the rented housing and the polluted environment had affected the applicants’ health. 46. Finally, in determining the non-pecuniary compensation to which the applicants were entitled (see paragraph 37 above), the court took into account the applicants’ individual situations, the fact that some of the applicants had failed to fulfill all their contractual obligations, that they had refused to comply with their lawful duty to participate in routine cleaning of the premises, and that some of their actions had contributed to the deterioration of their homes. 47. On 3 October 2007 the Romanian Helsinki Committee lodged civil claims in anti-discrimination proceedings against Tulcea Local Council, relying on Article 27 § 1 of Government Ordinance No. 137/2000 on combating and punishing all forms of discrimination. The action did not name any of the applicants or any of the victims of the measures taken by the authorities. The Romanian Helsinki Committee asked the court to acknowledge that the relocation of Roma families in a building deemed unfit for human habitation outside the town and in mobile homes on a former rubbish dump breached the domestic legislation on antidiscrimination, as did the criterion set by the local authorities requiring a certain level of education for awarding social housing. In addition, the Romanian Helsinki Committee asked the court to order Tulcea Local Council to pay RON 350,000 (approximately EUR 103,860) to the victims of the discrimination, and to restore the previous situation, or to remedy the situation caused by the discrimination. 48. The Committee argued, amongst other things, that part of the evidence used to prove that the Tulcea local authorities’ decision-making process had been influenced by their preconceptions about Roma was the racist language used by them in the press to describe the applicants on account of their ethnicity (see paragraphs 23 and 24 above). Moreover, the local authorities had moved the families in question to remote locations, into a polluted area and on a former rubbish dump, had segregated them, had created physical obstacles for them which prevented them from accessing regular public services, had restricted their children’s rights to education and had refused to fulfil their contractual and legal obligations. Furthermore, without any reasonable justification, Tulcea Local Council had added the criterion of higher education as a decisive condition for accessing social housing, even though the relevant domestic legislation did not impose this criterion as a requirement and it had been statistically proven that people of Roma ethnicity are less well educated than those of other ethnicities. 49. By a judgment of 20 May 2008 the Tulcea District Court dismissed the action brought by the Romanian Helsinki Committee. It noted that following its request, the National Council for Combating Discrimination had submitted its opinion on the case. The court held that the actions of the local authorities had been motivated not by racial discrimination but by the lack of social housing affecting both the Roma and the non-Roma population. Moreover, the allegedly offensive statements made by representatives of the local authorities were not discriminatory, because the domestic anti-discrimination legislation could not restrict freedom of speech, or the freedom to hold an opinion, or to impart information. According to press articles submitted by the Romanian Helsinki Committee, the representatives of the local authorities had stated the reason for the Roma families’ move to the impugned locations, namely the lack of any other social housing, not their ethnicity. 50. Furthermore, the criteria set by the local authorities for allocating social housing (see paragraphs 11 and 12 above) could not be considered discriminatory because in the court’s opinion it would be unconceivable that any one social group would have a better claim to social housing than another social group simply because the latter’s members were not educated, or that the interpretation of the legal provisions would generate positive discrimination. The local authorities were free to set certain criteria for awarding social housing and they could not be held responsible for the fact that Roma are less educated than the rest of the population. The local authorities had a duty to safeguard the rights and well-being of all the members of the community and the relocation of the Roma families to the area they favoured would have created a situation of conflict in that area that the authorities were duty-bound to avoid. The court furthermore considered that the Romanian Helsinki Committee’s claims for compensation, or to remedy the problems caused by the discrimination, were unfounded because the authorities had not committed acts of discrimination and the question of whether or not the housing assigned to the families in question was fit for habitation was not an issue of discrimination and could be remedied through a general law action. At the same time, restoring the previous situation would have contravened a final court judgment which was res judicata and ordered their eviction. 51. The Romanian Helsinki Committee appealed against the judgment and asked the appeal court to quash the first-instance court’s judgment and to allow its action the way it was formulated. It argued, inter alia, that the first-instance court had misapplied the relevant anti-discrimination legal provisions and had failed to reverse the burden of proof as required by law, even though they had proven by statistical data that the relocated families had been discriminated against. In addition, it claimed that the court had failed to examine evidence held on file such as the discriminatory statements made by the local authorities, had founded its judgment on inexistent evidence, had relied on the principle of free speech as an argument for dismissing the claims – even though free speech does not excuse discriminatory statements – had ignored the fact that of the people who had claimed social housing, it was only those with Roma ethnicity who had been assigned housing in the impugned locations, had relied on the argument that there was no social housing available in Tulcea without seeking evidence to substantiate this, and had not examined the question of whether the victims’ relocation and living conditions were discriminatory. The court had also failed to understand the argument concerning the higher education criterion, given that the organisation had contested not its actual existence, but rather the importance assigned to it for the purposes of awarding social housing. The local authorities had not shown any objective justification for assigning great importance to that condition. 52. By a judgment of 15 October 2008 the Tulcea County Court dismissed the appeal. It held that the relocation of the Roma families had not been motivated by racial discrimination as the decision for relocation had been taken on the basis of regulations provided for by law. Nor had the domestic authorities treated the Roma families differently from other families in a similar situation. In addition, the local authorities’ public statements had not been discriminatory and, as they did not play a decisive role in assigning housing to Roma families, were irrelevant. The Roma families had been provided with housing on the basis of clearly established criteria set out in decisions that had not been contested. The available evidence had not demonstrated fulfilment of the cumulative conditions required for an act to amount to discrimination within the meaning of the relevant domestic legislation. 53. The Romanian Helsinki Committee appealed on points of law against the judgment and asked the appeal court to quash the secondinstance court’s judgment and to allow its action the way it was formulated. It argued that the second-instance court had failed to provide reasons for its decision and to fully examine the claims concerning the relocation to polluted areas, and had omitted altogether to examine the arguments about the higher education criterion. The lower court, meanwhile, had failed to explain the basis for its statement that Roma families had not been treated differently from other families in a similar situation. Moreover, the court had shifted the burden of proof in respect of the discrimination claim to the plaintiff, whereas it was for the authorities to show that there had been no discrimination. The court’s argument that the Roma families had been provided with houses on the basis of clearly established criteria set out in decisions was irrelevant as it did not mean that the criteria in question were not discriminatory. In addition, the appellate court’s reasoning simply ignored the racist and discriminatory nature of the public officials’ statements, even though the same public officials were the ones who had ordered the relocation of the Roma families outside the city and on a former rubbish dump. 54. By a final judgment of 18 May 2009 (available on 3 July 2009) the Constanţa Court of Appeal dismissed the appeal on points of law. It held that if the interest in taking part in the proceedings lay in the purpose for which the non-governmental organisation was founded − namely, the protection of the rights of the persons in respect of whom the existence of the alleged discrimination was invoked − in the instant case the available evidence, including the succession of events as narrated by the media, did not confirm the existence of different treatment in a similar situation. The minutes of Tulcea Local Council’s meeting of 25 January 2007 and the press articles provided evidence of the efforts of the local authorities to remedy the problems caused by the eviction. 55. The local authorities had repeatedly attempted to delay the eviction pending the preparation of other housing solutions, and had succeeded in doing so. It was uncontested that after the eviction housing solutions had been found for all the families either at “Pichet” or in mobile homes. It had also been proved that the local authorities had constantly tried to remedy the particular housing problems of individual families by granting them social housing and by overruling the opposition of some of the members of the community to certain families’ being granted priority treatment. In this context the court noted the statements made by the mayor and by another representative of the local authorities in respect of the Amarioarei and Stanga families’ situation after their eviction. The Romanian Helsinki Committee’s arguments that the relocation of most of the families to “Pichet” amounted to segregation was therefore contradicted, since that had been the only housing option identified at the time of the eviction and there was no proof that alternative options had existed. 56. Also, the local authorities had tried to remedy the victims’ social problems, even though it was not denied that some of them had owned homes which they had sold after moving into the unoccupied building in Tulcea, which had previously belonged to a State-owned factory. In addition, the area where the “Pichet” building was located was connected to the town by public transport even though the bus service was infrequent. Travelling into the city was therefore possible, whereas by contrast it was a well-known fact that there were inhabited areas of the country which were not served by any transport connection at all, not even for children attending school. Furthermore, according to press reports about the investigation carried out by the Tulcea Environmental Agency, the area where the “Pichet” building was located did not constitute a health hazard for humans. What is more, after some of the families moved to “Pichet”, their homes had been connected to electricity. 57. As regards the mobile homes located on the former rubbish dump, the court considered that the lower courts had correctly dismissed the discrimination argument. In this connection it noted that – according to the press reports – the homes in question had initially been set up on a concrete platform at a separate location but were later moved at the request of the Roma families’ representatives in order to have access to water and sewage facilities. Subsequently, they were connected to the town’s electric grid. 58. Moreover, the Romanian Helsinki Committee had failed to prove the alleged stereotypical and offensive statements made by local officials about the Roma community, and the authorities’ action argued against the existence of a discriminatory stance based on ethnicity. Furthermore, leaving aside the fact that the Romanian Helsinki Committee had assumed without proof that members of the Roma community were less well educated, the education criterion set by the local authorities for allocating social housing had concerned social housing located on a particular street and it had not been proved that it was a rule applied in a ‘blanket’ manner when allocating all social housing in the city, or that it was relevant on the date of the eviction, or that it was a real obstacle for the members of the Roma community to enforce their rights as long as it was established that there were no other options available for shelter at the time. Also, the criterion had been imposed by a Tulcea Local Council decision dating back to 2004 (see paragraphs 11 and 12 above) that had not been challenged by the victims before the domestic courts. In addition, the relevant domestic legislation allowed local authorities to determine the criteria for awarding social housing. 59. On 27 July 2005 Tulcea Local Council informed the Tulcea prefect’s office that they could not agree to the relocation of some of the applicants on a certain street in the town since the local inhabitants objected to their return there because of past conflicts. 60. On 2 November 2006 the Tulcea Public Transport Company under the direction of Tulcea Local Council informed the Tulcea prefect’s office, among other things, that they intended to provide transport services in the area of the “Pichet” building from 3 November 2006. 61. On 2 April 2008 the Tulcea Public Transport Company under the direction of Tulcea Local Council informed the Tulcea prefect’s office that the buses serving the “Pichet” area had been discontinued since 15 October 2007 because nobody was using them. Two buses continued to serve the nearby industrial zone and their number could be increased on condition that the people living in the “Pichet” area bought monthly transport passes in advance. 62. On 15 April, 9 May, 24 July, and 1, 9 and 24 September 2008 the Tulcea prefect’s office informed the mayor of Tulcea that following individual complaints lodged by the applicants and non-governmental organisations and from inspections carried out at the “Pichet” building and in the mobile homes located on the rubbish dump by representatives of the Tulcea County Agency for Roma, the Tulcea Public Health Agency and the Tulcea Agency for Emergency Situations, it was apparent that the applicants’ homes were poorly maintained and infested by rodents, that the sewage system was either non-existent or not working, the sanitary facilities were not working, there was no access to water, the domestic refuse had not been collected for a long time and was being stored in a pit in front of the building, and maintenance work was urgently required. Consequently, it asked the mayor’s office to remedy the situation. 63. On 22 April 2008 the Tulcea schools inspectorate informed the Tulcea prefect’s office that they did not have the legal framework or the requisite funding to exempt children living in the “Pichet” area who wanted to attend school from paying for transport passes. They further submitted that pupils generally benefited from the statutory discount of 50% for transport passes. 64. On 24 April 2008 the Tulcea schools inspectorate asked the Tulcea mayor’s office and the schools attended by the children living in “Pichet” to get in contact each other and to examine the possibility of the aforementioned children being exempted from paying for public transport. 65. On 5 May 2008 and 22 October 2010 two of the schools that had enrolled some of the children living at “Pichet” sent to the local public transport company under the direction of the mayor’s office a list of names of the aforementioned children together with information stating when their classes started and ended. 66. On 3 June and 4 July 2008, respectively, the Tulcea prefect’s office and Tulcea Local Council informed each other and an applicant that a source of water had been installed in the vicinity of the mobile homes located on the rubbish dump and that some of the sanitary facilities of the “Pichet” building had been repaired, but they continued to break down as a result of improper use. 67. On 24 September 2008 the Tulcea prefect’s office informed the Tulcea Public Transport Company under the direction of Tulcea Local Council that according to information received from the inhabitants in the area, all the buses connecting the “Pichet” building and the nearby industrialised area with the town had been cancelled, with the result that many of the children living there could not travel to school any more and therefore abandonment of school attendance was increasing. It also asked Tulcea Local Council to reinstate the bus routes serving the area in question. 68. Between 15 September and 5 December 2006 the applicants signed lease contracts with Tulcea Local Council for rooms in the “Pichet” building or for mobile homes located on the former rubbish dump. According to the aforementioned contracts the twenty-third applicant was living together with the fiftieth, fifty-first and fifty-second applicants in a mobile home located on the rubbish dump. The fifteenth applicant was living together with the thirteenth, fourteenth, forty-third and forty-fourth applicants at “Pichet”. The twenty-fourth applicant was living together with the eleventh and the sixtyninth applicants in a mobile home located on the rubbish dump. The sixty-third applicant was living together with the twenty-eighth, twentyninth, sixty-fourth and sixty-sixth applicants at “Pichet”. The fortyfirst applicant was living together with the thirty-seventh, forty-second and seventy-sixth applicants at “Pichet”. The forty-seventh applicant was living together with the forty-sixth, forty-eighth and forty-ninth applicants at “Pichet”. The fifty-fourth applicant was living together with the thirtyeighth, thirty-ninth, fortieth, fifty-third and fifty-fifth applicants at “Pichet”. The sixty-first applicant was living together with the twenty-sixth, fifty-eighth, sixty-second, sixty-fifth and seventy-fifth applicants at “Pichet”. The sixteenth applicant was living together with the twentyseventh, fiftysixth and fifty-seventh applicants in a mobile home located on the rubbish dump. The third applicant was living together with the second and twelfth applicants in a mobile home located on the rubbish dump. The thirty-fifth applicant was living together with the thirty-third, thirty-fourth and thirty-sixth applicants in a mobile home located on the rubbish dump. The twenty-fifth applicant was living alone in a mobile home located on the rubbish dump. The seventeenth applicant was living together with the tenth applicant at “Pichet”. The seventy-first applicant was living together with the eighteenth, nineteenth, twentieth, seventieth and seventy-second applicants at “Pichet”. The twenty-first applicant was living together with the twentysecond, thirtieth, thirty-first, thirty-second, seventy-third and seventy-fourth applicants at “Pichet”. The forty-fifth applicant was living together with the fifty-ninth and the sixtieth applicants at “Pichet”. The sixth applicant was living together with the fourth, fifth, seventh and ninth applicants at “Pichet”. 69. According to social investigation reports produced by Tulcea Local Council on 28 January 2009, the twenty-second applicant was living at “Pichet” together with the twenty-first applicant and six months earlier the eighth applicant had moved in with the ninth applicant at “Pichet” from a different address in the city. The seventy-fourth applicant had moved to a different town and the forty-second applicant had moved to a different address in the city. Meanwhile, the fifty-fourth applicant had broken up with the fortieth applicant in December 2007 and had not been in touch since then. 70. On 19 May 2010, on their application form, the applicants informed the Court that they had mounted legal challenges against their evictions of 2005 and 2006. They also stated that, whilst important by way of background, those legal challenges did not form the focus of the application. 71. On 16 September 2011 the sixty-fifth applicant signed a lease contract with Tulcea Local Council for a home located at a different address in the city, neither at “Pichet” nor at the former rubbish dump. 72. In December 2012 the Tulcea mayor’s office informed the Government that, according to the social investigation reports produced in October 2008 by the Tulcea Social Protection and Assistance Agency, the applicants’ relatives and neighbours had informed the social investigators that the seventy-first applicant had moved to Spain a month earlier together with her children, the thirty-sixth applicant was living with her mother at a different address in the city, and the forty-sixth, forty-eighth and seventyfifth applicants were living at a different address in the city. 73. On the same date the Tulcea mayor’s office informed the Government that, according to the social investigation reports produced in February 2009 by the Tulcea Social Protection and Assistance Agency, the twenty-seventh and fifty-seventh applicants were living in mobile homes located on the former rubbish dump. Also, according to statements from the applicants’ relatives and neighbours, the fifty-sixth applicant had moved to another city in January 2009 in order to live with her partner; the thirty-sixth applicant was living with her mother at a different address in the city; the twenty-second applicant was living elsewhere with his mother; the seventyfirst applicant had moved to Spain together with her children, namely the eighteenth, nineteenth, twentieth, seventieth and seventy-second applicants; the seventy-fifth, the forty-sixth and forty-eighth applicants were living at a different address in the city; the sixty-seventh and sixty-eighth applicants were living at “Pichet”; and the fifty-second applicant was living in another town. 74. On the same date the Tulcea mayor’s office informed the Government that, according to the social investigation reports produced in December 2012 by the Tulcea Social Protection and Assistance Agency, the nineteenth, twentieth, twenty-seventh, fifty-sixth, fifty-seventh, sixty-seventh, sixty-eighth, seventieth, seventy-first and seventy-second applicants were no longer living at “Pichet” or in the mobile homes located on the former rubbish dumps. Also, according to statements from the applicants’ relatives and neighbours, the twenty-second applicant had moved and was renting an apartment at a different address in the city; the seventy-fifth applicant had been held in detention since 2010; the forty-second applicant had returned to “Pichet” in June 2012, having previously lived at a different address in the city where she had moved sometime after December 2006; the fortieth applicant was in detention; the forty-sixth and forty-eighth applicants were living at a different address in the city; the thirty-sixth applicant was living elsewhere with her mother; and the fourteenth applicant was living at a different address in the city together with her partner’s parents. 75. According to the social investigation report produced by Tulcea Local Council on 13 December 2012 the fifty-third applicant was living with her grandmother at a different address in the city, the seventy-fourth applicant was living together with the twenty-first applicant, and the sixtyfifth applicant was living together with his partner at “Pichet”. The eighth applicant was living together with the eighteenth applicant and the fifty-second applicant was living together with the fiftieth applicant at “Pichet”. 76. On 20 December 2012 the Tulcea County Agency for Payments and Social Inspection informed the Government that fifty-four applicants – excluding the sixth, eleventh, thirteenth, eighteenth, nineteenth, twentieth, twenty-second, twenty-fourth, twenty-ninth, thirty-fifth, thirty-seventh, thirty-eighth, forty-fifth, forty-sixth, forty-eighth, fifty-second, sixty-fifth, sixty-seventh, sixty-eighth, sixty-ninth, seventy-fourth and seventy-fifth applicants – had been receiving or continued to receive various forms of benefits and social allowances. 77. On the same date the Tulcea schools inspectorate informed the Government that of the applicants who lived at “Pichet”, twenty-one were and/or had been enrolled as school students before and/or after their eviction in October 2006, namely the fourth, fifth, seventh, thirteenth, fourteenth, nineteenth, twenty-sixth, twenty-eighth, thirtieth, thirty-first, thirty-eighth, thirty-ninth, forty-fourth, forty-sixth, fifty-third, fifty-fifth, fifty-ninth, sixtysixth, seventieth, seventy-second and seventy-third applicants. According to the aforementioned school inspectorate some of the twentyone children had been temporarily or permanently withdrawn from school by their parents or next of kin before, immediately after or some years after their eviction in October 2006 because their parents or relatives were not interested in their children obtaining an education. 78. On the same date the Tulcea schools inspectorate informed the Government that the schools closest to “Pichet” and the mobile homes on the rubbish dump were located one kilometre and 200 metres respectively from the two sites. 79. On 12 December 2012 the Tulcea Environmental Protection Agency informed the Government that none of the applicants had complained to it about the issues raised before the Court. Moreover, the Agency had not carried out an environmental impact evaluation regarding the pollution in the areas mentioned in their application before the Court because the mobile homes were positioned in a location in a residential neighbourhood within the city boundary with access to running water, electricity, household waste collection facilities and a school. The area in question had never been designated as a rubbish dump. The city’s rubbish dump for household waste was located 5 kilometres outside the city. The “Pichet” building was also located within the city boundary, within the confines of the industrial port zone on the banks of the River Danube with access to running water, electricity and household waste collection facilities. The Agency had an automated air quality monitoring station positioned in a location 1,500 metres from “Pichet”. The results produced by this station showed that the level of pollution from sulphur dioxide, nitrogen dioxide, carbon monoxide, suspended particles and volatile organic compounds had remained below dangerous levels throughout 2011 and none of the other automated stations for monitoring air quality within the city had reported dangerous levels of pollution that year either. Furthermore, the goods which were handled by the port authorities were not dangerous and an environmental impact evaluation with regard to the pollution in the area of the industrial port was therefore not necessary. Lastly, the Agency was unaware whether the applicants had been informed by the authorities about the environmental conditions in the area at the time of their eviction because the eviction had been carried out by the Tulcea mayor’s office. The Agency did not have a strategy for avoiding potential risks to the applicants’ health because such a strategy would fall within the spheres of competence of the Tulcea mayor’s office and the Tulcea Public Health Agency. 80. On 6 February 2013 the Romanian Ministry of Internal Affairs informed the Government that the nineteenth and the sixty-seventh applicants had been registered at other addresses since June 2011. 81. On 28 March 2013 the fifteenth applicant submitted a statement before the Court, co-signed by his partner and children, to the effect that he and his partner, the forty-third applicant, were still living together with the fourteenth, the forty-fourth and thirteenth applicants at the same address and that their living conditions had not improved. Moreover, the authorities had refused to renew their lease contract because they had fallen behind with the rent and electricity payments. He also submitted that the sixty-seventh and the sixty-eighth applicants had moved to a different address. At the same time the seventy-second applicant had been working in Spain but she had continued to make regular return visits to her home here. 82. On the same date the twenty-fourth, twenty-ninth, forty-first, fortysecond, fifty-fourth and sixty-third applicants submitted statements to the Court to the effect that they had been faced with poor living conditions after their re-location. The twenty-ninth, forty-first and fifty-fourth applicants stated that after their lease contracts had expired the authorities had refused to renew them because they had also fallen behind with paying rent and other charges. The twenty-ninth applicant confirmed the fifteenth applicant’s statement about the sixty-eighth applicant. The fifty-fourth applicant also confirmed the fifteenth applicant’s statements concerning the sixty-seventh and sixty-eighth applicants, as well as those regarding the family of the seventy-second applicant. She added that the nineteenth and the twentieth applicants were in a similar situation to that of the seventysecond applicant’s family. 83. On 29 March 2013 the sixty-first and seventy-sixth applicants submitted statements before the Court confirming the poor living conditions they had been faced with after their re-location. On the same date the fortyseventh applicant stated that her grand-daughter and son, the fortysixth and fortyninth applicants respectively, were living with her. She reiterated that their living conditions were inadequate and had not improved. On the same date the fiftieth applicant confirmed that his living conditions were still poor and stated that his son, the fifty-second applicant, was still living there with him. 84. The relevant provisions of Law no. 114/1996 on housing read as follows: “A lease contract may be terminated prematurely in the following circumstances: (...) b) at the owner’s request if: - the tenant has not paid the rent for at least 3 consecutive months; - the tenant has significantly damaged the residence, the building, the facilities and any other property attached to them ...; - the tenant’s behaviour makes cohabitation impossible or prevents the normal use of the residence; - the tenant has breached the tenancy agreement; c) at the request of the owners’ association if the tenant has not paid his share of the collective charges for 3 months...” “If a leaseholder leaves the residence permanently, or if he or she dies, or if a non-resident leaseholder ... ceases to use the residence for more than 2 years continuously, the lease shall remain valid as the case may be: a) to the benefit of the spouse, if he or she has lived together with the leaseholder; b) to the benefit of the descendants and the ascendants, if they have lived together with him or her: c) to the benefit of other individuals who shared the same domicile with the leaseholder for at least 1 year and were recorded in the lease contract; (...) In the absence of individuals who could benefit from the lease according to paragraph 1, the lease contract shall be terminated within 30 days of the date on which the leaseholder vacated the residence or died, or when the 2-year period of continuous non-use has expired.” “The owner shall fulfil the following duties: a) to hand over the residence to the tenant in a condition suitable for use; b) to take steps to repair and maintain the building for safe use during the entire duration of the lease; c) to maintain in good condition the building’s structural strength and the external parts of the building (roof, building front, pavement, surrounding area), yards and gardens as well as the building’s internal communal area (the stairwell, lift, hallways, corridor, underground, external stairs); d) to maintain in good condition the building’s common facilities (elevator; hydrophore; water, sewage, central and water heating facilities; central heaters; ... waste collection facilities...). “The tenant shall fulfil the following duties: a) to carry out the maintenance, repair and replacement work of the building’s elements and facilities used exclusively by him; b) to replace or repair damaged elements and facilities of the building used improperly and which are in common use, regardless if they are outside or inside the building...; c) to clean and disinfect the residence and the parts of the building in common use during the entire duration of the lease; d) to return the residence to the owner in a condition suitable for use once the lease ended...” “If the owner fails to fulfil his duties to repair and maintain the leased residence, the tenant may carry out the works at the owner’s expense, by deducting the expenses from the rent. The tenant may carry out these works if the problem in question affects normal use of the property and if the owner has not taken steps to carry out such works within 30 days of the tenant’s written notification of the problem.” “Social housing shall be allocated by local councils on the basis of conditions which they revise annually under the law in force at the time. The following categories of persons may benefit from social housing according to an order of priority decided by the local councils: newlyweds under 35, formerly institutionalised young people over 18, disabled persons ... and other categories of entitled individuals and families.” “There is no right to social housing for persons or families who: (...) a) have sold a residence after 1 January 1990; (...) d) have already leased another social housing residence from the State’s immovable property fund.” 85. The relevant provisions of the former Romanian Civil Code read as follows: “Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” “Everyone shall be liable for damage he has caused not only through his own actions but also through failure to act or negligence.” “Any injunction to act or not to act is changed to damages if unenforced by the debtor” “If an injunction to act remains unenforced, the creditor may also ask to be authorised to enforce it at the debtor’s expense.” “The lessor must by nature of the contract and without the need for a special provision: 1. hand over the leased property to the tenant... 2. maintain it a condition that makes it usable for the purpose for which it was leased....” “(...) During the lease all the repairs that may be necessary must be made, except for small repairs (...) which are the responsibility of the tenant by virtue of his use thereof.” 86. The relevant provisions of Government Ordinance No. 137/2000 on combating all forms of discrimination read as follows: “1. An individual who considers himself or herself discriminated against may lodge an application before a court for damages and restoration of the previous situation or cancellation of the situation caused by the discrimination, according to general law. The application shall be exempt from stamp duty and shall not be affected by an application before the National Council for Combating Discrimination. (...) 4. The interested party shall present the facts that may be presumed to amount to direct or indirect dicrimination and the defendant must prove that the principle of equal treatment has not been breached. Any evidence may be adduced before the court ... including audio and video recording or statistical data...” “1. Non-governmental organisations which have as an objective the protection of human rights or which have a legitimate interest in combating dicrimination shall have locus standi if the discrimination happens within their area of activity and affects a community or a group of people. 2. The organisations mentioned in paragraph 1 shall also have locus standi in circumstances where the discrimination affects a natural person, at his or her request.” 87. Excerpts from the relevant international documents concerning the living conditions and education rights of Roma people, including recommendations, resolutions, reports, observations, memoranda and other relevant texts by the Committee of Ministers of the Council of Europe, the Parliamentary Assembly of the Council of Europe, the Council of Europe Commissioner for Human Rights, the European Union Agency for Fundamental Rights and the United Nations Committee on Economic, Social and Cultural Rights, are given in the case of Winterstein and Others v. France (no. 27013/07, §§ 90-102, 17 October 2013). 88. Excerpts from the relevant international treaties concerning the right to education, inluding the Universal Declaration of Human Rights 1948, the Convention Against Discrimination in Education 1960, the International Covenant on Economic, Social and Cultural Rights 1966, the International Convention on the Elimination of All Forms of Racial Discrimination 1966 and the Convention on the Rights of the Child, are given in the case of Catan and Others v. the Republic of Moldova and Russia ([GC], nos. 43370/04, 8252/05 and 18454/06, §§ 77-81, ECHR 2012 (extracts)). | 0 |
test | 001-161735 | ENG | ARM | CHAMBER | 2,016 | CASE OF KAREN POGHOSYAN v. ARMENIA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Just satisfaction) | Aleš Pejchal;Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Robert Spano | 5. The applicant was born in 1969 and lives in Yerevan. 6. In 1991 the applicant, without permission, constructed a building consisting of a shop/storage and an unfinished construction and measuring in total 500 sq. m., on a 1000 sq. m. plot of land situated in a suburb of Yerevan. The applicant alleged that this land was not being used by anyone so he had cleaned it and constructed the building using his own means. It appears that the applicant used this property for the following ten years. 7. In 2001 the applicant instituted special (non-contentious) proceedings in the Shengavit District Court of Yerevan seeking recognition of his ownership right in respect of that building by virtue of acquisitive prescription under Article 187 of the Civil Code (CC), as well as his right of use in respect of the plot of land. 8. On 8 June 2001 the Shengavit District Court decided to recognise the applicant’s ownership right in respect of the building and to leave the plot of land under his use. The District Court found that the building in question had no registered owners and the applicant had openly and in good faith had it in his possession and used it without interruption for over ten years, which entitled him to become its owner under Article 187 of the CC. 9. No appeal was lodged within the prescribed 15-day time-limit, so this judgment became final. 10. On 9 April 2002 a certificate was issued by the local branch of the State Real Estate Registry on the basis of this judgment, confirming the applicant’s ownership in respect of the building. The certificate further stated that, by virtue of Article 118 § 4 of the Land Code (LC), the applicant enjoyed a right of lease in respect of the plot of land for a period of 99 years. 11. On 20 May 2003 the applicant, pursuant to Article 118 § 7 of the LC, paid the cadastral value of the plot of land which amounted to AMD 1,465,500 Armenian drams (AMD). 12. On 22 May 2003 the applicant’s right of ownership was registered in respect of the plot of land and a relevant ownership certificate was issued. 13. The applicant regularly paid property tax on both the building and the plot of land in the following years. 14. On 27 July 2008 а topographic examination of the land was carried out by a representative of “Townplanning” State Closed Joint-Stock Company founded by, and acting on behalf of, the Yerevan Mayor’s Office. The relevant diagram mentioned the applicant as the owner of the land in question. 15. On 11 November 2008, a third person addressed a letter to the Yerevan Mayor’s Office, stating that she had bought a plot of land at an auction held on 16 June 2008. When she later applied to the local branch of the State Real Estate Registry to have her ownership right registered, she was informed that the plot of land in question overlapped with the neighbouring plot of land. She requested that the auction be cancelled in its part concerning the overlapping part of the plot, the money paid for that part be returned and a new sale contract be concluded in respect of the remaining part of her plot. 16. The Government alleged that the neighbouring plot of land was the applicant’s and that following this letter there was an exchange of correspondence between the Yerevan Mayor’s Office and the local branch of the Real Estate Registry. 17. On 24 February 2009 the local branch of the State Real Estate Registry addressed a letter to the Mayor’s Office stating, in reply to an inquiry by the Mayor dated 17 February 2009, that the registration of the applicant’s ownership and lease rights had been performed on 9 April 2002 on the basis of the judgment of the Shengavit District Court of Yerevan of 8 June 2001. This letter was received by the Mayor’s Office on 18 March 2009 and attached to it was a copy of the judgment of 8 June 2001. 18. On 7 May 2009 the Deputy Prosecutor General lodged an appeal against the judgment of 8 June 2001 seeking to quash it and to dismiss the applicant’s acquisitive prescription claim, arguing that the District Court had erred in its interpretation and application of the relevant provisions of the substantive law. The land had belonged to the State and hence had not been ownerless at the material time, so the District Court should not have applied the acquisitive prescription rules to the case. As a result, the judgment had damaged the State’s pecuniary interests. The Deputy Prosecutor General further argued that the District Court had been obliged to involve, as parties to the proceedings, the local branch of the Real Estate Registry, as well as the Yerevan Mayor’s Office as the authority vested with management of land. By failing to do so, and adopting a judgment affecting their rights in their absence, the District Court had also violated the procedural law. The Deputy Prosecutor General requested the Court of Appeal to restore the expired time-limit for appeal, arguing that the Yerevan Mayor’s Office had not been aware of the judgment of 8 June 2001 and therefore had been deprived of the possibility of lodging an appeal, while the Prosecutor’s Office had been informed about that judgment by the Mayor’s letter of 24 February 2009. 19. On 18 May 2009 the Yerevan Mayor’s Office also lodged an appeal against the judgment of 8 June 2001, raising similar substantive and procedural arguments. As regards the procedural issues, it claimed that the Shengavit District Court had violated the relevant provisions by examining the case through special proceedings and not involving it as a party, despite the fact that the Mayor’s Office was the authority vested with management of public land in Yerevan and therefore the judgment affected its rights. The Mayor’s Office further claimed that it had become aware of the contested judgment by a letter from the local branch of the State Real Estate Registry dated 24 February 2009, which had been received by the Mayor’s Office on 18 March 2009. It finally added that the letter of the Judicial Department of Armenia of 6 February 2009 had been accompanied by a copy of another judgment of the Shengavit District Court, dated 26 June 2001, which was unrelated to the present case. 20. On an unspecified date, the applicant lodged a reply to the appeals. He argued, inter alia, that on 20 May 2003 he had paid the cadastral value of the plot of land and bought it through direct sale. Furthermore, the fact that the Yerevan Mayor’s Office had been aware of his becoming the new owner of the plot of land was confirmed by the compulsory payments he had to make for that property. Thus, on the one hand, by virtue of Article 61 of the LC, the Yerevan Mayor’s office had alienated the plot of land to him, received a sum of money and since then had continued to levy property tax and, on the other hand, it now claimed to be unaware of that transaction. Moreover, the Yerevan Mayor’s Office had been notified of his becoming the new owner of the plot of land by virtue of the Law on the State Registration of Rights in Respect of Property. Hence, the Mayor’s Office had been aware of the registration of his property rights on the basis of the court judgment of 8 June 2001 and of the direct sale of the plot of land, and had not – as it claimed – become aware of that judgment from a letter of 24 February 2009. 21. On 12 June 2009 the Civil Court of Appeal decided, with reference to Article 207 § 5 of the Code of Civil Procedure (CCP), to admit the appeals, stating: “The Yerevan Mayor’s Office and the General Prosecutor have missed the timelimit for appeal prescribed by law and they submitted motions seeking to find this to be valid, arguing that the Mayor’s Office found out about the judgment [of 8 June 2001] from a copy of the judgment attached to the letter of the Judicial Department of Armenia of 6 February 2009, while the General Prosecutor’s Office from the letter of the Yerevan Mayor’s Office of 24 February 2009. ... The court finds that the motions of the Yerevan Mayor’s Office and the General Prosecutor’s Office are substantiated and must be granted.” 22. On 18 July 2009 the Civil Court of Appeal decided to grant the appeals, to quash the judgment of 8 June 2001 and to dismiss the applicant’s acquisitive prescription claim. The Court of Appeal found, in particular, that the Shengavit District Court had applied Articles 178 and 187 of the CC, which were not applicable to the case, and failed to apply Articles 168 and 188 of the CC, thereby reaching incorrect findings. The building in question was an unauthorised construction built on a plot of land belonging to the State. Hence, only the State could have acquired ownership rights in respect of that building. 23. The applicant lodged an appeal on points of law. 24. On 9 September 2009 the Court of Cassation decided to return the appeal as inadmissible for lack of merit. 25. Following these decisions, the authorities instituted proceedings against the applicant seeking annulment of registration of his ownership rights in respect of the building and the plot of land, which was granted by the courts. | 1 |
test | 001-152888 | ENG | ROU | CHAMBER | 2,015 | CASE OF CHINEZ v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicants, who are brothers, were born in 1986, 1987 and 1985 respectively and live in Bucharest. 6. In the early hours of 17 March 2008, around five minutes after midnight, the applicants, together with their parents, decided to go to a police station to report that the applicant Marius-Romeo Chinez had been a victim of crime. They stopped a taxi on the street and because the taxi driver, B.G., refused to take them, they got involved in a verbal dispute with him and one of the applicants punched the bonnet of the car. Shortly afterwards, several taxi drivers from the same taxi company arrived at the scene. A team of two police officers (D.M. and F.I.) who were patrolling the area also arrived at the scene of the incident. They were followed by three additional police units. 7. In the presence of the police the dispute between the applicants and the taxi drivers escalated, with the applicant Mihai Chinez being hit in the face. When he tried to retaliate, the police handcuffed him and took him to their car. At the same time the applicant Ionuţ Ludovic Chinez was hit on the head by an unknown person and lost consciousness. When he saw his brother lying on the ground, the applicant Mihai Chinez refused to get into the police car. At this point the three police officers who had hold of him started hitting him and used their electric stun gun to force him into their car. Afterwards, Ionuţ Ludovic Chinez was lifted off the ground, handcuffed and put into a police car. The applicant Marius-Romeo Chinez, who was watching the scene from a distance, was pushed to the ground by two policemen, handcuffed and taken to another police car nearby. 8. The applicants were then taken to the police station, where Mihai and Marius-Romeo were punched and kicked in the stomach and chest by the police officers who had brought them in. After several hours of waiting without being questioned and without making a statement, Marius-Romeo was taken by ambulance, under police escort, to the Floreasca Emergency Hospital, where he had treatment for two days. 9. The other two applicants were questioned separately by different police officers. On 17 March 2008, at around 4 p.m., when a lawyer hired by their father arrived, they were allowed to leave the police station. 10. According to the incident report drafted by the chief of the police units involved, on 17 March 2008 at around 00.20 a.m. the team of two police officers who were on patrol had seen a group of five persons attacking a taxi driver. When they intervened to stop the fight and to identify the persons involved, the applicants became aggressive towards them too and punched them. The officers asked for support and additional patrol units arrived at the scene. Subsequently, the decision was taken to accompany the attackers, namely the applicants, to the police station to identify them, but because they refused to go the police officers had to use force and handcuff them. The report further mentioned that the applicants had damaged a taxi belonging to Mr. B.G., who was identified by name, age, personal identity number and address. The report also stated: “Before the arrival of the police units, several colleagues came to protect the taxi driver and assaulted the five [people]; because of the injuries he sustained Marius-Romeo Chinez was taken to the Floreasca Emergency Hospital, where he was admitted to the surgical ward ... On the occasion of the investigation at the crime scene four eyewitnesses were identified and gave statements ...” 11. The report concluded that, in accordance with an order given by the prosecutor by telephone, an investigation was immediately launched in connection with assault on police officers by the applicants and their father. 12. On the same day the chief asked for forensic expert reports from the National Forensic Medicine Institute in connection with the injuries suffered by police officers F.S.I. and N.C. The reports issued on 14 May 2008 confirm that officer F.S.I. had a 4 x 1 cm ecchymosis and excoriation on the left lumbar region, which could have been caused on 17 March 2008 by being hit with a hard object, and which required one to two days’ medical treatment. With respect to officer N.C., the report mentioned that he had a 2 x 2 cm ecchymosis in the left occipital region, which could have been caused by being hit with a hard object on 17 March 2008 and which required one to two days’ medical treatment. 13. According to a forensic medical report issued on 2 April 2008, Mihai Chinez had a haematoma of 1 x 0.5 x 0.5 cm in the occipital area, numerous ecchymoses on the face, arms and left leg, and five electrical burns on the left thigh. It was considered that the injuries, which could have occurred on 17 March 2008, were caused by being hit with a hard object, and required two to three days’ medical treatment. 14. According to a forensic medical report issued in June 2008, Marius-Romeo Chinez had an excoriation of 3 x 2 cm on the right of the forehead, a 1.5 x 1 cm ecchymosis outside the right eye, several ecchymoses and haematomas on the head, a 1 cm wound on the upper lip which had been sutured, several ecchymoses of 7 x 3 cm and 6 x 4 cm on the back and the lower right thorax, as well as on the right elbow. The report mentioned that he was drunk when he was brought to the Emergency Hospital. It was considered that the injuries, which could have been inflicted on 17 March 2008, had been caused by being hit with and against a hard object or surface, and required eight to nine days’ medical treatment. 15. A forensic medical report issued in August 2008 mentioned that Ionuţ Ludovic Chinez had a haematoma of 1 x 0.5 x 0.3 cm on the right side of the head and two ecchymoses on the right thigh. He also had limited capacity to open his mouth because of an injury to the right side of the jaw. The report concluded that the injuries could have been inflicted on 17 March 2008 by being hit with and against hard surfaces and objects, and that they required one to two days’ medical treatment. 16. On 7 July 2008 the applicants brought criminal proceedings against the police officers who were involved in the events of 17 March 2008, for abusive behaviour, unlawful arrest and misconduct. They claimed that on 17 March 2008 they had been beaten by police officers both before and after they were taken to the police station, following an incident they had been involved in with a taxi driver. 17. The investigation of the applicants’ complaint conducted by N.I., a police officer from the Control Unit of the Ministry of Internal Affairs, commenced by taking statements from the applicants on 11, 12 and 14 August 2008. They described the course of the events as mentioned in paragraphs 6 to 9 above. The applicant Ionuţ Ludovic Chinez stated that, while he was approaching the two police officers who were handcuffing his brother Mihai, he was hit on the head and lost consciousness. He further mentioned that after his arrival at the police station he had not been ill-treated. The applicant Mihai Chinez stated that “he was told later that [Ionuţ Ludovic] had been hit by taxi drivers and policemen”. The applicants mentioned that they did not know the names of the taxi drivers involved in the incident or of the police officers present at the scene. Lastly, they requested criminal sanctions against the police officers who had assaulted them both in the street and inside the police station. 18. On 11 August 2008, J.V., the applicants’ mother, who was present during the incident, declared that she had seen around twenty or thirty taxi drivers hitting the applicants Mihai and Ionuţ Ludovic Chinez. Then she had seen the two police officers pushing Marius-Romeo to the ground, hitting him and handcuffing him. She then stated that when the two police officers saw Ionuţ Ludovic lying on the ground they ran towards him, dragged him to their car, slapped him, turned him over with his face to the ground and handcuffed him. By this time all the taxi drivers had left the scene. Once they arrived at the police station she was not allowed to enter or to contact her sons. After approximately one hour she saw the applicant Marius-Romeo being taken away by ambulance, with his handcuffs still on and under police escort. 19. The investigation continued with the identification of the police officers involved in the incident. In this respect, on 20 August 2008, the operational order of 17 March 2008 as well as the incident report drafted by the police chief (see paragraph 10 above) were attached to the investigation file. 20. On 24 August 2008 N.I. took statements from police officers D.M. and F.S.I. They declared that they had been on patrol together in a police car when they saw several taxis and several individuals hitting another person. They immediately approached the scene of the incident and asked the aggressors to stop. When they refused the two officers called for back-up, and then intervened in order to remove from the crowd one person who was violent and had blood on his face. When they tried to immobilise this person he went up to a taxi and hit its windscreen with his fist, breaking it. They decided to handcuff him, and at that moment he kicked F.S.I. in the chest and refused to get into the police car, pointing to his brother, who had been beaten and was lying on the ground, and asking them to call an ambulance. Then they put him into the police car with the help of two other colleagues and drove him to their police station. They mentioned in their statement that they did not use any physical or psychological pressure on the person in question, and that they were not equipped with electric stun guns. When they arrived at the police station the person was identified as Mihai Chinez and “was taken over by officer F.L. from the criminal investigations unit and other colleagues who continued the investigation”. 21. The same day officer D.A.M. gave a statement in which she mentioned that she was part of one of the units called as back-up by officers D.M. and F.S.I. When she arrived at the scene she found one person pointing out a taxi driver who had allegedly just beaten his brother. She got back into her car and drove in the direction indicated but could not find the taxi driver. Then she returned to the scene and, according to her statement, she “identified two eyewitnesses who could describe the incident and they accompanied her to the police station”. She further declared that, once inside the police station, she did not participate in the questioning and did not physically or verbally assault any of the persons involved in the incident. 22. On 26 August 2008, in a note drafted by officer N.I., police officers D.M., Z.C., N.C., F.I., D.D.M., D.A., P.M.C. and S.L.E. were identified as having been present during the incident under investigation “together with other public order forces”. 23. On 5 September 2008 officer N.G., who was on duty at the police station on the night of the incident, gave a statement mentioning that he had helped his colleagues D.M. and F.I. to identify the applicants and their parents, and took a statement from J.V., the applicant’s mother. 24. On 24 and 25 September 2008 statements were taken from officers F.L.C. and D.D.M. They stated that they had not been on duty on the night of the incident, but were called in and asked to come to the police station. When they arrived they were informed about the incident and asked to help their colleagues. F.L.C. declared that he had heard statements from two eyewitnesses. D.D.M. declared that he had questioned Mihai Chinez. Both officers declared that they had not assaulted any of the participants in the incident. 25. On 25 September 2008 investigating officer N.I. took a statement from officer A.S, who had also been called in from home to the police station in the early hours of 17 March 2008. He stated that “at the station there were a number of people, including taxi drivers, witnesses and members of the Chinez family”. He then proceeded to question Ionuţ Ludovic Chinez. He continued by stating that he was aware that the applicants were being investigated for charges of assault against police officers. Lastly, he concluded that between 2005 and 2007 he was the community police officer in charge of the area in which the applicants lived. He stated in this respect that the applicants were disruptive individuals who had been sanctioned on numerous occasions for disturbing public order, and that in his opinion their complaint was “biased and based on untruths”. 26. The statements allegedly taken from the applicants and eyewitnesses immediately after the incident inside the police station were not included in the investigation file. 27. On 2 October 2009 the Prosecutor’s Office of the Bucharest Court of Appeal decided to relinquish jurisdiction to the Prosecutor’s Office of the Bucharest County Court. On 14 January 2010 it was decided that the Prosecutor’s Office of the Bucharest Court of Appeal was competent to examine the case after all, and the file was sent back to them. 28. On 15 and 17 March 2011 officers F.L.C., A.S. and D.D.M. were heard again, this time before the prosecutor. In addition to his initial statement given in 2008, officer F.L.C. pointed out that, once inside the police station and while he was handcuffed, the applicant Mihai Chinez had banged his own head against the wall and the floor several times. 29. On 1 June 2011 the Prosecutor’s Office of the Bucharest Court of Appeal dismissed the criminal complaint lodged by the applicants against some of the police officers who had taken part in the incident of 17 March 2008, in particular those officers who had questioned the applicants after they were taken to the police station, on the ground that no unlawful act had been committed by them. It held that following the incident the applicants had been restrained by police officers and taken to the police station for identification and questioning, because a car had been destroyed during the incident and police officers had been assaulted. It was further held that when they reached the police station it was already apparent from physical evidence that the applicants had been involved in a violent incident. There was therefore no evidence in the criminal investigation file to prove beyond reasonable doubt that the police officers who questioned the applicants at the police station, in particular A.S, F.L.C. and D.D.M., had acted violently against the applicants. Moreover, it was held that one of the applicants, namely Mihai Chinez, had inflicted injuries on himself. The prosecutor finally decided that the criminal investigation in respect of the remaining police officers, not identified by name, should be continued by the Prosecutor’s Office of the Bucharest County Court. 30. The applicants complained against this decision, arguing, inter alia, that no statements had ever been taken from any of the taxi drivers involved in the incident. They also argued that they had been hit by the taxi drivers in the presence of the police officers, who had done nothing to protect them. On the contrary, the police officers had also brutally attacked them, immobilising them in the street and then beating them up once they were inside the police station. They further alleged that two witnesses, namely I.S. and the applicants’ legal representative, had seen the injuries suffered by them but were never called to testify. 31. On 30 June 2011 the applicants’ complaint was rejected as ill-founded by the General Prosecutor of the Prosecutor’s Office of the Bucharest Court of Appeal. 32. The applicants appealed against the prosecutors’ decisions before the Bucharest Court of Appeal, reiterating their previous arguments (see paragraph 30 above). Their appeal was rejected with final effect on 20 October 2011. In reaching this decision the Bucharest Court of Appeal firstly considered that sufficient investigative action had been taken, such as taking statements from the applicants and the police officers present in the police station, and, because the alleged ill-treatment took place in a police station, no other evidence was available that could verify the applicants’ complaint with respect to police officers A.S, F.L.C. and D.D. The court further held that it could not decide with respect to the incident which took place in the street and which involved the taxi drivers, because it was the object of an ongoing investigation conducted by the Prosecutor’s Office of the Bucharest County Court. 33. The criminal investigation with respect to the rest of the police officers and concerning the incident which took place in the street is still pending before the Prosecutor’s Office of the Bucharest County Court. 34. The criminal investigation against the applicants for assaulting police officers (see paragraph 11 above) has also not been completed to date. | 1 |
test | 001-157967 | ENG | UKR | CHAMBER | 2,015 | CASE OF LUNEV 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);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Procedural aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) | Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano | 5. The applicant was born in 1977. According to the most recently available information, in June 2013 the applicant was placed by a court under house arrest in the town of Bryanka, Ukraine. The applicant has not informed the Court of his current whereabouts. 6. In January 2012 the applicant was arrested on suspicion of drug trafficking. 7. On 30 January 2012 the applicant was placed in the Starobilsk Pre-Trial Detention Centre (Старобільський слідчий ізолятор) (“the SIZO”). On arrival the applicant was examined by a general practitioner, a psychiatrist, a dentist, a tuberculosis specialist and a dermatologist. According to the Government, the applicant was diagnosed with human immunodeficiency virus (“HIV”) (clinical stage 3), chronic bronchitis, toxic encephalopathy and neuropathy caused by prolonged use of drugs, and tuberculosis residual changes. At that time the applicant’s weight was 55 kg. The applicant is 1.78 metres tall. 8. According to the Government, on 1 February 2012 the applicant was offered a CD4+ cell count, which he refused. The case-file material includes a written note dated 7 February 2012 that the applicant refused “a blood test”. It is signed by a member of staff of the SIZO medical unit. 9. According to the Government, between 30 January 2012 and 8 January 2013 the applicant did not ask for any medical assistance in the SIZO. However, it appears from the applicant’s medical file that in September 2012 he was examined by a tuberculosis specialist and underwent an X-ray. According to the medical records provided by the Government, in November 2012, while briefly detained in a different temporary detention facility, the applicant had bronchitis and complained of kidney pain. 10. On 8 January 2013, following the applicant’s complaint of a cough and a fever, he was diagnosed with chronic bronchitis and was prescribed treatment. 11. On 9 January 2013 the applicant was found unconscious in his cell. 12. On the same day the Head of the SIZO requested the Bryankivskyy Local Court to accelerate the proceedings in the applicant’s case or to release him on an undertaking not to abscond, since the applicant needed urgent medical treatment in a specialised hospital. 13. On 10 January 2013 the above court decided that the applicant should remain in pre-trial detention but should be placed either in a specialised prison hospital or in a civilian hospital. 14. According to a medical certificate, between 9 and 11 January 2013 the applicant was in hospital. He was diagnosed with acute serose meningoencephalitis. It was noted that the applicant was “in a soporose state”. 15. On 11 January 2013 the applicant was returned to the SIZO, where he stayed in the medical unit until 15 February 2013. During this period the applicant was also an inmate at least once in the Alchevsk Temporary Detention Facility (“Alchevsk ITT”) (Алчевський ізолятор тимчасового тримання). 16. On 17 January 2013 the applicant requested under Rule 39 of the Rules of Court that the respondent Government be asked to place him in a hospital. It was argued that the applicant needed additional examination, in particular by a psychiatrist, in order to be prescribed anti-retroviral therapy (“the ART”), and for the stage of his tuberculosis to be correctly determined and for appropriate treatment to be prescribed, as well for him to be provided with adequate medical assistance in respect of the epilepsy from which the applicant allegedly suffered. 17. According to the applicant’s lawyer, Ms Semenyuk, at the end of January 2013 she received a call from an unknown man who presented himself as an employee of a prosecutor’s office. The person wanted to know whether Ms Semenyuk indeed represented the applicant and whether the applicant had lodged an application to the European Court of Human Rights. Ms Semenyuk replied positively to both questions. 18. On 4 February 2013 the Bryankivsk Medical Unit (Брянківське територіальне медичне об’єднання) informed the applicant’s lawyer that since 11 October 2010 the applicant had been registered as receiving regular medical examinations by a doctor of the “Trust” practice based in the Bryanka Central City Polyclinic. He was diagnosed as HIV-positive (clinical stage 2), with chronic bronchitis and toxic encephalopathy. On 27 October 2010 his CD4+ cell count was 374 (18.7%). The applicant refused treatment despite the deterioration of his condition. In 2011 he was diagnosed as HIV-positive at clinical stage 3. The applicant did not take ART, as he had refused the relevant examination. On 8 February 2013 the same information was submitted to the SIZO. 19. The Government submitted that between 11 January and 15 February 2013 the applicant had received treatment for acute serous cerebromeningitis. Moreover, on 5 February 2013 he was X-rayed and seen by a tuberculosis specialist. Following the results of those examinations the applicant was diagnosed with residual changes in the right lung as a result of tuberculosis from which he had already recovered. There was no need for anti-tuberculosis treatment. 20. On 6 February 2013 the applicant was examined by a neuropathologist. He was diagnosed with HIV (clinical stage 3) and toxic encephalopathy. 21. On 19 February 2013 the Bryankivskyy Local Court sentenced the applicant to six and a half years’ imprisonment for drug trafficking. 22. On 26 February 2013 the applicant’s CD4+ cell count was performed with a result of 119 cells (13.1%). 23. By a letter of 7 March 2013 the Government informed the Court that there was no need for the applicant to be hospitalised. 24. On 12 March 2013 the applicant was examined by an infectious diseases specialist and diagnosed with HIV (clinical stage 3), chronic bronchitis, residual effects of tuberculosis, and toxic encephalopathy. ART was recommended. On 14 March 2013 the Lugansk Regional Prisons Department approved the applicant’s admission to the Lugansk Temporary Detention Centre No. 17 Hospital (лікарня при Луганському слідчому ізоляторі №17). 25. The applicant was in that hospital between 20 and 25 March 2013. In addition to the above diagnosis the applicant was diagnosed with weight loss of more than 10% and chronic hepatitis C. The applicant underwent a full blood count, biochemical blood test, sputum and urine test, X-ray and ultrasonography. The applicant was given medication. On discharge a CD4+ count was recommended, among other things. 26. On 22 March 2013 the Court refused the applicant’s request under Rule 39 of the Rules of Court. 27. The applicant was also in the Lugansk Temporary Detention Centre Hospital between 29 March and 5 April and between 12 April and 12 May 2013. On 3 April 2013 he had a CD4+ cell count with a result of 13.5%, or 519 cells. On 16 April 2013 ART was prescribed for the applicant. 28. On 24 May 2013 the Lugansk Regional Court of Appeal quashed the decision of 19 February 2013 in the criminal case against the applicant and remitted the case for a fresh court consideration. 29. On an unknown date the applicant’s lawyer applied to the local court for the applicant’s release, stating that between 20 January 2012 and 9 January 2013 the applicant had received no medical treatment. After 9 January 2013 the applicant was in hospital for some time, but was not now receiving in-patient care. 30. On 19 June 2013 the Bryankovskyy Town Court released the applicant and placed him under house arrest. The court noted that the case-file materials contained enough evidence to satisfy the applicant’s lawyer’s request. The court further noted that the applicant required medical treatment which he could not receive in detention. 31. On 25 January 2013 the applicant was placed in the Alchevsk ITT for the duration of the consideration of his case by the court. 32. At 9 a.m. on 30 January 2013 an ambulance was called for the applicant as he had acute pain in the liver. The applicant was examined and it was recommended that he see a gastroenterologist. The applicant was then taken to Bryanka Central Town Hospital and brought back to the ITT at around 4 p.m. 33. According to the applicant, at around 5.25 p.m. he was beaten up in the ITT by two policemen allegedly from the regional police office. They told him to write that the SIZO had provided him with adequate medical treatment. One of the police officers hit the applicant six or seven times in the liver and the other hit him four times in the kidneys. After that the applicant wrote the statement requested. 34. On 31 January 2013 the applicant’s lawyer, S., complained about this matter at a court hearing. An ambulance was called for the applicant and he was diagnosed with a “possible blunt abdominal trauma”. He was taken to hospital and examined by a surgeon. The latter noted that the applicant complained of pain in the upper abdomen and weakness, but upon examination the applicant’s abdomen was “soft and pain-free”. It was concluded that there was no “acute surgical pathology” and that the applicant could be detained in the ITT. 35. On the same day the applicant and his lawyer complained about the beatings to a prosecutor. The applicant stated that on 30 January 2013 at 5.25 p.m. unknown policemen had visited him in the ITT. He was subjected to physical and psychological pressure and forced to withdraw his application about lack of adequate medical assistance. They also forced him to confess to a crime he was charged with. 36. In the course of the investigation the applicant further testified that on 30 January 2013 at around 5.20 p.m. two unknown policemen had questioned him in the ITT. When he refused to write that he had no complaints about the medical treatment in the SIZO, the policemen hit him several times in the abdomen and kidneys. After that the applicant wrote that he had been provided with adequate medical assistance in the SIZO, that he had no complaints, and that there had been no psychological or physical pressure. The policemen took a written statement from him and he was taken to the shower room and then back to his cell. 37. On 14 February 2013 the forensic medical expert, having examined the medical conclusion of the surgeon of 31 January 2013 and the testimonies of the same surgeon given during the investigation, concluded that “when examined by a surgeon on 31 January 2013 the applicant had no injuries”. 38. On 25 February 2013 the Alchevsk Town Prosecutor terminated the proceedings for absence of evidence of crime. Police officers and others present in the ITT on 30 January 2013 gave a detailed description of what had happened there that day and stated that nobody had beaten the applicant. In particular, at around 4 p.m. the applicant complained that he wanted a different pillow. The applicant was guided to the room where the bedding was kept. The applicant spent around 15-20 minutes there but did not choose a pillow. Then he was guided to the room where personal belongings were kept because he wanted something from his bag. After that the applicant wanted to take a shower but was told that there was no hot water. Since he wanted to check this himself an ITT guard guided him to the shower. Later the applicant was placed back in his cell. The surgeon, who examined the applicant on 31 January 2013, testified that the applicant had been brought to him in order to check whether the applicant could be detained in the ITT. The applicant had no injuries. The prosecutor also referred to the conclusion of a forensic medical examination that the applicant had no injuries. 39. The applicant appealed against this decision to a court. On 26 March 2013 the Alchevskyy Town Court quashed this decision. The court questioned the applicant and his cellmate, K., and considered that the investigation had not been thorough, since the applicant’s cellmates had not been questioned. 40. On 24 April 2013 the ambulance station informed the Bryanka Prosecutor’s Office that on 31 January 2013 the applicant had been examined and diagnosed with “blunt abdominal trauma”. He had complained that he had been beaten up in detention. The applicant was taken to hospital for the diagnosis to be confirmed. 41. On 25 April 2013 the proceedings were terminated for absence of evidence of crime. In addition to those previously questioned more evidence was added. 42. In particular, in the course of the investigation the applicant’s cellmate K. testified that on 30 January 2013 the applicant had been taken out of the cell. He was absent for approximately 40-60 minutes. Upon return the applicant told him that two unknown policemen had forced him to refuse medical treatment in the SIZO. When the applicant refused to do so he was beaten. After that the applicant agreed to write that he did not need medical assistance. According to K., the applicant had a red cheek and cheekbone as well as a swollen liver. The policeman who brought the applicant back to the cell allegedly said that one of the officers was a certain So. from Perevalsk Correctional Colony No. 15. 43. Another of the applicant’s cellmate testified that when he arrived at the ITT he saw the applicant lying on the bed. The applicant told him that policemen had beaten him to force him to confess. The applicant’s cellmate P. testified that he had been sleeping and knew nothing, while the applicant’s cellmate B. refused to testify at all. A police officer, So., was also questioned and testified that on 30 January 2013 he had been at his work place. It was also noted that the surveillance system in the ITT was not working between 26 January and 4 February 2013. 44. On 3 June 2013 the decision of 25 April 2013 was quashed by the Alchevsk Town Prosecutor. It was noted without any further details that “the decision to terminate criminal proceedings had been premature and unsubstantiated, and that a number of procedural steps had not been performed”. 45. On 27 June 2013 the criminal proceedings were again terminated for the absence of evidence of crime. 46. On 4 November 2013 the Alchevskyy Town Court quashed the decision of 27 June 2013. The court found that after 3 June 2013 an investigating officer had not properly looked into the applicant’s lawyer’s complaint. It was also not established why it was impossible to hold a confrontation between the applicant and the police officer So. 47. No further information about these proceedings was provided by the parties. | 1 |
test | 001-171526 | ENG | RUS | CHAMBER | 2,017 | CASE OF OVAKIMYAN v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1981 and lived in Yoshkar-Ola before his conviction. 6. On 29 August 2007 A.K., who had left home the previous day intending to sell his car, was reported missing. On the same day his car was found on the outskirts of Yoshkar-Ola. The investigative committee at the YoshkarOla town prosecutor’s office opened criminal proceedings in respect of A.K.’s alleged murder. The criminal investigation department of the Ministry of Interior of the Republic of Mariy El carried out operational and search activities aimed at establishing A.K.’s whereabouts and the circumstances of his disappearance. 7. According to a record drawn up by investigator A., on 7 September 2007 A.K.’s body was found and the place of its location examined. 8. At 8.55 p.m. investigator G. drew up a record of the applicant’s arrest as a suspect in the murder case, indicating that the applicant had been arrested at 8.55 p.m. that day. 9. From 9.15 p.m. to 9.35 p.m. investigator A. examined the applicant as a suspect in the presence of V.K., a lawyer provided by the State at the applicant’s request. The applicant refused to give statements, relying on Article 51 of the Constitution (privilege against selfincrimination). 10. According to operative police officers (оперуполномоченные), D.K., O. and S., they received information concerning the applicant’s involvement in A.K.’s murder. At about 5 or 6 p.m. on 7 September 2007 they came to the applicant’s home and invited him to answer some questions; they took him with his consent to their office at the YoshkarOla Central police station; during his interview the applicant told them that he had murdered A.K. by strangling him in order to steal A.K.’s car and that he could show them where A.K.’s body had been hidden. 11. At about 6 p.m. or 7 p.m. D.K., O. and S. took the applicant to a place on the outskirts of Yoshkar-Ola where he pointed out the location of A.K.’s body. They called investigator A., who arrived with other members of the investigative team, carried out an examination of the place and seized the body. 12. The applicant provided a different version of his arrest and the events which followed. According to him, at 3 p.m., when he and his girlfriend were buying something at a kiosk in the street, three men in plain clothes approached him, pushed him to the tarmac, handcuffed him and put him in an unmarked car without any explanation. A plastic bag was put over his head, making it difficult for him to breathe, and he was taken to a forest, where the three men subjected him to ill-treatment, demanding that he accept their conditions and do as he was told. He was punched (in particular on the forehead), kicked (after he had fallen to the ground), and administered electric shocks through wires attached to the thumbs. He agreed to cooperate and was taken to investigator G at the YoshkarOla Central police station. 13. During the criminal proceedings against him the applicant asserted that he had never shown the whereabouts of A.K.’s body to the investigating authorities; rather, it was his co-accused R.K. who had shown them the body (see paragraph 37 below). 14. At 10.45 p.m. the applicant was placed in a temporary detention facility (“the IVS”) at the Ministry of Interior of Mariy El. An officer on duty recorded the following injuries on him: a swelling and a haematoma on the left side of the forehead; haematomas on the right side of the chest, on the right shoulder and right shoulder blade; and abrasions on the back in the region of the waist. 15. At 2.35 p.m. on 8 September 2007 the applicant was taken from the IVS to investigator G. to take part in two confrontations, which were carried out between 3.30 p.m. and 5.25 p.m. The applicant, who was represented by lawyer V.K., again refused to give statements. 16. According to the IVS’s records, the applicant was brought back to the IVS at 3.20 a.m. 17. In a “statement of surrender and confession” (явка с повинной) drawn up by investigator G. at 7 p.m. in the absence of a lawyer, the applicant confessed to participating in a conspiracy to murder A.K. and to stealing A.K.’s car. The applicant stated that A.K. had been strangled by his partners in crime, R.K. and M.Ts. 18. According to investigator G., that day the applicant remained in his office until he was taken back to the IVS. 19. According to the applicant, investigator G. demanded that he confess to the crimes. The applicant refused, and after 9 p.m., G. telephoned someone and three men took the applicant out of the town by car. They beat him up, strangled him, threatened him with a revolver, tied him up with a car tow rope, threw him into a pit dug by one of them and threatened to bury him alive, demanding that he confess to the murder. After being taken back to the IVS, the applicant signed a statement of surrender and confession, as requested by the investigator. 20. During the criminal proceedings against him the applicant stated that he had never signed the statement of surrender and confession, and that his signature on the record had been forged by the investigator. On 16 July 2008 a criminal complaint lodged by the applicant on 1 February 2008 against the investigator was dismissed after a handwriting expert was unable to determine whether his signature had been forged. 21. At 8.20 a.m. on 9 September 2007 the applicant was taken to investigator G., charged with murder and robbery, and questioned as an accused in the presence of lawyer V.K. According to the record of his questioning, he stated that he had given the statement of surrender and confession the previous day voluntarily, without any pressure from police officers. He reiterated his self-incriminating statements. 22. During the criminal proceedings against him the applicant claimed that he had never signed the record of his questioning as an accused, and that his signature on the record had been forged by an investigator. A handwriting expert, whose opinion was sought by an investigator, concluded that a handwritten note in which the applicant fully acknowledged his guilt of A.K.’s murder had been written by the applicant, but that it was impossible to determine whether he had also signed that record. On 16 July 2008 the applicant’s criminal complaint against the investigator (see paragraph 20 above) was dismissed. 23. On the same day the Yoshkar-Ola Town Court, at a hearing held in the presence of the applicant and his lawyer, V.K., investigator G. and a prosecutor, ordered that the applicant be detained on remand. 24. At 5.30 p.m. he was placed in pretrial detention facility IZ-12/1. Upon his admission he was examined by a medical assistant, who recorded the following injuries on him: an 8-cm-long bruise on the front side of the neck, a bruise 2 cm in diameter on the right side of the chest, and a 3cmlong abrasion at the level of the first lumbar vertebra. 25. On 17 October 2007 the applicant lodged a complaint with the Prosecutor’s Office of the Republic of Mariy El, requesting that investigator G. and the police officers responsible for his ill-treatment (see paragraphs 12 and 19 above) be prosecuted. An inquiry into his allegations was carried out under Article 144 of the Code of Criminal Procedure (“CCrP”) by the investigative committee of the Mariy El prosecutor’s office. 26. The pit into which the applicant had allegedly been thrown on 8 September 2007 with the threat that he would be buried alive was located in a forest at a place pointed out by the applicant. Statements were taken from investigators and police officers. Investigator G. and operative police officers D.K., O. and S. denied having ill-treated the applicant. 27. On 18 December 2007 an investigator ordered a forensic expert medical report concerning the applicant’s injuries, as recorded in pretrial detention facility IZ-12/1 (see paragraph 24 above). In a report dated 19 December 2007 the forensic medical expert concluded that the injuries could have been caused by hard blunt objects. They had not resulted in a health disorder of sufficiently long a duration for it to be categorised as health damage. The information contained in the medical records made available to the expert did not make it possible to establish the time at which the injuries had been inflicted. 28. Investigators refused five times (on 2 and 19 November and 13 December 2007, and 7 April and 29 June 2008) to open criminal proceedings in respect of the applicant’s allegations for lack of the event of a crime (отсутствие события преступления). Each time their decision was annulled as unlawful and unfounded by their superior at the Mariy El prosecutor’s office and an additional inquiry ordered. The annulment of the investigators’ refusals of 13 December 2007, 7 April 2008 and 29 June 2008 followed the YoshkarOla Town Court’s findings of 3 March, 29 May and 31 July 2008 respectively that those refusals had been unlawful and lacking reasoning. 29. The Town Court’s decision of 31 July 2008 was initially set aside after an appeal by the prosecutor before the Mariy El Supreme Court on 22 September 2008 for the reasons that on 15 August 2008 the criminal case against the applicant had been transferred for trial to the Mariy El Supreme Court, that those proceedings were pending, and that it was open for the applicant to raise in the course of his trial complaints concerning his illtreatment. In supervisory review proceedings on 22 October 2010 the Presidium of the Mariy El Supreme Court quashed the decision of 22 September 2008. It found that the decision had been based on an erroneous interpretation of criminal procedural law and had failed to take into account Article 46 of the Russian Constitution, which guaranteed access to court in respect of complaints against decisions of State authorities. It noted that the Constitutional Court had explained that it was possible under Article 125 of the CCrP to appeal against decisions made by (as well as actions undertaken by or inaction on the part of) investigating authorities at the pre-trial stage of proceedings, regardless of whether issues addressed in those decisions were connected to circumstances concerning other pending or completed criminal proceedings. The Presidium referred to the Constitutional Court’s decisions no. 369-O of 18 November 2004, 156O of 25 March 2004, 500-O of 20 December 2005, 576-O-P of 19 May 2009, 1107-O-O of 13 October 2009 and 79-O of 16 March 2006. The Mariy El Supreme Court stressed that in the course of a trial the task of a court was to examine the admissibility of evidence and other questions relevant to the merits of the case; such questions were factually and legally different from those examined in a review under Article 125 of the CCrP. On 22 November 2010, following supervisory review and appeal proceedings, the Town Court’s decision of 31 July 2008 entered into force. 30. The most recent decision of the investigative committee of the Mariy El prosecutor’s office was taken on 9 March 2011. An investigator again refused to institute criminal proceedings against investigator G. and police officers D.K., O., S. and Z. for lack of the event of a crime under Article 24 § 1 (1) of the CCrP. Relying on the statements of the applicant’s coaccused, R.K., the investigator concluded that the injuries found on the applicant upon his admission to the IVS could have been inflicted by A.K. on 28 August 2007. R.K. stated that shortly before A.K.’s murder the applicant and A.K. had had a fight in a car and that he had seen them delivering several blows to each other. R.K. was unable to say where A.K. had hit the applicant. As regards the bruise on the applicant’s neck recorded upon his admission to the SIZO on 9 September 2007, the investigator noted that its cause had not been established and concluded that it could have been self-inflicted. 31. On 7 October 2011 the Yoshkar-Ola Town Court dismissed an appeal by the applicant against the investigator’s decision of 9 March 2011. It found that the investigator had carried out a comprehensive inquiry, having exhausted all possibilities for collecting evidence, and that his decision had been lawful and well-reasoned. 32. On 5 December 2011 the Mariy El Supreme Court dismissed an appeal by the applicant against the Town Court’s decision. It stated that in a review of an investigator’s decision not to initiate criminal proceedings under Article 125 of the CCrP a court’s task was to check whether the procedure for the examination of a complaint regarding the commission of a crime had been observed. The Mariy El Supreme Court noted that the Town Court had examined the material gathered during the course of the inquiry and established that the applicant’s arguments had been examined by the investigator. It fully endorsed the Town Court’s findings that the inquiry had been thorough and the investigator’s decision of 9 March 2011 lawful and reasoned. 33. On 12 December 2011 first deputy prosecutor of the Republic of Mariy El annulled the investigator’s decision of 9 March 2011 as unlawful, lacking reasoning and proper assessment of evidence, and based on an inquiry which had not been thorough and had not exhausted all possibilities for collecting evidence. In particular, the applicant’s allegations of illtreatment had not been refuted; the circumstances in which he had received the injuries had not been established; the existence of the pit at the place of the applicant’s alleged ill-treatment had not been assessed; the allegations of electric shocks had not been verified; and the forensic medical expert had not been given all the necessary information (including the applicant’s version of the cause of the injuries). Consequently, the forensic expert (see paragraph 27 above) had not made a full assessment, in particular of the injuries recorded upon the applicant’s admission to the IVS. The prosecutor further noted that (i) the IVS records, which recorded at what times in the period from 7 until 9 September 2007 the applicant had been taken from the detention facility for the purpose of carrying out investigative actions and when he had been brought back, had not been assessed, and (ii) the documents indicating the grounds for the applicant’s absence from the detention facility were missing. It was necessary, inter alia, to establish the applicant’s location and a detailed chronology of the events in which had had participated in the period from 7 until 9 September 2007, taking into account the fact that he had actually been arrested at 3 p.m. on 7 September 2007, as established at the applicant’s trial. The prosecutor ordered that the investigative committee of the Mariy El prosecutor’s office carry out an additional inquiry. 34. The applicant’s case was heard by the Mariy El Supreme Court. On 20 August 2008 it ordered that a preliminary hearing be held in order to examine the applicant’s request for the exclusion of some evidence as inadmissible. On 28 August 2008 the applicant withdrew his request. On 1 September 2008 the Mariy El Supreme Court – after hearing the applicant and his legal counsel, who confirmed the withdrawal of the request – ruled that the request should not therefore be examined. According to the trial records of 23 October 2008, in the course of the trial the applicant lodged a new request for the exclusion of some evidence as inadmissible, which he again withdrew. 35. As regards the applicant’s allegations of ill-treatment, the firstinstance court (“the trial court”) examined witnesses and other evidence collected in the course of the inquiry carried out by the investigative committee of the Mariy El prosecutor’s office. In particular, it heard investigators A. and G. and police officers O. and S., who denied having ill-treated the applicant. A., O. and S. stated that the applicant had pointed out the location of A.K.’s body. The trial court found it impossible to establish the circumstances in which the applicant had received the injuries. It noted that it could examine allegations of unlawful investigative methods as long as the admissibility of evidence was at issue, and that this was not the case because no evidence whose admissibility would have been prejudiced by the discovery of the applicant’s injuries had been examined by it. It stressed that the circumstances in which the applicant’s injuries had been inflicted could be established by the relevant law enforcement authorities by means of an inquiry. 36. In respect of an attack on A.K. in his car shortly before his murder, R.K. stated that he had seen the applicant punching A.K. to the head and body and A.K. trying to defend himself. In respect of the same episode another of the applicant’s co-accused, M.Ts., who had also been in the car, stated that he had seen the applicant beating A.K. and A.K. covering himself from the blows. 37. The applicant pleaded not guilty. When asked whether he had been taken to the place where A.K.’s body had been found, he answered that he had been taken by car to an unknown place, where he had seen R.K. talking to police officers. R.K. had been covered in mud. The applicant had been told by a driver that R.K. had dug out A.K.’s body with his bare hands. The applicant further stated that he had not written the statement of surrender and confession. 38. In its judgment of 5 November 2008 the Mariy El Supreme Court established that the applicant had murdered A.K. by strangling and had stolen his car. It found the applicant guilty of murder and robbery and sentenced him to sixteen years’ imprisonment. The finding of the applicant’s guilt was based, inter alia, on statements made by R.K. and M.Ts. (his accomplices in the robbery and eyewitnesses to the murder). In deciding on the punishment for the robbery the Mariy El Supreme Court held that the applicant had played an active role in solving the crime by pointing out the location of A.K.’s body, and that this constituted a mitigating circumstance. The applicant’s coaccused, R.K. and Ts., were convicted of aggravated robbery and sentenced to three and a half and three years’ imprisonment respectively; in M.Ts.’s case the sentence was suspended. 39. The applicant lodged an appeal with the Russian Supreme Court against the judgment, complaining, inter alia, that the Mariy El Supreme Court should not have examined as evidence the witness statements made by A., O. and S. He further complained that his sentence in respect of the murder had been unfair because, in contrast with the decision on the punishment for the robbery, his disclosure of the whereabouts of A.K.’s body had not been taken into account as a mitigating circumstance. 40. On 5 February 2009 the Russian Supreme Court dismissed the applicant’s appeal and upheld the judgment of the Mariy El Supreme Court. It stated that in view of the disputed origin of the applicant’s injuries the trial court had rightly not used evidence adduced at the time of the applicant’s alleged ill-treatment. It agreed with the applicant that the record of his arrest had been drawn up more than three hours after his actual arrest at 3 p.m. on 7 September 2007, in breach of Article 92 § 1 of the Code of Criminal Procedure. It further noted that the trial court had rectified that violation by including the time spent by the applicant in pre-trial detention in the sentence to be served. | 1 |
test | 001-145492 | ENG | RUS | ADMISSIBILITY | 2,014 | M.D. v. RUSSIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 1. The applicant, Mr M. D., is a Kyrgyzstan national, who was born in 1987 and currently resides in Novosibirsk. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms I.B. Kalkopf, a lawyer practising in Novosibirsk. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation at the European Court of Human Rights. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is a Kyrgyztan national of an Uzbek ethnic origin. 5. In October 2010, after the inter-ethnic violence in the region of JalalAbad in June 2010, the applicant left Kyrgyzstan for Russia, fleeing ethnic-motivated violence. 6. On 30 January 2011 the Kyrgyz authorities charged the applicant in absentia with violent crimes committed in June 2010. On 1 May 2011 they issued an international search warrant. 7. On 30 September 2011 the applicant was arrested and placed in custody in Russia. The Kyrgyz authorities confirmed their intention to seek the applicant’s extradition. 8. On 30 September 2012 the detention measure was lifted and the applicant was released from custody under an obligation not to leave his place of residence. 9. Pending the completion of the extradition proceedings, the applicant unsuccessfully sought a refugee status, temporary asylum and political asylum in Russia. 10. On 4 April 2013 the Deputy Prosecutor General of Russia granted the extradition request and ordered the applicant’s extradition. The order mentioned that the Kyrgyz authorities provided diplomatic assurances that the applicant would not be tortured or subjected to inhuman or degrading treatment; the extradition request did not aim at persecuting the applicant on religious, political grounds or grounds relating to his ethnic origin; he would benefit from free access by the Russian authorities’ representative in the place of his detention. 11. The applicant appealed against this decision and advanced an argument that he might be subject to ill-treatment due to his Uzbek ethnic origin. 12. On 21 June 2013 the Novosibirsk Regional Court upheld the extradition order. As to the applicant’s arguments about alleged risk of illtreatment the court concluded that they were unfounded, since the reports provided by the applicant referred to past years, namely 2011, and the opinions of human rights activists were their own subjective opinion not based on real facts. 13. The applicant appealed to the Supreme Court of Russia. 14. On 11 September 2013 the Court acceded to the applicant’s request to apply Rule 39 of the Rules of Court and indicated to the Government that the applicant should not be extradited or otherwise involuntarily removed from Russia to Kyrgyzstan or another country for the duration of the proceedings before the Court. 15. On 17 September 2013 the Supreme Court of Russia quashed the judgment of 21 June 2013 and remitted the case for a fresh examination in the first instance. 16. On 5 October 2013 the Novosibirsk Regional Court quashed the extradition order of 4 April 2013. 17. On 14 January 2014 the Supreme Court of Russia dismissed the appeal lodged by the Prosecutor’s Office of the Novosibirsk Region and upheld the judgment of 5 October 2013. The extradition order of 4 April 2013 was thus annulled. 18. For a summary of relevant international and domestic law and practice see Abdulkhakov v. Russia (no. 14743/11, §§ 71-98, 2 October 2012). 19. For relevant reports on Kyrgyzstan see Makhmudzhan Ergashev v. Russia (no. 49747/11, §§ 30-46, 16 October 2012). | 0 |
test | 001-144137 | ENG | ITA | CHAMBER | 2,014 | CASE OF RUMOR v. ITALY | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);No violation of Article 14+3 - Prohibition of discrimination (Article 3 - Prohibition of torture;Positive obligations) | András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano | 6. The applicant was born in 1968 and lives in Colognola ai Colli, in the province of Verona. 7. The facts of the case, as submitted by the parties, can be summarised as follows. 8. The applicant’s relationship with J.C.N., a Kenyan national, began in 2003. They had two children, P. and A., who were born in August 2006 and March 2008 respectively. 9. The applicant submitted that her relationship with J.C.N. deteriorated rapidly. In 2008 they undertook relationship therapy, which was interrupted because J.C.N. was suffering from depression. He also took no interest in the business he had set up with the applicant in 2006. 10. According to the domestic court’s judgments, on 16 November 2008 J.C.N. hit the applicant several times and threatened her with a knife and a pair of scissors during a violent argument concerning the relationship that she had begun with a common friend. J.C.N. locked the applicant in the flat and took the keys in order to prevent her from leaving. Their children were asleep in the flat and one of them, awakened by the screaming, witnessed part of the aggression. 11. The carabinieri, called by the neighbours, intervened at the couple’s home. The applicant was taken to hospital in a state of shock. She was diagnosed with, inter alia, concussion, injuries to the head and several bruises all over her body. 12. J.C.N. was arrested and detained. He was charged with attempted murder, kidnapping, aggravated violence and threatening behaviour. He subsequently asked the authorities in charge of the preliminary investigation to adopt the summary procedure (giudizio abbreviato) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”). 13. On 2 April 2009 J.C.N. was found guilty and sentenced to four years and eight months’ detention. 14. The applicant did not join the criminal proceedings as a civil party. 15. On 11 December 2009 the Verona Court of Appeal reduced the sentence to three years and four months’ detention. 16. By a decision issued on 7 October 2010 the Court of Cassation dismissed an appeal lodged by J.C.N. 17. On 6 October 2009 J.C.N. applied to the Venice Court of Appeal seeking to serve the remainder of his sentence under house arrest at a reception centre located in the municipality where the applicant was living (Colognola ai Colli). 18. On 3 November 2009 the Venice Court of Appeal dismissed J.C.N.’s application, referring, inter alia, to the proximity of the facility indicated (2 km) to the applicant’s home, the psychological condition of J.C.N. and the risk that he might try to contact the applicant. 19. On 1 June 2010 J.C.N. lodged another application for house arrest, indicating a reception centre (“Don Nicola”) located in Soave, a different municipality of the province of Verona, about 15 km from the applicant’s home. The centre was managed by a non-profit-making organisation called Sulle Orme. 20. The Venice Court of Appeal ordered an inspection of the facility indicated by J.C.N. in order to assess its suitability to host him. The inspection was carried out by the carabinieri, who highlighted that the facility in question had already hosted persons whose prison sentence had been replaced by house arrest, without any complications having arisen. They further stressed that they carried out regular surveillance of the persons hosted by the centre. They consequently concluded that the facility was suitable to host the applicant’s former partner. 21. On 18 June 2010 the Venice Court of Appeal granted J.C.N.’s request. 22. On 24 September 2010 the Venice Court of Appeal granted J.C.N. permission to work outside the reception centre during the grape-harvest season. 23. On 2 August 2011 J.C.N. finished serving his sentence and was released. He decided to continue residing at the reception centre. 24. On 24 April 2009 the applicant lodged an application with the Venice Juvenile Court seeking sole custody of her children and the forfeiture of her former partner’s parental rights. 25. On 15 May 2009 the applicant was granted sole custody of her children. In February 2010, after having heard both the applicant and her former partner, the Venice Juvenile Court ordered the forfeiture of J.C.N.’s parental rights and prohibited any form of contact between him and the children. The court stressed that J.C.N. could apply for the restoration of his parental rights once he had served his sentence and followed a path aimed at acquiring the parental skills he had been shown to be lacking. 26. In January 2012 J.C.N. applied to the Venice Juvenile Court seeking the restoration of his parental rights and the suspension of his financial obligation towards his children. No information was submitted to the Court about the outcome of the application. 27. The applicant claimed that following the violence suffered at the hands of her former partner, she lived in a state of constant anguish and fear of a recurrence of the violence against her and her children. She underwent psychological support therapy, as did her son P., who had witnessed the violence. 28. On an unspecified date the applicant turned for help to an association (Associazione scaligera vittime di reato – ASAV) that specialised in providing material, psychological and legal assistance to victims of crime. 29. The applicant visited her former partner five times during his imprisonment, which lasted from 18 November 2008 to 18 June 2010. 30. From the material submitted by the applicant, it appears that after J.C.N. was released he and the applicant resumed contact in the form of an exchange of emails. | 0 |
test | 001-142441 | ENG | AUT | ADMISSIBILITY | 2,014 | LANSCHÜTZER GMBH v. AUSTRIA | 4 | Inadmissible | Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 1. The applicant company, Lanschützer GmbH, is a limited liability company based in Graz. It is represented before the Court by Mrs C. Lanschützer, a lawyer practising in Graz. The Austrian Government (“the Government”) were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On an unspecified date the applicant company applied, at that time under its previous name, Edelweis Rundfunk GmbH, for a broadcasting licence in Vienna. However, the licence was awarded to another company, the S.R. Company. The applicant company appealed. 4. On 18 June 2007 the Federal Communications Panel (Bundeskommunikationssenat – “the FCP”) dismissed the applicant company’s appeal. 5. Afterwards, on 9 August 2007, the applicant company lodged a complaint with the Constitutional Court and requested that suspensive effect be granted to their complaint. It was signed by two of its business managers. 6. On 10 August 2007 the applicant company sent a letter to the S.R. Company - transmitting a copy of its complaint against the FCP’s decision of 18 June 2007 - proposing to withdraw the complaint if it received payment on its business bank account of 150,000 euros (EUR), an amount which should partially cover the losses sustained by the applicant company because they had not been awarded the licence. The applicant company pointed out that its complaint to the Constitutional Court had not been signed by a lawyer and would be returned in order for that procedural defect to be remedied. Thus, before the complaint was resubmitted by a lawyer the S.R. Company would have the opportunity to obtain the applicant company’s withdrawal from the proceedings by paying the above-mentioned amount. 7. On 13 August 2007 the S.R. Company’s lawyer informed the Constitutional Court of the applicant company’s letter and enclosed a copy of that letter. 8. By a letter of 23 August 2007 the Constitutional Court ordered the applicant company to remedy the procedural defects of its complaint. It noted that the complaint did not bear the signature of a lawyer, which was contrary to the statutory requirement, and observed that the applicant company, as could be seen from its letter to the S.R. Company, had been perfectly aware of that requirement. The Constitutional Court ordered the applicant company to remedy that defect by resubmitting its complaint through a lawyer within one week and, within the same time-limit, to clarify its letter of 10 August 2007, a copy of which was attached. 9. On 29 August 2007 the applicant company replied to the Constitutional Court’s order of 23 August 2007. It submitted that its letter of 10 August 2007 to the S.R. Company had merely been intended to find a viable solution for all parties. In its view, the S.R. Company’s application for a broadcasting licence had had fundamental defects which would have led to the licence being revoked and would have caused an untenable financial risk for the S.R. Company. The amount requested had been justified because, for the applicant company, the time spent waiting for the decision of the Constitutional Court would have resulted in a standstill and loss of opportunities. 10. On 30 August 2007 the applicant company’s lawyer and member of the Styria Bar, Mr F.P.-P., submitted the same, unsigned, complaint again. Attached to the complaint there was a letter signed by the latter, saying that he represented the applicant company. 11. On 3 October 2007 the Constitutional Court rejected the applicant company’s complaint as inadmissible for formal reasons. It noted that Mr F.P.-P. had resubmitted the original complaint with a covering letter bearing his signature, along with the statement that he represented the applicant company, but the complaint itself did not bear his official stamp and signature. The Constitutional Court concluded that the applicant company had failed to comply with its order. 12. Article 144 of the Federal Constitution Act (Bundes-Verfassungsgesetz) reads as follows: “(1) The Constitutional Court decides on rulings by administrative authorities including independent administrative panels, in so far as the complainant alleges an infringement by the ruling of a constitutionally guaranteed right or the infringement of personal rights caused by an illegal ordinance, an illegal pronouncement on the republication of a law (state treaty), an unconstitutional law, or an unlawful treaty. The complaint can only be lodged after all other legal remedies have been exhausted. (2) The Constitutional Court can decide to decline to deal with a complaint before an oral hearing if it has no reasonable prospect of success or if the decision cannot be expected to clarify a constitutional problem. It must not decline to deal with a complaint if, under Article 133, the case at hand falls outside the jurisdiction of the Administrative Court. (3) If the Constitutional Court finds that a right within the meaning of sub-section 1 above has not been infringed by the challenged ruling, and if, under Article 133, the case at hand does not ,fall outside the jurisdiction of the Administrative Court, the Court shall, on the request of the applicant, transfer the complaint to the Administrative Court for a decision as to whether the applicant has suffered an infringement of any other right as a result of the ruling of the administrative authority. This also applies by analogy in the case of decisions in accordance with sub-section 2 above.” 13. In the report of the Constitutional Committee (Verfassungsausschussbericht) of the National Council (Nationalrat) on the draft amendment of the Federal Constitutional Act 1983 it is stated that if the Constitutional Court decides to decline to deal with a complaint it is dispensed from examining the admissibility of that complaint (AB 766 BlgNR XV. GP, p. 2). In such a case the Constitutional Court is therefore relieved from examining whether all formal criteria, such as time-limits and representation by a lawyer have been complied with. This is also the Constitutional Court’s case-law (see, for example, B 1306/88 27 September 1988; B 880/89, 9 June 1992; B 1850/08, 2 December 2008). 14. Section 17 of the Constitutional Court Act, in so far as relevant, reads as follows: “(2) ... complaints must be submitted by an authorised lawyer ...” 15. Section 18 of the Constitutional Court Act reads as follows: “Submissions which do not comply with the requirements of section 15 and section 17, or other requirements of form laid down in the present Act, shall be returned by the rapporteur to the complainant for the procedural defects to be remedied within a certain period of time, if it can be expected that the defects are likely to be remedied.” 16. Section 19 of the Constitutional Court Act, in so far as relevant, reads as follows: “(1) ... the judgments of the Constitutional Court are given after a public oral hearing to which the complainant, the opposing party and any third parties are summoned. (2) The judgments are pronounced and delivered on behalf of the Republic. (3) Upon an application by the rapporteur, the following decision may be taken in a non-public session, without any further proceedings and without conducting a hearing: 1. The refusal to deal with a complaint, under Article 144(2) and Article 144a(2) of the Constitutional Court Act. 2. The rejection of a submission: a) for a clear lack of jurisdiction of the Constitutional Court; b) for failure to meet a statutory deadline; c) for a non-remedied deficiency in the formal requirements; d) in the case of final and enforceable matters, and e) in the absence of a right to sue or be sued. 3. The discontinuation of proceedings when an application is withdrawn or deprived of its cause of action (section 86 - Klaglosstellung).” 17. According to the case-law of the Constitutional Court, the requirement of section 17(2) of the Constitutional Court Act that a complaint must be submitted by an authorised lawyer means that a lawyer representing a complainant must submit his or her own complaint signed by him or her (see, inter alia, Collection of Decisions of the Constitutional Court (VfSLG) 17759/2006). | 0 |
test | 001-176030 | ENG | LTU | ADMISSIBILITY | 2,017 | ČIAPAS v. LITHUANIA | 4 | Inadmissible | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 1. The applicant, Mr Rolandas Čiapas, is a Lithuanian national, who was born in 1966 and is currently detained in Vilnius Correctional Facility. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was detained on remand in Šiauliai Remand Prison periodically on an unspecified date in August 2013, from 18 October 2013 to 21 October 2013, from 25 October 2013 to 17 December 2013, from 19 December 2013 to 7 May 2014, from 8 September 2014 to 11 September 2014, from 3 November 2014 to 10 November 2014, and from 14 November 2014 to 18 November 2014. He was transferred to Vilnius Correctional Facility on 20 June 2014 after his conviction. 5. The applicant was married to E.Č. but got divorced on 4 June 2013. On 18 December 2014 he married V.A. 6. On 1 August 2013, 7 August 2013, 14 February 2014 and 17 February2014 he wrote to Šiauliai Remand Prison administration to request conjugal visits from his former spouse but was informed that under domestic law pre-trial detainees had no right to such visits. 7. The applicant wrote to the Ministry of Justice on 30 July 2013, the Prison Department under the Ministry of Justice on 20 August 2013, 30 September 2013 and 15 February 2014 and to the Parliamentary Committee on Human Rights on 16 February 2014, complaining about his inability to receive conjugal visits from his former spouse. He received similar responses, namely that the provisions of domestic law did not guarantee pre-trial detainees a right to conjugal visits. On 10 September 2013 he also complained to the Chief Administrative Disputes Commission (“the Commission”) about the Ministry of Justice’s refusal to grant him conjugal visits. His complaint was dismissed on 23 September 2013. 8. It appears that the applicant called E.Č. at least eighty times from 30 May 2013 to 3 December 2013. It also appears that when the applicant was detained in Panevėžys police station, E.Č. visited him on 22 May 2013, 5 June 2013, 5 July 2013, 17 July 2013, 29 July 2013 and 30 September 2013. 9. At the material time, Article 18 § 2 of the Law on Administrative Disputes Commissions provided that parties to proceedings could appeal against Commission decisions to the Vilnius Regional Administrative Court within twenty days of their receipt. A similar provision was set down in Article 32 § 1 of the Law on Administrative Proceedings. 10. At the material time, Article 22 of the Law on Pre-trial Detention (Kardomojo kalinimo įstatymas) provided that remand detainees could have an unlimited number of visits from relatives and other people. Visits could not exceed two hours. 11. As of 1 January 2017, Article 22 of the Law on Pre-trial Detention provides that visits to remand detainees by spouses, cohabitants or the other parent of a mutual child can take place without the presence of a representative of the remand prison. Such visits can take place once a month, in specially equipped premises and can last up to one day. An explanatory report of 22 April 2015, attached to the draft amendments of the Law on Pre-Trial Detention, stated that the Varnas v. Lithuania (no. 42615/06, 9 July 2013) judgment had obliged Lithuania to make sure it did not discriminate against remand detainees (as compared with convicted inmates) and to provide them with the possibility to receive conjugal visits from spouses (partners). 12. At the material time, Point 65 of the Internal Regulations of Remand Prisons (Tardymo izoliatorių vidaus tvarkos taisyklės) provided that physical contact was not allowed during visits to remand detainees. 13. At the material time, Articles 73-75, 79-80 and Article 94 of the Code for the Execution of Sentences (Bausmių vykdymo kodeksas) provided that a convicted person being held under the standard prison regime had the right to short-term visits of up to four hours and long-term visits of up to forty-eight hours, including conjugal visits, every three months. Those being held under a light regime had the right to short-term visits of up to four hours and long-term visits of up to forty-eight hours, including conjugal visits, every two months, while convicted inmates being held under a disciplinary regime were not allowed any visits. Similarly, convicted inmates aged under 18 in the ordinary regime had the right to short-term visits of up to four hours and long-term visits of up to fortyeight hours, including conjugal visits, every two months. Convicted inmates under 18 being held under a light regime had the right to short-term visits of up to four hours and long-term visits of up to forty-eight hours, including conjugal visits, every month. 14. Articles 73-75 and 79-80 of the Code for the Execution of Sentences were amended on 1 April 2016 while Article 94 was amended on 1 January 2017. They now provide that convicted inmates being held under the standard regime can have short-term visits of up to three hours and longterm visits of up to one day, including conjugal visits, every two months. Light regime convicted inmates have the right to two shortterm visits of up to three hours and two long-term visits of up to one day, including conjugal visits, every two months. Convicted inmates assigned to a disciplinary regime have the right to a short-term visit of up to three hours every four months. Similarly, convicted inmates under 18 being held under the standard regime can have two short-term visits of up to three hours and one long-term visit of up to one day, including conjugal visits, every month. Under-eighteens under a light regime have the right to four short-term visits of up to three hours and one long-term visit of up to one day, including conjugal visits, every month. 15. Article 3.66 § 1 of the Civil Code provides that a marriage is dissolved from the date of issue of the court decision. 16. In a case unrelated to the applicant, the Supreme Administrative Court relied on the Court’s interpretation in the case of Varnas, cited above, and acknowledged that the refusal on the basis of domestic law to grant conjugal visits to pre-trial detainees was not objective and reasonable grounds to treat pre-trial detainees and convicted inmates differently. As a result, the Supreme Administrative Court awarded the applicant in that case compensation of 1,000 euros (EUR) (decision of 8 September 2016, no. A850-662/2016). | 0 |
test | 001-166958 | ENG | DEU | CHAMBER | 2,016 | CASE OF K.S. AND M.S. v. GERMANY | 3 | Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary | 5. The applicants, Mr K.S. and his wife Mrs M.S., were born in 1939 and 1942 respectively and live in Lauf. 6. In 2006 the German secret service (Bundesnachrichtendienst) bought a data carrier from a certain K. for a considerable amount of money. The data carrier contained financial data from the Liechtenstein L. Bank relating to 800 people. K., who had formerly been an employee of the L. Bank, had illegally copied the data. The data carrier was submitted to the German tax investigation authorities, which subsequently instigated proceedings against, inter alia, the applicants, in relation to tax evasion crimes. 7. On 10 April 2008 the Bochum District Court (“the District Court”), following an application from the Bochum prosecutor’s office, issued a search warrant in respect of the home of the applicants, who were suspected of having committed tax evasion between 2002 and 2006. The search warrant allowed the seizure of papers and other documents concerning the applicants’ capital, both inside and outside Germany, especially documents concerning information on foundations and any documents that could help to determine the true tax liability of the applicants since 2002. 8. The search warrant indicated that, in the course of investigations against another suspect, the prosecution had obtained information that the applicants had established the “K. Foundation” on 17 January 2000 and the “T.U. S.A.” on 14 June 2000. The applicants were suspected of having made financial investments via these two associations with the L. Bank in Liechtenstein, for which they were liable for tax in Germany. According to the search warrant, the applicants had failed to declare about 50,000 euros (EUR) of the yearly interest accrued from the capital of both the K. Foundation and T.U. S.A. in their tax returns for the years 2002 to 2006. It indicated that the applicants had evaded tax payments of EUR 16,360 in 2002, EUR 24,270 in 2003, EUR 22,500 in 2004, EUR 18,512 in 2005 and EUR 18,000 in 2006. The search warrant stated that the house search was urgently needed in order to find further evidence and that, weighing the seriousness of the alleged crimes against the constitutional rights of the applicants, the house search was proportionate. 9. On 23 September 2008 the applicants’ flat was searched and one envelope containing L. Bank documents and five computer files were seized. 10. The applicants appealed against the search warrant. They argued that the warrant had not been granted in accordance with the law. It had been based on material which had been acquired in breach of international law, especially the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990, because the data had been stolen from the L. Bank and had been bought by the secret service. The acquisition of the data had also violated domestic law, as the secret service had no authorisation to obtain tax data. In fact, such an act was a criminal offence under German law, as it infringed section 17(1) and section 17(2)(2) of the Unfair Competition Act (“divulgence of official secrets” (Geheimnisverrat)). Furthermore, the secret service was not authorised to forward tax data to the financial authorities and the prosecution, as this infringed the German legal principle of separation of the secret service and the police/prosecution (Trennungsprinzip). 11. On 8 April 2009 the Bochum District Court dismissed the appeal. It was of the view that the house search had been legal as it had been based on a lawful search warrant. The court had no doubt that it had been lawful to base the search warrant on the information contained in the Liechtenstein data carrier, as, in its view, the data had neither been seized in direct violation of international law nor by circumventing international treaties. 12. The District Court was also of the view that the search warrant in question could be issued on the basis of the information in the data carrier, as the secret service had only played a passive role in acquiring it. According to the court, there was no indication that the secret service had incited a third person to steal the data, and it had merely accepted the data from a third person when this person had offered it. The fact that the secret service might have remunerated the seller did not, in the court’s view, change the fact that the secret service had only played a passive role. In the court’s opinion, it was within the secret service’s remit to acquire the data carrier in the prescribed way and hand the data over to the prosecution, as the data carrier contained 9,600 sets of data concerning international cash flows. 13. On 7 August 2009 the Bochum Regional Court dismissed the applicants’ appeal. It held that the search warrant had been lawful, even if it was true that the German authorities had infringed domestic criminal law in obtaining the evidence. Even assuming that the German authorities might have committed the criminal offences of acting as an “accessory to a criminal offence” (Begünstigung, Article 257 § 1 of the German Criminal Code) and an “accessory to the divulgence of official secrets” (Beihilfe zum Geheimnisverrat, section 17(1) and section 17(2)(2) of the Unfair Competition Act, in conjunction with Article 27 of the German Criminal Code) in buying the Liechtenstein data from K., and that K. might have committed the offence of “industrial espionage” (Betriebsspionage, section 17(2)(1) of the Unfair Competition Act), it considered the search warrant to have been lawful. With regard to the applicants’ allegation that the data had been acquired in breach of international law, the Regional Court doubted any such breach. 14. As regards the question whether illegally obtained evidence could be used in criminal proceedings, the Regional Court referred to a decision of the same court of 22 April 2008, where it had held in a similar case and with regard to the same data carrier that the interest in prosecuting the suspects outweighed the possible infringements of criminal law, as the principal criminal act of “data theft” had been committed by a third party and not by the German authorities. According to the well-established case-law of the Federal Court of Justice, evidence that had been illegally acquired by a third party could generally be used in criminal proceedings, unless it had been acquired through coercion or force. It also had to be considered that the use of the “stolen” data had not infringed the core of the applicants’ private sphere, but their business affairs. Furthermore, the “data theft” had not primarily infringed the rights of the applicants, but the data-protection rights of the bank from which it had been “stolen”. Thus, the Liechtenstein data was not excluded as evidence and the search order could be based on it. As to the presumed breach of international law, the court added that such a breach would not lead to the unlawfulness of the search warrant, firstly because international law did not grant the applicants any personal rights and secondly because the use of the evidence did not in itself constitute a breach of international law. 15. On 11 September 2009 the applicants lodged a constitutional complaint with the Federal Constitutional Court. They were of the view that the Regional Court and the District Court should have decided that the search warrant had not been in accordance with the law, as the use of the Liechtenstein data as a basis for a search warrant had violated international treaties and the sovereignty of Liechtenstein, which had protested against the use of the data. 16. Furthermore, they argued that their right to respect for their home under Article 13 of the Basic Law had been infringed, as the search warrant had been based on evidence that had been acquired by the secret service and passed on to the prosecution in violation of domestic law. The data purchase from K. had constituted a criminal act. Moreover, the secret service had no authority under German law to purchase such data. Furthermore, the transfer of the Liechtenstein data from the secret service to the financial authorities and the prosecution had violated the principle of the separation of the secret service and the prosecution in Germany. The infringement of domestic law had been so severe that the criminal courts should have come to the conclusion that the Liechtenstein data could not have formed the basis of a search warrant. They would thus have been obliged to declare the search warrant illegal. 17. On 9 November 2010 the Federal Constitutional Court dismissed the constitutional complaint as manifestly ill-founded. It found that the fact that the search warrant had been based on the Liechtenstein data did not infringe Article 13 of the Basic Law. 18. The Federal Constitutional Court reiterated that there was no absolute rule that evidence which had been acquired in violation of procedural rules could never be used in criminal proceedings (compare paragraph 28 below). The court further pointed out that it had to be borne in mind that the case at hand did not concern the question of whether evidence could be admitted in a criminal trial, but only concerned the preliminary question of whether evidence that might have been acquired in breach of procedural rules could form the basis of a search warrant in criminal investigation proceedings. Even if evidence was considered inadmissible in criminal proceedings, this did not automatically mean that the same was true for all stages of criminal investigations. 19. Furthermore, the court reiterated that it was not its role to substitute itself for the authorities in the interpretation and application of domestic law, but to review, in the light of the Basic Law, the decisions taken by the authorities in the exercise of their margin of appreciation. 20. In applying these general principles to the case at hand, the Federal Constitutional Court ruled, at the outset, that it was not necessary to decide upon the question whether the acquisition of the data had been in breach of national or international law or violated the principle of the separation of the secret service and the prosecution in Germany, as the Regional Court had departed in its decision from the applicants’ allegation that the evidence might in fact have been acquired in breach of domestic and international law, including criminal law. 21. The Federal Constitutional Court found that the fact that the Regional Court based its legal assessment on the assumption that the acquisition of the data had been in breach of domestic and/or international law was not arbitrary and hence could not be found to be in violation of Article 13 of the Basic Law. Its finding that the applicants could not invoke international law in their favour only showed a different legal opinion without disregarding the applicants’ basic rights. Furthermore, the Federal Constitutional Court considered reasonable the District and Regional Court’s legal assessment that the principle of separation of the secret service and the prosecution had not been infringed, as the facts of the case did not show that the secret service had either ordered or coordinated the “data theft”, but had been offered the data on K.’s own initiative. Acquiring data in such a way and passing it on to the prosecution could not violate the principle of separation, and hence could not render a search warrant unconstitutional. 22. With regard to the Regional Court’s finding that the search order could be based on the Liechtenstein data the Federal Constitutional Court found that the Regional Court’s legal assessment sufficiently took into account the applicants’ basic rights as the Regional Court had departed from the applicants’ allegation that the evidence had been obtained in breach of domestic law and thus based its decision on, what was, for the applicants, the best possible assumption. 23. The Federal Constitutional Court further considered that the Regional Court had struck a fair balance between the different interests at stake. The alleged breach of national and/or international law did not entail an imperative prohibition to use the evidence in the proceedings at issue. Furthermore, the Regional Court had rightly pointed out that the data did not relate to the core area of the applicants’ private life, but to their business activities. It had recognized the decisive interest at stake, namely the applicants’ right to inviolability of their home, and took it sufficiently into account, as nothing showed that German authorities purposely and systematically breached international or domestic law in obtaining the data carrier. 24. On 2 August 2012 the Nuremberg District Court acquitted the applicants of the charges of tax evasion, finding that it had not been proven beyond reasonable doubt that the capital of the foundation in question had been invested in an interest-bearing way. | 0 |
test | 001-164949 | ENG | RUS | COMMITTEE | 2,016 | CASE OF MALTSEV AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and lack of an effective domestic remedy to complain about it. The applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-172314 | ENG | RUS | CHAMBER | 2,017 | CASE OF VOLCHKOVA AND MIRONOV v. RUSSIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicants were born in 1945 and 1935 respectively and live in Moscow and Lyubertsy. 6. The applicants, together with another person, were joint owners of a plot of land and the house built on it. 7. The first applicant owned a one-sixth share of a house constructed between 1937 and 1949 (her share amounting to some 24 sq. m, of which some 12 sq. m was living space), and 208 sq. m of land. The property had been her registered address since 2001. It appears that her title originated in the inheritance she had received after her late mother’s death in 1995. 8. The second applicant owned a half share in the same house (amounting to some 78 sq. m) and 625 sq. m of the same plot of land. It appears that he had first had a right of use (as part of inheritance after another person) in respect of the land and had then acquired title to it in 1993; that he had inherited his share in the house after another person in 1975. 9. The remainder of the house and plot of land were owned by the first applicant’s brother. 10. On 28 June 1999 the Ministry of Construction of the Moscow Region issued a decision to “adopt” the general plan of Lyubertsy town, “to invite the Lyubertsy municipality to continue co-operating with the authors of the general plan when preparing future projects, bearing in mind that the plan is the main legal document in relation to town planning”. In August 2005 the decision was amended to indicate that the Ministry “had adopted the plan for further approval in accordance with the established procedure” (see also paragraph 30 below). 11. In November 2001 the Lyubertsy municipality (“the municipality”) adopted a programme aimed at demolishing dilapidated housing. 12. In April 2002 the local authorities adopted draft construction guidelines for the Oktyabrskiy Proezdy district where the applicants’ house was situated. The draft guidelines were published in a local newspaper on 6 August 2002. It appears that they were eventually adopted in 2003. 13. A committee composed of officials attached to various public authorities was asked to make a proposal regarding a plot of land for constructing blocks of flats. The committee considered that it would be appropriate to construct blocks of flats at Kirova Street. It does not transpire from the committee’s deliberations that they considered any other plots of land. On 30 May 2002 the municipality issued a decision by which it agreed to the construction of several blocks of flats (including one on the applicants’ land) and authorised a specialised State enterprise to start the compiling of the necessary technical documents. 14. In September 2002 the regional administration, the Lyubertsy town administration and a State enterprise signed an investment contract for the construction of multi-storey blocks of flats in the area, including the applicants’ land. Under the terms of the contract, the enterprise would arrange to buy the land from private owners and the municipality would acquire title to it. The investor would also take measures to resettle any inhabitants and provide them with compensation. The municipality and the investor would own 5% and 95% of the newly built housing space respectively. The estimated preliminary cost of the project amounted to 14,481,000 euros (EUR). 15. As transpires from the available information, the block of flats to be built on the applicants’ land comprised seventeen floors, 352 flats with the total space of 21,146 sq. m. Under the investment contract, the municipality was to receive title to some thirty flats for the overall space of 1,907 sq. m. 16. The investor also agreed to make a contribution of funds corresponding to some 30% of the estimated costs for constructing a kindergarten for 114 children, an annex building for a school and some other amenities or facilities. 17. In October 2002 a private company, ORS-Grupp, replaced the State enterprise as the project investor. 18. In December 2002 the municipality issued an order aimed at implementing the demolition programme adopted in November 2001 and “improving the architectural appearance of the town and the resettlement of inhabitants from housing that no longer [met] sanitary requirements”. The above investment project was one of the measures by which the municipality intended to achieve those aims. In total, the order concerned some eleven investment contracts in relation to over seventy dwellings, of which some thirty properties were privately owned and the remainder was owned by the municipality. 19. The municipality assessed the situation as regards the private owners, including the applicants, and decided to proceed by way of expropriation for municipal needs under the Land Code (see paragraph 59 below). 20. On 18 March 2003 the municipality ordered the expropriation of the applicants’ house and land for municipal needs, namely the construction of a block of flats under the investment contract. 21. According to the Government, on 24 April 2003 the second applicant received notice of the planned expropriation. 22. On 19 May 2003 the municipality amended the expropriation order, indicating that pursuant to the investment contract the investor had to provide funds for paying compensation for the land being expropriated and provide inhabitants with comparable alternative housing. The investor was required to request expert valuations to determine the market value of the properties being expropriated (see paragraphs 23 and 27 below) and then buy those properties. 23. It appears that on 21 May 2003 the investor obtained a valuation report regarding the applicants’ house and land to determine their market value. The company used was Expert Centre, a private company licensed by the State to carry out valuation assessments (see paragraph 64 below). The Court was not provided with a copy of this valuation report. 24. According to the Government, on 27 and 29 May 2003 the first applicant was served with notice of the planned expropriation. In January 2004 both applicants were informed that the amended expropriation order had been officially registered. 25. According to the Government, on 3 July 2003 there was a meeting between Kirova Street residents and, apparently, a representative of the local authorities or the private company. The Government stated that the residents had been given access to a construction planning document for the area, documents concerning the choice of plots for such construction, the town plan and some other documents. 26. As no comparable plots of land were available in the area, having regard to the valuation report of 21 May 2003 (see paragraph 23 above), the first applicant was offered several options of “compensation in kind”, namely one or two-room flats in Lyubertsy or Moscow with market values of up to 150,000 United States dollars (USD), apparently with ownership title. She was also offered monetary compensation for the land and her part of the house of up to USD 50,000. However, she turned down these offers, considering them insufficient or the location of the alternative housing unsuitable. The second applicant appears to have turned down offers of plots of land in nearby areas ranging between USD 60,000 and 140,000 in value. The second applicant also turned down another offer: ownership title to two flats measuring at least 35 sq. m and 54 sq. m each together with USD 34,874. The second applicant stated that he was entitled to compensation amounting to USD 330,000. The investor then made a new offer of USD 200,000 as compensation for his part of the house and land. The second applicant did not accept it. 27. On 5 May 2004 the investor requested another valuation report regarding the applicants’ house and land from Expert Centre. On 14 May 2004 it issued a report indicating that the overall market value of the first and second applicant’s shares of the house and land were USD 24,488 and USD 73,463 respectively. The Court was provided with part of that report, which reads: “[Description] of the assessment object: a residential house (a single-storey building made of wood, [measuring] 110.8 [sq. m], of which 86 [sq. m is] living space) and annexes; a plot of land [measuring] 1,249 [sq. m] ... [Location] of the assessment object: ... The assessment object is situated in the centre of the old town of Lyubertsy. On the one hand, there are old buildings (essentially residential houses dating back to the 1930s to 60s) and, on the other, [there are] new buildings consisting of modern blocks of flats. The town’s major traffic arteries are in the immediate proximity of the assessment object. There is a car park on one side of the street and a residential area ont the other ... They have a well-developed infrastructure, good access to transport up to Vykhino metro station, central Lyubertsy and the above residential area ... Description of the plot of land: ...Vykhino metro station is within a ten-minute ride by public transport ... Description of the house: ... the main building was first constructed in 1937; the remaining buildings later, until the 1970s ... The house is habitable, although it requires some superficial repairs ...” 28. In November 2004 the district chief architect and the local land authority informed the municipal administration that the town’s general plan of 1999 made no provision for the construction of individual housing. On 23 November 2004, in reply to an enquiry raised by the investor company, the municipality announced that it had no available plots of land that would be equivalent to the land to be expropriated from the applicants, namely those assigned for the construction of individual housing. 29. In late 2004 the town administration brought proceedings in the Lyubertsy Town Court of the Moscow Region (“the Town Court”) seeking judicial authorisation for the expropriation of the applicants’ house and land. In December 2004 the first applicant lodged a separate claim against the municipality, arguing that the expropriation orders of 18 March and 19 May 2003 were ultra vires and otherwise unlawful and disproportionate. On 29 December 2004 the Town Court held a hearing. After hearing evidence from a representative of the municipality, it decided to join the cases. An appeal brought by the first applicant was not processed since the procedural order was not amenable to appeal. 30. In the meantime, the Moscow Region Prosecutor’s Office replied to a request for information from the second applicant, informing him that the regional ministry had acted ultra vires in taking a decision on the general plan in 1999 and that no copy of it existed (see paragraph 10 above). The applicants informed the court examining their case accordingly. 31. The court held several hearings in the expropriation case. It appears that on 11 February 2005 the court ordered a new report from Expert Centre. The applicants did not oppose the choice of company and did not ask for any particular questions to be put to its experts. 32. In February 2005 a group of three experts compiled a report indicating USD 23,300 and 5,200 as the market values of the first applicant’s land and part of the house respectively, and USD 70,000 and 15,600 as the second applicant’s (compare the earlier assessment in paragraph 27 above). The land and house were therefore valued at USD 112 and 216 per sq. m respectively. 33. In reply to the second applicant’s complaint, on 14 March 2005 the Prosecutor’s Office provided the following reply (see also paragraphs 55 and 56 below): “Regarding your complaint about unlawfulness relating to the adoption of Lyubertsy town plan: I inform you that Articles 18, 28, 35, 39, 58 and 60 of the old Town Planning Code provided for a procedure relating to consultation with the local population in relation to the documents relating to town planning. At the same time, the Code did not specify any particular manner for obtaining the population’s view, and thus consultations could be done in any form. It has been established that Lyubertsy town plan was adopted on 28 June 1999 by the Ministry of Construction of the Moscow Region and not by a municipality, in breach of Article 35 of the Town Planning Code. Moreover, there is a breach of the same provision due to the fact that there is currently no Lyubetsy town plan. The municipality will be ordered to remedy the violation of the Code.” 34. On 7 April 2005 the municipality’s mayor wrote to the Town Court asking to speed up the court proceedings, arguing that some of the flats were to be given to the people waiting for social housing and that the procrastination of the proceedings was also prejudicial to the people who had invested in the construction project. 35. On 13 April 2005 the Town Court delivered a judgment, stating as follows. 36. The applicants appealed. They contended, inter alia, that the expert report relied on by the first-instance court had in fact been requested by the municipality and was thus biased and based on the material provided by them; no court-requested report had been prepared. The first applicant also argued that the expert report had failed to take into account the scarcity of land in Lyubertsy for individual housing; the commercially attractive location of the land, which bordered the city of Moscow; the proximity of a metro station under construction (or planned); and the intended use of the land being expropriated for commercial gain arising from the construction of blocks of flats. The applicant also contested the expert assessment regarding the value of the house to be demolished pursuant to the expropriation decision. The expert had not used the “method of prospective use” for determining the value of the house and land. The expert valuation was based on the premise that the land’s use was for a summer cottage use rather than for the use relating to multi-storey blocks of flat; this premise was inappropriate, given that the property was already surrounded by similar blocks of flats. With reference to the above considerations, the applicant’s own calculations amounted to USD 246,418 for her part of the land. 37. On 4 July 2005 the Moscow Regional Court upheld the first-instance judgment. 38. On 18 August 2005 the first applicant applied for supervisory review of the court decisions of 13 April and 4 July 2005, requesting that the enforcement proceedings be suspended. 39. In the meantime, on 22 August 2005 the applicants were evicted and had their belongings removed from the house. According to the Government, the first applicant’s belongings were then delivered to the social housing flat where they were then stored, under the supervision of a local public official, until December 2006 when she received the keys. 40. A bank account was opened for the first applicant, and the expropriation compensation was credited into it on 26 August 2005. The bank issued a certificate allowing the accountholder to use the money. On 29 August 2005 the first applicant was informed of the above. 41. On 31 August 2005 the Regional Court dismissed the first applicant’s application for supervisory review. The reviewing judge held that the municipality had had competence to issue the expropriation decision, referring to the available general plan and all the other necessary documents. 42. In November 2005 the first applicant lodged a further application for review before the President of the Regional Court. On 22 November 2005 the application was examined and rejected by another judge of the Regional Court. In March 2006 the first applicant again applied for review before the President of the Regional Court. In a letter of 10 April 2006 the President of the Regional Court dismissed her application, upholding the earlier refusals. 43. The first applicant lodged an application for supervisory review with the Supreme Court of Russia. On 5 July 2006 it was dismissed. The applicant challenged that decision before the Deputy President of the Supreme Court. In a letter of 11 October 2006 he agreed with the lower courts’ decisions. In April 2008, in reply to a new application, the Supreme Court informed the first applicant that she could lodge no further supervisory review applications in respect of the court decisions. 44. According to the Government, until November 2006 the first applicant refused to accept the keys to the flat and the bank certificate relating to the account into which the expropriation compensation had been credited. 45. On 1 December 2006 the applicant received the keys for the flat, the bank certificate and her belongings that had been in safekeeping. 46. According to the second applicant, in July 2006 the municipality resold the properties it had acquired under the investment project to the investor. 47. In 2005 the second applicant brought separate proceedings challenging the orders of 18 March and 19 May 2003. On 10 October 2005 the Moscow Regional Court took a final decision rejecting his claim, primarily because it was time-barred but also because the main arguments had already been dealt with in the final judgment of 13 April 2005 (see paragraph 35 above). 48. On 26 August 2005 the first applicant brought separate proceedings in the Town Court (i) alleging that the bailiffs had acted unlawfully in the enforcement proceedings, and (ii) claiming compensation in respect of pecuniary and non-pecuniary damage. Her claim was turned down on several occasions because she had failed to comply with the required formalities. It appears that the relevant procedural orders were annulled because they reached the applicant after the respective time limits for complying with them had expired. Several hearings were scheduled in 2007. Sometime during that year the Town Court decided that the claims for compensation should be processed separately. 49. In February 2007 the applicant resubmitted her claim for compensation. On 3 July 2007 the Town Court refused to deal with the case because she had failed to comply with its instructions to specify the amount of the claim, to submit calculations concerning the loss and to pay a court fee. 50. On 5 September 2007 the Town Court granted the first claim in part, considering that the applicant had not been informed in good time of the order launching the enforcement proceedings in 2005. She had thus been deprived of the right to contest the documents relating to the enforcement. 51. The applicant sued the municipality, complaining of losses she had suffered because of inflation arising from the delay in enforcement of the judgment of 13 April 2005 in the part relating to the expropriation compensation. On 10 December 2008 the Town Court awarded her 89,712 Russian roubles (RUB) in pecuniary damages arising from the fact that the judgment had actually been enforced on 1 December 2006. On 26 February 2009 the Moscow Regional Court quashed that judgment on appeal and instead awarded the applicant RUB 3,161, considering that the judgment had been enforced on 26 August 2005 when the expropriation compensation had been credited into the bank account opened for her. 52. In 2008 the applicant lodged a complaint with the bailiff service, requesting compensation for belongings that had either been lost or damaged during or following demolition of the house. On 22 May 2008 the District Bailiff Office replied that an inventory of her belongings had been compiled before the demolition. They had all been transferred to her social housing flat and entrusted to a public official for safekeeping; she had had three years to reclaim them. In February 2009 a new complaint by her was dismissed by the Federal Bailiff Office, which noted that the notices dated 11, 12, and 15 August 2005 of the impending demolition of the house had not been served on her personally as she had been away from her temporary address. Between August 2008 and January 2009 various courts in Moscow declined jurisdiction or turned down for procedural reasons a related civil claim by her against the Federal Ministry of Justice. | 1 |
test | 001-155867 | ENG | HRV | ADMISSIBILITY | 2,015 | GRUBIĆ v. CROATIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 1. The applicant, Mr Jovo Grubić, is a Croatian national who was born in 1952 and lives in Golubić. He was represented before the Court by Mr L. Šušak, a lawyer practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. During 1991 and 1992 Serbian paramilitary forces gained control over about one-third of the territory of Croatia and proclaimed the “Serbian Autonomous region of Krajina” (Srpska autonomna oblast Krajina, hereinafter “Krajina”). The applicant’s mother, N.G., remained living in Golubić, a village in “Krajina”. At the beginning of August 1995 the Croatian authorities announced a military action with the aim of regaining control over “Krajina”. The action was codenamed “Storm”, and took place from 4 to 7 August 1995. Before that action, the vast majority of the population of “Krajina” fled Croatia, firstly to Bosnia and Herzegovina, and later on many of them went to live in Serbia. Some returned to Croatia after the war. The number of people who fled is estimated at between 100,000 and 150,000. 5. On 23 May 2002 the applicant lodged a request with the Yugoslav Red Cross in Belgrade for a search for his mother. He alleged that his mother had disappeared on 5 August 1995 in Golubić, during the “Storm” military action. 6. In May 2002 the body of the applicant’s mother was exhumed in Golubić and transferred to the Zagreb Forensic Institute (Zavod za sudksu medicine u Zagrebu). On 19 November 2002 an autopsy was carried out which failed to establish the cause of death. On 6 December 2002 the applicant received the autopsy report and the body was given to the family. On an unspecified date it was buried in the Golubić graveyard. 7. On 27 December 2006 the applicant brought a civil action for damages against the State in the Knin Municipal Court (Općinski sud u Kninu). On 7 December 2007 the claim was dismissed on the ground that the circumstances of the death of his mother remained unknown. Thus the applicant had failed to prove either that his mother had been killed by Croatian army soldiers or that her death “resulted from an act of terror or violence aimed at gravely disturbing public order” and that her death was not war-related. This judgment was upheld by the Šibenik County Court (Županijski sud u Šibeniku) on 30 August 2010, and by the Supreme Court (Vrhovni sud Republike Hrvatske) on 6 April 2011. 8. The applicant’s subsequent constitutional complaint was dismissed by the Constitutional Court on 16 February 2012. 9. The relevant provisions of the Act on Liability for Damage Resulting from Terrorist Acts and Public Demonstrations (Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija, Official Gazette of the Republic of Croatia no. 117/2003 of 23 July 2003 – “the 2003 Liability Act”), which entered into force on 31 July 2003, provides as follows: “(1) This Act regulates the liability for damage caused by acts of terrorism or other acts of violence committed with an aim of seriously disturbing public order by provoking fear or stirring up feelings of insecurity in citizens ... (2) A terrorist act within the meaning of this Act is especially an act of violence committed for political reasons [motives] with a view to stirring up fear, terror or feelings of personal insecurity in citizens.” “The Republic of Croatia shall be liable for damage referred to in section 1 of this Act ....” “The obligation to compensate for damage under this Act exists irrespective of whether the perpetrator has been identified, criminally prosecuted or found guilty.” “The victim shall have the right to compensation [in the form of damages] of damage resulting from death, bodily injury or impairment of health.” 10. The Liability Act (Croatian Army and Police) (Zakon o odgovornosti Republike Hrvatske za štetu uzrokovanu od pripadnika hrvatskih oružanih i redarstvenih snaga tijekom Domovinskog rata, Official Gazette no. 117/2003 of 23 July 2003) governs the conditions under which the State is liable to pay compensation for damage caused by members of the army and the police during the Homeland War. The relevant provisions read as follows: “The present Act governs the liability of the Republic of Croatia for damage caused by members of the Croatian armed and police forces in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996.” “The Republic of Croatia is liable under general rules governing liability for damage only in respect of damage defined in section 1 hereof which does not have the character of war-related damage.” “(1) War-related damage within the meaning of this Act is, in particular: – damage caused at the time when and on the territory where military actions were carried out with any means of war combat actions (bombardment, shelling, firing from machine-guns, explosions, mining, moving of troops and the like); – damage resulting in direct and concrete military gain if, given the time and place where it occurred, it directly served military operations, and in particular: (a) damage which was a direct consequence of any protective or planning measure which the competent military authorities carried out with the aim of removing or preventing an enemy attack; (b) damage which was a direct consequence of protective or planning measures which the competent military authorities carried out in anticipation of an enemy action (work in fields, confiscation of movable property, occupation of real estate and the like); (c) damage which was a direct consequence of measures taken with the aim of preventing the consequences of the damage described in subsection 1 of this section from spreading or of alleviating such consequences; – damage which, having regard to its results and the specific time and place where it occurred, was directly caused by the state of war and is directly connected with war operations (direct consequences of war events in connection with unrest, turmoil, panic, evacuations and similar events [occurring] immediately after the war operations have been carried out). (2) It is to be presumed that the damage caused by members of the Croatian armed and police forces in military or police service or in connection with such service during the Homeland War in the period between 17 August 1990 and 30 June 1996 is war-related damage, if it occurred at the time when and on the territory where military combat actions took place, but the injured party may prove the opposite.” | 0 |
test | 001-151039 | ENG | HRV | CHAMBER | 2,015 | CASE OF SANADER v. CROATIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 6. The applicant was born in 1957 and lives in Vrdnik, Serbia. 7. On 19 November 1991 the Sisak Police Department (Policijska uprava Sisak) lodged a criminal complaint against the applicant alleging that he had participated in a group of members of the Serb paramilitary forces who, in September 1991, had shot twenty-seven prisoners of war in Petrinja, killing twenty-two and severely injuring five of them. The police noted in their report that the applicant could not be apprehended because he lived in an area of Croatia which was, at the time, outside the country’s effective control. 8. On 8 January 1992 an investigating judge of the Sisak County Court (Županijski sud u Sisku) opened an investigation in respect of the applicant, his brother, D. Sanader, and two others, M.D. and S.D., in connection with a suspicion that they had committed war crimes against the prisoners of war. As all the suspects were at large, the judge ordered their pre-trial detention and issued arrest warrants. 9. During the investigation the investigating judge questioned a number of witnesses. Several of them testified about the applicant’s brother’s involvement in the killings and his position as commander of the paramilitary group. They also named M.D. as a direct perpetrator of the killings. One of the witnesses, D.P., testified that after the killings he had heard people saying that “Sanader’s group” had committed the crime and he had later seen the applicant with that group. Another witness, M.Ž., who had survived the shootings, testified that after the event he had been shown the applicant’s photo and it had appeared to him that the applicant had also been there and had personally killed three people. Another survivor of the shooting, I.B., testified that after the crime one of the newspapers in Croatia had published photos of the applicant and his brother. He had recognised the applicant’s brother as one of the participants in the shooting but he had not recognised the applicant as having been at the scene. 10. On 25 November 1992 the Sisak County State Attorney’s Office (Županijsko državno odvjetništvo u Sisku) indicted the applicant, D.Sa., M.D. and S.D. in the Sisak County Court on charges of war crimes against prisoners of war. 11. On the same day the Sisak County State Attorney’s Office asked the Sisak County Court to try the applicant and the other accused, who lived on the occupied territory of Croatia, in absentia, as they were not available to the Croatian authorities, and requested that warrants for their arrest be issued. 12. On 15 December 1992 a three-judge panel of the Sisak County Court ordered the applicant’s detention pending trial and issued an arrest warrant. 13. It also granted the request for the applicant’s trial in absentia on 30 December 1992. The relevant part of the decision reads: “On 25 November 1992 D. Sanader and others were indicted in this court on a reasonable suspicion that they had committed the offence [specified] under Article 144 of the Criminal Code. The State Attorney further requested that they be tried in absentia. The request is granted. The accused are at large and a detention and arrest warrant have been issued, as noted in the police report. Since the accused have been indicted for a crime against humanity and international law – a war crime against prisoners of war under Article 144 of the Criminal Code, and given that they are at large, [this court] considers that highly justified reasons for their trial in absentia exist.” 14. On 5 January 1993 the President of the Sisak County Court appointed the applicant and the other accused a legal-aid lawyer, E.F. 15. At a hearing on 21 January 1993 the trial court heard eight witnesses, including M.Ž. and I.B. (see paragraph 9 above). They all confirmed the statements they had made to the investigating judge. The Deputy State Attorney and the applicant’s legal-aid lawyer asked no questions and made no objections to their statements. The parties also agreed that the written records of statements by thirteen other witnesses, including D.P. (see paragraph 9 above), be admitted in evidence without those witnesses having been questioned at the trial. In his closing statement, the applicant’s legal-aid lawyer stated: “The defence notes that the pre-trial and trial procedure has been thorough and invites the court to assess all the evidence adduced, in particular each witness statement taken alone and in conjunction with other statements, and, based on that assessment, to deliver a decision in accordance with the law.” 16. On the same day the applicant was convicted as charged and sentenced to twenty years’ imprisonment. The trial court considered that the witness statements provided sufficient evidence for conviction and noted that the legal-aid lawyer had made no objections to those statements. 17. The applicant’s legal-aid lawyer lodged an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske) on 26 February 1993 arguing that the first-instance judgment was not sufficiently reasoned. 18. On 24 May 1995 the Supreme Court allowed the appeal, quashed the first-instance judgment and remitted the case for retrial on the grounds that the first-instance judgment lacked sufficient reasoning 19. In the resumed proceedings, three hearings, scheduled for 7 and 8 November 1995 and 2 July 1996 were adjourned, because the defence lawyer could not be summoned. A further hearing scheduled for 11 September 1996 was adjourned owing to the absence of one of the members of the trial panel. During this period the trial court also obtained a number of autopsy reports concerning the victims of the crime at issue. 20. At a hearing held on 3 March 1999 the trial court, with the approval of the parties, read out the evidence from the case file and concluded the hearing. The legal-aid lawyer reiterated his previous closing statement (see paragraph 15 above). 21. On the same day the trial court found the applicant guilty and sentenced him to twenty years’ imprisonment. It based its judgment on the witness statements and the autopsy reports concerning the victims of the crime. 22. On 30 April 1999 the legal-aid lawyer lodged an appeal with the Supreme Court arguing that the first-instance judgment lacked sufficient reasoning. 23. On 2 August 2000 one of the accused, S.D., was apprehended and brought before the investigating judge, who informed him of the proceedings and ordered his pre-trial detention. 24. On 6 September 2000 the Supreme Court upheld the first-instance judgment of the Sisak County Court in the part which concerned the applicant, D. Sanader and M.D., and quashed it and ordered a retrial in respect of S.D., on the grounds that the latter had been apprehended and that therefore he had the right to a fresh trial in his presence. 25. On 16 January 2004, after the applicant’s conviction had become final, a sentence-execution judge of the Sisak County Court issued an arrest warrant for the applicant’s arrest and imprisonment. 26. Meanwhile, the applicant learned through a lawyer in Croatia about his criminal conviction in the Sisak County Court. 27. On 9 November 2009 the applicant asked the Sisak County Court to reopen the proceedings on the grounds that he had learned about the judgment of 3 March 1999 only in December 2008 and that he had not committed the crime at issue. He argued that the witnesses had just mentioned his name and that the only witness statement directly implicating him in the crime, that of M.Ž., had not been properly interpreted in the judgment. He stressed that he would be prepared to take part in a witness confrontation with any of those who had testified against him or counter any evidence against him. He also asked that a number of witnesses be heard on his behalf, and that the possibility of trying him before a war crimes tribunal in Belgrade be considered. Together with his request the applicant submitted certified statements by six people excluding the possibility of his involvement in the crime on the grounds that at the relevant time he had not been in Petrinja. 28. Based on the information provided by the applicant, and given that the witnesses at issue lived in Serbia, the Sisak County Court asked the Serbian authorities to question them. During their questioning the witnesses reiterated their statements excluding the possibility that the applicant had been in Petrinja at the time of the events. 29. After receiving the witness statements from the Serbian authorities in July 2010, the Sisak County Court forwarded the case file to the Sisak County State Attorney’s Office for their observations on the applicant’s request for a retrial. 30. On 24 August 2010 the Sisak County State Attorney’s Office submitted their observations on the applicant’s request for a retrial which, in the relevant part, read: “Given that the trial proceedings in the case at issue were fair and given that the first and second-instance courts gave sufficient reasons for their judgments, we consider that the request for a retrial in the absence of the second accused Mile Sanader should not be granted because none of the witnesses ... confirmed the arguments from the request for retrial ...” 31. On 30 August 2010 a three-judge panel of the Sisak County Court dismissed the applicant’s request on the grounds that he had failed to show that there were any new facts which could alter his conviction. The relevant part of this decision reads: “... this panel of the Sisak County Court considers that Mile Sanader’s request for a retrial does not contain any new facts or evidence which could, in themselves or in conjunction with the previously adduced evidence, lead to his acquittal or his conviction under more lenient law. All the witnesses stated that they had known Mile Sanader from the period before the war. Although they all, and in particular witnesses M.Žil. and V.V., attempted to exclude the possibility of the convict’s presence in the area where the killings of the Croatian soldiers took place in September 1991, this panel considers that these statements are not sufficiently credible or precise to completely exclude the possibility of the convict’s participation in the massacre. In the proceedings before the Sisak County Court Mile Sanader was found guilty of the offence under Article 122 of the Criminal Code and the Supreme Court upheld that judgment. Based on the comprehensively and correctly established facts [the trial court] found beyond reasonable doubt that the massacre of the Croatian soldiers had been committed by the so-called ‘Sanader group’ and that the leader of that group had been the convict’s brother, D. Sanader. Witness M.T., who had been a soldier in the paramilitary group, testified that the third convict, M.D., had told him that he had killed the prisoners at the request of D. Sanader, while witness M.Ž., one of the survivors of the shooting, testified that he had recognised D. Sanader as the perpetrator of the crime from a photo and Mile Sanader as having killed three prisoners while they had been lying face down on the ground with their hands on their heads. Against this background, the panel considers that the second convict, Mile Sanader, has not managed to cast doubt on the facts established during the trial which led to his conviction for the offence under Article 122 of the Criminal Code and his sentencing to twenty years’ imprisonment.” 32. The applicant lodged an appeal with the Supreme Court on 8 September 2010, arguing that the relevant domestic law required an automatic reopening of proceedings where an accused had been tried in absentia and then sought a fresh hearing, a fact to which the Sisak County Court had given no consideration. He also argued that the evidence suggested that he was not guilty of the offences he had been convicted of. 33. On 19 January 2011 the Supreme Court dismissed the applicant’s request on the grounds that he could not rely on the provision granting automatic reopening of the proceedings since he lived in Serbia and was not available to the Croatian judicial authorities. It examined, therefore, whether any new facts warranted the reopening of the proceedings and found that no such facts existed. Accordingly, the applicant’s request was dismissed. 34. The applicant lodged a complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) on 5 December 2011, arguing that he had not been able to obtain a retrial and that during the proceedings conducted in his absence he had not been effectively represented. 35. On 23 February 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the grounds that the constitutional complaint concerned the proceedings for the reopening of the criminal proceedings and not any criminal charge against the applicant. | 1 |
test | 001-140260 | ENG | RUS | CHAMBER | 2,014 | CASE OF VELIKANOV v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković | 5. The applicant was born in 1977 and lives in Shchelkovo, the Moscow Region. He is currently serving a prison sentence in the Saratov Region. 6. On 31 March 2003 the applicant was arrested on suspicion of murder and was placed in a temporary detention facility of the Shchelkovo Office of the Interior of the Moscow Region (“the Shchelkovo IVS”). According to the applicant, police officers under the command of police officer N. took him to special cells for questioning, where they tried to extract a confession from him or else make him sign blank sheets of paper. As he refused, they handcuffed him to a chair and beat him on his back and sides. Eventually he did sign a confession. 7. On 21 April 2003 the applicant was transferred to remand prison no. 50/8 in Sergiyev Posad, the Moscow Region (“SIZO-50/8”). Following a medical examination, the remand prison authorities refused to admit the applicant. In a report of the same date they indicated that he had a number of injuries, including a contusion of the spine and a contusion of the left side of the chest with a suspected fracture of the ribs, and that he needed further examination by medical experts. 8. On the same date the applicant was taken back to the Shchelkovo IVS and then transported to the Shchelkovo town hospital, where he underwent a medical examination, including an X-ray examination. The physician and neuropathologist who examined the applicant noted their findings in the above-mentioned report of SIZO-50/8. They are barely legible, but appear to confirm that the applicant had contusions of the spine and of the chest. 9. On the reverse side of the referral for the X-ray examination dated 21 April 2003 there is a hand-written finding by a radiologist dated 23 April 2003. It is likewise barely legible, but appears to confirm the contusion of the spine and the absence of a fracture. 10. On 25 April 2003 the applicant was admitted to SIZO-50/8. 11. On 24 March 2011 the head of SIZO-50/8 issued two certificates addressed to the Court. According to one certificate, between 25 April 2003 and 20 January 2004 – while the applicant was held in SIZO-50/8 – he had not made any complaints concerning his detention. According to the other certificate, admission of the applicant to SIZO-50/8 had been refused on 21 April 2003 as it appeared necessary to conduct an additional medical examination in order to confirm the diagnosis. No entry to that effect was made in the remand prison register since, in accordance with the applicable regulations, the register contained only information about individuals actually held in the remand prison, whereas the applicant was not admitted. 12. On 16 August 2007 the applicant complained that he had been beaten by the police. He referred, in particular, to the report of 21 April 2003 confirming his injuries. 13. On 24 August 2007 the Shchelkovo prosecutor’s office refused to institute a criminal investigation into the applicant’s complaint. The relevant decision stated briefly that there was no information in the Shchelkovo IVS indicating that the applicant had ever requested medical assistance during his detention pending trial. It went on to note that, according to a certificate from the Shchelkovo town hospital, which the applicant had attended, he had been diagnosed with influenza and spontaneous rupture of tendons. The decision further stated that during his detention pending trial, none of the injuries indicated in the applicant’s complaint had been found on his person, and concluded that the applicant’s allegations of ill-treatment were unfounded and unsupported by any evidence. The decision remained silent about the report of 21 April 2003 to which the applicant referred in his complaint. 14. On 5 September 2007 a supervising prosecutor set aside the above decision. 15. In a decision of 29 September 2007 the investigating authorities again refused to institute criminal proceedings in connection with the applicant’s complaint. The decision was similar to that of 24 August 2007 and stated, in particular, that there was no information in the Shchelkovo IVS indicating that the applicant had requested medical assistance, or that any injuries had been inflicted on him during his detention pending trial. According to the decision, it was impossible to obtain an extract from the register of detainees of the Shchelkovo IVS since all the documents had been lost by its former head. The decision also referred to a certificate from the Shchelkovo town hospital attesting that the applicant had been diagnosed with influenza and spontaneous rupture of tendons, and stated that this latter injury had not been related to the injuries alleged by the applicant. The decision also indicated that the applicant had not undergone any medical forensic examination in the course of the criminal proceedings against him. It then concluded that the applicant’s allegations of ill-treatment were unfounded and unsupported by any evidence. The decision did not mention the applicant’s reference to the report of 21 April 2003. 16. On 10 January 2008 the applicant lodged a complaint with the Shchelkovo Town Court under Article 125 of the Russian Code of Criminal Procedure concerning the decision of 29 September 2007, arguing that the inquiry into his allegations of ill-treatment by the police had been incomplete and, in particular, the investigating authorities had ignored the report of 21 April 2003. In a letter of 18 January 2008 the Shchelkovo Town Court returned the applicant’s complaint to him, indicating that a number of shortcomings should be remedied. The applicant did not appeal. 17. On 7 February 2008 the supervising prosecutor quashed the decision of 29 September 2007 as premature, stating that the inquiry had been incomplete. The prosecutor ordered the investigating authorities to identify and interview the police officers and the senior investigator who had participated in the criminal proceedings against the applicant, to obtain copies of documents from SIZO-50/8 concerning the applicant’s medical examination there, to obtain relevant documents from his personal file and to perform other necessary actions. 18. By a decision of 14 February 2008 the Shchelkovo Town Court dismissed the applicant’s complaint concerning the decision of 29 September 2007, stating that this latter decision had by that time already been set aside by a supervising prosecutor and an additional inquiry into the applicant’s allegations of ill-treatment had been ordered. It is unclear whether the applicant appealed against the Shchelkovo Town Court’s decision to a higher court. 19. On 11 February 2008 the investigating authorities again refused to institute criminal proceedings in connection with the applicant’s allegations of ill-treatment. Their decision stated that, upon receipt of the documentation seeking a further inquiry, requests for information had been sent to the head of SIZO-50/8 and the head of the Shchelkovo Office of the Interior, and that the investigator in charge of the criminal case against the applicant had been interviewed. The decision then stated that “at present there [was] no objective evidence that officers of the Shchelkovo Office of the Interior [had] applied violence to the applicant”. 20. On 2 March 2008 the supervising prosecutor quashed the decision of 11 February 2008, stating that the inquiry into the applicant’s allegations of beating by the police had been incomplete, that the necessary measures had not been taken and, in particular, copies of documents from SIZO-50/8 concerning the applicant’s medical examination at that centre and relevant documents from his personal file had not been obtained. 21. In a decision of 5 March 2008, similar to that of 11 February 2008, the investigating authorities again refused to institute criminal proceedings in respect of the applicant’s allegations of ill-treatment by the police, stating that, “as of this date, no replies to requests for information sent earlier [had] been received”, and that “therefore there [was] no objective evidence that officers of the Shchelkovo Office of the Interior [had] inflicted violence on the applicant”. 22. On 24 June 2008 the supervising prosecutor quashed the decision. 23. On the same date the Shchelkovo Town Court dismissed a complaint by the applicant concerning the decision of 5 March 2008, stating that this latter decision had already been quashed and a further inquiry had been ordered. The applicant did not appeal against the first-instance decision. 24. On 4 July 2008 the investigating authorities again refused to institute criminal proceedings in connection with the applicant’s complaint that he had been beaten by the police. The relevant decision noted that the applicant, when interviewed with regard to his allegations, had submitted that during the period of his detention in the Shchelkovo IVS he had been ill-treated on several occasions by police officers, who had chained him to a chair or a table and had beaten him on his back and in the ribs, and that upon his delivery to SIZO-50/8 a report had been drawn up confirming his injuries. He had also stated that he had undergone an X-ray examination in the Shchelkovo town hospital on 24 April 2003 and that the results of that examination had been recorded in X-ray image no. 1478. The applicant had submitted that he did not know the police officers who had beaten him, and that he only knew a certain N., an officer of the Shchelkovo Office of the Interior, who had not himself applied force to the applicant, but had brought with him two individuals in civilian clothes, the latter forcing the applicant to confess to the alleged offence. The decision went on to say that in the applicant’s personal file there was no information indicating whether he had undergone any medical examinations in the period between 31 March and 31 May 2003. 25. The decision further referred to a reply from SIZO-50/8, according to which the remand prison had no information concerning the applicant’s examination by a medical official on 21 April 2003. It also pointed out that a reply from the Shchelkovo town hospital had provided no information indicating that the applicant had ever undergone an X-ray examination in that hospital, nor was there any X-ray image such as that referred to by the applicant in the hospital’s archive. The decision further stated that the officer N., referred to by the applicant, and investigators B. and S., who had conducted the investigation into the applicant’s criminal case, when interviewed in the context of the present inquiry had denied using physical force or psychological pressure in respect of the applicant or seeing anyone else doing so. The decision also noted that the applicant had not complained about the alleged ill-treatment until four years after the events in question. It then stated that the investigating authorities considered that the applicant had alleged such ill-treatment by the police in an attempt “to mislead the investigating authorities, who were spending their time and resources investigating offences that [had] in reality [not been] committed, and to accuse public officials of serious offences, thereby affecting a number of individuals who were obliged to devote time to giving oral evidence to the investigating authorities”. The decision therefore concluded that there was no evidence of the offence alleged by the applicant. 26. On 13 April 2009 the supervising prosecutor set aside the decision of 4 July 2008, stating that the inquiry had been incomplete. 27. On 30 April 2009 the Shchelkovo Town Court dismissed a complaint by the applicant concerning the decision of 4 July 2008, referring to the fact that this latter decision had already been quashed by the supervising prosecutor. The applicant did not appeal against the first-instance decision. 28. On 16 April 2009 the investigating authorities again refused to institute criminal proceedings in relation to the applicant’s complaint that he had been ill-treated by the police. The relevant decision was identical to that of 4 July 2008. The only comment added was that it appeared impossible to question investigator B. and officer N., as they had not responded to telephone calls. 29. On 1 December 2010 the Shchelkovo Town Court dismissed a complaint by the applicant concerning the decision of 16 April 2009. Although the court noted that the applicant referred to the medical report of 21 April 2003, it did not address it any further but instead stated that the investigation conducted into his allegations had been complete. The court referred, in particular, to certain explanations obtained from the investigators who had been in charge of the applicant’s case. 30. A request by the applicant to restore the time-limit for appealing against the decision of 1 December 2010 was granted by the Shchelkovo Town Court on 19 January 2011. 31. On 22 March 2011 the Moscow Regional Court quashed the decision of the Shchelkovo Town Court of 1 December 2010 on appeal on the following grounds. Firstly, although the applicant had challenged the judge – because it was the same judge who had convicted him – this had not been examined by the first-instance court. Secondly, the first-instance court had not examined the report of 21 April 2003 and, thirdly, it had referred to certain explanations by investigator B. and officer N. that could not be found in the case file. 32. On 23 May 2011 the Shchelkovo Town Court again dismissed the applicant’s complaint concerning the decision of 16 April 2009. The court stated, in particular, that whereas the applicant had provided a copy of the report of 21 April 2003, it appeared impossible to verify its authenticity since there was no information about the medical examination in question in his file. It further noted that neither during the preliminary investigation nor at the trial had the applicant made any allegations of ill-treatment. It is not clear whether the applicant appealed. 33. Meanwhile the applicant resubmitted his complaint of ill-treatment, which was dismissed by the investigating authorities on 4 October 2010 on the grounds that an investigation into the applicant’s allegations had already been conducted and they had been proved unsubstantiated. 34. On 28 August 2003 the Shchelkovo Town Court convicted the applicant of murder and sentenced him to eleven years’ imprisonment. 35. On 12 February 2004 the Moscow Regional Court upheld the first-instance judgment on appeal. 36. At some point, one of the witnesses stated that he had made false statements incriminating the applicant in the course of the criminal proceedings against the latter. Thereafter the applicant attempted – unsuccessfully – to have criminal proceedings brought against that witness. In the period between 2006 and 2009 the domestic courts dismissed complaints by the applicant concerning the investigating authorities’ decisions to dispense with criminal proceedings in that regard. 37. Article 125 of the Russian Code of Criminal Procedure provides for judicial review of decisions, acts or inaction on the part of an inquirer, investigator or prosecutor which affect constitutional rights or freedoms. The judge is empowered to verify the lawfulness and reasonableness of the decision, act or inaction and to grant the following forms of relief: (i) to declare the impugned decision, act or inaction unlawful or unreasonable and to order the authority concerned to remedy the violation; or (ii) to dismiss the complaint. 38. In its Resolution of 10 February 2009 the Plenary Supreme Court of Russia stated that it was incumbent on judges – before processing an Article 125 complaint – to establish whether the preliminary investigation had been completed in the main case (point 9). If the main case has already been sent for trial or the investigation completed, the complaint should not be examined unless it has been brought either by a person who is not a party to the main case or – if such a complaint is not amenable to judicial review under Article 125 – at the pre-trial stage of the proceedings. In all other situations the complaint under Article 125 should be left unexamined and the complainant should be informed that he or she can raise the matter before the trial or appeal courts in the main case. 39. Similarly, according to the Constitutional Court’s construction, a complaint under Article 125 cannot be brought or pursued after the criminal case to which the complaint is connected has been submitted for trial. However, where it is established that a party to the proceedings (including a judge or a witness) has committed a criminal offence, thus seriously compromising the fairness of the proceedings, the Code exceptionally allows for separate investigation of the relevant circumstances, leading to a reopening of the case (see Decision no. 1412OO of 17 November 2009; see also Ruling no. 20-П of 2 July 1998 and Ruling no. 5-П of 23 March 1999). | 1 |
test | 001-162424 | ENG | MLT | CHAMBER | 2,016 | CASE OF ABDI MAHAMUD v. MALTA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Extradition;Prevent unauthorised entry into country);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion;Extradition;Prevent unauthorised entry into country) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1992, and at the time of the introduction of the application was detained in Lyster Barracks Detention Centre, in Ħal Far. 6. The applicant entered Malta in an irregular manner by boat on 6 May 2012. On arrival she was registered by the immigration police, given an identification number (12D-001) and presented with a Return Decision and a Removal Order. The applicant was immediately detained in Lyster Barracks; her detention was based on Article 14 (2) of the Immigration Act (see Relevant domestic law below). 7. The Return Decision stated that she was a prohibited immigrant by virtue of Article 5 of the Immigration Act (Chapter 217 of the Laws of Malta) because she was in Malta “without means of subsistence and liable to become a charge on public funds”. The Return Decision also informed the applicant that her stay was being terminated and that she had the possibility to apply for a period of voluntary departure. The Removal Order was based on the consideration that the applicant’s request for a period of voluntary departure had been rejected. It informed the applicant that she would remain in custody until removal was effected, and that an entry ban would be issued against her. The two documents further informed the applicant of her right to appeal against the Decision and Order before the Immigration Appeals Board (“the IAB”) within three working days. 8. On 9 May 2012 the applicant was assisted to submit a Preliminary Questionnaire (PQ), thereby registering her wish to apply for asylum under Article 8 of the Refugees Act, Chapter 420 of the Laws of Malta. On 21 May 2012 the applicant was called for an interview by the Office of the Refugee Commissioner (ORC). 9. On 30 June 2012 the ORC rejected her application on the basis, inter alia, that she had failed to support her claim that she was from central/southern Somalia with convincing evidence (in particular, she had shown insufficient knowledge about Mogadishu and her speech displayed phonological, grammatical and lexical features not typical of those spoken in Mogadishu). Her appeal was also rejected by the Refugee Appeals Board (the “RAB”) on 18 December 2012. The appeal decision reads as follows: “The Refugee Appeals Board refers to a fill-in-the-blanks form received in its Office on 18 July 2012 and to a legal submission on your behalf received in its Office on 8 October 2012. The Board notes that you travelled to Libya in December 2011, first via Kenya and then via Sudan. In none of these countries did you consider applying for refugee status. During the popular insurrection against the Gaddafi regime in Libya you disembarked on the island of Malta, illegally and undocumented on 6 May 2012, claiming that you were looking for peace, although seven of your siblings still live in Somalia. You also claim that your brother had been killed by a terrorist Islamic organization, Al Shabab, because they thought he worked for the Government. However, you also claim that if there was peace back home, you would be prepared to return. Since you left, as you may know, Al Shabab has been driven out of Mogadishu and Presidential elections have been successfully held and several Somalis are repatriating. Your appeal for the grant of refugee status by Malta cannot be upheld according to law.” 10. Up to the date of the lodging of her application with the Court on 19 August 2013 the applicant had heard no news about any steps being taken in connection with her removal. In practice Malta effected no removals to Somalia or Somaliland. 11. Ever since her arrival in Malta the applicant suffered from several medical problems, such as headaches, earaches and fainting, and was frequently hospitalised (see paragraphs 16-19 below). She showed signs of severe anxiety and depression which got worse following the refusal of her asylum request. In consequence, on 1 October 2012, she was referred to the Agency for the Welfare of Asylum Seekers (AWAS) by the Jesuit Refugee Service (JRS). This referral was made with a view to obtaining her release from detention in terms of government policy on the grounds of vulnerability due to physical and psychological ill-health. According to the referral form, filled in by an official of the JRS: “Sagal has been complaining of several medical problems ever since she arrived in Malta. She had several appointments in hospital was also taken to emergency by ambulance after collapsing in detention. Sagal was also rejected by the Office of the Refugee Commission, causing her to be very depressed. Every time we visit she is in her bed crying and showing signs of severe anxiety.” 12. In December 2012 the applicant was interviewed (for a few minutes) by the Vulnerable Adults Assessment Team of AWAS, with a view to determine whether she should be released on the grounds of vulnerability. The interview was held in English and the applicant was assisted by another detainee who was not fluent in the language. Her impression is that she was verbally informed that she would be released. On 10 August 2013, that is just under one year after the referral, the interviewers verbally informed her that she would be released. The Government also confirmed that eventually the applicant’s request for release on the ground of vulnerability was acceded to by AWAS. 13. Nevertheless, up to the date of the lodging of her application with the Court on 19 August 2013 the applicant was still in detention. She hoped to be released in November 2013 after the lapse of an eighteen month detention as per domestic practice at the time. 14. The applicant submitted that the Vulnerable Adult Assessment Procedure operated by AWAS was developed by the said organisation in order to give effect to a government policy introduced in January 2005 which stated that vulnerable individuals should not be detained. The applicant submitted that although AWAS was not formally charged with the responsibility of this procedure by the law which set it up, in practice the agency had full responsibility for the procedure. However, in spite of the fact that this procedure can have a determining impact on the continued detention of individuals detained in terms of the Immigration Act, it was not adequately regulated by law or by publicly available rules or procedures. The determining authority does not give written reasons for its decision and there is no possibility of appeal, although it may be possible to request a review if more evidence is available or there is a degeneration of the individual’s condition. 15. According to the Government the Vulnerable Adult Assessment Procedure, which was operated to assess vulnerability, was widely known within the migration sector and a policy document had been issued about it. Forms were distributed to individuals working in the sector such as NGOs. The Government submitted that the Vulnerable Adult Assessment Procedure was a quick process in straightforward cases (such as pregnant women and families with very young children) which were usually determined within two weeks. However, less straightforward cases such as assessments on the grounds of mental health, psychological problems or chronic illness, required a more complex assessment procedure which was therefore lengthier. 16. A certificate issued by a doctor in May 2012 confirmed that the applicant had been hospitalised on 7 and 8 May 2012 (upon her arrival in Malta) for dehydration, she was seen again on 15 May and 15 June of the same year. She suffered “fits” and was waiting for an appointment. 17. According to the documents provided by the applicant, after her initial hospitalisation, and apart from the two visits mentioned above, she was seen by a doctor at the state hospital around sixteen times between May and September 2012, and each time was prescribed medication. On these occasions she suffered from, inter alia, epigastric pain and nausea (repeatedly), bilateral conjunctivitis, inflammation, bleeding gums, insomnia, otalgia/earaches (also repeatedly) causing reduced hearing, as well as headaches and toothaches, and dizziness. In none of these occasions was she kept under observation overnight, or hospitalised. In June 2012 following claims by the applicant that she had been falling repeatedly, and that she was having episodes of jerking and tongue biting (which had left evident marks), the doctor requested her referral to a specified department to run the relevant tests to exclude epilepsy – the result of these tests, if undertaken, are unknown to the Court. 18. A medical certificate issued in March 2013 states that at the time the applicant was suffering from “low mood and insomnia” and had been “complaining of somatic symptoms such as chest pain”. The doctor noted “evident deterioration of her mental state” and suggested she be considered as vulnerable. 19. An attestation issued by a doctor in May 2013 states that according to available records “she has stayed unwell and been treated or referred to Mater Dei Hospital [the State hospital] more than usual” and that “her health has posed challenges in keeping her at the Ħal Far detention centre and any assistance will be appreciated”. 20. The applicant was detained in Hermes Block in Lyster Barracks, in conditions which she considered prison-like and basic. She explained that the Block is divided into five zones alike in terms of layout and facilities. The applicant was detained in Zone C for the first seven to eight months and was afterwards transferred to Zone D for a number of months until she moved to Zone A. 21. She noted that in Zone C there were over eighty (sic) single women and at one point the detention centre was so crowded that there were not enough beds and people had to sleep on metal tables in the television room. She noted that Zone D was less crowded but that it still lacked privacy and sanitation. 22. She complained about the lack of constructive activities to occupy detainees, overcrowding (particularly during the summer months), lack of privacy, limited access to open air, difficulties in communication with staff, other detainees and with the outside world, lack of information about their own situations, and the lack of proper arrangements for heating and cooling, leading to extreme cold in winter and extreme heat in summer. The applicant highlighted the lack of female staff - in particular she noted that every morning male soldiers barged into her dormitory while the inmates were still asleep to make a head count, during which they removed the sheets to check for their presence. This meant that the applicant had to sleep fully dressed every night, including her headscarf, to avoid embarrassing moments. 23. The applicant also complained of limited access to medical care, also because of a lack of interpreters to enable communication with medical staff. 24. The applicant was informed of the AWAS decision to accede to her request and was released from detention on 12 September 2013. | 1 |
test | 001-146014 | ENG | IRL | ADMISSIBILITY | 2,014 | LYNCH AND WHELAN v. IRELAND | 4 | Inadmissible | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 1. The applicant in the first application, Mr Paul Lynch, is an Irish national, who was born in 1976. At the time he lodged his application he was a prisoner at Portlaoise Prison in Ireland. He was represented before the Court by Mr F. Taaffe, a lawyer practising in Co. Kildare. 2. The applicant in the second application, Mr Peter Whelan, is also an Irish national, who was born in 1982. He too is detained in Portlaoise Prison. He was represented before the Court by Mr J. Cuddigan, a lawyer practising in Co. Cork. 3. The Irish Government (“the Government”) are represented by their Agent, Mr P. White of the Department of Foreign Affairs. 4. Mr Lynch was convicted of murder on 10 February 1997 and was sentenced to life imprisonment pursuant to section 2 of the Criminal Justice Act, 1990. An appeal was unsuccessful. His situation was reviewed for the first time by the Parole Board in 2004. The Minister for Justice, Equality and Law Reform (now the Minister for Justice and Equality, hereafter “the Minister”) decided that Mr Lynch should not be released at that time, and that his situation should not be considered again for a further three years. The Parole Board considered Mr Lynch’s situation again in 2007, 2010 and in September 2012. In its last review of his case, the Parole Board recommended to the Minister that an escalating programme of temporary release be put in place for Mr Lynch. The Minister accepted the recommendation and the programme has since commenced. According to the Government, it entails attendance five days per week at a voluntary agency that works with offenders, and four overnight releases per month. 5. Mr Whelan was convicted on 2 December 2002 of the crimes of murder and attempted murder. He was sentenced to life imprisonment pursuant to section 2 of the Criminal Justice Act, 1990 and, on the same date he was also convicted of attempted murder and sentenced to a term of 15 years to be served consecutive to the life sentence. The order of sentence was subsequently reversed by the Court of Criminal Appeal. Mr Whelan completed his first sentence in July 2013, having benefitted from the standard remission of 25% of the total duration imposed at trial (fifteen years). He then commenced his consecutive life sentence. His situation was reviewed by the Parole Board in 2010 with a second consideration due to take place in 2014. 6. The two applicants later challenged their detention as contrary to the Constitution in a number of respects and also to the Convention. Their challenge was rejected by the High Court on 5 October 2007, and their appeal was rejected by the Supreme Court on 14 May 2010. 7. The Supreme Court did not accept that, by prescribing a mandatory life sentence for murder, the legislature had intruded into the domain of the judicial branch. It described murder as “the ultimate crime against society as a whole”, “a crime which may have exceptional irrevocable consequences of a devastating nature for the family of the victim” and a crime that “by its very nature has always been considered at the highest level of gravity among all forms of homicide or other crimes against the person”. It stated: “For the reasons already indicated that crime has always and legitimately been considered to be one of profound and exceptional gravity and, in the Court’s view, one for which the State is entitled to impose generally a punishment of the highest level which the law permits. Given that it is an offence which is committed when, and only when, a person is unlawfully killed and that the person so doing intended to kill or cause serious injury it is one which can therefore properly be differentiated from all other crimes including manslaughter. The Court is of the view that the learned trial judge was correct when she concluded “...there can be nothing offensive in the Oireachtas promoting respect for life by concluding that any murder even at the lowest end of the scale, is so abhorrent an offensive to society that it merits a mandatory life sentence ...”.” 8. The Supreme Court also rejected the argument that the mandatory life sentence was contrary to the principle of proportionality in sentencing. It stated: “ ......” 9. The Supreme Court then considered the argument that, in substance, a life sentence was not a determinate sanction because the actual duration of imprisonment was decided systematically by the Minister, and that in so doing he was guided by considerations of a preventive nature. It noted, firstly, that it had been affirmed many times in case law that preventative justice or detention forms no part of Irish law. A convicted person may not be sentenced by a court or detained by an executive order for a preventative or non-punitive purpose. It was a “misconception that the punitive element of the life sentence terminates on temporary release”; “even where the release is open-ended ... the released prisoner remains liable to arrest and return to imprisonment to continue serving the life sentence should he be in breach of the conditions”. Temporary release was a privilege or a concession accorded at the discretion of the executive, not a right of a prisoner. The Supreme Court stated: “In the Court’s view a life sentence imposed pursuant to s. 2 of the Act of 1990 is a sentence of a wholly punitive nature and does not incorporate any element of preventative detention. It is a sentence which subsists for the entire life of the person convicted of murder. That person may, by virtue of a discretionary power vested in the executive, be temporarily released under the provisions of the relevant legislation on humanitarian or other grounds but he or she always remains liable to imprisonment on foot of the life sentence should the period of temporary release be terminated for good and sufficient reason. It may be appropriate at this point to note that in the event of a prisoner’s privilege of temporary release being withdrawn by virtue of a breach of the conditions of that release the Minister, or any person acting on his behalf, is bound to observe fair procedures before withdrawing the privilege of temporary release ... Should the Minister fail to observe such procedures or otherwise act in an unlawful, arbitrary or capricious manner in terminating the release for a breach of his conditions or otherwise, the prisoner may seek to have that decision set aside by way of judicial review before the courts. In all these circumstances the Court does not consider that there is anything in the system of temporary release which affects the punitive nature or character of a life sentence imposed pursuant to s. 2. In particular a decision to grant discretionary temporary release does not constitute a termination let alone a determination of the sentence judicially imposed. Any release of a prisoner pursuant to the temporary release rules is, both in substance and form, the grant of a privilege in the exercise of an autonomous discretionary power vested in the executive exclusively in accordance with the constitutional doctrine of the separation of powers ...” 10. The Supreme Court went on to reject the argument that because the Minister was required to have regard to, inter alia, the gravity of the offence and the risk posed by the prisoner to public safety, it made the process of temporary release akin to a sentencing exercise. Consideration of such matters did not mean that the Minister was exercising a judicial function and, in particular, it did not mean that a decision not to release because of a risk to safety converts the punitive sentence for murder into a preventative one. It stated: “It is a necessary incident to the exercise of a purely executive discretion that the decision-maker would be bound to have, before directing a person’s release on any of the possible grounds, have regard to a whole range of matters of which some twelve are specified in s. 2 subs. 2 of the Act of 1960. Inevitably two of those considerations which ought to be taken into account in the making of any such decision are the gravity of the offence and the risk which the temporary release would pose to the public. A decision to grant temporary release even for a short period such as to permit a prisoner to attend a family funeral would necessarily involve a consideration of any potential risk that that would have for the safety of members of the public. Such a consideration is incidental to the discretionary power and its purpose. ... Refusing temporary release is a decision not to grant a privilege to which the prisoner has no right.” 11. The Supreme Court next considered the applicants’ arguments, based on Article 5 §§ 1 and 4 of the Convention and on certain judgments of this Court, that under Irish law a life sentence was in reality an indeterminate one, which in practice was determined by the Minister in the form of a grant of temporary release. This, it was argued, constituted executive interference in the judicial function of sentencing and was prone to arbitrariness. The court stated: “The power of the executive, in this case the Minister, to release a prisoner ... is a distinct executive function and does not constitute a determination of what punishment a person should undergo as a consequence of his crime. It is in the form of an exercise of clemency or commutation and (sic) although it may bring to an end the period of incarceration, subject to conditions in the case of temporary release. As already pointed out the life sentence imposed by the Court continues to exist notwithstanding any conditional release and he may be required to continue serving it if there are found to be good and sufficient reasons in accordance with law to withdraw the privilege of temporary release, or the period of release simply expires.” 12. The Supreme Court considered that the distinction between these two functions was recognized by this Court in its judgment in Kafkaris v. Cyprus [GC], no. 21906/04, ECHR 2008. Having cited several passages from the judgment, it stated: “In its analysis the Court of Human Rights made a clear distinction between the imposition of a mandatory and punitive life sentence by a court and the exercise of an executive discretion to commute, remit or grant conditional release which gives the prisoner a de facto and de jure prospect of release at some point. It clearly did not consider that the existence of an executive discretion to grant conditional release or commutation to constitute the determination or imposition of a sentence by the executive. ... Provided a causal connection remains between the detention and the punishment imposed by the court of trial, the sentence cannot be considered arbitrary or in breach of Article 5(1). The discretionary power of the executive to grant conditional release on humanitarian or other grounds does not affect the lawfulness of the continued detention of a person as long as that detention is punitive by reason of its nexus with the sentence imposed following conviction.” The Supreme Court held that on any objective analysis of the sentences currently being served by the two applicants, their detention remained, de jure and de facto, in accordance with the punishment provided by law and ordered by the court of trial. 13. The Supreme Court then distinguished the legal situation in Ireland from that which prevailed in the United Kingdom, the latter having been found in a number of judgments of this Court to be contrary to Article 5 of the Convention. The Supreme Court noted that the sentencing regime in the United Kingdom which was under scrutiny in the judgments relied upon by the applicants was ‘radically different’ to the sentencing regime in Ireland. The sentencing regime which was found to be incompatible with the Convention featured a dual element—a punitive element identified as the ‘the tariff’ period and the subsequent preventative element. Once the prisoner had served the punitive element of the sentence, the nexus between the crime and its punishment was terminated. In Stafford the Supreme Court noted that the prisoner had been recalled after release even though he must have been regarded as having served the punitive element for his offence of murder. That being so, his detention after recall could not be justified as ‘punishment for the original murder’ which led the Strasbourg Court to conclude that his detention on foot of the original mandatory life sentence violated Article 5 § 1 of the Convention. That was, said the Supreme Court, in stark contrast to the longstanding position in Irish law. 14. Section 2 of the Criminal Justice Act 1990 provides: “A person convicted of treason or murder shall be sentenced to imprisonment for life.” 15. The power of temporary release is regulated by Section 2 of the Criminal Justice Act 1960, as amended by the Criminal Justice (Temporary Release of Prisoners) Act 2003, which provides: “2.(1) The Minister may direct that such person as is specified in the direction (being a person who is serving a sentence of imprisonment) shall be released from prison for such temporary period, and subject to such conditions, as may be specified in the direction or rules under this section applying to that person— (a) for the purpose of— (i) assessing the person’s ability to reintegrate into society upon such release, (ii) preparing him for release upon the expiration of his sentence of imprisonment, or upon his being discharged from prison before such expiration, or (iii) assisting the Garda Síochána in the prevention, detection or investigation of offences, or the apprehension of a person guilty of an offence or suspected of having committed an offence, (b) where there exist circumstances that, in the opinion of the Minister, justify his temporary release on— (i) grounds of health, or (ii) other humanitarian grounds, (c) where, in the opinion of the Minister, it is necessary or expedient in order to— (i) ensure the good government of the prison concerned, or (ii) maintain good order in, and humane and just management of, the prison concerned, or (d) where the Minister is of the opinion that the person has been rehabilitated and would, upon being released, be capable of reintegrating into society. (2) The Minister shall, before giving a direction under this section, have regard to— (a) the nature and gravity of the offence to which the sentence of imprisonment being served by the person relates. (b) the sentence of imprisonment concerned and any recommendations of the court that imposed that sentence in relation thereto, (c) the period of the sentence of imprisonment served by the person, (d) the potential threat to the safety and security of members of the public (including the victim of the offence to which the sentence of imprisonment being served by the person relates) should the person be released from prison, (e) any offence of which the person was convicted before being convicted of the offence to which the sentence of imprisonment being served by him relates, (f) the risk of the person failing to return to prison upon the expiration of any period of temporary release, (g) the conduct of the person while in custody, while previously the subject of a direction under this section, or during a period of temporary release to which rules under this section, made before the coming into operation of the Criminal Justice (Temporary Release of Prisoners) Act 2003, applied, (h) any report of, or recommendation made by— (i) the governor of, or person for the time being performing the functions of governor in relation to, the prison concerned, (ii) the Garda Síochána, (iii) a probation and welfare officer, or (iv) any other person whom the Minister considers would be of assistance in enabling him to make a decision as to whether to give a direction under subsection (1) that relates to the person concerned. (i) the risk of the person committing an offence during any period of temporary release, (j) the risk of the person failing to comply with any conditions attaching to his temporary release, and (k) the likelihood that any period of temporary release might accelerate the person’s reintegration into society or improve his prospects of obtaining employment.” 16. In their submissions, the Government provided information about the Parole Board. It was established on an administrative basis in April 2001. It is chaired by an independent Chairperson and includes a representative from the medical/psychiatric profession, the Probation Service, the Department of Justice and Equality, the Prison Service, a retired Prison Governor, and representatives of the wider community. 17. The Parole Board’s principal function is to advise the Minister in relation to the administration of long term prisoners. The Board reviews the cases of prisoners serving life sentences or determinate sentences of eight years or more. The Board, by way of recommendation to the Minister, advises of the prisoner’s progress to date, the degree to which the prisoner has engaged with the various therapeutic services and how best to proceed with the future administration of the sentence. 18. In the case of mandatory life sentences the Parole Board considers the initial application after the prisoner has served seven years. Subsequent reviews are conducted at intervals of no more than three years. The final decision regarding the recommendations of the Parole Board remains with the Minister who may accept them in their entirety (as occurs in the majority of cases) or accept them in part, or reject them. 19. In reply to a question from the Court the Government indicated that as of 31 July 2013 there were 297 persons serving a mandatory life sentence for murder, with another 18 persons serving discretionary life sentences for other very serious offences. On the same date there were 78 persons with a life sentence who were on supervised release in the community. In the period 2005 to 31 July 2013 a total of 29 persons sentenced to life imprisonment were granted temporary release. The average duration of their imprisonment was 18 years. | 0 |
test | 001-145782 | ENG | AZE | CHAMBER | 2,014 | CASE OF ALIYEVA AND ALIYEV v. AZERBAIJAN | 3 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicants were born in 1947 and 1942 respectively and live in Baku. 6. The applicants’ son, E.A., was born in 1971 and was an Azerbaijani national. He had his own business in Ukraine and lived in Kiev at the time of the events. 7. At around 4 a.m. on 1 June 2001 E.A. was stabbed with a knife outside a cafe in Kiev, Ukraine. He died as a result of the stabbing. 8. On the same day the Shevchenko District Police instituted criminal proceedings in connection with E.A.’s death. 9. On 9 June 2001 an investigator from the Shevchenko District Police decided to charge G.A., an Azerbaijani national working at the Azerbaijani embassy in Ukraine at the time of the events, on suspicion of E.A.’s murder. 10. It appears that on the same date G.A. was arrested by the Ukrainian law-enforcement authorities and on 12 June 2001 was remanded in custody. During the investigation, G.A. denied that he had murdered E.A., but refused to testify in connection with his stabbing. 11. On 11 July 2001 a forensic expert established that the stab wound to E.A.’s body had been caused by a knife with a blade 22 centimetres long and 2 centimetres wide. 12. On 17 July 2001 the Shevchenko District Court ordered G.A.’s release from custody on account of serious illness. On an unspecified date he left Ukraine for Azerbaijan. 13. It transpires that in the course of the investigation, the Ukrainian authorities also considered the possible involvement of another person in E.A.’s murder. In this connection, they requested the Azerbaijani authorities to question R.A., a major general of the Azerbaijani army who had been on an educational mission to Ukraine at the time of the events. 14. On 5 January 2002 the Azerbaijani prosecution authorities questioned R.A. as a witness in connection with E.A.’s stabbing. According to the record of questioning of the same date, R.A. denied any involvement. He stated that he knew G.A. who was an employee of the Azerbaijani embassy in Ukraine and that he had met E.A. there, but had not known him very well. As regards his whereabouts on 1 June 2001, R.A. stated that he did not remember exactly where he had been that day. He further stated that he had learned about E.A.’s death from employees at the Azerbaijani embassy. 15. On 30 January 2002 an investigator from the Shevchenko District Prosecutor’s Office decided to transfer the criminal case to the Prosecutor General’s Office of the Republic of Azerbaijan for further investigation, relying on the CIS Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of 22 January 1993 (“the 1993 Minsk Convention”). The investigator substantiated the transfer by the fact that the two Azerbaijani nationals (G.A. and R.A.) who had been identified by witnesses as the people involved in E.A.’s murder on 1 June 2001, were on Azerbaijani soil. 16. The relevant part of that decision reads as follows: “M.S., who was questioned within the framework of the investigation, indicated that on 1 June 2001 he had been with E.A. at Cafe Sikora. When he had left the cafe, he had seen E.A. having an argument with two Azerbaijani nationals he did not know. One of the two men had then stabbed E.A. in the thorax. Subsequently, among the photographs submitted for identification, M.S. recognised R.A’s photograph and identified him as the person who had stabbed E.A. It was established that R.A., born on 4 June 1965, married, an Azerbaijani national, who had no criminal record, a degree holder, a major general, a head of the Army Corps, who resided in Baku ... was in Kiev between 28 March and 4 July 2001 on an educational mission at the National Academy of Defence of Ukraine. Among other photographs submitted for his identification, M.S. also identified G.A., indicating that he very much looked like the person who was with R.A. at the time of E.A.’s murder. Another eyewitness, S.N., who saw the events from a distance, clearly identified G.A ... during the identification procedure and indicated that [he] had been involved in the argument between the Azerbaijanis at Cafe Sikora and on the street outside the cafe at the time of E.A.’s murder...” 17. On 27 February 2002 the Deputy Prosecutor General of the Republic of Azerbaijan decided to return the criminal case to the Ukrainian authorities. He substantiated his decision by alleging failure on the part of the Ukrainian authorities to carry out the relevant investigative actions. In particular, he noted that the Ukrainian authorities had not identified and questioned all possible witnesses to the crime, such as customers and employees of the cafe on 1 June 2001, nor had they tried to establish the whereabouts of G.A. and R.A. on that day. He further noted that there were contradictions between the evidence given by eyewitnesses M.S. and S.N. in the investigation, and that the clothes G.A. and R.A. had been wearing on 1 June 2001 had not been examined by a forensic expert. 18. On 26 February 2003 the investigator from the Shevchenko District Prosecutor’s Office terminated criminal proceedings against G.A. and on the same day instituted criminal proceedings against R.A, relying in particular on the evidence given by M.S., who had insisted that R.A. was the person who had stabbed E.A. on 1 June 2001. 19. On 27 February 2003 the investigator from the Shevchenko District Prosecutor’s Office relying on Articles 72 and 73 of the 1993 Minsk Convention, decided to transfer the criminal case to the Prosecutor General’s Office of the Republic of Azerbaijan for further investigation in accordance with Azerbaijani law. He concluded that R.A. was the person who had stabbed E.A. on 1 June 2001. The relevant part of his decision reads as follows: “Among the photographs submitted for identification, M.S. clearly identified R.A. and indicated that [he] was the person who had stabbed E.A. Moreover, M.S. indicated ... that G.A. looked like the person who had been with R.A. at the time of the commission of the crime; however, he could not confirm for definite that [he] had been there. It was established that R.A., born on 4 June 1965, married, an Azerbaijani national, who had no criminal record, a degree holder, a major general, a head of the Army Corps, who resided in Baku ... was in Kiev between 28 March 2001 and 4 July 2001 on [an educational] mission at the National Academy of Defence of Ukraine. In the course of the investigation, therefore, it was established that the Azerbaijani national E.A. was not murdered by G.A., but by R.A., an Azerbaijani national.” 20. On 8 April 2003 the criminal case was assigned to the Military Prosecutor’s Office of the Republic of Azerbaijan and criminal proceedings were instituted in Azerbaijan. 21. Following the institution of the criminal proceedings in Azerbaijan on 8 April 2003, the applicants wrote on several occasions, in particular on 12 July 2003, on 29 July 2003, on 2 August 2003, on 28 August 2003 and on 10 September 2003, to the Prosecutor General’s Office asking for an effective investigation into their son’s death. In particular, they alleged that although R.A. had murdered their son, he had not faced prosecution and had enjoyed de facto protection. 22. On 18 September 2003 an investigator from the Military Prosecutor’s Office dismissed the criminal proceedings against R.A., finding that there was insufficient evidence to prove that he had been involved in E.A.’s murder. He also decided to continue the investigation in connection with the murder. The relevant part of his decision reads as follows: “Without clarifying the contradiction between the statements in the case file and carrying out the investigative steps necessary to establish which of them are true, and without identifying two people other than E.A. and M.S. who were at Cafe Sikoracategorically identifying who murdered E.A., and despite the fact that there was not any reliable evidence to prove that R.A. had murdered [him], the investigator instituted unjustified and unlawful criminal proceedings against R.A., concluding that [he had] murdered E.A. In the course of the criminal investigation of the case carried out in the Military Prosecutor’s Office, no reliable evidence was obtained to prove that R.A. had murdered E.A. For this reason, the criminal proceedings instituted under Article 115 § 1 of the Criminal Code of Ukraine against R.A. should be terminated, as [he] did not have anything to do with the commission of the crime, and the criminal investigation in connection with E.A.’s murder should be completely, in detail and objectively continued in accordance with Article 120 of the Criminal Code of the Republic of Azerbaijan and the perpetrator of the crime identified and prosecuted.” 23. The applicants were not informed of this decision. 24. As the applicants were not informed of the investigator’s decision of 18 September 2003, they continued to write to the Prosecutor General’s Office asking for an effective investigation into the death of their son. In reply to their letters, the applicants received the replies from the prosecution authorities which were all worded in a similar fashion. In particular, by letters dated 17 October 2003, 3 November 2003, 11 November 2003, 5 December 2013 and 7 January 2004, the prosecution authorities informed the applicants that the investigation would be carried out effectively and that they would be informed of its results. However, the prosecution authorities did not mention in their letters the existence of the investigator’s decision of 18 September 2003. 25. On 24 February 2004 the criminal case was assigned to the Serious Crimes Unit of the Prosecutor General’s Office. 26. On 28 June 2004 the investigator in charge of the case in Azerbaijan asked the Kiev City Prosecutor’s Office for legal assistance, with a view to questioning witnesses and obtaining other evidence. Following this request, an Azerbaijani investigator was sent on a mission to Ukraine from 2 September to 23 September 2004 and from 14 October to 21 October 2004. 27. By a letter of 19 May 2005 the Prosecutor General’s Office informed the applicants that in September and October 2004 an Azerbaijani investigator had been sent on a mission to Ukraine but it had not been possible to establish the whereabouts of the relevant witnesses or to question them. The relevant part of the letter reads as follows: “On 28 June 2004 the investigator [R.H.] sent a request to the Kiev City Prosecutor’s Office for legal assistance within the framework of the criminal case no. 803636/0363 in connection with the murder of E.A. and in September-October 2004 [R.H.] was on a mission in Kiev and participated in several investigative actions carried out by the Shevchenko District Prosecutor’s Office. However, as police officers of the Kiev City Shevchenko District Police Office failed to bring before the investigating authorities several witnesses whose statements were of particular importance to the investigation, it was not possible to question them and to carry out other investigative actions. An operational request was sent to the relevant Ukrainian authorities in order to take relevant steps for bringing the relevant witnesses before the investigating authorities by establishing their whereabouts. As the investigative actions were carried out on the territory of another State and some witnesses were not timely identified, it was not possible to complete the investigation and for this reason the period of investigation was extended in accordance with Article 218 of the Code of Criminal Procedure of the Republic of Azerbaijan...” 28. In reply to their further letters addressed to the prosecution authorities about the progress of the investigation, the applicants received two letters dated 7 September 2005 and 6 April 2006 from the Prosecutor General’s Office. The content of these letters were almost identical to the letter of 19 May 2005. 29. By letters dated 11 July 2005 and 21 November 2006 respectively, the Prosecutor General and Deputy Prosecutor General of the Republic of Azerbaijan asked their Ukrainian counterparts to establish the whereabouts of some witnesses and to question them in connection with E.A.’s stabbing. 30. On an unspecified date in 2006 the applicants asked the investigator to remove R.A. from office until the termination of the criminal proceedings. 31. On 11 September 2006 the investigator dismissed the applicants’ request, holding that such a preventive measure could be applied only in respect of a suspect or an accused person, of which R.A. was neither. The relevant part of the decision reads as follows: “In accordance with Articles 154 and 155 of the Code of Criminal Procedure of the Republic of Azerbaijan, the preventive measure of removal from office during the investigation may be applied only in respect of a suspect or an accused. However, it appears from the case file that R.A. was neither arrested as a suspect, nor adopted a decision recognising him as an accused. In these circumstances, there is no basis to apply the preventive measure of removal from office in respect of him...” 32. On 3 July 2007 the applicants wrote to the Prosecutor General again, complaining of the ineffectiveness of the investigation and the investigating authorities’ failure to secure evidence concerning the incident. In this connection, they submitted that G.A., who had been involved in the crime, had died in unclear circumstances. 33. By a letter of 6 July 2007 the Prosecutor General’s Office informed the applicants that the circumstances of G.A.’s death were not unclear, as he had died of heart disease. 34. On 28 December 2007 the applicants lodged an application with the Nasimi District Court, complaining of inactivity on the part of the investigating authorities and the ineffectiveness of the investigation. In particular, they alleged that the investigation of their son’s murder had been unlawfully extended for years, and that despite R.A. having been identified as the perpetrator of the crime, he had not faced prosecution. They also argued that they had not been informed of the progress of the investigation. 35. At a hearing before the Nasimi District Court, the applicants and their representative reiterated their complaints, stating that they had not been informed of the procedural decisions taken during the investigation, and that the investigation had been extended, despite the perpetrator of the crime having been identified. 36. On 1 February 2008 the court dismissed the application, considering that the investigating authorities had not acted unlawfully and that the relevant investigative steps had been taken by the prosecution authorities. The court held that prosecutors were entitled to extend investigations and that this kind of decision could not be challenged before the courts. The relevant part of the decision reads as follows: “Article 218.11 of the same Code [the Code of Criminal Procedure] provides that the time limit for conducting the investigation into an unsolved criminal case may be extended several times by the Prosecutor General of the Republic of Azerbaijan, until the case is solved in accordance with Articles 218.8 and 218.9 of the Code of Criminal Procedure... As it transpires from the legislation the extension of the time limit for conducting the preliminary investigation is the right of the prosecutor supervising the investigation... Moreover, Article 449 of the Code of Criminal Procedure of the Republic of Azerbaijan lays down the procedure by which actions or decisions of the prosecuting authorities could be challenged before a court. This Article clearly establishes the extent of actions and decisions which could be challenged. This Article does not provide the possibility to challenge under the procedure of judicial review the investigating authorities’ decision to extend the time limit for conducting the investigation ...” The court further held that at that moment there was insufficient evidence to charge anyone with E.A.’s murder. However, it also found that the applicants had not been duly informed by the prosecution authorities, who had failed to provide them with all the relevant decisions. The relevant part of the decision reads as follows: “It was established during the court investigation that several rights of the victim in this case were not fully secured by the investigating authority, that he was not informed in detail of the progress of the investigation, and that he was not provided with some of the decisions [on the criminal case] ... In accordance with Article 87.6.13 of the Code of Criminal Procedure of the Republic of Azerbaijan, the victim, in circumstances and pursuant to the rules provided for in the Code of Criminal Procedure, is entitled to be informed of the decisions taken by the investigating authorities which have affected his rights and lawful interests, and to obtain copies of these decisions at his request. The court takes into account the facts that the investigator R.M. admitted these violations during the court investigation, and that the victim was provided with copies of several important decisions on the criminal case during the examination of this complaint.” 37. On 23 February 2008 the applicants appealed against this decision, reiterating their previous complaints. 38. On 13 March 2008 the Baku Court of Appeal dismissed their appeal and upheld the Nasimi District Court’s decision. 39. On 3 June 2008 the Supreme Court refused to admit the applicants’ cassation appeal holding that the Baku Court of Appeal’s decision was final and not subject to appeal. 40. On 14 December 2010 an investigator from the Serious Crimes Unit of the Prosecutor General’s Office issued a decision suspending the criminal proceedings in connection with E.A.’s death. The investigator substantiated the decision by the fact that although all possible investigative steps had been taken, it had not been possible to determine who had killed E.A. The relevant part of the decision reads as follows: “As it was not possible to determine the person (persons) who committed the crime despite the fact that at the time being all possible operational investigative measures were taken, it is appropriate to suspend the criminal proceedings.” 41. On an unspecified date in 2013 the applicants lodged a complaint with the Nasimi District Court asking the court to quash the investigator’s decisions of 18 September 2003 and 14 December 2010. The applicants noted that they had not been informed of the investigator’s decision of 14 December 2010 suspending the criminal proceedings in connection with their son’s murder and they had learned about this decision only when the Government submitted to the Court a copy of the decision in question in their observations within the framework of the examination of their complaint by the Court. The applicants also submitted that they were never provided with a copy of the investigator’s decision of 18 September 2003. 42. On 31 May 2013 the Nasimi District Court granted partially the applicants’ claim and quashed the investigator’s decision of 14 December 2010 suspending the criminal proceedings in connection with the murder of the applicants’ son. In this connection, the court held that the prosecution authorities failed to prove that they had informed the applicants of the decision of 14 December 2010. The court further found that the prosecution authorities’ failure to inform the applicants of the decision of 14 December 2010 had been unlawful and had deprived the applicants of the exercise of their right to challenge the decision in question. Thus, it appears that the criminal proceedings are still pending, whereas the Court has not been informed of any further developments. 43. As to the part of the applicants’ claim concerning the investigator’s decision of 18 September 2003, the Nasimi District Court considered that this claim fell outside its jurisdiction and decided to transfer it for an examination to the Baku Military Court. The court held in this respect that the decision of 18 September 2003 was delivered by an investigator from the Military Prosecutor’s Office and therefore the decision in question could be challenged before a military court. 44. On 23 October 2013 the Baku Military Court dismissed the applicants’ claim considering it unjustified without further explanation. 45. On 5 November 2013 the Baku Court of Appeal upheld the Baku Military Court’s decision of 23 October 2013. | 1 |
test | 001-146353 | ENG | DEU | CHAMBER | 2,014 | CASE OF PETER v. GERMANY | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Reasonable time);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 5. The applicant is a German national who was born in 1948 and lives in Ulrichstein. 6. On 1 August 2001 the Civil Partnership Act (Gesetz über die eingetragene Lebenspartnerschaft) entered into force and introduced civil unions for same-sex couples. 7. On 5 October 2001 the applicant entered into a civil partnership with Mr Peter, né V. 8. On 22 June 2002 Mr Peter, né V., died. 9. In September 2002 the applicant applied for a survivor’s pension to the German Pension Fund (Bundesversicherungsanstalt für Angestellte), a public-law corporation. 10. On 19 November 2002 the German Pension Fund rejected the applicant’s claim and on 28 February 2003 it dismissed the administrative appeal lodged by the applicant against that decision. 11. On 19 March 2003 the applicant applied to the Fulda Social Court for judicial review. He argued that the term “widow or widower” in Article 46 §§ 1 and 2 of the Social Security Code, Book VI (Sozialgesetzbuch Nr. VI) should be construed as encompassing the surviving partner in a civil partnership. 12. On 26 November 2004 the Fulda Social Court dismissed the applicant’s claim. According to the court the surviving partner in a civil partnership could not be called a “widower” in the generally accepted sense of the term. Furthermore, the applicant’s civil partnership had not lasted longer than a year, which would have led to statutory exclusion from the benefit even for married couples. 13. During the appeal proceedings the respondent acknowledged the applicant’s claim to a survivor’s pension as of 1 January 2005, when the relevant amendments to the Civil Partnership Act became effective. 14. The remaining leapfrog appeal on points of law (Sprungrevision) was dismissed on 13 December 2005 by the Federal Social Court. The court pointed out that the respondent had partly acknowledged the applicant’s claim, so that the appeal concerned only the period from July 2002 until December 2004. 15. On 20 January 2006 the applicant lodged a constitutional complaint (no. 1 BvR 170/06) with the Federal Constitutional Court. 16. On 7 July 2009 the Federal Constitutional Court delivered its judgment in a case (no. 1 BvR 1164/07, hereinafter “the 2007 case”) which had been brought in 2007 concerning the pension rights of a surviving partner in a civil partnership. It found that denying a partner in a civil union the right to a survivor’s pension from the civil servants’ pension scheme, when the legislature had already amended Article 46 §§ 1 and 2 of the Social Security Code, Book VI, in respect of the general pension scheme, violated the principle of non-discrimination as set down in Article 3 of the Basic Law. 17. On 1 December 2009 the applicant pointed to the above-mentioned judgment and requested a decision to the same effect. 18. On 11 June 2010 a three-judge panel of the Federal Constitutional Court decided not to review the applicant’s constitutional complaint. In its reasoning the panel explained that the complaint did not raise a pressing constitutional question as the relevant provision of the social security legislation had meanwhile been amended. Even assuming that the legislative provision concerned had violated the Constitution, the Federal Constitutional Court could not have afforded redress as the legislature could not be required to amend a provision that had already become void. 19. On 13 July 2010 the applicant was served with a copy of the decision. 20. On 7 December 2011 the Government informed the Court that in response to the pilot judgment in Rumpf v. Germany (no. 46344/06, 2 September 2010) an Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren) had been published in the Federal Law Gazette and had entered into force on 3 December 2011. 21. In December 2011 the Court informed the applicant of the enactment of the new domestic remedy and drew his attention to the transitional provision of that Act. Referring to the Brusco v. Italy case ((dec.), no. 69789/01, ECHR 2001IX), the Court invited the applicant to inform it whether he intended to make use of the new remedy within the time-limit set by the transitional provision in question. 22. The applicant informed the Court that he intended to file a complaint under the new domestic provisions. 23. On 6 February 2012 the applicant filed a complaint under the new Act, claiming compensation in respect of pecuniary and non-pecuniary damage. He complained that constitutional court proceedings that lasted four years, six months and one day were excessively long, even taking the position and function of the Federal Constitutional Court into account. He pointed out that his case could not be considered a particularly difficult one. 24. In the course of the proceedings the judge rapporteur for the constitutional complaint submitted a statement explaining that when he took office and became judge rapporteur for this complaint on 1 October 2007 it had already been agreed between his predecessor and judge B., who was judge rapporteur for the 2007 case (compare paragraph 16, above), that the handling of the applicant’s complaint should be postponed until the 2007 case had been determined. Subsequently, it became clear that the 2007 case did not pose a problem of retroactivity and therefore did not affect the outcome of the applicant’s constitutional complaint. The judge rapporteur conceded that the applicant’s submissions were sufficiently substantiated for his constitutional complaint to indeed have been dealt with earlier on the basis of the actual reasoning given. However, the judge maintained that it had been in the applicant’s best interest to wait for the court’s ruling in the 2007 case. 25. The applicant replied that the judge rapporteur’s statement demonstrated that his constitutional complaint had not been given any attention whatsoever in the first year after it was lodged. It would have been obvious even from a cursory examination of the constitutional complaints that his complaint concerned the retroactive application of a legislative amendment. Therefore, any proper comparison of his case with the 2007 case would have easily shown that the two cases were not interdependent. 26. On 1 October 2012 the complaints panel of the Federal Constitutional Court dismissed the applicant’s complaint under section 97a of the Federal Constitutional Court Act. Citing Gast and Popp v. Germany (no. 29357/95, ECHR 2000II), as well as Klein v. Germany (no. 33379/96, 27 July 2000), the Federal Constitutional Court noted that a chronic backlog of cases in the constitutional courts could not justify the excessive length of proceedings. However, when assessing whether the duration of proceedings was excessive, the Federal Constitutional Court had to consider its special function and position. Unlike the ordinary courts, the capacity and structure of a Constitutional Court were laid down in the Constitution and it served further purposes beyond the administration of individual justice. The scope for adaptation and for the acceleration of proceedings was therefore limited. Furthermore, decisions and judgments of the Federal Constitutional Court had binding inter omnes legal effect and for this reason had to be drafted with the utmost diligence. The court further explained that it was in the nature of constitutional court proceedings that chronological case management was of subordinate importance. Concerning the applicant’s case, the court noted that the actual duration of the proceedings – four and a half years – was unusually long, but not excessive. For the purposes of its examination the Federal Constitutional Court noted that three phases could be distinguished: (a) the phase of over one year between the lodging of the constitutional complaint and the decision to await the outcome of the 2007 case; (b) the phase of two years until a decision had been given in the 2007 case; and (c) the phase of eleven months until the constitutional complaint at issue had been determined. A new judge rapporteur had stepped in at the end of his predecessor’s term of office and his predecessor had had to finish cases of higher priority than that of the applicant. The court maintained that the twelve-month wait in accordance with section 97b §1 of the Federal Constitutional Court Act had not been excessive considering that the Federal Constitutional Court had opted to rule on a similar case concerning the pension rights of surviving partners in a civil union (the 2007 case) before the applicant’s case. The court pointed out that, although in hindsight the present case could have been decided without reference to the “pilot case”, the two cases shared sufficient similarities to justify the decision of the former judge rapporteur. Nothing indicated that the decision to postpone the applicant’s case pending a decision on the 2007 case had been based on arbitrary considerations. The court noted that the applicant had never claimed that the sum of money at issue was of extraordinary financial importance to him. In conclusion, the Federal Constitutional Court argued that after the decision in the 2007 case the applicant’s constitutional complaint had been determined in due time, without any delay. 27. The Act on Protracted Court Proceedings and Criminal Investigations (Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, “the Remedy Act”) was published in the Federal Law Gazette – Part I, 2011, pp. 2302 et seq. – on 2 December 2011 and entered into force the next day. 28. The Remedy Act introduced general provisions instituting a remedy against any kind of protracted court proceedings. Section 1 applied to criminal and civil proceedings – for details see Taron v. Germany (dec.), no. 53126/07, §§ 19 et seq., 29 May 2012, and Garcia Cancio v. Germany (dec.), no. 19488/09, §§ 27 et seq., 29 May 2012. 29. For proceedings before the Federal Constitutional Court, section 2 of the Remedy Act amended the Federal Constitutional Court Act as follows: “Section 97a (1) Any person who, as the result of the unreasonable length of proceedings before the Federal Constitutional Court, experiences a disadvantage as a participant in those proceedings or as a participant in proceedings suspended for the purpose of obtaining a decision from the Federal Constitutional Court shall be afforded reasonable compensation. The reasonableness of the length of proceedings shall be assessed in the light of the circumstances of the particular case, having due regard to the functions and the position of the Federal Constitutional Court. (2) A non-pecuniary disadvantage shall be presumed in cases where proceedings before the Federal Constitutional Court have been of unreasonable length. Compensation may be claimed therefor save in particular cases where reparation by other means, such as the mere finding that the length of proceedings was unreasonable, is sufficient. Such compensation shall amount to €1,200 for every year of delay. If the sum thus calculated is not equitable, the Federal Constitutional Court shall assess a higher or lower sum. Section 97b (1) A decision on compensation and reparation shall be rendered if a complaint of undue delay has been lodged with the Federal Constitutional Court. A complaint of undue delay shall be admissible only if the complainant has previously objected to the length of the proceedings before the Federal Constitutional Court (Verzögerungsrüge). A complaint of undue delay shall be lodged in writing and it shall set out the circumstances purported to establish the unreasonableness of the length of the proceedings. It shall be admissible twelve months at the earliest after the case has been lodged with the Federal Constitutional Court. A complaint of undue delay shall not require a reasoned notification. ... Section 97d (1) The rapporteur in the proceedings concerned shall submit an opinion within one month of receipt of the reasons for the complaint of undue delay. (2) The complaints panel shall decide by a majority. In the event of a tie the complaint of undue delay shall be dismissed. The complaints panel shall render its decision without an oral hearing. Reasons need not be given. (3) The decision is not subject to appeal.” 30. In a departure from the general transitional provision under section 23 of the Remedy Act (see for details Taron, § 27, and Garcia Cancio, § 36, both cited above), section 97e of the amended Federal Constitutional Court Act stipulated that, in the case of terminated proceedings whose length might still become or had already become the subject of a complaint before that court, it was not necessary to raise a complaint of undue delay (Verzögerungsrüge) prior to filing a complaint claiming compensation. That complaint had to be lodged with the Federal Constitutional Court by 3 June 2012 at the latest. | 0 |
test | 001-175180 | ENG | BIH | GRANDCHAMBER | 2,017 | CASE OF MEDŽLIS ISLAMSKE ZAJEDNICE BRČKO AND OTHERS v. BOSNIA AND HERZEGOVINA | 1 | No violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression) | András Sajó;André Potocki;Angelika Nußberger;Egidijus Kūris;George Nicolaou;Guido Raimondi;Iulia Motoc;Jon Fridrik Kjølbro;Khanlar Hajiyev;Krzysztof Wojtyczek;Ledi Bianku;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 10. On an unknown date in May 2003 the applicants wrote a letter to the highest authorities of the BD, namely the International Supervisor for BD, the President of the Assembly of BD and the Governor of BD, while the procedure for the appointment of a director of the BD’s multi-ethnic public radio station was still pending. In the letter, they voiced their concerns regarding the procedure for the appointment of a director of the BD’s multi-ethnic public radio station. They criticised the authorities for having disregarded the principle of proportional representation of ethnic communities in the public service of BD set out in the Statute of BD. In this connection they stated: “...We acknowledge and appreciate your support and the effort you put into creating a multi-ethnic radio ... Unfortunately, it appears that there was a major oversight at the very beginning of this important venture. The panel for the selection of the director [of the radio] was created in contravention of the Statute of Brčko District. It is composed of three Serb members, one Croat and one Bosniac. Thus, yet again, the (BD) Statute, which requires proportional representation of the three constituent peoples in public institutions, was disregarded. Parliament established several cases of non-compliance with this principle regarding employment of staff in the public sector, including the BD radio, to the disadvantage of Bosniacs and Croats, and requested that the Governor correct this imbalance. Unfortunately, nothing has been done to correct this. That this is true is confirmed by the unofficial information that Ms M.S. was proposed for the position of the radio’s director by the Serb members of the (selection) panel, who are in the majority, although the former director was Bosniac. This proposal is unacceptable, all the more so because it concerns a person who lacks the professional and moral qualities for such a position.” 11. The letter continued as follows: “According to our information (našim informacijama), the lady in question (1) stated in an interview published in ‘NIN’, commenting on the destruction of mosques in Brčko, that Muslims were not a people (Muslimani nisu narod), that they did not possess culture and that, accordingly, destroying mosques could not be seen as destruction of cultural monuments, (2) as an employee of the BD radio demonstratively tore to pieces on the radio’s premises (demonstrativno kidala) the calendar showing the schedule of religious services during the month of Ramadan, (3) on the radio’s premises covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska, (4) as an editor of the cultural programme on the BD radio banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value. We firmly believe that the above-described acts absolutely disqualify Ms M.S. as a candidate for the position of director of the multi-ethnic Radio and Television of Brčko District and that a Bosniac should be appointed to that [radio’s director] position, which would be in compliance with the Statute of [BD] and the need to rectify the ethnic imbalance regarding employment in the public sector. We hope that you will react appropriately to our letter ... In the absence of any action on your part, we will be forced to address the public (obratiti se javnosti) and [to contact] international and other competent representatives.” 12. Soon afterwards, still in May 2003, the letter was published in three different daily newspapers. 13. On 29 May 2003 M.S. brought civil defamation proceedings claiming that in the above letter the applicants had made defamatory statements which had damaged her reputation and discredited her as a person and a professional journalist. 14. At the trial the first-instance court admitted a considerable volume of evidence, including oral statements from seven witnesses (apparently all employees of the BD public radio) regarding the veracity of the four allegations contained in the applicants’ letter; it also admitted oral statements from the plaintiff and from O.H. and S.C., the members and statutory representatives of two of the applicants. 15. As described in the judgment of 29 September 2004 (see paragraph 18 below), M.S. stated that she had learned of the letter shortly after it had been sent by the applicants, but that she did not know who had given it to the media. She confirmed that she had removed from the wall in the premises of the radio station the calendar showing the schedule of religious services during the month of Ramadan, but explained that the wall had been used only for work-related announcements. She denied that she had torn up the calendar. As to the coat of arms of Bosnia and Herzegovina, she stated that an invitation card with the coat of arms of Republika Srpska had been placed in a corner of the coat of arms of Bosnia and Herzegovina, but that the latter had not been covered. Lastly, she denied that she had banned the broadcasting of sevdalinka. She argued that all those matters had been taken out of context, that her career as a journalist had been thwarted and that she had been concerned about her professional future. 16. O.H. confirmed that he had participated in the preparation of the letter and stated that he had found out about the information contained therein from employees of the radio station who had asked him for help. There had been no intention to publish the letter. For that reason, it had been sent to the authorities personally. He did not know how the letter had reached the media. 17. S.C. stated that most of the information had been brought to his attention by O.H. The letter had been sent to the authorities personally. Their intention had not been to publish the letter in the media. That was why they had indicated in the letter that it concerned allegations and not established facts. Their aim had been to draw the attention of the authorities to errors of M.S., who had been a serious candidate for the post of director of the BD radio. 18. By a judgment dated 29 September 2004, the BD Court of First Instance dismissed M.S.’s action and ordered her to publish the judgment at her expense and to reimburse the trial costs of the applicants. It found that the applicants could not be held responsible because there had been no evidence that they had published the letter in the media. The relevant part of the judgment reads as follows: “It is clear that the defendants’ letter was addressed personally (upućeno na ruke) to the Governor, to the President of the Assembly and to the Supervisor for Brčko District ... and it was not sent to the media ... The court established that the aim of the letter was to bring the attention of the authorities to (these) issues and to enable them to draw certain conclusions on verification of that information, and not to publish unverified information. Having examined the articles published in the media, the court concludes that none of them was published by [the applicants].” 19. On appeal by M.S., the BD Court of Appeal quashed that judgment on 16 May 2005 and decided to hold a new hearing. 20. At the hearing before the Court of Appeal M.S. reiterated that the four statements specified above (see paragraph 11 above) had contained untrue and defamatory allegations whose aim had been to portray her as a nationalist and accordingly disqualify her for the post for which she had applied. Not only had she not been appointed to the post, but the letter had had other long-term negative consequences for her. 21. The applicants argued that they had lacked capacity to be sued because they had not sent the letter to the media and, accordingly, had not expressed or disseminated in public any defamatory statements in respect of the appellant. The letter had been sent to the authorities. By a judgment of 11 July 2007 the BD Court of Appeal dismissed that argument and stated that “... a person’s reputation can be damaged if someone expresses or disseminates to other people untrue facts or allegations about the past, knowledge, skills or anything else (and he or she knew or ought to have known that those facts or allegations were untrue). For these reasons, the court dismisses the respondents’ arguments that one can be held responsible for defamation only if there was a public announcement or dissemination or publication of (such) statements in the media.” 22. The applicants further argued that M.S. had been a public servant and that by having taken part in the competition for the position of radio director she had become a public figure. Relying on section 6(5) of the Defamation Act (see paragraph 41 below), the court held as follows: “... even if the aggrieved party is a public servant or a candidate for a post in a public body and he or she is generally perceived as having an important influence on public issues of political interest ... (a defendant) is to be held liable for defamation if he knew that a statement was false or negligently disregarded its inaccuracy.” 23. Referring to the first part of the letter (see paragraph 10 above), the BD Court of Appeal did not go beyond noting that it contained value judgments for which no responsibility could be attributed to the applicants under the Defamation Act. It further quoted the four statements contained in the letter (see paragraph 11 above) and held that these “concerned statements of fact which the defendants were required to prove.” In this connection it re-examined O.H., S.C. and the witnesses who had already given oral evidence before the first-instance court (see paragraph 14 above). 24. The Court of Appeal also noted that R.S. and O.S., both employees of the BD public radio, had visited one of the applicants in order to discuss M.S.’s behaviour in the workplace. On that occasion R.S. had told O.H. that during the month of Ramadan M.S. had detached from the wall in the radio’s premises the calendar showing the schedule of religious services. The court noted that the wall had been used for work-related announcements. It also indicated that, at the relevant time, another text, which had not been work-related, had been posted on the wall. O.S. (sound manager in the radio) had told O.H. that on one occasion M.S. had asked him to explain why sevdalinka had been broadcasted during the time reserved in the programme for another type of music. He confirmed that she had removed the Ramadan religious calendar from the wall. 25. At a meeting held shortly afterwards, O.H. shared the information received from R.S. and O.S. with the other respondents. On that occasion one of the respondents had referred to a newspaper article and the alleged statement of M.S. regarding Muslims and the destruction of mosques. An allegation had been also made that M.S. had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska. S.C. had confirmed having heard people speaking about that in the city. 26. After analysing the statements of the witnesses and the respondents, the court found that the facts reported in the letter regarding the calendar of religious services during the month of Ramadan and the broadcasting of sevdalinka were untrue, since “the letter obviously did not contain what (R.S. and O.S.) had said about the appellant and her behaviour regarding the religious calendar and the broadcasting of sevdalinka”. Noting that the allegation that M.S. was the author of the statement published in the newspaper was untrue, the court stated: “... on the basis of S.C.’s statement [the court establishes] that at the meeting that preceded the preparation of the letter a distinguished member of a [respondent] had informed those attending the meeting that the appellant had given a statement to the newspaper, whose contents were identical to the contents of the letter. On subsequent verification [S.C.] established that such a text had been published, but that the appellant had not been the author ...” 27. The court further stated that: “The respondents also did not prove the truthfulness of the allegation that in her office the appellant had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of Republika Srpska. On the basis of evidence given by the witnesses examined at the trial (B.S., D.N. and K.P.), [the court] established that the appellant had put an invitation card, which bore the coat of arms of Republika Srpska, in the corner of the coat of arms of Bosnia and Herzegovina ...” 28. In conclusion, the court stated: “By the letter sent to the Office of High Representative BD - International Supervisor of the BD, the President of the BD’s Assembly and the Governor of the BD, the respondents damaged the plaintiff’s reputation and honour in the place in which she lives and works. They did so by expressing and disseminating to the above persons facts about the appellant’s behaviour, actions and statements which they knew or ought to have known were false ...” 29. The Court of Appeal ordered the applicants to inform the International Supervisor for BD, the President of the Assembly of BD and the Governor of BD within 15 days that they retracted the letter, failing which they would have to pay jointly the equivalent of EUR 1,280 in non-pecuniary damages to M.S. They were further ordered to give the judgment to the BD radio and television and to two newspapers for publication at the applicants’ own expense. As regards the calculation of the amount of non-pecuniary damages, the court stated: “When assessing the amount of damages, namely, just satisfaction to be awarded to the appellant, [the court] took into consideration that the impugned facts had been mentioned in the article published in the media ...” 30. On 15 November 2007 M.S. filed a request with the BD Court of First Instance for enforcement of the above judgment. On 5 December 2007 the Court of First Instance issued a writ of execution. 31. On 12 December 2007 the applicants paid the equivalent of EUR 1,445 (inclusive of interest and enforcement costs) in enforcement of the judgment of 11 July 2007. On 27 March 2009 the Court of First Instance closed the enforcement proceedings. 32. On 15 October 2007 the applicants applied to the Constitutional Court of Bosnia and Herzegovina seeking protection of their rights under Article 10 of the Convention. 33. On 13 May 2010 the Constitutional Court held that the interference with the applicants’ right to freedom of expression had been “necessary in a democratic society” and concluded that there had been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina or Article 10 of the Convention. The relevant part of the decision reads as follows: “34. At the outset the Constitutional Court notes that the appellants did not deny that their liability for defamation was based on the Defamation Act 2003 and that, therefore, the interference with the right [to freedom of expression] protected by Article 10 of the European Convention was prescribed by law ... 35. The impugned judgment was delivered in civil defamation proceedings initiated by the respondent against the appellants ... accordingly, the interference pursued the legitimate aim of the protection of the “reputation or rights of others”. 36. What remains to be determined is whether the interference complained of was ‘necessary in a democratic society’... 37. With regard to the existence of a ‘pressing social need’, the Constitutional Court observes that the impugned (court) decisions concern the letter which the appellants sent to the authorities of the BD and the Supervisor for BD casting the plaintiff (M.S.) in a negative light. The Court of Appeal considered it to be defamation because (the case) concerned statements whose veracity could be verified ... The Constitutional Court notes that the Court of Appeal qualified the impugned statements in the letter as statements of fact and not as value judgments. The Constitutional Court also considers that they are to be regarded statements of fact which should be proved. The appellants failed to do so, as they did not make reasonable efforts to verify the truthfulness of [those] statements of fact before [reporting], but merely made [those statements]. 38. The Constitutional Court considers that the Court of Appeal established without doubt that the impugned factual statements about M.S. were false and that the appellants were liable for defamation. From the submissions of the two witnesses, from whom the appellants received the information presented in the letter (concerning the part of the letter in which it was stated that M.S. ‘made a point of removing from the wall (and tore to pieces) the calendar with the schedule of religious services during the month of Ramadan and as the editor of the entertainment programme banned the broadcasting of sevdalinka arguing that that type of song had no cultural or musical value’), the Court of Appeal established that there was an evident inconsistency between what had been said to the appellants and what they had reported in the letter. Furthermore, the statement in the impugned letter that M.S. had given an interview concerning the destruction of mosques was refuted by another witness, who submitted that subsequent verification had revealed that M.S. had not been the author of the said interview. Finally, the appellants failed to prove the veracity of the allegations that M.S. had covered the coat of arms of Bosnia and Herzegovina with the coat of arms of the Republika Srpska. In view of the above, in the present case the public interest that permits reporting on alleged irregularities in the conduct of public officials cannot be based on manifestly untrue factual allegations which impugn their reputation [and] which cannot be regarded as criticism that they ought to tolerate in view of their function. Accordingly, the court considers that the Court of Appeal correctly concluded that there was ‘a pressing social need’ in the present case [for the interference with the appellants’ right to freedom of expression]. 39. Furthermore, the Constitutional Court notes that the Court of Appeal awarded non-pecuniary damages to M.S. because her reputation was affected by the untrue statements made in the impugned letter ... The Constitutional Court has already stated in its previous case-law that a person’s reputation forms part of his or her personal identity and psychological integrity ... ... 43. The appellants ... failed to verify the impugned statements beforehand as was their duty. The Court of Appeal established that the appellants had damaged M.S.’s reputation by making untrue allegations which caused her mental distress ...When deciding on the claim in respect of non-pecuniary damage and its amount, the Court of Appeal took into account the purpose of those damages and the rule that it should not favour aspirations that were incompatible with its nature and social purpose. 44. [T]he Constitutional Court considers that the measure imposed on the appellants in the present case was proportionate to the aim pursued ...The court further considers that the Court of Appeal did not go beyond its discretionary power in deciding on the claim in respect of non-pecuniary damage ... [T]he Constitutional Court finds that the reasons the Court of Appeal gave were ‘relevant’ and ‘sufficient’ within the meaning of Article 10 of the European Convention. 45. In view of the above, the Constitutional Court considers that the interference with the appellants’ right to freedom of expression was ‘necessary in a democratic society’ and that, therefore, there has been no violation of Article II/3.h) of the Constitution of Bosnia and Herzegovina or Article 10 of the European Convention.” 34. On 21 September 2010 the Constitutional Court’s decision was served on the applicants. 35. According to the minutes of a meeting of the Management Board of the BD’s radio station dated 9 May 2003, there were two candidates for the post of the radio’s director, one of whom was M.S. The Management Board decided to extend the mandate of the acting director of the radio given that “due to political pressure and repeated voting” no decision could be made in respect of either of the candidates. | 0 |
test | 001-174975 | ENG | ITA;CHE | ADMISSIBILITY | 2,017 | E.T. AND N.T. v. SWITZERLAND AND ITALY | 4 | Inadmissible | Branko Lubarda;Dmitry Dedov;Guido Raimondi;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 1. The applicants, Ms E.T. (“the first applicant”), born in 1986, and her son N.T. (“the second applicant”), born in 2009, are Eritrean nationals. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). They were represented before the Court by Ms S. Motz, a lawyer practising in Zurich. 3. In 2004 the first applicant fled her home country, travelling via Sudan and Libya, from where she reached the island of Lampedusa in Italy where she claimed asylum on 9 November 2006. She was assigned to a centre for asylum-seekers in Crotone, Calabria. After two months there, she was recognised as a refugee. However, she was no longer entitled to stay in the asylum centre. She therefore went to Rome where her boyfriend, who had fled with her from Eritrea and had also been recognised as a refugee, was living. It was very difficult for the first applicant to find a place to stay and she slept in a train station in Rome and later in a squat for refugees called “Selam Palace”. She claimed that the situation in that squat had been especially difficult for women. Her boyfriend had not been allowed to stay with her and she therefore had lived under the constant threat of sexual attacks from other men living there. Without knowledge of the Italian language it was furthermore impossible for her to find a job. She received food from soup kitchens run by Caritas in Rome. The first applicant and her boyfriend also approached the Ufficio Immigrazione in Via Assisi 39a, the communal accommodation office for homeless people in Rome (“the immigration office”). The immigration office put them on a waiting list. Some months later, on 11 February 2008, the first applicant was allocated a sleeping place but she was somehow not informed of this. The applicant remained in the Selam Palace for more than a year. She became pregnant with the second applicant and her boyfriend left her. Owing to the unbearable living conditions in Italy she decided, when she was several months pregnant, to apply for asylum in Switzerland. 4. On 5 March 2009 she applied for asylum in Switzerland. On 25 June 2009 she gave birth to her son, the second applicant. By a decision of 23 July 2009 the Federal Office for Migration (“the FOM”) dismissed her asylum request based on her having been granted refugee status in Italy. In November 2009 both applicants were removed to Italy. 5. During the applicants’ second stay in Italy, they were informed by the immigration office in Rome that they could not be provided with housing immediately, but that they would be put on a waiting list. The first applicant approached private organisations to obtain housing, without success. As she was even unable to find a place for her and her son to sleep in one of the squats in Rome, both applicants ended up sleeping in the streets and in the main train station with other homeless people. With the remainder of the money the first applicant had received from the Swiss authorities she decided to travel, together with the second applicant, to Norway to apply for asylum there. She sought to claim asylum there in December 2009 and her asylum request was registered on 1 January 2010. Approximately one and a half years later it was dismissed and in February 2011 they were removed from Norway to Italy. 6. In Italy the first applicant unsuccessfully approached on several occasions the immigration office in Rome as well as private organisations in order to obtain accommodation. In relation to a residence document for her son, the immigration office informed her that she should return to Crotone since she had been registered there and the authorities there were responsible for her. In April 2011 the applicant therefore travelled to Crotone in order to register her son and to seek accommodation for them. The authorities there however informed her that there was no organisation which could assist her and that she should return to Rome. Upon her return to Rome, the immigration office eventually registered her on the waiting list on 18 June 2011. Since no accommodation in Rome was available, the applicants had to return to the Selam Palace. The living conditions in that squat were unacceptable, especially for a child. Owing to the precarious sanitary conditions and the lack of adequate nutrition, the second applicant suffered serious dental problems. As the first applicant could furthermore not pay the required fees for staying in the Selam Palace, she was repeatedly asked to leave the place. 7. Out of despair and in order to avoid sleeping in the streets of Rome in wintertime with a little child, the first applicant decided to travel to Switzerland again. She applied a second time for asylum in Switzerland on 10 November 2011. According to the immigration office in Rome, the applicants would have received a place to stay in November 2011, but at this point they had already gone to Switzerland. On 25 October 2012 the FOM dismissed the applicants’ request on the basis that the applicants could avail themselves of the protection of a safe third country, namely Italy. 8. On 1 July 2013 the applicants lodged a qualified application for review with the FOM. The applicants claimed that the FOM had failed to take into account the various indications that the applicants had to live in inhuman conditions in Italy. By decision of 2 August 2013 the FOM dismissed their request ruling that Italy was under an obligation under the EU Qualification Directive to provide the applicants with accommodation and financial support. In addition, private aid organisations could also assist the applicants. The FOM also held that the removal to Italy would not violate the rights of the child under the United Nations Convention on the Rights of the Child. 9. Upon appeal, the Federal Administrative Court (“the FAC”) granted the applicants interim measures on 26 August 2013 in order to await the outcome of the proceedings in Switzerland. By a decision of 14 November 2013 the FAC dismissed the applicants’ appeal. 10. With regard to a possible breach of Article 3 of the Convention, the FAC established that based on the facts of the case no particular risk of illtreatment in Italy could be identified. Italy had signed all the relevant international human-rights treaties which it was obliged to respect and was bound to the EU Qualification Directive, which provides that recognised refugees should in principle be treated like nationals regarding social assistance and health care. The FAC found that some structural deficits for refugees in Italy existed, primarily in the regions of Lampedusa, Sicily and Calabria as well as in Rome and Milan. Based on the facts of the case, the FAC had no doubts that the situation for refugees and asylum-seekers in Rome was unbearable and that they were not provided with basic social assistance. Furthermore, it accepted that there was a considerable risk if returned to Rome, the applicants would be obliged to live in the streets again. Since the immigration office in Rome had already offered the applicants a place to stay in the past, it could be expected that they would also be offered one in the future, however not immediately. Therefore, the FAC considered the risk of the applicants’ living in the streets of Rome upon their return there to be considerable. However, the situation for refugees was not as bad in other regions of Italy as in Rome. As recognised refugees, the applicants had the possibility to settle in another region of Italy where the living conditions were presumably better. In this regard the FAC held that it was not comprehensible why the first applicant, who had been able to seek refuge in Switzerland and Norway, had not travelled to another region of Italy, in particular to the North, in order to look for housing there. It found that it was feasible to expect the applicants to seek and find housing in another region of Italy, as, for example, provided by Caritas in Bolzano (House of Margareth), in Bressanone (House of Solidarity), in Bologna (Centro polifunzionale Madre Teresa di Calcutta) as well as in different places in Trieste. The FAC stated that it was more likely than not that the applicants would be able to find adequate accommodation there and would be able to live with dignity. Therefore, they were not at risk of ill-treatment if returned to Italy. 11. Following this ruling, the Swiss Refugee Council (Schweizerische Flüchtlingshilfe), a Swiss non-governmental organisation (“NGO”), contacted on behalf of the applicants the mentioned organisations in Bolzano, Bressanone, Bologna and Trieste in order to enquire whether the applicants could be accommodated there. The Swiss Refugee Council was however informed that none of the organisations would be able to accommodate the applicants as they firstly needed to have their official residence in that municipality and secondly there were no resources for a single mother with her child. As there were very long waiting lists, it was impossible to tell how long it would take to obtain a place. In addition, the fact that the applicants had been registered in Crotone made it even more difficult for them to relocate elsewhere despite the fact that the situation in Crotone was well-known for being inadequate for single mothers with children. It was also possible that the mother and the child would be separated since social services only had obligations towards the child but not towards the mother. 12. On 26 May 2014, the applicants submitted a letter written by the teacher of the second applicant about his integration in Switzerland. The applicants also repeated their complaints. 13. The relevant provisions of the Federal Asylum Act of 26 June 1998, as in force at the relevant time, read as follows: “... 2. The Federal Council shall identify states in which on the basis of its findings: a. States of origin or provenance which are safe, that is to say those in which the applicant runs no risk of persecution; b. safe third countries, that is to say those in which it considers that the principle of non-refoulement, within the meaning of section (5)(1), is actually observed. 3. It shall periodically review decisions made under paragraph 2. 1. If the asylum-seeker has arrived from a country where he or she does not run the risk of persecution within the meaning of section 6a(2)(a), the Office [the Federal Office for Migration, now the State Secretariat for Migration [Staatssekretariat für Migration]] shall not examine the application unless there are signs of persecution. 2. As a general rule, the Office shall not examine an asylum application where the asylum-seeker a. can return to a safe third country within the meaning of section 6a(2)(b) where he or she has resided previously; ...” 14. A detailed description of the asylum procedure and the legal framework and organisation of the reception system for asylum-seekers in Italy is also set out in the Grand Chamber judgment Tarakhel v. Switzerland (no. 29217/12, §§ 37-50, ECHR 2014 (extracts)). 15. By a letter of 9 January 2014, the co-Agent of the Italian Government submitted a message of 7 January 2014 of the Servizio centrale, the body running the SPRAR (Sistema di protezione per richiedenti asilo e rifugiati) network, stating that it had asked the municipality of Sezze to accommodate the applicants as a single-parent family in the appropriate structures put in place by the municipality. 16. By a letter of 27 January 2014, the co-Agent of the Italian Government submitted a note from the Ministry of the Interior and replied to the Acting President’s invitation to provide the Court with a letter from the NGO in question which confirms the availability of accommodation for the applicants. The co-Agent’s reply included the following: “It is clear from the aforementioned memorandum that the Ministry of the Interior, on the basis of its own requirements, may directly allocate places in favour of beneficiaries of international protection in the reception facilities that are part of the SPRAR network. Accordingly, the message of 7 January 2014 of the Servizio centrale, which is running the SPRAR network, constitutes in itself confirmation of the reservation in the reception project in favour of the applicant and her son, without further confirmation being necessary.” | 0 |
test | 001-142076 | ENG | UKR | CHAMBER | 2,014 | CASE OF DZHULAY v. UKRAINE | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 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);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 5. The applicant was born in 1979 and resides in Kyiv. 6. At 4.00 a.m. on 3 March 2003 M.’s house in the town of Pyryatyn (in the Poltava region) was burgled by several persons. M., his mother (M.S.), his wife (M.L.) and M.G. (M.L.’s niece) were in the house at the time. M. and M.S. sustained bodily injuries. Various items of property, including jewellery, were stolen. Criminal proceedings were instituted by the police on the same day. 7. On 24 April 2003 the applicant was arrested in Kyiv. According to the applicant, he was arrested while at home. According to official records, the applicant was arrested at 6.20 p.m. for swearing in public and behaving “with insolence” (викликаюче). 8. On 25 April 2003 the Kyiv Golosiyivskyy District Court imposed on the applicant fifteen days’ administrative arrest for disorderly conduct. 9. On 7 May 2003 the applicant was transported from Kyiv to the town of Pyryatyn (about 150 kilometres). On 8 May 2003 he confessed to the above-mentioned burglary. 10. On 9 May 2003 the applicant was formally arrested on suspicion of having committed a crime. 11. On 11 May 2003 a lawyer, Ma., allegedly hired by the applicant’s family, submitted a request to the investigation officer for permission to represent the applicant in the criminal case against him. The lawyer also noted that since investigative actions planned for that day had not taken place he had returned to Kyiv. On the same day, Ma. was given leave to represent the applicant. 12. On 12 May 2003 an identification parade took place in the presence of two attesting witnesses. The victims, M., M.L. and M.G., identified the applicant as the person who had been in their house on the night of 3 March 2003. Two more persons participated in the identification parade. Their description, according to the official records, was as follows: person no. 1: 1.81 metres tall, dark hair, brown eyes, wearing dark blue jeans, a grey T-shirt and trainers; person no. 2: 1.76 metres tall, dark blond hair, green eyes, wearing grey trousers, a grey T-shirt and trainers; person no. 3 (the applicant): 1.89 metres tall, dark blond hair, grey eyes, wearing dark blue sport pants, a T-shirt and trainers. 13. M.G. stated that she had recognised the applicant by his voice, height and body type. M. stated that he had recognised the applicant by his voice, and M.L. that she had recognised the applicant by his voice and body type. 14. The identification parade was carried out in the absence of the applicant’s lawyer. The police officer who conducted the parade informed his supervisor that the applicant’s lawyer was not able to attend as he was busy in another criminal case. The applicant was offered another lawyer but refused. The record of the identification parade was signed by all those present and it was noted that the parade’s participants had “no complaints”. 15. On 14 May 2003 a lawyer, S., was given leave to represent the applicant. She represented him until at least 18 August 2005. 16. On 9 November 2004 the Pyryatynskyy District Court sentenced the applicant to nine years’ imprisonment with confiscation of his property, and two of his accomplices (D. and Zh.) to terms of imprisonment and confiscation of their property for the burglary of M.’s house and the infliction of minor bodily injuries on M. and M.S. Two other persons involved in the crime (P. and L.) had not been found. The court also granted the victims’ civil claims. 17. In the course of the trial proceedings, the applicant pleaded innocent. His testimonies at the trial could be summarised as following. In March 2003 he had been asked to drive D. in exchange for payment. Zh. and My. had been with them. They had stopped near a building. Everybody except the applicant had left the car. The applicant stated that he had slept in the car for a night and a day. Then D., Zh. and two unknown persons had driven “to the garages”. Everybody had left and he had stayed in the car. The applicant did not know where they had gone i.e. he did not know about the burglary. The applicant further stated that he had pleaded guilty because the police officers had beaten him. 18. At his court hearing Zh. pleaded partially guilty and testified that the applicant had remained in the car while M.’s house was being burgled. D. pleaded partially guilty but did not say anything regarding the applicant’s involvement in the crime. 19. M. and M.L. testified that they had seen four or five persons break into the house that night. They had tied M.L. up and had taken money. M. had been severely beaten by D. The former recognised the applicant since the applicant had been very frightened and he remembered his eyes. It was noted in the court hearing record that M. said: “I saw [the applicant], he was trembling all over, he was so stressed, I saw his eyes. I cannot be mistaken”. The aggressors had worn masks but later removed them. All of them had been shorter than D. and the applicant, who were the tallest. M.L. testified that she had seen four persons and that M.S. had seen a fifth one, who had been in the corridor. 20. M.G. testified that the applicant had been very frightened and had been trembling all over. He had been similarly frightened during the identification parade. She also recognised him because of his height and voice. She remembered that he had asked her age and whether she was married. During the identification parade all three persons had said the same sentence and she had recognised the applicant. 21. The court found that on 3 March 2003 the applicant, D., Zh., P. and L. upon prior planning had broken into the house of M., had inflicted bodily injuries to M. and M.S., and robbed the M.’s family. In this finding, the court referred to various pieces of evidence, including the record of the reconstruction of events where Zh. explained how he, D., P., L. and the applicant had committed a robbery; the record of the identification parades in which M., M.G. and M.L. had recognised the applicant; and the conclusion of the forensic examination of tyre tracks found near M.’s house, which matched the applicant’s car. 22. In respect of the applicant’s punishment, the court noted that the applicant was young, had positive character traits, and it was the first crime he had committed; however, his guilt had been aggravated by the fact that he was transporting criminals to and from the place of the crime. 23. The applicant’s lawyer appealed against that decision. In her appeal she stated that the applicant had been ill-treated and had pleaded guilty under physical pressure. The applicant had been paid by D. to drive him and the others. As the applicant had been drunk, D. had driven the car himself. The applicant had remained in the car all the time. The applicant’s dog had also been in the car as the applicant had initially been taking him to an acquaintance to have him mated. Once there, he had been asked to drive D. The applicant’s lawyer also noted that during the investigation stage the victims had given contradictory statements as to whether they had seen their aggressors. Moreover, the identification parade had been carried out in the absence of a lawyer. 24. On 18 August 2005 the Poltava Regional Court of Appeal dismissed the appeal. The court held that the applicant’s guilt was confirmed by the testimony of D. and Zh. given during the pre-trial investigation in the presence of their lawyers. The court also noted that the applicant’s complaints of ill-treatment were unsubstantiated and that the separate ruling adopted on 9 November 2004 (see paragraph 36 below) had been quashed accordingly. 25. On 23 February 2006 the Supreme Court of Ukraine rejected the applicant’s appeal in cassation. The court noted that the applicant’s complaints of ill-treatment had been properly checked and dismissed as unsubstantiated. 26. The applicant stated that police officers had beaten him in Kyiv and on 7 May 2003 in Pyryatyn. They had hit him with a book on the head, punched him, threatened him with murder and rape, and put a gas mask over his face and blown cigarette smoke into it. After being severely beaten he had been forced to confess. 27. On an unspecified date the applicant made a complaint about this illtreatment. 28. The case-file materials contain references to an expert forensic medical examination performed on 12 September 2003 (the applicant stated that it was performed on 12 May 2003 following his complaint lodged on 9 May 2003). According to the references, the expert concluded that the applicant had minor bodily injuries which could have been caused by “items in his surroundings” (предмети оточуючої обстановки). However, the applicant stated that the expert had concluded that the injuries could not have been caused by “items in his surroundings”. Neither of the parties submitted a copy of the report in question. 29. On 29 October 2003 an investigative officer of the Pyryatynskyy District Prosecutor’s Office issued a decision refusing to institute criminal proceedings following the applicant’s complaints of ill-treatment. Several police officers had been questioned. They had testified that the applicant had confessed his guilt and that nobody had ill-treated him. The prosecutor also referred to the forensic medical examination report of 12 September 2003. 30. On 2 April 2004 that decision was quashed by another prosecutor of the same prosecutor’s office. It was noted that not all of the circumstances of the applicant’s complaint had been looked into. In particular, it should have been ascertained why the applicant had been arrested in Kyiv, and under what circumstances he had sustained the bodily injuries; his medical documents should have been studied and his complaints should have been carefully examined. 31. On 29 April 2004 the Pyryatynskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. The decision was similar to the one of 29 October 2003. 32. On 10 June 2004 the Pyryatynskyy District Court quashed that decision and ordered an additional investigation. The court specified that the investigation should ascertain the cause of the applicant’s injuries, whether he had had those injuries upon his arrival at the Pyryatynskyy Police Station, and which police officers had had contact with him. 33. On 16 July 2004 the Pyryatynskyy District Prosecutor’s Office again dismissed the applicant’s complaints. In its decision it noted that the applicant had been arrested in Kyiv on 9 May 2003. Upon his arrest and transfer to the Pyryatyn Temporary Detention Centre the applicant had not complained about any ill-treatment. The rest of the decision was similar to the one of 29 October 2003. 34. On 10 September 2004 the court quashed that decision and remitted the case for additional investigation. The court raised the same points as in its decision of 10 June 2004. 35. On 9 November 2004 the Pyryatynskyy District Prosecutor’s Office adopted another refusal to institute criminal proceedings which was identical to its previous decisions. In particular, it was noted that the applicant had been arrested in Kyiv on 9 May 2003. 36. On the same date, the Pyryatynskyy District Court adopted a separate ruling by which it requested the Poltava Regional Prosecutor’s Office to examine the applicant’s complaints of ill-treatment. The court stated that the applicant had been unlawfully transported from Kyiv to Pyryatyn and that, according to the forensic medical report, he had had three bruises on his chest from being punched. 37. On 20 May 2005 the Poltava Regional Court of Appeal adopted another separate ruling in which it requested the Poltava Regional Prosecutor’s Office to examine the applicant’s complaints of ill-treatment. The court noted that according to the conclusions of the forensic medical examination of the convicted persons, they had bodily injuries which could have been inflicted on the date and under the circumstances described by them. However, the court did not indicate whether the persons concerned included the applicant. The court also noted that the applicant had made a note on the decision ordering his arrest of 9 May 2003 that he had been illtreated on 7 May 2003. The court further noted that on 11 June 2003 the applicant had complained about ill-treatment, but the case-file contained no response to that complaint. 38. On 31 May 2005 the Poltava Regional Prosecutor’s Office quashed the decision of 9 November 2004 not to institute criminal proceedings and remitted the case for additional investigation. On the same date it requested the Kyiv City Prosecutor’s Office to ascertain the following: - which police officers had arrested the convicted persons and on what grounds; - who had conducted the “pre-investigation” activities (дослідчі дії) in respect of the applicant and prepared the relevant procedural documents; - who had picked up and transported the convicted persons from the Golosiyivskyy Police Station to the Pyryatynskyy Police Station; - whether the convicted persons had had bodily injuries upon their arrival at the Pyryatynskyy Police Station. It further requested the Kyiv City Prosecutor’s Office to question the personnel of the Golosiyivskyy Police Station. 39. A decision not to institute criminal proceedings was adopted on 15 June 2005. It was similar to the one of 29 October 2003. It was noted that the applicant had been arrested in Kyiv on 9 May 2003. The police officers of the Pyryatyn Police Station had testified that the applicant had not been ill-treated but had confessed on his own free will. According to the forensic medical report of 12 September 2003, the applicant had had minor bodily injuries which could have been caused by “items in his surroundings”. Scratches on his wrists had been caused by handcuffs. 40. On 18 August 2005 the Poltava Regional Court of Appeal quashed the separate ruling of 9 November 2004. | 1 |
test | 001-178868 | ENG | RUS | COMMITTEE | 2,017 | CASE OF GORBUNOVY AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | 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 domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties. | 1 |
test | 001-177673 | ENG | BIH | COMMITTEE | 2,017 | CASE OF KAHRIMAN v. BOSNIA AND HERZEGOVINA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Carlo Ranzoni | 4. The applicant was born in 1935 and lives in the United States. 5. On 18 August 2003 the applicant initiated civil proceedings against private persons concerning some contracts. On 6 June 2007 the Bijeljina Court of First Instance rendered a judgment. On 10 April 2009 the Bijeljina District Court quashed the first-instance judgment and remitted the case to the first-instance court for a retrial. On 19 May 2011 the Bijeljina Court of First Instance rendered a new judgment. That judgment was amended by the Bijeljina District Court on 23 September 2011 and by the Supreme Court of the Republika Srpska on 16 August 2012. 6. The applicant introduced a claim before the Constitutional Court, alleging that the above proceedings had been excessively long and requesting a financial compensation. On 17 June 2015 the Constitutional Court of Bosnia and Herzegovina found a breach of the applicant’s right to a trial within a reasonable time. It did not award any damages. | 1 |
test | 001-153025 | ENG | TUR | CHAMBER | 2,015 | CASE OF SÜLEYMAN DEMİR AND HASAN DEMİR v. TURKEY | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens | 5. The applicants were born in 1951 and 1973 respectively and live in Hakkari. The first applicant is the father of the second applicant. 6. İ.D., a non-commissioned officer, telephoned the second applicant and asked him to tell his father, the first applicant, to go to the Çukurca Gendarmerie Station. At around 5 p.m. on 17 July 2007 the first applicant, accompanied by the second applicant, went to the gendarmerie station. On their arrival the second applicant waited at the entrance to the station and the first applicant was taken into Major M.C.’s office, where he was subjected to ill-treatment by M.C. and İ.D. who was also an officer at the same station. The two officers accused the first applicant of providing support to the PKK (Kurdistan Workers’ Party, an illegal armed organisation), and of making propaganda for a political party, the DTP (Democratic Society Party). Using box tape, officers M.C. and İ.D. attached a hand grenade to the first applicant’s face. An object was forcefully put into his nose and mouth, and he was threatened that his eyes would be gouged out. He was also repeatedly hit with an object on the left side of his face and on his chest. The ill-treatment and accusations continued for approximately one hour with accompanying threats to kill him and his family members. 7. After his release the first applicant and his son returned to their home in their village and later the same day the first applicant went to a hospital in the nearby town of Çukurca where he was examined and a report was drawn up setting out his injuries. 8. On 17 July 2007 the first applicant went to the Çukurca Gendarmerie Station following the request of Major M.C. He was not, however, subjected to ill-treatment. 9. On 18 July 2007 the first applicant filed a criminal complaint with the local prosecutor, alleging that he had been beaten and threatened at the Çukurca Gendarmerie Station. 10. Subsequently, criminal proceedings were brought against the officers İ.D. and M.C. and those proceedings are still pending. 11. The following information appears from the documents submitted by the parties. 12. According to a medical report issued at Çukurca Hospital at 7.30 p.m. on 17 July 2007, there was an ecchymosed swelling and two blood-clotted small lacerations on the left side of the first applicant’s face. The report also mentioned a restriction in the movement of his arms and chest pain. After his examination at the hospital the first applicant was transferred to the Hakkari State Hospital where he was examined once more and subsequently discharged. 13. On 18 July 2007 the first applicant made a formal complaint to the Hakkari prosecutor’s office against the military officers İ.D. and M.C. for having subjected him to ill-treatment, insults and intimidation. On the same day his statement was taken by the prosecutor. 14. Subsequently the applicant was referred to the Forensic Medicine Institute’s Hakkari branch for a medical examination. On 27 July 2007 the Institute reported that the applicant had ecchymosed swelling on his left cheekbone and restriction and pain on the movement of his left arm and shoulder. 15. On 27 July 2007 the Hakkari prosecutor decided that he did not have jurisdiction ratione loci to examine the complaint and referred the file to the Çukurca prosecutor. 16. On 1 August 2007 the Çukurca prosecutor decided that he also did not have the requisite jurisdiction, and referred the case file to the prosecutor’s officer at the Van Military Criminal Court. 17. On 1 November 2007 the Van military prosecutor and a military officer took statements from İ.D. and witness statements from a number of other military officers who worked at the same military station. In his statement İ.D. denied the charges against him. He also mentioned that the first applicant had been invited to the gendarmerie station to be warned not to threaten individuals in order to influence their votes in the forthcoming elections. All officers who testified as witnesses stated that they had not seen the alleged ill-treatment or any physical signs of it on the applicants. One of the officers, T.P., also testified that M.C. had ordered him to leave his door slightly ajar during the meeting because he had thought that the first applicant might subsequently make false accusations against him. 18. On 5 September 2008 the Van military prosecutor decided not to open an investigation into the first applicant’s allegations. On 23 September 2008 the first applicant lodged an objection against that decision. 19. On 10 December 2008 a statement was taken from M.C. by the military prosecutor. M.C. stated that he had invited the first applicant to the gendarmerie station and talked to him for about thirty minutes; he had not subjected him to any ill-treatment. 20. Having examined the first applicant’s objection, the Ağrı Military Court decided on 14 August 2009 that the witness statements of the military officers revealing the facts of the incident contained fundamental inconsistencies which cast doubt on their reliability. It therefore quashed the Van military prosecutor’s decision and ordered that criminal proceedings be brought against the two military officers. 21. In accordance with that decision, on 31 August 2009 criminal proceedings were instigated before the Van Military Court against İ.D. and M.C. for the offence of wilful injury and intimidation by an agent of the State, contrary to sections 86 and 106 of the Criminal Code. 22. On 11 February 2010 the second applicant was heard as a witness before the Van Military Court, and stated the following: “(...) on the day of the incident we received a telephone call at our house. The caller asked me and my father to go to the military quarters before the evening. Then I found my father and at around 5 p.m. we went to the military quarters (...) there was a checkpoint on the road, we passed the checkpoint and after approximately 100 metres we arrived at the main entrance (...) I stayed at the main entrance, they took my father in, he walked to the military quarters which was 50-60 metres ahead. Approximately an hour later they brought my father back, he was not able to walk [unaided]. I held him by his arms and took him to the checkpoint where I phoned F.D. [who works as] a village guard [in our village]. He came to the checkpoint with his car [and] we took my father to the village in [his] car. (...) My father’s state [of health] was not good (...) so we put him in the car owned by K.D., [who is] the headman [of our village]. We passed through the road checkpoint again and went to the Çukurca Hospital. (...) When we were leaving, my father’s face was covered with blood; he was not able to walk without support. By the time we got to the checkpoint I had cleaned his face.” 23. Taking the second applicant’s statement into account, the court summoned and heard the village guard F.D. and headman K.D. as witnesses. F.D. stated the following: “(...) The [applicants] were near the civilian parking area outside the entrance [of the gendarmerie station]. When I saw them, I went closer to them. There was blood on the face and mouth of Süleyman Demir. His shirt was covered with blood, and also there were bruises and swelling on his eyes, lips and face; he looked like he had been beaten up.” K.D. stated the following: “(...) When I went to their house Süleyman Demir told me that he had been beaten up by the Köprülü brigade commander Major M. and that he had been feeling sick. (...) However, I did not see any signs of battery and his clothes were normal.” 24. On 26 August 2010 a medical expert from the Van State Hospital was summoned before the Van Military Court in order to determine whether the first applicant’s injuries could have been caused as a result of illtreatment. Having examined the medical reports, the expert stated that it was not possible to establish the cause of the injuries. 25. On 4 November 2010 the Van Military Court decided that it did not have jurisdiction ratione materiae to try the case, and forwarded the case file to the Çukurca Criminal Court of First Instance. 26. On 20 April 2011 the Military Supreme Court approved the decision of lack of jurisdiction. 27. On 16 June 2011 a criminal case was lodged before the Çukurca Criminal Court of First Instance against İ.D. and M.C. for simple injury and intimidation. 28. On 21 November 2012 the Çukurca Criminal Court of First Instance decided that it did not have jurisdiction to try the case either and forwarded the case file to the Çukurca Magistrates’ Court’s Criminal Division. According to the information provided by the parties, the proceedings are still pending before Çukurca Magistrates’ Court Criminal Division. | 1 |
test | 001-183119 | ENG | ALB | CHAMBER | 2,018 | CASE OF MUCA v. ALBANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström | 6. The applicant was born in 1970 and lives in Tirana. 7. On an unspecified date criminal proceedings were brought against the applicant and two other co-accused on account of premeditated murder. The applicant was subsequently arrested by the authorities. 8. On 21 July 1998 the applicant addressed a letter (kërkesë) to the Kavaja District Court (“the District Court”) and the Kavaja district prosecutor (“the district prosecutor”), stating that he had engaged A., a lawyer, to represent him before the district prosecutor during the investigation and during the trial proceedings. It appears that the applicant wrote this letter while he was in detention. 9. On 1 November 1999 the District Court found the applicant not guilty and ordered his release. He had attended the trial and had been defended by A., his chosen lawyer. The two other co-accused were convicted and sentenced. 10. On an unspecified date the two other co-accused and the prosecutor appealed against the District Court’s decision of 1 November 1999. 11. On an unspecified date the applicant left Albania. It appears that the applicant was not informed of the appeals of the two other co-accused and the prosecutor, but apparently A. was so informed. 12. On 28 February 2000 the Durrës Court of Appeal (“the Court of Appeal”) quashed the District Court’s decision and remitted the case for reexamination. The applicant was represented by A. in his absence. 13. On 21 April 2000 the Supreme Court rejected the applicant’s appeal lodged by A. against the Durrës Court of Appeal decision of 28 February 2000. 14. On 26 December 2000, during the retrial proceedings, the District Court convicted the applicant in absentia of premeditated murder and sentenced him to twenty-three years’ imprisonment. The applicant was represented by lawyer A. (see paragraph 9), the decision stating that A. had been appointed by the court. The two other co-accused appealed. 15. On 10 September 2001 and 14 December 2001 the Court of Appeal and the Supreme Court, respectively, upheld the decision of 26 December 2000. The applicant had been represented in those proceedings by a new, court-appointed lawyer. 16. On 14 April 2004 the applicant’s mother hired another lawyer, K., to make an application for review. It appears from the Supreme Court’s decision of 9 July 2010 (see paragraph 18 below) and the Constitutional Court’s decision of 25 February 2011 (see paragraph 21 below) that an application for review was rejected by the Supreme Court. There is no copy of the said Supreme Court decision in the case file. 17. On 8 July 2005 the applicant was informed of his conviction in absentia by his family members. He lodged an application for leave to appeal out of time against the decision of 26 December 2000, arguing that he had never been informed of his conviction in absentia as he had been living abroad. The applicant was represented by K. as his counsel. 18. On 4 November 2005, 29 September 2006 and 9 July 2010 respectively, the District Court and the Court of Appeal dismissed, and the Supreme Court rejected, his application. The domestic courts held that the applicant should have known of the proceedings as he had been represented by a lawyer of his own choosing, A., who had been informed of the prosecutor’s appeal, and as his mother had appointed a lawyer to make an application for review. They also held that the case had already been examined at all instances and that their decisions were still in effect. 19. Judge A.H., who had been a member of the District Court’s bench that had delivered the judgment of 26 December 2000, also sat in the District Court’s bench of 4 November 2005 that dismissed the applicant’s application. Judges V.C. and Sh.M., who had been members of the Court of Appeal’s bench that on 10 September 2001 had upheld the decision of 26 December 2000, also sat in the Court of Appeal’s bench that dismissed his appeal on 29 September 2006. 20. On an unspecified date the applicant, represented by his lawyer, lodged a constitutional complaint in respect of the alleged unfairness of the proceedings in absentia and the lack of impartiality of the District Court and the Court of Appeal. 21. On 16 March 2011 the applicant’s lawyer was informed of the Constitutional Court’s decision of 25 February 2011 to dismiss the applicant’s constitutional appeal. The Constitutional Court, noting that A. and the applicant’s mother had had knowledge of the trial proceedings, stated that there had been no exceptional circumstances which had prevented the applicant from attending the proceedings in person. It did not examine the applicant’s claim about the impartiality of the District Court and the Court of Appeal | 1 |
test | 001-155654 | ENG | ESP | ADMISSIBILITY | 2,015 | SOBERANÍA DE LA RAZÓN AND OTHERS v. SPAIN | 4 | Inadmissible | Branko Lubarda;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The first applicant, Soberanía de la Razón, is a Spanish political party registered with the Ministry of Internal Affairs in September 2011. The second and the third applicants, Ms. Encarnación Martínez Segado and Mr. José Luis Mazón Costa, are Spanish nationals who stood as two of the first applicant’s candidates for the 2011 elections to the Congress of Deputies. The applicants are represented before the Court by the third applicant, Mr. J. L. Mazón Costa, a lawyer in Murcia. A list of the applicants is set out in the appendix. 2. 3. The procedure to present candidates in general elections was regulated by Organic Law no. 5/1985 of 19 June 1985 of the General Electoral Provisions Implementing Act (hereinafter, the Electoral Act). Section 169 (3) of the Electoral Act provided that political parties which were not represented either in the Congress of Deputies or in the Senate must receive the supporting signatures of at least 0.1% of those registered to vote in the constituency. Voters were only allowed to register support for one candidate. The aforementioned requirement had been introduced by the Electoral Act by Organic Law 2/2011 of 28 January 2011 that entered into force on 30 January 2011. 4. On 15 September 2011 the Central Electoral Commission issued Order 7/2011, section 5 of which provided that the period to collect the signatures started running from the date on which the elections were announced. 5. On 27 September 2011 the Royal Decree 1329/2011 of 26 September ordered elections to the Congress of Deputies and the Senate for 20 November 2011. 6. On 12 October 2011 the first applicant announced before the Murcia Electoral Commission its intention to stand for elections for the Congress of Deputies for the Murcia constituency. The first applicant submitted a list of ten candidates, among them the second and the third applicants. The first applicant did not submit the supporting signatures, for it considered that the new requirements under the abovementioned electoral provisions violated its fundamental rights. 7. On 21 October 2011 the Murcia Electoral Commission instructed the first applicant to submit the supporting signatures as provided by section 169 (3) of the Electoral Act. The first applicant did not comply with the instruction. 8. On 24 October 2011 the Murcia Electoral Commission rejected the first applicant’s list by reference to section 169 (3) of the Electoral Act. The three applicants brought judicial administrative proceedings (procedimiento contencioso administrativo) against that decision. 9. On 26 October 2011 the Murcia administrative judge (juez de lo contencioso-administrativo) no. 7 upheld the Electoral Commission’s decision on the ground that the applicants had failed to fulfil the requirements of section 169 (3) of the Electoral Act. He further found that the Order 7/2011 was according to law, in that it had been issued by a competent body and established a procedure that could be considered reasonable to serve the purposes of section 169 (3) of the Electoral Act. 10. On 27 October 2011 the applicants lodged an amparo appeal with the Constitutional Court. They complained that the restrictions under section 169 (3) of the Electoral Act and section 5 of the Order 7/2011 amounted to a violation of their rights to free elections and of the prohibition of discrimination. They also complained that they could have started collecting signatures only on the date when the elections were announced, giving them only twenty days to fulfil the obligation. They had not done so as they considered this period insufficient. They invoked section 14 (equality before the law), section 16 (freedom of ideology), section 18 (right to personal privacy), section 22 (1) (right of association) and section 23 (1) (2) (right to participate in public affairs and right of access to public office on equal terms) of the Spanish Constitution. 11. The Constitutional Court’s decision (auto) of 3 November 2011 declared the applicants’ appeal inadmissible for lack of a violation of a fundamental right. It relied on the reasoning of its previous judgment of 2 November 2011 in an analogous case. The Constitutional Court found that the obligation to collect a minimum number of supporting signatures constituted a legitimate limitation on the right to present candidates in elections guaranteed by section 23 (2) of the Spanish Constitution. It served the purpose of rationalisation and optimisation of the electoral process. The Constitutional Court pointed out that the proper functioning of the electoral process might be adversely affected by an excessive proliferation of candidatures without a minimum of support. In particular, the limitation was aimed at optimising the allocation of public resources to organise the electoral process. Lastly, it served the aim of avoiding the dispersion of votes and could help sufficiently representative currents of thought reach the threshold for parliamentary representation. 12. The Constitutional Court also underlined that the obligation to collect a specific number of supporting signatures was a common practice in the European countries and within the Spanish electoral system. Section 220 (3) (4) of the Electoral Act required parties, federations, coalitions and groups of voters wishing to present candidates in elections to the European Parliament to obtain either 15,000 supporting signatures of voters or 50 supporting signatures of elected representatives. Furthermore, section 169 (3) of the Electoral Act imposed analogous requirements on groups of voters wishing to present candidates in elections to the Congress of Deputies and the Senate, those groups of voters being obliged to receive the supporting signatures of at least 1% of those registered to vote in the constituency. As regards the latter, the Constitutional Court recalled that in the case Serqueda v. Spain, 9 May 1994, no. 23151/94 the Commission had considered that that restriction was not contrary to the Convention. 13. The Constitutional Court added that, in view of the minimum number of signatures requested in the aforementioned cases, the percentage of 0.1% under section 169 (3) of the Electoral Act must be considered proportionate. 14. As regards the applicants’ complaint of discriminatory treatment, the Constitutional Court noticed that the obligation was indeed imposed only on non-represented parties. However, such a difference of treatment had an objective and reasonable justification, since non-represented parties ought to demonstrate a minimum of support that could be presumed in the case of represented parties. 15. As regards the time-limit to collect the signatures, the Constitutional Court recalled the findings of its judgment of 2 November 2011. The Constitutional Court noticed that the time-limit could be insufficient under certain special circumstances, which were not present in the instant case. Consequently, in general terms, the time-limit was proportionate in the light of the legitimate aim pursued by section 169 (3) of the Electoral Act as well as of the number of signatures required. 16. The relevant provisions of the Spanish Constitution read as follows: “Spaniards are equal before the law and may not in any way be discriminated against on account of birth, race, sex, religion, opinion or any other personal or social condition or circumstance.” “1. Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage. 2. They likewise have the right to access on equal terms to public office, in accordance with the requirements to be provided by law.” 17. The relevant Spanish electoral law provides as follows: “1. The Electoral Commission is competent for all matters foreseen in Title I, Chapter VI, Section II of the present law concerning the presentation and designation of candidates for the general elections to the Congress of Deputies and to the Senate. 2. A list of candidates shall be presented in order to stand for elections. 3. Groups of voters wishing to present candidates in the elections must receive the supporting signatures of at least 1% of those registered to vote in the constituency. Parties, federations or coalitions that were not represented either in the Congress of Deputies or in the Senate must receive the supporting signatures of at least 0.1% of those registered to vote in the constituency. Voters are only allowed to register support for one candidate.” 18. The obligation to collect a specific number of signatures for those parties which were not represented either in the Congress of Deputies or in the Senate was firstly introduced by the Organic Law 2/2011 of 28 January 2011, which entered into forced on 30 January 2011. (...) “2. In every electoral process, the period to collect the supporting signatures shall start running after the publication of the order determining the date on which the elections will take place (...).” “I. Principles of Europe’s electoral heritage (...) 1.3. Submission of candidatures i. The presentation of individual candidates or lists of candidates may be made conditional on the collection of a minimum number of signatures. ii. The law should not require collection of the signatures of more than 1% of voters in the constituency concerned. iii. Checking of signatures must be governed by clear rules, particularly concerning deadlines. iv. The checking process must in principle cover all signatures; however, once it has been established beyond doubt that the requisite number of signatures has been collected; the remaining signatures need not be checked. v. Validation of signatures must be completed by the start of the election campaign.” “I. The underlying principles of Europe’s electoral heritage (...) 1. Universal suffrage (...) 1.3. Submission of candidatures 8. The obligation to collect a specific number of signatures in order to be able to stand is theoretically compatible with the principle of universal suffrage. In practice, only the most marginal parties seem to have any difficulty gathering the requisite number of signatures, provided that the rules on signatures are not used to bar candidates from standing for office. In order to prevent such manipulation, it is preferable for the law to set a maximum 1% signature requirement.” | 0 |
test | 001-157420 | ENG | RUS | ADMISSIBILITY | 2,015 | SHOVGUROV v. RUSSIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 1. The applicant, Mr Ochir Danilovich Shovgurov, is a Russian national, who was born in 1956 and lives in the town of Elista, the Republic of Kalmykia. 2. 3. The applicant’s son, O. Sh., was born on 23 February 1987. 4. Between 13 and 27 June 1988 O. Sh. was placed in the Republican Children’s Hospital with the diagnosis “acute respiratory disease, first degree stenosis and lacunar tonsillitis”. Treatment was administered to him in intramuscular injections by reusable syringes, as a result of which, along with other children, he was infected with HIV. 5. The applicant’s son was first diagnosed with HIV in March 1989 at the Infectious Diseases Hospital no. 2 of Moscow. 6. In September 1991 O. Sh. was examined by Dr J. A., professor of allergology and immunology, and Dr M. M., professor of neurology, in New York. They confirmed the diagnosis. 7. On 13 July 1998 O. Sh. was placed in the Republican Centre for the Treatment of AIDS (ЛДО «РЦ СПИД»), where on 9 August 1998 he died. According to the postmortem diagnosis, the applicant’s son suffered from HIV and a number of accompanying diseases. 8. On 25 January 1989 criminal proceedings were instituted into mass infection with HIV in the Republican Children’s Hospital. 9. On 1 November 1990 the investigation was suspended due to the failure to identify the culprits. 10. On 9 July 1992 the Deputy Prosecutor General set aside the decision to suspend the investigation. 11. On 15 November 1992 the investigation was reopened. 12. On 15 December 1992 the investigation was suspended due to the failure to identify the culprits. 13. On 11 August 1994 the investigating authorities ordered a forensic expert examination. The following questions were put to the expert: “1. What is the nature of HIV transmission by medical instruments? 2. Was HIV transmission by medical instruments possible in the Republican Children’s Hospital and the Republican Children’s Infectious Diseases Hospital? 2.1 Did the children concerned stay together in the same ward (department, unit or block) and, if so, for how long? 2.2 Were the same medical solutions administered to the children placed together at the same time by the same medical staff? If so, how many times? 2.3 In what cases is the possibility of HIV transmission by medical instruments ruled out? 3. Is the infection through blood and its products ruled out? 3.1 How many children received donor blood, how often and in what quantities? 3.2 How many donors are subject to examination? 4. Is the intrauterine infection ruled out? 5. Is the HIV infection through breastfeeding ruled out?” 14. Expert K. stated in his report that the forensic examination was focused on the HIV transmission by syringes used in the hospitals as the healthcare authorities had recognised it as the only plausible version of the HIV infection in the hospitals in the south of Russia. In the subsequent analysis he made references to medical doctrinal works on HIV transmission. 15. The analysis was based on the fact that the children, subsequently diagnosed as HIV positive, had been placed together in in-patient departments attached to one treatment unit. Expert K. further proceeded with (i) identification of the possible source of the infection, i.e. of the child infected before his placement in the nidus of infection (see paragraph 17 below); (ii) differentiation of medical manipulations according to the degree of the risk of infection with HIV (high, medium and low degree of risk); (iii) establishing situations where the same member of the hospital staff made injections of the same medicine at the same time, which raised the likelihood of the same needles having been used, and (iv) establishing the sequence of the manipulations: first with the source of the infection (a child that had been infected prior to his/her placement in the hospital) and then with other patients. Expert K. specifically noted that, although it was not difficult to establish that the same member of the hospital staff made injections of the same medicine, it was almost impossible to establish that the same needles and syringes had been used. Therefore, any conclusion as to the possibility of the infection transmission in a given situation would always be relative and based on probability. 16. Proceeding from the premise that simultaneous placement of children subsequently diagnosed as HIV positive in the same ward was a precondition for the infection transmission, expert K. proposed the following gradation of probability for the assessment of the factual material: - the transmission was probable if there had been a source of the infection, i.e. a child infected prior to his/her placement in the ward, and the same medicines had been administered by the same member of the hospital staff with the use of manipulations involving high degree of risk of transmission; - the transmission was unlikely if the same medicines had been administered by different members of the hospital staff with the use of manipulations involving medium and low degree of risk of transmission, even if the infected child had been present in the ward; - the transmission was impossible if no medicines had been administered and no manipulations had been carried out at the same time. 17. Expert K. examined 293 medical files. All instances where the children, subsequently diagnosed as HIV positive, had been placed in hospitals of the Republic of Kalmykia in the period between January 1988 and August 1989 were identified. All situations where HIV infected children had been placed in a hospital simultaneously were also identified. Such instances were analysed and referred to as niduses of infection. All possible sources of infection were established. 18. Each instance was analysed on the basis of the criteria stated above. On this basis a conclusion as to the probability of infection in the given instance was made, i.e. whether it was probable, unlikely or impossible. 19. All the material was subject to computer analysis. On this basis three databases were created: (i) information on HIV infected children; (ii) information on placement in a hospital of HIV infected children in 198889; and (iii) information on medical manipulations with respect to HIV infected children while they had been simultaneously placed in hospitals of the Republic of Kalmykia. 20. The expert’s research showed that seventy-six children, subsequently diagnosed as HIV positive, were placed for treatment in six children’s hospitals in Kalmykia between January 1988 and August 1989. Instances where such children were placed for treatment at the same time were distributed among the six hospitals as follows: 340 instances in the Republican Children’s Hospital, fifty-six instances in the Republican Children’s Infectious Diseases Hospital, eight instances in the Yashkul District Central Hospital, four instances in the Priozersk District Central Hospital, two instances in the Iki-Burulsk District Central Hospital and one instance in the Kaspiysk District Central Hospital. 21. The analysis of the medical documents showed that the formation of the niduses of infection had been initially connected with almost simultaneous placement in the infant department of the Republican Children’s Hospital of several babies born from HIV positive mothers, who had become the source of infection for other children. The further spread of the infection was connected with the children infected in the infant or other departments of the Republican Children’s Hospital and in some cases had a chain effect. 22. HIV transmission could only have taken place through the use of medical instruments in breach of the applicable rules if the same syringes and needles had been used consecutively in respect of several children placed in the same ward. However, no indication of such breaches could be found in the medical documents. 23. The overall conclusions of the report were the following: (i) In Elista, the Republic of Kalmykia, there was an outbreak of HIV infection of children, which began in May 1988 and ended in November 1988, as a result of which seventy-six children were diagnosed as HIV positive. (ii) The probability of HIV transmission through the use of medical instruments existed in two Elista hospitals: Republican Children’s Hospital and the Republican Children’s Infectious Diseases Hospital. 24. On 21 February 1996 the criminal proceedings were terminated under Article 5 § 1 and Article 208 of the RSFSR Code of Criminal Procedure on the ground that there was no indication of a criminal offence. 25. On 28 June 2001 the decision of 21 February 1996 was set aside, and on the same date the criminal proceedings were terminated on the ground of expiry of the statutory time-limit. 26. In September 2011 the applicant along with the parents of a number of other children infected with HIV in similar circumstances filed a complaint on the ground that they had not been granted victim status in the proceedings. 27. On 19 September 2011 the decision of 28 June 2001 was set aside and the investigation was reopened for one month. 28. On 17 October 2011 the applicant was granted victim status in the proceedings. 29. On 20 October 2011 the criminal proceedings were terminated on the ground of expiry of the statutory time-limit. According to the decision, it was established that seventy-six children had been infected with HIV while they had been undergoing in-patient treatment in the Republican Children’s Hospital and the Infectious Diseases Hospital of Elista in 1988-89. In the course of the investigation it appeared impossible to identify the hospital staff responsible for the negligence which had resulted in the spread of the infection. However, all the children infected and their parents were identified and granted victim status in the criminal proceedings. 30. The decision further stated that the offences in question were qualified as negligence under Article 293 of the Criminal Code, breach of sanitary-hygienic rules leading to mass infection or death under Article 236 §§ 1 and 2 of the Criminal Code, and infection with HIV under Article 122 § 4 of the Criminal Code. Under Articles 15 § 3 and 78 § 1 (b) of the Criminal Code the statute of limitations for these offences was six years. As more than six years had lapsed since the events in question, the criminal proceedings were discontinued under Article 24 § 3 (1) of the Criminal Code. 31. In 2011 the applicant, together with seven other persons, including his wife, Ms Shovgurova, instituted proceedings against the Republican Children’s Hospital for compensation of non-pecuniary damage caused by their children’s infection with HIV, which led to the latters’ death. The applicant and his wife sought 5,000,000 Russian roubles (RUB). 32. On 9 November 2011 the Elista Town Court partially granted the claim. The court noted that, according to the report of the forensic expert examination conducted within the criminal proceedings, there had been an outbreak of HIV infection of children in Elista, which had begun in May 1988 and had ended in November 1988, as a result of which seventysix children had been diagnosed as HIV positive. The probability of HIV transmission through the use of medical instruments existed in two Elista hospitals: Republican Children’s Hospital and the Republican Children’s Infectious Diseases Hospital. The eight plaintiffs’ children were placed for in-patient treatment in the Republican Children’s Hospital in the period concerned. Subsequently they were diagnosed as HIV positive. The court therefore found it established that their children had been infected with HIV in the Republican Children’s Hospital, which led to their death. 33. The court further noted that although the criminal investigation had been terminated on 20 October 2011 on account of expiry of the statutory time-limits, the fact that particular culprits had not been established did not deprive the plaintiffs, who had been granted victim status in the criminal proceedings, of the possibility to claim compensation for damage caused by their children’s having been infected with HIV in the Republican Children’s Hospital. 34. Having regard to Articles 444 and 445 of the Civil Code of the RSFSR, Article 131 of the Fundamentals of the Civil Legislation of the USSR and the Republics and Articles 151, 1064 and 1068 of the Civil Code of the Russian Federation, the court awarded each plaintiff RUB 100,000. 35. The plaintiffs and the defendants appealed. 36. On 15 December 2011 the Supreme Court of Kalmykia reviewed the Elista Town Court’s judgment. It upheld the findings of fact to the effect that the plaintiffs’ children had been infected with HIV in the Republican Children’s Hospital. The appellate court further dismissed the defendant’s arguments that the decision to award compensation had not been based on the law in force at the relevant time. It noted that Article 57 of the Constitution of the USSR and Article 63 of the Constitution of the RSFSR, in force at the time when the plaintiffs’ children had been infected with HIV, provided for judicial protection from encroachment upon life and health. Article 52 of the Constitution of the Russian Federation likewise provided for access to justice and the right to compensation for victims of crimes. The appellate court further noted that Article 24 of the Fundamentals of the Criminal Procedure of the USSR and the Republics and Article 53 of the Code of Criminal Procedure of the RSFSR, in force at the material time, as well as Article 42 of the Code of Criminal Procedure of the Russian Federation provided that a person who had sustained physical, pecuniary or non-pecuniary damage as a result of a crime should be recognised as a victim. 37. Having regard to Article 88 of the Fundamentals of the Civil Legislation of the USSR and the Republics, Article 444 of the Civil Code of the RSFSR and Articles 151, 1068 and 1101 of the Civil Code of the Russian Federation, the Supreme Court of Kalmykia altered the lower court’s decision in the part concerning the amount of the compensation and awarded each plaintiff RUB 300,000 (approximately 7,245 euros). 38. The applicant’s further requests for review of the judgment were refused on 11 July 2012 and 16 August 2012. 39. Article 57 of the Constitution of the USSR, in force until 26 December 1991 and Article 63 of the Constitution of the RSFSR, in force until 12 December 1993, provided for judicial protection of rights and freedoms. Article 52 of the Constitution of the Russian Federation, in force after 12 December 1993, provides that rights of victims of crimes and of abuse of power are protected by the law. The State shall provide the victims with access to justice and compensation for the damage caused. 40. Under Article 24 of the 1958 Fundamentals of the Criminal Procedure, in force until 1 July 2002, a victim was a person who had suffered moral, physical or pecuniary damage as a result of a crime. 41. The 1960 Code of Criminal Procedure of the RSFSR, in force until 1 January 2003, provided that criminal proceedings could not be opened and pending criminal proceedings should be terminated where there was no indication of a crime (Article 5 § 1). A criminal case should be closed on the grounds provided in Articles 5-9 (Article 208 § 1). A victim was a person who had suffered moral, physical or pecuniary damage (Article 53). 42. The 2001 Code of Criminal Procedure of the Russian Federation, in force after 1 January 2003, provides that criminal proceedings should be terminated if the statutory time-limit has expired (Article 24 § 3 (1)). The Code defines a “victim” as a person who has sustained physical, pecuniary or non-pecuniary damage as a result of a crime. The decision to recognise an individual as a “victim” must be taken by the examiner, investigator, prosecutor or court (Article 42). 43. The 1996 Criminal Code of the Russian Federation, in force after 1 January 1997, provides the following statute of limitations: two years in respect of a minor offence, six years in respect of an offence of medium gravity, ten years in respect of a grave offence and fifteen years in respect of a particularly grave offence (Article 78 § 1). Prior to amendments introduced to the Code by Federal Law no. 420-FZ of 7 December 2011, infection with HIV as a result of undue performance of one’s professional duties constituted an offence of medium gravity (Articles 15 § 4 and 122 § 4); a breach of sanitary-hygienic rules leading to mass infection constituted a minor offence (Articles 15 § 4 and 236 § 1); and negligence consisting of undue performance by an official of his/her functions as a result of improper or careless attitude to his/her work, which led to death of two and more persons constituted a grave offence (Articles 15 § 4 and 293 § 3, the latter Article introduced by the Federal Law no. 162-FZ of 8 December 2003). 44. Under Articles 444 and 445 of the 1964 Civil Code of the RSFSR, in force until 1 March 1996, damage caused to a person, a person’s property or an organisation should be compensated for in full by the person who inflicted the damage. An organisation was responsible for compensation of damage caused by its employees in the course of carrying out their work duties. 45. Under Article 131 of the 1991 Fundamentals of the Civil Legislation, in force between 3 August 1992 and 1 January 1995, damage, including physical and mental suffering, caused to a person by unlawful actions should be compensated by the person who inflicted the damage provided it had been caused through his/her fault. 46. The 1994 Civil Code of the Russian Federation, in force after 1 January 1995, provides that a court may order compensation of non-pecuniary damage, including physical and mental suffering, caused to a person to be paid by the person who inflicted it (Article 151). The damage is to be compensated in full (Article 1064 § 1). A juridical or natural person shall compensate damage caused by its/his/her employee in the course of carrying out work duties (Article 1068 § 1). 47. Article 28 of the 1969 United Nations Convention on the Law of Treaties (Vienna Convention) provides: “Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.” | 0 |
test | 001-159212 | ENG | UKR | CHAMBER | 2,015 | CASE OF SOBKO v. UKRAINE | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary | 5. The applicant was born in 1981. He is currently serving a prison sentence. 6. On the morning of 3 October 2008, the applicant was digging potatoes together with his wife and G. (Ms), a neighbour, near his house. The applicant and G. had consumed some vodka at breakfast. 7. The applicant’s eleven-month old daughter was in the house, together with his four-year old stepson, V., who was watching cartoons on a DVD player. The house was locked, and the key was in the applicant’s pocket. 8. At about 11.15 a.m., when the applicant was carrying a sack of potatoes to the cellar, his wife asked him to have a look at the children. He was gone for about twenty minutes. When he returned, he said that he had had some beer. 9. At about 12.30 p.m., when the work was finished, the applicant went to the house. He came out and told his wife that her son was dead. When she entered the living room, she saw V. lying on the floor with a cable around his neck. The television set was overturned on the floor nearby. The applicant expressed a presumption that V. had tried to reach the remote control on top of the television, had overturned the television and, as a result, had accidentally been strangled by the cables. 10. Somebody called the police. By the time they arrived, V. had been put in his bed and the television had been placed on a bed in a different room. The applicant and his wife were questioned as witnesses. They admitted that they had relocated the body and the television, and explained that they had done so because they had felt stressed. 11. An autopsy of the child was carried out and in the evening of the same day the expert who had conducted it called the investigator and informed him that the boy had been strangled by somebody, and had not died as a result of an accident. 12. The investigator, together with the police officer on duty, returned to the applicant’s house and inspected the scene once again. The applicant maintained his account that there had been an accident. The police officers took him to the police station, without formally deciding on his procedural status. The applicant did not object. 13. The police officer on duty had a conversation with the applicant and suggested that he “tell the truth”. As a result, at 10.30 p.m. the applicant wrote a statement of “voluntary surrender to the police”, in which he explained that he had strangled V. having got angry about the mess in the room. The statement contained a note that the applicant had been familiarised with the content of Article 63 of the Constitution (see paragraph 37 below). 14. On the same day, 3 October 2008, a criminal case was opened against the applicant on suspicion of murder of a child. 15. The applicant spent the night in the police station. 16. At about 1 a.m. on 4 October 2008, the applicant was formally arrested as a suspect. He wrote in the arrest report that he waived his right to legal defence and regretted what he had done. 17. On the same day the applicant wrote another statement of “voluntary surrender to the police” with the same content as the previous one. 18. On 5 October 2008 the applicant was granted legal aid and a lawyer was appointed for him. During his questioning as an accused and during the reconstruction of the crime, in the presence of his lawyer, the applicant maintained his confession. 19. On 6 October 2008 the applicant underwent a forensic medical examination, apparently in the context of the judicial decision on his pre-trial detention. No injuries were found on him and he did not raise any complaints before the expert. 20. In October 2008 (the exact date is not legible in the available copy) a forensic medical expert confirmed the findings of the autopsy report that V. had died as a result of strangulation. 21. On an unspecified date the applicant signed an agreement on his legal representation by Mr R. 22. On 20 October 2008 the applicant’s father, acting on the applicant’s behalf, signed a legal assistance agreement with Mr Gavrylchenko (the lawyer who also represented the applicant in the proceedings before this Court). On the same date Mr Gavrylchenko joined the proceedings as the applicant’s lawyer. It appears that Mr R. too continued to represent the applicant. 23. On 13 November 2008 the applicant refused the services of Mr R. 24. On 3 December 2008 the investigator ordered the applicant’s forensic psychiatric examination with a view to establishing whether he could be held liable for the criminal offence with which he was charged. 25. On 10 December 2008 experts completed the aforementioned examination. They concluded that the applicant, although showing an indication of “slight intellectual retardation on the verge of a slight mental disability” (легка інтелектуальна недостатність на межі легкої дебільності), was aware of his actions and could control them. 26. On 10 February 2009, during his questioning as an accused, the applicant retracted his confession and claimed his innocence. He submitted that he “had incriminated himself under the physical and psychological coercion of the police”. 27. On 11 February 2009 the investigator decided that the applicant’s allegation warranted a separate investigation. He therefore severed from the case file certain materials which could be of relevance (such as the applicant’s confession, the transcript of his various questioning sessions and the report of his forensic medical examination). 28. On 23 February 2009 an additional forensic medical expert evaluation, which had been carried out at the request of the applicant’s lawyer, was completed. The expert excluded the possibility that V. had been accidentally strangled by the television cables when the television set had fallen on him, as had been suggested by the applicant, and confirmed that that could not be the origin of his bruises either. 29. On 5 March 2009 the Chornobay Town Prosecutor’s Office refused to open a criminal case in respect of the applicant’s allegation that he had been coerced by the police, having found that there was no indication of a criminal offence. 30. On 30 March 2009 the applicant was indicted. 31. On 18 May 2009 the Cherkasy Regional Court of Appeal, sitting as a court of first instance, found the applicant guilty of murder of a child and sentenced him to twelve years’ imprisonment. It relied, in particular, on the applicant’s statement of “voluntary surrender to the police” of 3 October 2008 and the confessions he had made on 5 October 2008 and maintained thereafter until 10 February 2009. The court decided, however, not to take into account his statement of 4 October 2008 on the grounds that it could no longer be regarded as a “voluntary surrender to the police” and the applicant should have been questioned as a suspect and legally represented. Furthermore, the court relied on the material and expert evidence. The applicant’s allegation of police coercion was dismissed as unsubstantiated. The trial court took into account the fact that the applicant had decided to write a “voluntary surrender to the police” as a mitigating factor in fixing his sentence. 32. On 28 May 2009 a copy of the judgment was served on the applicant. 33. On 10 June 2009 the applicant appealed on points of law. He complained, in particular, of the lack of access to a lawyer during his initial questioning at the police station on 3 October 2008. He submitted that he had been coerced into confessing by “physical violence and psychological pressure”. The applicant also challenged the accuracy of the expert findings and disagreed with the assessment of the facts by the trial court. The first page of the applicant’s cassation appeal was stamped by the Cherkasy Pre-Trial Detention Centre (SIZO), in which he was detained at the time, confirming that the appeal was sent out on 10 June 2009. 34. On 24 June 2009 the applicant’s lawyer also submitted an appeal on points of law with similar arguments. The stamp of the trial court on the first page of the appeal shows that it was received on 25 June 2009. 35. According to the Government, neither the applicant nor his lawyer applied to the Supreme Court to participate in the cassation hearing. However, the case file contains a copy of such a request signed by both the applicant and his lawyer and dated 24 June 2009. It has not, however, been stamped by the Supreme Court and there is no other acknowledgment of its receipt. 36. On 15 September 2009, in a hearing with the participation of the prosecutor, but in the absence of the applicant or his lawyer, the Supreme Court upheld the judgment of the first-instance court. It considered that the applicant’s right to legal defence had not been violated, as his confession of 4 October 2008 had been excluded from the evidence. | 1 |
test | 001-158467 | ENG | POL | CHAMBER | 2,015 | CASE OF BESTRY v. POLAND | 3 | No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev | 5. The applicant was born in 1954 and lives in Warsaw. 6. At the relevant time the applicant was a member of the Polish parliament. 7. In October 2006 a series of reports appeared in the Polish press in which the applicant’s past was described. It was reported that the applicant had sexually abused students when working as a teacher in the 1980s. The reports in question were published in the Polish daily newspapers Super Express on 20 October and Rzeczpospolita and Gazeta Wyborcza on 23 October, on the internet portal wydarzenia.pl on 20 October, and by the Information Radio Agency on 20 October and the Polish Press Agency on 20, 21 and 22 October 2006. 8. On 30 October 2006 the applicant organised a press conference which was held in the Sejm building. The conference was transmitted by a TV news information channel, TVN24. At the press conference the applicant said: “... of course this was connected with the blackmail to which we were subjected. We already know which journalists cooperated, and with whom, in order to obtain money from us under false pretences. Today this is almost one hundred per cent clear to us. I think that today those three gentlemen already know about that. Those journalists cooperated with the informer who supplied the information on the basis of which the whole matter was disseminated and today, as far as we know, they are being paid for that. I do not yet know how much, some 15 or 20% of the amount obtained...” 9. Following this statement, a journalist from the daily Super Express J.H. commented: “I am the author of this article, J.H., from Super Express. My question concerns the people who inspired me... Maybe you could tell us something else about these familial-financial relationships?” 10. The applicant replied: “I will reply to you. The first complaint will be lodged against you [with the court] tomorrow. After that, three more complaints will be lodged...” 11. On 31 October 2006 the Rzeczpospolita daily published an article entitled “Jan Bestry: I did not commit rape, I will sue Super Express”. According to this article, the Super Express daily had written that in the 1980s the applicant’s employment contract had been terminated without notice because he had sexually abused young girls. The article went on to say that a few days after publication of this story, the TV station TVN reported that the applicant had been convicted in 1982 of having assaulted a woman passenger on a train when working as a train conductor. The article also mentioned that during an interview with Rzeczpospolita the applicant had said: “The disclosure of these matters is in effect a plot in which Super Express was involved”. 12. The author of the article was G.P., who wrote it after interviewing the applicant on the phone. According to G.P. the applicant approved publication of the contents of the article and the statements cited in the article were the statements made by the applicant. 13. However, the applicant denied having spoken to G.P. or having approved any information for publication in the press article. When questioned by the court he said that he had not attempted to have a correction of this article published because he had only found out about it in the course of the judicial proceedings (see paragraph 19 below). 14. On 1 December 2006 the former editor-in-chief of the Super Express daily, T.L., and the publisher of the newspaper, the company Media Express Sp. z o.o., lodged a civil claim against the applicant for the protection of their personal rights. They claimed that the applicant had harmed their good name and credibility by statements he had made at the press conference on 30 October and in the article published by Rzeczpospolita on 31 October 2006. 15. On 29 May 2008 the Warsaw Regional Court granted the claim in part and ordered the applicant to publish an apology for the statements he had made – and which were cited in the article published by Rzeczpospolita on 31 October 2006 – using the following wording: “Jan Bestry apologises to T.L., the former editor-in-chief of the Super Express daily, for unlawful infringement of his personal rights, namely his good name and professional credibility, by alleging in the Rzeczpospolita daily in an article published in issue no. 255 dated 31 October-1 November 2006 under the headline: “Jan Bestry - I did not commit rape; I will sue Super Express” that “the disclosure of the matters referred to in the article is in effect a plot in which Super Express was involved”. 16. The applicant was also ordered to make a similar statement of apology as regards the plaintiff company Media Express Sp. z o.o. and to publish these two statements in a particular way on page four of Rzeczpospolita. 17. The court refused to grant the plaintiffs’ request that the apology also be published in five other dailies and on the TVN channel, finding that such an order would exceed the severity of the infringement committed by the applicant. 18. The court justified its reasoning by finding that the applicant’s statement referring to a “plot” in which the Super Express daily was involved infringed the plaintiffs’ personal rights, and at the same time the applicant had not in any way proved the veracity of his allegations; both at the time the article was published and later, in the course of the civil proceedings, he had failed to demonstrate that the newspaper had in fact been involved in any “plot”. The court concluded that the applicant’s statements, which had been made in public, amounted to “unverified suspicions and accusations addressed to the newspaper”. It further observed that the applicant, as member of the parliament, had “a right to criticise socially negative phenomena” guaranteed to him by the Polish Constitution and by Article 10 of the European Convention on Human Rights. However, “while enjoying this right, he may not overstep the limits of permissible criticism by spreading groundless accusations.” 19. The court did not find credible the applicant’s submission at the hearing on 27 May 2008 that he had only found out about the Rzeczpospolita article in the course of the proceedings. The court took the view that, having held a press conference, the applicant would surely have followed the press articles which appeared over the following days concerning the subject matter discussed at the conference. 20. The court dismissed the remainder of the claim, finding that the statements made by the applicant at the press conference on 30 October 2006 could not unambiguously be interpreted as concerning journalists from a specific newspaper, because the applicant had not expressly mentioned any journalist or newspaper by name. 21. Both parties appealed against the first-instance judgment. 22. On 12 February 2009 the Warsaw Court of Appeal amended the challenged judgment insofar as it additionally ordered the applicant to publish an apology for the statements made during the press conference on 30 October 2006. The court examined what was said in the course of the conference and found that the applicant had initially referred to the events of 1980s, and to his work at the school and in the railway company. He had also said: “Everything which was written in Super Express is untrue”. Next, the applicant had spoken about his feelings about the case and about the sources that lay behind the story reported by the “journalists involved in this case”. He stated that: “The first bill of indictment will be lodged with the court against the tabloid’s editor tomorrow. Before the end of the week, three more complaints will be lodged. All [complaints] concern articles in the newspaper discussed”. After further statements referring to events at the school where the applicant had worked and a statement by the applicant’s wife, the applicant made the statement referred to above (see paragraphs 8 and 10), which in turn provoked the reaction by J.H. (see paragraph 9 above). 23. The Court of Appeal concluded that, although the applicant had not specifically mentioned the names of any journalists or newspapers, for the average person it was clear from the context of the statements concerned that the charges of blackmail and obtaining money under false pretences had been directed at journalists from Super Express. 24. The Court additionally ordered the applicant to publish the following apology on the TV Channel TVN 24 on a weekday between midday and 4 p.m.: “Jan Bestry apologises to T.L., the former editor-in-chief of the Super Express daily for unlawful infringement of his personal rights, namely his good name and professional credibility, by making a statement at the press conference on 30 October 2006 which contained the untrue and defamatory allegation that Super Express journalists had cooperated with informers in order to obtain money from Jan Bestry under false pretences and, when publishing articles about Jan Bestry in Super Express, had received a percentage of the money obtained under false pretences. Jan Bestry expresses his regret for having illegally infringed the personal rights of the former editor-in-chief T.L.” 25. The applicant was also ordered to publish, in the same medium, an identical apology regarding the company Media Express sp. z o.o. 26. The applicant lodged a cassation appeal. 27. On 20 April 2010 the Supreme Court refused to examine the appeal, holding that the applicant had not demonstrated that the Court of Appeal had overstepped the limits regarding the assessment of evidence or had infringed the rules of interpretation of the relevant provisions. 28. J.H. lodged a private bill of indictment against the applicant. He claimed that on 30 October 2006 the applicant had slandered him through the mass media at a press conference by making public allegations that he had cooperated with informers in order to obtain money from the applicant. He also requested that the applicant be found guilty of slandering him by giving an interview to the Rzeczpospolita daily in which he had alleged that J.H. had participated in a plot against him. 29. On 27 April 2009 the Warsaw District Court found the applicant guilty of two counts of slander and sentenced him to a fine. 30. The applicant did not appeal against this judgment. 31. The applicant in turn also lodged a private bill of indictment against J.H. He sought a criminal conviction for J.H. on two counts of slander: firstly, for having published an article alleging that the applicant had sexually abused children and secondly for having published, on 27 October 2006, another article under the title: “Woman assaulted by Bestry. He wanted to force her into submission. He was convicted for beating her up”. 32. On 16 October 2012 the Warsaw Regional Court acquitted J.H. on the first count of slander but found him guilty on the second count. 33. The applicant’s lawyer and J.H.’s lawyer both lodged appeals against this judgment. 34. On 3 July 2013 the Warsaw Regional Court amended the first-instance judgment in that it also acquitted J.H. also of the second count of slander, finding that he had not committed an offence because he had merely made public truthful information concerning a person exercising a public function. The court found that J.H had collected sufficient evidence to prove the veracity of the information he had published and therefore could not be found guilty of slander. The court admitted that as regards the second count of slander, J.H. had published information about a criminal conviction which, due to the passage of time, had already been removed from the applicant’s criminal record. However, it considered that the expunging of the applicant’s record had concerned only its criminal and not its civil aspects and that the disclosure of the expunged conviction was permissible if made for the purposes of protecting a “socially protected interest”. 35. The applicant lodged a cassation appeal. 36. On 19 March 2014 the Supreme Court declined to examine the appeal, holding it to be unfounded. | 0 |
test | 001-182208 | ENG | RUS | CHAMBER | 2,018 | CASE OF MAGOMADOVA v. RUSSIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 5. The applicant was born in 1974 and lives in Moscow. 6. On 10 November 2009 the applicant gave birth to a son, I., whose father was E., her partner. 7. Following their separation in November 2010, the applicant and E. agreed that I. would live with the applicant and E. would visit him regularly. 8. On 22 October 2013 E. took the boy to Grozny in Chechnya. 9. The applicant followed them to Grozny, where she attempted to visit her son, but was prevented from doing so by E. 10. On 18 February 2014 the applicant applied to the Leninskiy District Court of Grozny (“the District Court”) for a residence order under which I. would live with her. She submitted that I. had lived with her from birth until his removal by his father the previous October. They were very attached to each other. She had a stable income, a spacious flat, good character references, and was capable of providing I. with everything necessary in terms of his living expenses, education and development. She also complained that since the removal she had made many attempts to visit her son, but E. had prevented her from seeing him. 11. On 19 March 2014 the childcare authority of the Chertanovo District of Moscow visited the applicant’s flat in Moscow and found the living conditions there suitable for a small child. 12. On 19 March 2014 the Justice of the Peace of the 230 Court Circuit of the Chertanovo District of Moscow convicted E. of assault and battery, finding E. guilty of assaulting and injuring the applicant in August 2013, and sentenced him to a fine. 13. On 9 April 2014 the childcare authority of Grozny visited E.’s flat in Grozny and found that the living conditions there were suitable for a small child. The officials noted that E. lived in the flat with his mother A. and his son I. 14. On 15 April 2014 the childcare authority of Grozny issued its report on the case. The report reiterated that E.’s living conditions were suitable and further read as follows: “[E.] works as a senior medical officer at [a private medical clinic] and, according to him, has a monthly income of 50,000 roubles ... The child has been living with his father [E.] for a long time. His mother lives in Moscow and does not participate in his upbringing. The boy is very attached to the father and receives a lot of attention, tenderness and care. Bearing in mind the best interests of [I.], [the childcare authority of Grozny] considers that a residence order in respect of [I.] in favour of his father [E.] would not be contrary to the child’s interests and would not hinder his contact with the mother.” 15. At the hearing concerning the applicant’s application for a residence order, E. stated that I. had indeed lived with his mother until recently, but he was not at all attached to her. E. had financially supported them and had visited them regularly. The applicant was “not leading the right kind of life” and she would have a bad influence on I. 16. At the hearing, an official of the childcare authority of Grozny reiterated the findings contained in the report of 15 April 2014. 17. On 17 April 2014 the District Court dismissed the applicant’s application for a residence order in her favour. It held that a residence order in respect of I. should be granted to his father, even though he had not requested it. The court held as follows: “Article 196 § 3 of [the Code of Civil Procedure] provides that a court decides on the claims submitted by a claimant. However, the court may go beyond those claims in cases provided for by the federal law. Article 65 of [the Family Code] provides that if no agreement can be reached, a dispute between parents must be decided by a court, having regard to the child’s best interests. It follows that the court may go beyond the parties’ claims and make a residence order in respect of the child in favour of the father [E.]. The report of the childcare authority of Grozny no. ... of 15 April 2014 indicates that it is preferable to make a residence order in respect of the child [I.] in favour of his father [E.], and not to hinder his contact with his mother. The available information shows that both parents have good character references from their employers and their neighbourhoods, have permanent employment, stable incomes, and real estate. According to inspection reports, the living conditions of both parents meet the conditions necessary for raising and accommodating a child. Point 5 of Ruling no. 10 of the Plenary Supreme Court of 27 May 1998 enumerates, in line with Article 65 § 3 of [the Family Code], factors which must be taken into account when deciding on a dispute concerning a child’s residence arrangements. These factors are the child’s attachment to each of the parents and [any] siblings, the relationship between the child and each of the parents, the child’s age, the parents’ moral and other personal qualities and the possibilities each of them have for creating [proper] conditions for the child’s upbringing and development (in the light of such considerations as each parent’s occupation, employment schedule, and financial and family situation), and other factors defining the situation in each parent’s place of residence. The Plenary Ruling stresses, in particular, that the better financial or living conditions of one of the parents cannot, in themselves, constitute a decisive reason for granting this parent’s application for a residence order in his [or her] favour. The better financial and living conditions of one of the parents (the claimant has a higher income and owns residential property in Moscow) cannot constitute a decisive reason for making a residence order in her favour and for rejecting the other parent’s claim, because there are other factors. By contrast, [the applicant] is a single mother who has one more child from her previous marriage: a daughter [R.] born on 25 June 1997. This age is most difficult, and requires special attention from the mother. Because she works, on 2 September 2013 the claimant placed I. in a [nursery school] in Moscow, despite the fact that, by her own admission, he suffers from a congenital central neural system anomaly: dysgenesis of the corpus callosum. The [factors considered] above indicate that [the applicant] is unable to create [proper] conditions for the child’s upbringing and development. Because of her work, she does not have enough time to devote to her children. These circumstances could have a disastrous impact on the child’s immature mind. It has been established that the defendant occupies a managerial position at work. His income allows him to create comfortable financial and living conditions. He lives with his mother [A.], who helps to raise [I.]. The childcare authorities’ report indicates that the child is attached to his father. The defendant has not hindered [the applicant’s] contact with the child. Under Articles 56 and 57 of [the Code of Civil Procedure], each party must prove the circumstances on which [he or] she relies in support of [his or] her claims or submissions. In the court’s opinion, the claimant has not submitted evidence in support of her arguments in [the] adversarial proceedings.” 18. The applicant appealed. She complained, in particular, that the residence order had been granted to E. at the District Court’s own initiative, as E. had never requested it. She further submitted that she was perfectly capable of providing I. with everything which he needed for his development. Her elder daughter was healthy and self-reliant and did not require any special attention. Her daughter would therefore not hinder her ability to take care of I.; on the contrary, she was of great help. The applicant had placed I. in a nursery school to give him a pre-school education and to further his social adaptation. His medical condition was not an obstacle to his attending a pre-school. The District Court’s finding that she did not have enough time to take care of her children was not based on any evidence. Neither her working schedule nor that of E. had been examined. Nor had the court explained how, within such a short period of time, I. could have become more attached to his father than his mother, with whom he had lived from birth until his recent abduction. Lastly, the applicant complained that E. was preventing her from seeing her son. That fact had been confirmed by the childcare authorities’ representative at the hearing, who had recounted E.’s assertions that he would not allow any contact between I. and his mother. 19. On 3 July 2014 the Supreme Court of the Chechen Republic upheld the judgment on appeal, finding that it was lawful, well-reasoned and justified. The judgment was based on the best interests of the child, taking into account his age, his attachment to the father, and the father’s ability to create proper conditions for his son’s upbringing and development. 20. In reply to a complaint by the applicant that she had been prevented from seeing her son for a long time, by a letter of 7 August 2014, a deputy mayor of Grozny informed her that E. had stated to the childcare authorities that he would not allow any contact between I. and his mother. 21. By a letter of 12 September 2014, the head of the childcare authority of Grozny informed the applicant that the childcare official who had issued the report of 15 April 2014 had been disciplined. An internal inquiry had established that the report was based on incorrect and incomplete information. In particular, E.’s statement that he had high income had not been checked. The finding that the applicant had not participated in I.’s upbringing was not based on any evidence. The length of time I. had lived with each of the parents had not been established. Lastly, the fact that I. had a half-sister living with his mother had not been taken into account. The report of 15 April 2014 had therefore violated the applicant’s rights and legitimate interests. 22. The applicant lodged a cassation appeal, referring, in particular, to the letter of 12 September 2014. 23. On 27 November 2014 a judge of the Supreme Court of the Chechen Republic refused to refer the applicant’s cassation appeal to the Presidium of that Court for examination, finding no significant violations of substantive or procedural law which had influenced the outcome of the proceedings. Relying, in particular, on the childcare authorities’ report of 15 April 2014, the judge found that it was in I.’s interests to live with his father. 24. On 5 December 2014 E. died in a car accident. I continued to live with his paternal grandmother A. 25. On 14 January 2015 the applicant applied to the Shali Town Court of the Chechen Republic (“the Town Court”), asking that I. be returned to her. 26. On 31 July 2015 the Town Court granted her application. The court held that I. should be taken away from A. and returned to the applicant, with whom he should live from that point onwards. On 12 November 2015 the Supreme Court of the Chechen Republic upheld the judgment on appeal. 27. On 24 November 2015 the Town Court issued a writ of execution. On the same day bailiffs initiated enforcement proceedings. 28. On 28 November 2015 the bailiffs visited A. and ordered that she return I. to the applicant on 3 December 2015. When the bailiffs visited A. on 3 December 2015 to take I. away, A. and I. were not at home. The bailiffs visited A. again on 5 and 25 December 2015 and 4 February 2016, but could not find her or I. The childcare authorities also visited A.’s address on several occasions, but found nobody at home. It was finally established that A. had moved out with I. 29. On 24 December 2015 the bailiffs banned A. from leaving the country. 30. On 10 February 2016 A.’s and I.’s names were put on the list of wanted persons. 31. On 28 April 2016 I. was returned to the applicant by the police. On the next day the enforcement proceedings were closed. | 1 |
test | 001-166760 | ENG | UKR | ADMISSIBILITY | 2,016 | KHOLODOV v. UKRAINE | 4 | Inadmissible | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev | 1. The applicant, Mr Leonid Yuriyovych Kholodov, is a Ukrainian national who was born in 1964 and lives in Kharkiv. 2. The facts of the case, as submitted by the applicant, may be summarised as follows. 3. The applicant participated in the clean-up operations following the Chernobyl disaster and has special status as a “first category liquidator”. He is a second-degree disabled person as a result of his participation in the clean-up operations. In 2012 a commission of medical experts found that the applicant had lost 80% of his working ability. 4. The applicant suffers from multiple ailments of his joints. He has been diagnosed with polyarticular rheumatoid arthritis of his feet joints; arthritis of the left knee joint and the right ankle joint; and rheumatoid arthritis of the right elbow joint. 5. The applicant is a practising lawyer. He supports two daughters who were born in 2008. Owing to his condition the applicant is only able to walk for short distances and can hardly move during periods of exacerbation. The applicant uses his car extensively for personal, family and professional purposes. He has had a driving licence since 1986. 6. On 27 December 2013 the applicant caused a traffic accident after his negligent driving led to his car being hit by another car. Both cars were damaged, with that of the applicant being damaged in several places, including in the steering mechanism. The applicant admitted his fault. 7. On 18 February 2014 the Dzerzhynskyy District Court of Kharkiv found the applicant liable for a breach of traffic regulations resulting in damage to vehicles. When determining the penalty the court had regard to the nature of the offence and decided to suspend the applicant’s driving licence for one year. 8. The applicant appealed, arguing that the suspension of his driving licence was an excessively severe punishment in his case. He asked for the penalty to be converted into a fine. The applicant contended that in view of his disability a car was indispensable for his professional activities and a driving ban would eventually worsen his financial position and ability to support his family. Moreover, he also used the car for personal and family purposes on a daily basis. The applicant submitted that he had had a driving licence since 1986 and that he had not committed any other administrative offences. He asked the Kharkiv Regional Court of Appeal (“the Court of Appeal”) to take into account the fact he had admitted being at fault in the accident and that his car had been badly damaged. 9. By a final decision of 19 March 2014 the Court of Appeal amended the penalty and reduced the term of suspension of the licence to nine months. In its reasons the Court of Appeal first stated that there had been no evidence to suggest that the applicant’s disability was the sole reason for his using a car. Nor was a car the sole source of his income given that the applicant had a lawyer’s licence. The Court of Appeal then had regard to the facts that the applicant was a disabled person and that he had participated in the Chernobyl clean-up operation. It also noted that the applicant had admitted his fault but he had not expressed remorse. In addition, the applicant had not reimbursed the other party for the damage. 10. Article 124 of the Code of Administrative Offences of 1984 provides for administrative liability for breaches of traffic regulations which result in damage to vehicles, goods, roads, streets, railway level crossings, road construction equipment or other objects. It provides for a fine or a suspension of the offender’s driving licence for a period of six months to one year as a penalty for such an offence. | 0 |
test | 001-141668 | ENG | BEL | CHAMBER | 2,014 | CASE OF S.J. v. BELGIUM | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Nigeria);No violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion);Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - claim dismissed | Aleš Pejchal;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Paul Lemmens | 7. The applicant arrived in Belgium in the summer of 2007. On 30 July 2007, when she was eight months pregnant, she lodged an application for asylum in which she stated that she had fled her country after the family of the child’s father, M.A., in whose home she had lived since the age of eleven, had tried to put pressure on her to have an abortion. 8. Because the applicant was a minor, a guardian was appointed. The guardianship ended when the applicant reached full age, on 26 December 2007. 9. After the applicant’s fingerprints had been recorded in the EURODAC system, the Aliens Office observed that she had already lodged an asylum application in Malta on 29 June 2007. 10. On 3 August 2007 the Aliens Office requested the Maltese authorities to take charge of the applicant’s asylum application under Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin II Regulation”). On 17 September 2007 the Maltese authorities accepted the request. 11. The applicant nevertheless remained in Belgium on account of the request for leave to remain which she had lodged and the ensuing proceedings (see paragraphs 33 et seq. below). 12. Subsequently, owing to the imminent birth of the applicant’s second child (see paragraph 20 below), the Aliens Office decided in early 2009 to examine her asylum application itself. A first interview was held, after which the file was sent to the Commissioner General for Refugees and Stateless Persons (“the Commissioner General”). 13. On 25 May 2010 the Commissioner General rejected the asylum application because of inconsistencies in the applicant’s account. Among other factors, the Commissioner General observed that the applicant had claimed not to have applied for asylum in another country. She had also been unable to explain how she had travelled to Belgium and did not know how much time she had spent in Malta or the exact identity of the persons she had lived with in Nigeria. 14. The applicant appealed to the Aliens Appeals Board. In judgment no. 49.384 of 12 October 2010, the Board upheld the Commissioner General’s decision on the grounds that no credence could be lent to the applicant’s alleged fear of pursuit or to the existence of a real risk of serious harm. 15. No administrative appeal on points of law was lodged with the Conseil d’État against that judgment. 16. On 1 August 2007, in the course of an antenatal examination, the applicant was diagnosed as HIV positive with a serious immune system deficiency requiring antiretroviral (“ARV”) treatment. 17. The applicant gave birth to her first child on 5 September 2007. The infant was given treatment to prevent HIV infection. 18. In October 2007 a course of ARV treatment (a combination of Kalestra and Combivir) was started at St Pierre University Hospital in Brussels (“the University Hospital”). 19. During 2008 the applicant attended a semi-residential facility and was monitored by the not-for-profit association Lhiving, which specialises in providing psychosocial assistance to underprivileged persons living with HIV and to their children. 20. On 27 April 2009 the applicant gave birth to a second child by the same father, M.A. 21. On 14 July 2010 the University Hospital, at the request of the Aliens Office, issued a medical certificate which stated that the applicant’s treatment had been changed to a combination of the drugs Kivexa, Telzir and Norvir. 22. On 25 November 2010 the University Hospital issued a further certificate stating that the applicant’s CD4 count had stabilised at 447, with an undetectable viral load. On the same date an official of the association Lhiving drew up a report on the applicant’s psychosocial situation, stressing the need to provide her with psychological support because of her young age and her introverted temperament. 23. In the meantime, following the refusal of her request for leave to remain on medical grounds (see paragraph 44 below), the applicant’s certificate of registration, which allowed her free access to the treatment she required and to material assistance from the Brussels social welfare office, was withdrawn. She lodged an appeal with the Brussels Employment Tribunal seeking material assistance, and made a fresh application to the social welfare office. 24. On 16 May 2011 the social welfare office decided to continue providing financial assistance to the applicant. As a result, the appeal to the Employment Tribunal was struck out of the list. 25. On 14 December 2011 the University Hospital issued a certificate addressed to the Aliens Office in the following terms: “The latest blood test of 14 December 2010 shows a CD4 count of 269 and a viral load of 42,900. These may be due to treatment failure (development of resistance?) or to poor adherence to the treatment, possibly linked to the patient’s numerous social problems...” 26. On 23 February 2012 the University Hospital issued a certificate addressed to the Aliens Office stating that the treatment had been modified, with the use of Telzir and Norvir being discontinued and being replaced by a combination of Reyataz and Kivexa. 27. On 1 March 2012 a report by the association Lhiving stated that the applicant was continuing to receive, and to need, psychosocial support and that the focus was on working with the applicant on articulating her concerns and on issues including the difficulties connected to her role as a mother, family life, her children’s schooling through Dutch and the monitoring of her own illness. 28. A further certificate addressed to the Aliens Office on 7 June 2012 by the University Hospital stated that the applicant was pregnant with her third child and was due to give birth in November 2012. The certificate went on to state as follows: “Her latest blood sample shows an uncontrolled HIV infection with an increased viral load of 18,900 and a reduced T4 count of 126. The situation is therefore worrying as regards both the patient and her unborn child. ... Medical treatment/medical supplies: Reyataz 200 2 per day and Kivexa Need for regular blood tests with lymphocyte typing and HIV viral load, stethoscope, blood pressure monitor, weighing scales, needles and syringes, dressings, gynaecological check-ups... Specific medical needs? Supervision by a multidisciplinary team specialising in the treatment of HIV.” 29. A similar certificate was issued on 1 February 2013 which reported the addition of the drug Norvir, an increase in the applicant’s T4 count to 200 and a lower positive viral load. It confirmed that the situation was worrying both for the applicant and for her children. 30. In the meantime, on 23 November 2012, the applicant gave birth to her third child. According to the birth certificate, M.A. was again the father. 31. On 18 March 2013 the association Lhiving issued another certificate similar to the previous one (see paragraph 27 above), stating that the applicant was continuing to receive psychosocial support. 32. Beginning on an unspecified date M.A., the father of the three children, spent occasional periods in Belgium without a residence permit. 33. On 30 November 2007 the applicant submitted a request for leave to remain on medical grounds under section 9ter of the Aliens (Entry, Residence, Settlement and Expulsion) Act of 15 December 1980 (“the Aliens Act”). 34. On 13 February 2008 the Aliens Office declared the request admissible and a certificate of registration was issued to the applicant, authorising her to remain in Belgium for three months. 35. At the request of the Aliens Office, the applicant sent the latter a medical certificate drawn up by her general practitioner stating that she was HIV positive and would be unable to travel for six months, during which time she required psychological counselling. 36. On 8 July 2008 the Aliens Office enquired of the Maltese authorities about the accessibility of the appropriate medical treatment in Malta. The same day the applicant was examined by the Aliens Office’s medical adviser, who considered that she would be able to travel as of 1 September 2008. 37. On 4 August 2008, on the basis of the information received from the Maltese authorities, the medical adviser of the Aliens Office wrote as follows: “[From] a medical point of view, ... although [Aids] can be considered to be a disease entailing a real risk to life or physical well-being, in the present case [S.J.] is not at risk of inhuman or degrading treatment since treatment is available in Malta.” 38. On 20 August 2008 the Aliens Office issued a decision refusing the request for leave to remain on medical grounds, stating that it was clear from the information received from the Maltese embassy and featured on the website of the Maltese Minister of Social Policy that treatment for Aids was available in Malta and was accessible to non-nationals. 39. The applicant lodged an appeal with the Aliens Appeals Board against the Aliens Office’s decision of 20 August 2008. 40. On 11 March 2009 the Aliens Office revoked its decision of 20 August 2008, as a consequence of its decision to examine the applicant’s asylum application (see paragraph 12 above), and began to explore the possibilities for treatment in Nigeria. The applicant was again issued with a certificate of registration and the Aliens Office requested a fresh opinion from its medical adviser concerning a possible return to Nigeria. 41. On 7 May 2009 the Aliens Appeals Board, noting that the Aliens Office’s decision of 20 August 2008 had been revoked, dismissed the applicant’s appeal as being devoid of purpose. 42. On 17 September 2010 the Aliens Office’s medical adviser issued the following opinion: “From a medical point of view, the applicant’s infection, although it can be considered to entail a real risk to life or physical well-being if it is not treated in an appropriate manner and is not monitored, does not involve a real risk of inhuman or degrading treatment, given that the treatment and monitoring in question are available in Nigeria. There are therefore no medical objections to the applicant’s return to Nigeria, her country of origin.” 43. On the basis of this opinion and the information received from the Nigerian embassy, the Aliens Office on 27 September 2010 refused the request for leave to remain submitted on 30 November 2007, but extended the applicant’s registration pending the outcome of the asylum proceedings. The reasons for the decision read as follows: « [The] medication currently being administered to the applicant is available in Nigeria... Nigeria has numerous treatment programmes for the applicant’s condition... The cost is low because the authorities subsidise the medication... The applicant’s condition can be treated free of charge in all the country’s public hospitals. ... Furthermore, in Ogun State, where the applicant was born and lived, there are two hospitals. ... Moreover, it appears very unlikely that in Nigeria, the country where she spent the first eighteen years of her life, the applicant would not have family, friends or acquaintances willing to take her in, help her to obtain the necessary medication and/or provide her with temporary financial support. ... It follows that it is not established that her return to her country of origin ... would be in breach of European Directive 2004/83/EC or of Article 3 of the European Convention on Human Rights.” 44. On 20 October 2010 – the asylum proceedings having been concluded in the meantime with the rejection of the applicant’s asylum application (see paragraph 14 above) – the Aliens Office confirmed its decision refusing the applicant’s request to have her residence status regularised. An order to leave the country was served on the applicant on 22 November 2010, worded as follows: “Pursuant to the decision of ... 20 October 2010, the aforementioned S.J. and her children ... are hereby ordered to leave Belgium not later than 20 December 2010... | 1 |
test | 001-164470 | ENG | CHE | CHAMBER | 2,016 | CASE OF NAIT-LIMAN v. SWITZERLAND | 3 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano | 6. The applicant was born in 1962 in Jendouba, in the Tunisian Republic (“Tunisia”), and lives in Versoix in the Canton of Geneva. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. According to the applicant, on 22 April 1992 he was arrested by the Italian police at his place of residence in Italy and taken to the Tunisian Consulate in Genoa, where he was presented with a bill of indictment according to which he represented a threat to Italian State Security. He was then allegedly taken to Tunis by Tunisian agents. 9. The applicant further submits that he was arbitrarily detained and tortured in Tunis in the premises of the Ministry of the Interior, from 24 April to 1 June 1992, on the orders of A.K., the then Minister of the Interior. He submits that he was subjected to the so-called “roast chicken” position throughout his entire detention and deprived of his basic physiological needs, particularly sleep; he was also beaten on the soles of his feet with a baseball bat and struck all over his body with telephone cords. 10. The applicant submits that he suffers from a series of medically attested physical and psychological injuries and problems, and that a causal link between the abuse described and these injuries and problems has been considered plausible. 11. Following the alleged torture in Tunisia in 1992, the applicant fled that country in 1993 and took refuge in Switzerland, where he applied for political asylum in the same year. The applicant has since been living in the Canton of Geneva. 12. On 8 November 1995 the Swiss authorities granted the applicant political asylum. 13. On 14 February 2001, while A.K. was being treated in a Swiss hospital, the applicant lodged a criminal complaint against him with the Principal Public Prosecutor for the Canton of Geneva (“the Principal Public Prosecutor”), for severe bodily injury, illegal confinement, insults, endangering health, coercion and abuse of authority. The applicant applied to join these proceedings as a civil party seeking damages. 14. On 19 February 2001 the Principal Public Prosecutor made an order discontinuing the proceedings on the grounds that A.K. had left Switzerland and that the police had been unable to arrest him. 15. According to the applicant, on 22 July 2003 he “[asked] a Tunisian lawyer to represent him with a view to bringing civil proceedings for compensation against [A.K.] and the Tunisian Republic. On 28 July 2003 the lawyer [informed] [the applicant] that this type of action had never been successful and advised him not to lodge such a claim”. It was allegedly impossible to lodge a civil action of this sort in Tunisia. 16. By a writ dated 8 July 2004, the applicant lodged a claim for damages with the Canton of Geneva Court of First Instance (“the Court of First Instance”) against Tunisia and against A.K. He considered that he should be paid 200,000 Swiss francs (CHF), with 5% interest from 1 June 1992, as compensation for the non-pecuniary damage arising from the acts of torture to which he had allegedly been subjected. The applicant submitted that the conditions for reparation of non-pecuniary damage provided for by Articles 82 et seq. of the Tunisian Code of Obligations and Contracts, applicable under Article 133 al. 2 of the LDIP, were met. 17. On 9 June 2005 a hearing was held before the Court of First Instance; neither of the defendants was in attendance or represented. 18. In a judgment of 15 September 2005, the Court of First Instance declared the claim inadmissible on the ground that it lacked territorial jurisdiction. The relevant part of the judgment reads as follows: “With regard to an action in tort based on the unlawful acts that were allegedly committed in Tunisia by the defendants, to the claimant’s detriment, the Swiss courts do not have territorial jurisdiction under international law to examine the complaint, given that the defendants are not domiciled or habitually resident in Switzerland, and given also that no illegal act or detrimental outcome occurred in Switzerland, pursuant to sections 2 and 129 [of the Federal Law on Private International Law of 18 December 1987 (LDIP; see paragraph 24 below)].” Under section 3 of the Federal Law on Private International Law of 18 December 1987 (LDIP; see paragraph 24 below) the Swiss courts did not have jurisdiction by necessity either, given the lack of a sufficient connection between, on the one hand, the case and the facts, and, on the other, Switzerland. In this connection, the Court of First Instance ruled as follows: “All of the acts for whose after-effects the claimant, a Tunisian national, seeks compensation for non-pecuniary damage were allegedly inflicted on him, as he submits, in Tunisia in 1992, in the premises of the Tunisian Ministry of the Interior, by the Tunisian State and its agents. The sole fact that the claimant applied for and received political asylum in 1995 in Switzerland, where he has since been domiciled, does not amount, in the light of current case-law, to a sufficient connection enabling a “forum of necessity” to be established against the respondents in Switzerland and Geneva.” 19. By a writ dated 16 November 2005, the applicant appealed against that decision before the Court of Justice of the Canton of Geneva (“the Court of Justice”). His appeal was rejected in a judgment of 15 September 2006. After noting that the appellant had shown that he was unable to bring a civil action in Tunisia, the Cantonal Court considered: “As the outcome of the present appeal depends on the immunity from jurisdiction of the defendant parties, the question of whether there exists a forum of necessity in the appellant’s place of residence can, however, remain undecided.” 20. The Cantonal Court also held that the defendants enjoyed immunity from jurisdiction, since the acts of torture had been performed in the exercise of sovereign authority (iure imperii) and not iure gestionis. Referring to the judgment delivered by the Court in the case of Al-Adsani v. the United Kingdom ([GC], no. 35763/97, ECHR 2001XI), it further considered that there had been no violation of the applicant’s right of access to a court. 21. The applicant lodged an ordinary appeal with the Federal Court, dated 20 October 2006, in which he asked the Federal Court to rule that the courts in the Canton of Geneva had territorial jurisdiction and to find that the defendants did not enjoy immunity from jurisdiction. With regard to the jurisdiction of the Swiss courts, he argued that the purpose of the introduction of a forum of necessity in section 3 of the LDIP (see paragraph 24 below) was to avoid denials of justice, especially in cases of political persecution, and that he had provided sufficient evidence that he could not reasonably bring proceedings before a foreign court. As to the immunity from jurisdiction purportedly enjoyed by Tunisia and A.K., the applicant submitted that the exercise of public power did not include the option of committing international crimes such as torture. In this connection, he specified that the very definition of torture in Article 1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 (hereafter: “the Convention against Torture”; see paragraphs 26 et seq. below) ruled out any immunity. 22. By a judgment of 22 May 2007, the reasoning of which was notified to the applicant on 7 September 2007, the Federal Court dismissed the appeal. Reiterating the reasoning in the first-instance judgment, the Federal Court considered that the Swiss courts did not in any event have territorial jurisdiction. The relevant passages of the Federal Court’s judgment read as follows: “3.3 In the absence of an ordinary forum, the problem must be addressed under section 3 of the LDIP, which concerns the forum of necessity... Under the latter provision, where no forum is provided for in Switzerland by the LDIP and where proceedings in another country prove impossible or one cannot reasonable require that they be brought in that country, the Swiss judicial or administrative authorities of the locality with which the case has a sufficient connection have jurisdiction. The application of this rule for assigning jurisdiction thus calls for three cumulative conditions to be met: firstly, the Swiss authorities do not have jurisdiction under another provision; secondly, legal proceedings in another country are impossible or cannot reasonably be required; and, thirdly, the case in question has a sufficient connection with Switzerland. In the present case, the first condition is indisputably fulfilled. Fulfilment of the second condition appears more problematic, but in the light of the third condition, which merits more extensive discussion, it is not necessary to elaborate further on this question. 3.4 Section 3 of the LDIP, which must be interpreted restrictively ... represents a safety valve, intended to avoid denials of justice in the event of a negative conflict of jurisdiction. In this connection, the Federal Council, in its authoritative interpretation of this provision, noted that “there are cases that have such a tenuous connection with Switzerland that it is not appropriate to set in motion the entire judicial system in order to resolve them. However, section 3 lays down an exception to this principle. The Swiss authorities must assume jurisdiction even in cases where the connection with our country is very tenuous, where it is impossible to bring proceedings or to lodge an appeal abroad. It is for the claimant or the appellant to demonstrate this impossibility. Where this evidence has been adduced, jurisdiction reverts to the authority of the locality with which the case has a sufficient connection. Where there are several competing fora in Switzerland, it is the first authority before which an action is brought that has jurisdiction. Clearly, the impossibility of bringing and pursuing proceedings abroad can only be examined in the light of the tangible circumstances and of the possible consequences for the individual concerned in the particular case; it will ultimately be for the court to recognise, or not, its jurisdiction” .... Although section 3 LDIP may thus seem innately paradoxical insofar as proceedings for which there is no basis for connection with an ordinary forum in Switzerland are, ipso facto, lacking in any particular connection with this country, in such a way that determining a “sufficient connection” may prove challenging, and the aim pursued by the law – to prevent a formal denial of justice – is difficult to achieve, this legal provision has not in practice been without effect; the cantonal courts in particular have recognised its applicability it in the areas of family law, inheritance and proceedings on debt-enforcement and bankruptcy... Moreover, legal writers have noted that the subsidiary forum must necessarily be recognised in situations of political persecution... In contrast, the case-law and legal writings shed scarcely any light with regard to a civil action for compensation in respect of damage resulting from crimes against humanity, life and physical integrity, committed aboard, by foreign perpetrators. 3.5. ...In the present case, however, the claimant complains of acts of torture that were allegedly committed in Tunisia, by Tunisians resident in Tunisia, against a Tunisian residing in Italy. All of the specific features of the case come back to Tunisia, except for the fact of residence in Italy at the relevant time. The facts of the case thus have no connection with Switzerland, so that the question of whether or not the link with this country is sufficient does not arise. In those circumstances, it is not possible to recognise the jurisdiction of the Swiss courts, short of disregarding the clear text of [section] 3 of the LDIP [see paragraph 24 below]. The fact that the claimant then chose to come to Switzerland cannot change anything, since it is a fact subsequent to the events of the case and, moreover, does not form part of it. ... 4. Since the absence of a sufficient connection between the facts of the case and Switzerland suffices to establish the Swiss courts’ lack of jurisdiction, the appeal must be dismissed, without it being necessary to examine the issue of immunity from jurisdiction.” 23. On 14 May 2007 the Versoix Municipal Council gave its consent to the applicant’s naturalisation, and this was confirmed by the town of Versoix on 25 May 2007 following a favourable opinion from the Canton of Geneva of 6 November 2006. It was subsequently confirmed by the authorisation issued by the Federal Migration Office on 21 May 2007. | 0 |
test | 001-170055 | ENG | LVA | CHAMBER | 2,017 | CASE OF KIRINS v. LATVIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment) | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Yonko Grozev | 5. The applicant was born in 1971 and lives in Daugavpils. 6. On 16 January 1995 Inspector S.K. of the Daugavpils City Police arrested the applicant and took him to the police station. The applicant, who had category 2 disability status in relation to his eyesight, did not offer any resistance. Subsequently, S.K. beat up the applicant by delivering several blows to his head, near to his eyes. When the applicant fell to the ground, S.K. kicked him at least once in the chest. 7. After this injury, the deterioration of the applicant’s sight accelerated, leading to retinal detachment. In 1995 and 1996 he had several eye operations, including three in a hospital in Moscow, but the retinal detachment continued to progress. In April 1996 he was granted category 1 disability status for complete loss of vision. 8. On 30 January 1995 criminal proceedings were initiated against S.K. On the same date the applicant was joined as a civil party to those proceedings. 9. In February 1995 a forensic medical report was drawn up. It stated that on 16 January the applicant had sustained numerous injuries, which by their nature were considered moderate, resulting in long-term health problems of more than twenty-one days and permanently reducing his capacity to work by at least a third. 10. On 22 March 1995 charges were brought against S.K. and on 8 August 1995 the case was sent to the Daugavpils Court for adjudication. 11. S.K. did not appear at the first hearing on 1 November 1995. The Daugavpils Court held that the case could not be heard in his absence and issued a warrant for his arrest. In December 1995 the warrant was sent to the Daugavpils police station. 12. During the same hearing the applicant’s lawyers asked the trial court to order a second forensic medical report in an attempt to establish the nature and seriousness of the injuries sustained. The prosecutor supported the request and the Daugavpils Court ordered a report. 13. In January 1998, January 1999 and August 1999 the Daugavpils Court asked the Daugavpils police station for information about the measures taken and results achieved in executing the arrest warrant. In reply to each request the police sent identical responses stating that S.K. was wanted and that the trial court would be informed when he was caught. In August 1999 the police informed the Daugavpils Court that, according to information received, S.K. had left Latvia. 14. In December 1996 the forensic medical service reminded the Daugavpils Court that it had not received any original medical documents. In July 1998 and January 1999 the Daugavpils Court asked the Russian authorities for assistance in obtaining originals of medical records relating to the applicant’s operations (see paragraph 7 above). For unknown reasons the documents were not obtained and as a result, the report could not be drawn up. 15. On 16 November 1999 the prosecutor asked the trial court to order a forensic medical examination to confirm the classification of the offence. After the initial forensic medical report the applicant’s health had deteriorated and he had completely lost his sight. According to the prosecutor, there were therefore grounds to consider that that might be related to the injuries which had been inflicted on the applicant in 1995. The Daugavpils Court upheld the prosecutor’s request and ordered the third forensic medical examination. A medical panel was asked to comment on what kind of trauma had caused the injuries; whether the applicant had lost his sight as a result of the injuries inflicted on him in 1995; to what extent he had been incapacitated before the injuries and their severity. 16. On 7 December 1999 a medical report was drawn up. It stated that on 16 January 1995 the applicant had sustained injuries which by their nature were considered minor, resulting in health problems of no more than six days. The report continued that prior to the injuries the applicant had had serious and progressively deteriorating myopia. The applicant’s sight problems had become worse as a result of the head injuries sustained on 16 January 1995, and that had led to further deterioration of his sight. It was also noted that, under domestic law, the worsening of a preexisting condition did not as such serve as grounds for reclassifying the seriousness of an injury. Serious eye disorders could develop and result in the loss of sight even without trauma. In the light of the above, the report did not establish a direct causal link between the injuries inflicted on the applicant in 1995 and his loss of sight. 17. In April 2000 the Daugavpils Court refused to grant the applicant’s request for another medical report for lack of reasoning. 18. From June 2000 to February 2003 a total of five hearings were postponed because experts, doctors, including an ophthalmologist, did not attend and several medical experts needed to be called. In particular, on two occasions between 27 September 2001 and 9 January 2002 and between 18 December 2002 and 24 February 2003 hearings were postponed at the request of the applicant, as he had asked for a doctor and a forensic expert to be summoned. 19. On 10 April 2002, at the request of Daugavpils Court, a panel of experts drew up the fourth medical report which stated that the applicant had suffered at least one blow to his right eye and to his thorax. The injuries sustained by him were considered minor. The report continued by stating that on 16 January 1995 the applicant had suffered injuries to his head that had resulted in a serious worsening of his eye disorder (myopia) with the recurrence of retinal detachments in both eyes followed by further deterioration of his sight. The worsening of a pre-existing condition, including after earlier injuries, did not in itself provide a basis for determining a more serious classification of bodily injury. A severe and progressive eye disorder (myopia) could deteriorate and lead to retinal detachment even if no injuries had been suffered, and eventually lead to complete loss of vision. The experts concluded that the applicant’s head injuries of 16 January 1995 had no direct causal link with the subsequent deterioration of his vision and his category 1 disability status. 20. On 23 February 2003 the applicant lodged a claim with the trial court for compensation for pecuniary and non-pecuniary damage. 21. On 27 February 2003 the Daugavpils Court found guilty S.K. in absentia for abusing his official power in a violent and disrespectful manner. He was sentenced to three years’ imprisonment. 22. In relation to the applicant’s civil claim the Daugavpils Court held that the total amount claimed, namely 156,853 Latvian lati (LVL) (around 224,075 euros (EUR)) and 8,400 United States dollars (USD) had not been supported by evidence. The majority of the documents confirming payment of the medical expenses had been submitted in German and English, and in order to invite a translator it would have to delay the adjudication. In addition, the applicant had not stated which part of the expenses related to the consequences of the injuries sustained. Accordingly, the trial court decided as follows: “To recognise the [applicant’s] rights to compensation from the State for material, pecuniary and non-pecuniary damage caused by the criminal offence, and to remit (nodot) the question of the precise amount to be awarded/enforced (piedzīt) to the court to decide in civil proceedings”. The judgment became final on 11 March 2003. 23. On 20 April 2004 the Riga Regional Court registered the applicant’s civil claim dated 23 March 2003 against the Ministry of the Interior and the State Police. The applicant claimed compensation for damage caused by the criminal offence committed by Inspector S.K. In the claim the applicant relied on the operative part of the judgment of the Daugavpils Court (see above), section 27 of the Law on Police and various provisions of the Civil Law which regulated tort liability. Relying on sections 2347 and 2349 of the Civil Law in particular, the applicant claimed pecuniary and non-pecuniary (morālo kaitējumu) damages of LVL 197,624.31 (EUR 282,320) for blindness, mutilation and disfigurement (sakropļojums un izķēmojums), loss of future income (atrautā peļņa) and medical expenses. 24. On 2 February 2006 the Riga Regional Court, acting as a firstinstance court, relied, amongst other provisions, on Article 92 of the Constitution and section 27 of the Law on Police, and accepted the applicant’s civil claim in part. He was awarded LVL 90,000 (EUR 128,500) in non-pecuniary damages for the damage caused to his health and LVL 4,502.81 (EUR 6,432.58) in pecuniary damages from both defendants on a pro rata basis for his medical expenses. 25. According to the Riga Regional Court, the applicant’s claim for compensation for non-pecuniary damage came within the scope of section 2349 of the Civil Law, a lex specialis providing no specific criteria for awarding compensation. The court referred to the findings of the experts in the criminal proceedings and stated that the applicant’s bodily injuries caused by the police officer might have been the reason for the worsening of his eye disorder (myopia) that had resulted in a rapid deterioration of his sight and eventually complete loss of vision. 26. On 27 September 2006 the Supreme Court reviewed the case following appeals by the applicant, the State Police and the Ministry of the Interior. It ruled that the first-instance court had been incorrect in concluding that the applicant’s injuries had amounted to mutilation and disfigurement under section 2349 of the Civil Law. The applicant’s claim for compensation for non-pecuniary damage was dismissed. The pecuniary damages were reduced to LVL 4,427.81 (EUR 6,325.44). 27. Regarding the applicant’s claim for pecuniary damages, the Supreme Court ruled that the judgment adopted in the criminal proceedings against S.K. only proved that he had committed a crime using violence against the applicant. The four usual criteria for establishing tort liability and compensation thus had to be satisfied (see paragraph 30 below). In the judgment of 27 February 2003 the first and fourth criteria had been established. The Supreme Court analysed all the medical data before it concerning the applicant’s health and concluded that the State Police were liable to pay pecuniary damages to the applicant for his medical expenses under section 2347 of the Civil Law. 28. Regarding the applicant’s claim for non-pecuniary damages, the Supreme Court concluded that the loss of the applicant’s sight had occurred under specific circumstances, including his previous state of health. It was also noted that the loss of his sight was not directly linked to the bodily injuries sustained by him on 15 January 1995. There was therefore no evidence to prove that his bodily injuries had amounted to mutilation or disfigurement, as provided in section 2349 of the Civil Law. 29. In a preparatory meeting on 22 February 2007 the Senate of the Supreme Court dismissed an appeal on points of law by the applicant as not raising any relevant legal issues. 30. In a letter dated 21 October 2010 addressed to the Government, the Supreme Court stated that there were no grounds for the national courts to extend the scope of the applicant’s claim and decide on the awarding of non-pecuniary damages on the following grounds. The applicant had claimed pecuniary and non-pecuniary damages for injuries sustained as a result of police ill-treatment. In this regard he had relied on sections 2347 to 2349 of the Civil Law, which provided that compensation could be claimed for mutilation and disfigurement. In order to determine whether the consequences of the alleged injuries were those stipulated in the legal provision, the domestic courts had to establish the essential conditions of tort liability, namely (i) unlawful conduct, (ii) damage, (iii) a causal link between the unlawful conduct and damage claimed and (iv) fault. In the applicant’s case, no such conclusions could be drawn on the basis of the medical documents. The applicant had lost his sight owing to various coexisting circumstances, not as a result of the injuries sustained in January 1995. 31. The Supreme Court also stated that with the amendments of 1 March 2006 the Civil Law contained a general legal provision (section 1635 of the Civil Law) for claiming non-pecuniary damages. Nevertheless, it did not have retroactive effect and therefore the national courts could not apply it in the applicant’s case. According to the Supreme Court, no such obligation could be inferred from any other legal acts on the account that the subject matter of the present civil dispute did not concern the public law obligation which the Latvian State had undertaken in the area of human rights. 32. Furthermore, the Supreme Court indicated that in the applicant’s case the ten-year statutory limitation period for claiming damages had started to run on 11 March 2003, the day the final judgment in the criminal case became effective. The Supreme Court therefore considered that the applicant still had the right to rely on Article 92 of the Constitution and lodge a claim for compensation for damage caused by a criminal offence. In that regard the Supreme Court referred to the judgment of 16 December 2009 in the so-called “Talsi tragedy” case, in which it ruled that a person has the right to receive compensation for violations of his or her human rights. | 1 |
test | 001-177214 | ENG | RUS | CHAMBER | 2,017 | CASE OF DMITRIYEVSKIY v. RUSSIA | 3 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1966 and lives in Nizhniy Novgorod. 6. At the material time he was the executive director of the RussianChechen Friendship Society (Общество российско-чеченской дружбы), a non-governmental organisation which monitored human rights violations in the Chechen Republic and other parts of the North Caucasus. He was also the chief editor of a monthly newspaper, Pravo-Zashchita (Protection of Rights), with a circulation of 5,000. The newspaper was published and distributed mainly in the Nizhniy Novgorod Region. At the end of each issue there was a standard disclaimer stating that the views of the editorial team might not concur with those expressed in the articles published. 7. In early 2004 the applicant obtained two articles from the website Chechenpress. The first, which had the headline “Address by Akhmed Zakayev, Vice Prime Minister of the Government of the Chechen Republic of Ichkeria, to the People of Russia”(«Обращение вице-премьера правительства Чеченской Республики Ичкерия Ахмеда Закаева к российскому народу» – “the first article”), was published by him in issue no. 1 (58) of Pravo-Zashchita for March 2004. It read as follows: “A year ago a peace process that had just begun was interrupted by the tragic events in the Dubrovka [theatre]. There may be long arguments as to who was responsible for that tragedy, but there is no dispute as to who benefited from it. Today, on behalf of Aslan Maskhadov, President of the Chechen Republic of Ichkeria, I am again addressing myself to the people of Russia. It is still not too late for us to resolve all the questions at issue. But for this, the people of Russia should get rid of those for whom peace represents the loss of power or perhaps even a trial. As long as they remain in the Kremlin, blood will continue to flow in Chechnya and in Russia. I am extending to the people of Russia the hand of peace over the head of their president. No one needs the war except for him: neither right nor left, neither poor nor rich. Vladimir Putin left the Chechens no choice, but you have a choice and you may still choose peace by voting against Putin in March 2004. Both for you and for us this is a real opportunity.” 8. The article was accompanied by the editorial team’s comments (от редакции), which read as follows: “For reasons beyond the editorial team’s control, we are publishing this document belatedly. This address was made on the eve of the presidential elections in Russia. Unfortunately, the people of Russia did not avail themselves of their historic opportunity, having again elected as their president a man who has made political capital out of a bloody war against his own people and who is leading the country towards the blind alley of a police state. Nevertheless, we are convinced that this document, which represents the legitimate Chechen authorities’ statement to the outside world, has not lost its topicality in the meantime”. 9. The second article, which had the headline “Address by Maskhadov, President of the Chechen Republic Ichkeria, to the European Parliament” («Обращение Президента Чеченской Республики Ичкерия Масхадова к Европарламенту» – “the second article”), was published by the applicant in issue no. 2 (59) of Pravo-Zashchita for April and May 2004 and read as follows: “On 26 February 2004 the Parliament of the European Union adopted a declaration in which Stalin’s deportation of the Chechen people on 23 February 1944 was officially recognised as an act of genocide. The European Parliament also recommended that the European Council study the plan of the Government of the Chechen Republic of Ichkeria (the CRI) on peaceful resolution of the present military conflict [between Russia and Chechnya], which I had approved. The total deportation to Central Asia and Kazakhstan in 1944 is one of the most tragic pages in the entire centuries-old history of the Chechens, since during this act of violence the national republic was completely liquidated and its territory separated among the adjacent regions. During the 13 years which the Chechen people spent in exile, about 70% of the population died. It must be mentioned that the 1944 deportation was the ninth large-scale act of genocide by the military and political authorities of Imperial Russia during the period of the 400-year-long armed confrontation between the Chechens and Russians. The very first deportation of the Chechens was carried out by Russia as early as in 1792, after the destruction of the State headed by the first Imam of the Caucasus, Sheikh Mansur. And after the destruction of the State headed by Imam Shamil, when the Russian-Caucasian war was officially declared to be over in 1859, a considerable proportion of Chechens ended up on the territory of the Ottoman Empire. The last tsarist deportation was the expulsion of many Chechen families to cold and faraway Siberia in 1913. And the first mass deportations of the Chechens during the Soviet regime began in the years of collectivisation and cultural revolution, in other words during Stalin’s regime. What is the aim of this historical overview? The Government of the CRI regards this political resolution by the European Parliament as an undoubtedly serious historic act on the way to achieving the long-awaited peace on blood-stained Chechen soil. More than a quarter of a million innocent civilians have already died in the CRI during the latest continuing Russian-Chechen war, the entire infrastructure of the republic has been completely devastated, many towns, villages, schools, hospitals and cultural facilities have been destroyed, and there is still no light at the end of the tunnel. Yet the international community is watching the deliberate and systematic murder of the entire nation with complete serenity and has not the slightest desire to react in any way to this criminal madness by the bloody Kremlin regime. This in turn engenders thousands and thousands of new fighters in the republic, who replenish the ranks of the Chechen Resistance with fresh forces each day, and who believe that they have a moral right to use the enemy’s own methods against the enemy, [an approach] which we unequivocally condemn. Even on this mournful date – the 60th anniversary of the deportation – many Chechens marked the occasion in extremely harsh conditions of unmotivated mass murders, extrajudicial executions, groundless detentions, severe ‘clear-up’ operations, tortures, kidnappings, disappearances and ‘residential’ checks by Russia’s invaders and their accomplices, who have been committing excesses in the territory of the CRI for the past five years. As the legitimately elected President of the Chechen Republic of Ichkeria, I express, on behalf of the recalcitrant Chechen people fighting for their freedom, sincere gratitude to all the members of the European Parliament who took this fundamental decision to recognise the deportation of 1944 as an act of genocide... Today, just as 60 years ago, the new global Russia’s terror has become our national tragedy. Its inexorable millstones are grinding the gene pool of the unique and original Chechen people, one of the indigenous nations of the ancient Caucasus, and this in the end may lead to [the Chechens’] total physical disappearance from the face of the earth. Your decision in defence of the Chechen people, living in a situation of ongoing genocide, is an additional moral incentive in the fight for survival. We are always open to constructive dialogue with the international community, and we invite independent experts from the United Nations and the European Union to monitor the situation with their own eyes, so that the groundless and defamatory attacks on the Chechens by Russia’s propagandists, who insolently continue to pester the PACE, OSCE and other authoritative organisations, can no longer distort the real picture in the Chechen Republic of Ichkeria. There is no doubt that the Kremlin is today the centre of international terrorism, and [the Kremlin] selected Chechnya and the Chechens as targets for testing terrorist methods which are being developed by the [Federal Security Service]. It would be naive to believe that the present regime in Russia would be too shy to use its terrorist experience in the international arena to solve its political and other problems. An example of this is the treacherous and cowardly terrorist attack by Russia’s special services in the State of Qatar, which prematurely took the life of my predecessor, Zelimkhan Yandarbiyev, and was carried out with the use of diplomatic channels. Owing to the wide publicity given to the latest events concerning the Khanbiyev family, you have become witnesses to one of the numerous terrorist methods used by the State party of Russia, notably taking hostages from the civilian population. In the majority of cases, hostages disappear without trace, and their bodies, showing traces of torture, are later discovered in secret graves that can be found all across the territory of Chechnya. The genocide of the Chechen people, which continues in the 21st century, is a direct and impertinent challenge to all of progressive mankind, let alone civilised and democratic Europe, which considers human rights as its main value and priority, thus making the human factor of paramount importance and the most valuable achievement of civilisation. We would therefore like to believe that the Chechen people have a right to hope that you will soon recognise the war which the Putin regime imposed on Chechnya as genocide – a war which, in its scale, refinement, vandalism and inhumanity, overshadows the genocide of 1944. I sincerely believe in the triumph of reason and justice on earth, and in the final victory of the Chechen people. The bright day is near when the sacred Chechen soil will be completely cleansed of the countless hordes of Russia’s invaders and their accomplices among local nation-traitors. The Chechen Resistance will inevitably accomplish it! Whatever the costs! No one in the world should have any doubt about this!” 10. On 28 November 2004 an officer from the prosecutor’s office of the Nizhniy Novgorod Region (прокуратура Нижегородской области – “the regional prosecutor’s office”) reported that he had established that the articles written by unidentified authors contained public appeals to extremist activity – most notably to overthrow the State regime and forcibly change fundamental aspects of Russia’s constitutional system. 11. The applicant was interviewed in connection with his publication of the articles. He stated that he supported the assessment given by Akhmed Zakayev in his article of the role of Mr V. V. Putin, the President of Russia, in the history of Russia over the last several years. He also stated that he strongly supported his appeal to stop the war and to resolve the military conflict in the Chechen Republic in a peaceful political way, having made a commentary to that effect after the article. As regards the second article, the applicant explained that he had considered the material to be of great public importance for the people of Russia so had published it. He added that he had intended to convey to the readers the position of the leaders of one of the parties to the military conflict in the Chechen Republic as he had considered that, in the light of the continuing tragedy in the Northern Caucasus and terrorist threat, citizens should be entitled to have an idea of that position first hand rather than having the situation presented to them by Russia’s mass media, which only reflected the point of view of the authorities of Russia. 12. On 11 January 2005 the regional prosecutor’s office instituted criminal proceedings under Article 280 § 2 of the Criminal Code (public appeals to extremist activity through the mass media). The applicant was questioned on several occasions as a witness. 13. In reports dated 18 February 2005 Ms T., a linguistic expert, stated that the articles in question contained no appeals to extremist activity but rather were aimed at inciting racial, ethnic and social discord (рознь), associated with violence (see paragraphs 20-27 below). Following that conclusion, the authorities decided to conduct a further investigation under Article 282 § 2 of the Criminal Code (incitement to hatred (ненависть) or enmity (вражда) and the humiliation of human dignity). 14. In a witness interview on 25 April 2005 the applicant stated, inter alia, that he had published the two articles as he had considered the material to be of great public significance and had intended to apprise readers in the Nizhniy Novgorod Region of them. He had not pursued any other aim. He also stated that he had taken the decision to publish the articles, without being asked by anyone. In his opinion, the articles were decent and reflected their authors’ point of view. He disagreed with the conclusions of the expert reports of 18 February 2005 that the articles contained statements aimed at inciting enmity between the Russians and the Chechens, or statements humiliating the human dignity of the Russians on the grounds of their ethnic origin. He also affirmed his principal position regarding that issue, namely that the actions of the Government of Russia and its armed forces during the conflict in the Chechen Republic should be regarded as a war crime and a crime against mankind. The applicant further stated that he had considered that the publication of the articles promoted friendship and peace between the people of Russia and the Chechen people. Lastly, he denied that he had obtained any payment for publishing the articles. During subsequent interviews the applicant consistently maintained his position. 15. By a decision of 5 May 2005 the investigator in charge suspended the proceedings as those responsible remained unidentified. The decision referred to the statements the applicant had made during witness interviews to the effect that he had obtained the impugned documents from a website and published them with a view to apprising readers in the Nizhniy Novgorod Region of them. The decision further stated that no evidence capable of refuting the applicant’s arguments had been obtained during the investigation. It went on to say that there was evidence of a crime under Article 282 § 1 of the Criminal Code in the actions of those who had published the documents online; however, since they remained unidentified the investigation had to be suspended. 16. The decision of 5 May 2005 was quashed by a deputy prosecutor of the regional prosecutor’s office and the proceedings were resumed on 9 July 2005. 17. On 2 September 2005 the applicant was formally charged under Article 282 § 2 of the Criminal Code and banned from leaving his place of residence. On the same date the investigator in charge refused a request by him for another linguistic expert examination of the articles, stating that the conclusions in the reports of 18 February 2005 were well-reasoned and consistent. 18. By a decision of 26 September 2005 the investigator in charge refused a request by the applicant for a comprehensive expert examination of the articles involving linguistic experts and historians including the history, culture and traditions of the Chechen people. The grounds for the refusal were similar to those stated in the decision of 2 September 2005. 19. On 29 September 2005 an indictment was served on the applicant and the case file was sent for trial. 20. In the context of the criminal proceedings against the applicant, the investigating authorities ordered a linguistic expert examination of the articles published by him. An expert was requested to answer whether they contained any appeals to extremist activity and, in particular, whether there were any appeals to activity aimed at advocating the exceptionality, supremacy or inferiority of citizens on the grounds of their racial, ethnic or social origin. The expert was also requested to reply whether the articles contained statements aimed at inciting hatred or enmity or humiliating the dignity of an individual or a group of individuals on the grounds of their race, ethnic origin, language, origin, attitude towards religion, or membership of a certain social group. 21. On 18 February 2005 Ms T. drew up two expert reports. In a report on the linguistic expert examination of the first article, she pointed out that the text contained statements in the affirmative to the effect that “the tragedy in the Dubrovka [theatre] and the war in Chechnya [were] beneficial for Vladimir Putin”, that “the cessation of war and a peace agreement with the leaders of the [Chechen Republic of Ichkeria meant] the loss of power for V. Putin”, and that “until V. Putin [guided] the State, blood [would] continue to flow in Chechnya and Russia”. The report then referred to the following statement: “It is still not too late for us to resolve all the questions at issue. But for this, the people of Russia should get rid of those for whom peace represents the loss of power or perhaps even a trial. As long as they remain in the Kremlin, blood will continue to flow in Chechnya and in Russia.” According to the report, that statement, analysed in the context of the whole article, contained a demand by the author to the people of Russia not to vote for Vladimir Putin in March 2004. It went on to note that the author was also promising that, otherwise, killings and terrorist acts would be carried out in Chechnya and in Russia (“blood will continue to flow...”), verbally threatening the people of Russia. On the basis of that analysis, Ms T. concluded that the above-mentioned statement was aimed at inciting racial, ethnic or social discord, associated with violence. The report provided no further details in respect of that conclusion. It also stated that the article contained no appeals to extremist activity or any statements aimed at advocating the exceptionality and supremacy of the Chechens on the grounds of their ethnic origin. 22. The other report of 18 February 2005 concerned a linguistic expert examination of the second article and stated that the following statements were aimed at inciting racial, ethnic and social hostility, associated with violence: “...the 1944 deportation was the ninth large-scale act of genocide by the military and political authorities of Imperial Russia...” “The very first deportation of the Chechens was carried out by Russia as early as in 1792...” “More than a quarter of a million innocent civilians have already died in the [Chechen Republic of Ichkeria] (the CRI) during the latest continuing Russian-Chechen war...” “...the international community ... has not the slightest desire to react in any way to this criminal madness by the bloody Kremlin regime...” “...the 60th anniversary of the deportation ... many Chechens marked ... in extremely harsh conditions of unmotivated mass murders, extrajudicial executions, groundless detentions, severe ‘clear-up’ operations, tortures, kidnappings, disappearances and ‘residential’ checks by Russia’s invaders and their accomplices, who have been committing excesses in the territory of the CRI for the past five years...” “Today, just as 60 years ago, the new global Russia’s terror has become our national tragedy. Its inexorable millstones are grinding the gene pool of the unique and original Chechen people...” “...we invite independent experts from the United Nations and the European Union to monitor the situation with their own eyes, so that the groundless and defamatory attacks on the Chechens by Russia’s propagandists... can no longer distort the real picture in the Chechen Republic of Ichkeria...” “There is no doubt that the Kremlin is today the centre of international terrorism, and [the Kremlin] selected Chechnya and the Chechens as targets for testing terrorist methods which are being developed by the [Federal Security Service]...” “It would be naive to believe that the present regime in Russia would be too shy to use its terrorist experience in the international arena to solve its political and other problems...” “An example of this is the treacherous and cowardly terrorist attack by Russia’s special services in the State of Qatar, which prematurely took the life of ... Zelimkhan Yandarbiyev...” “...you have become witnesses to one of the numerous terrorist methods used by the State party of Russia, notably taking hostages from the civilian population...” “We would therefore like to believe that the Chechen people have a right to hope that you will soon recognise the war which the Putin regime imposed on Chechnya as genocide...” “The bright day is near when the sacred Chechen soil will be completely cleansed of the countless hordes of Russia’s invaders and their accomplices...” 23. The report stated that in all those statements the author of the article was directly pointing out that it was Russia and its invaders, military and political authorities, special services and State party who were carrying out “genocide”, “unmotivated mass murders, extrajudicial executions, groundless detentions, severe ‘clear-up’ operations, tortures, kidnappings, disappearances and ‘residential’ checks”, and that it was they who were “committing excesses”. It also indicated that “the expression ‘State party [of Russia]’ should be understood to mean a designation of a group of people, organisation or State set in contrast in some aspect to another group of people, organisation or State (in the present case, to Chechnya)”. 24. The report also pointed out that the last three sentences of the articles were exclamatory and expressed the author’s contemptuous and angry attitude. According to the report, the three sentences were “an undisputable and unequivocal statement to the effect that the Chechen Resistance [would] inevitably liberate their soil of Russia’s servicemen”. The report went on to state that the expression “Whatever the costs!” referred to the means and methods (“to use the enemy’s own methods against the enemy”, “terrorist methods”), and that it was of little importance whether those methods were condemned by the author or not, as the author’s “protective reservation” “to use the enemy’s own methods against the enemy, [an approach] which we unequivocally condemn” did not change the true meaning of the aforementioned expression. 25. T. also considered it necessary to note that the article contained a number of statements with contemptuous, angry stylistic connotations expressing a distinctly negative assessment of the actions of Russia’s servicemen and governance of the military and political authorities of Russia, such as “this criminal madness by the [bloody] Kremlin regime”, “Russia’s invaders and their accomplices, who have been committing excesses in the territory of the CRI for the past five years”, “the Kremlin is today the centre of international terrorism” and “the Putin regime”. 26. The report went on to note that the article in question also contained statements aimed at advocating the exceptionality and supremacy of the Chechens on the grounds of their ethnic origin, namely: “...the new global Russia’s terror has become our national tragedy. Its inexorable millstones are grinding the gene pool of the unique and original Chechen people, one of the indigenous nations of the ancient Caucasus...” “The bright day is near when the sacred Chechen soil will be completely cleansed of the countless hordes of Russia’s invaders...” 27. Lastly, the report concluded that the article contained no appeals to extremist activity. 28. At a hearing, the applicant denied the charges. He confirmed that he had decided to publish the articles in question in the newspaper Pravo-Zashchita himself and supported the views expressed in them. He further argued that it had been his responsibility as a journalist to inform his readers of the position of the other party to the Chechen conflict and of possible means to its peaceful resolution. According to the applicant, he had acted in the name of peace and friendship between various nations in Russia. He confirmed that he supported the ideas expressed in the articles. 29. The applicant’s defence submitted a report by a linguistic expert, Ms V., which they had obtained at their own request at the investigation stage. It stated that the two articles in question could not be regarded as inciting racial or national hatred and discord. Before the trial court, the applicant argued that Ms T.’s conclusions in the reports of 18 February 2005 were hypothetical and that she had not taken into account scientific recommendations for investigating the type of criminal offence with which he had been charged. The applicant also insisted that Ms T. had exceeded her competence as she had given a legal qualification to his actions. He also pointed to discrepancies between the reports by Ms T. submitted by the prosecution and the report by Ms V. submitted by the defence. 30. A number of witnesses examined at the trial gave positive references about the applicant, stating that he was a man of good character and spoke out in favour of a peaceful resolution of the conflict in the Chechen Republic. 31. Both experts were also cross-examined during the trial. The applicant submitted an audio recording of Ms T.’s cross-examination, which he had made at the trial. It appears from the recording that, in reply to the applicant’s questions, Ms T. refused to give definitions of the notions of “race”, “ethnic origin” and “social group”, stating that it fell outside of her field of expertise. 32. In a judgment of 3 February 2006 the Sovetskiy District Court of Nizhniy Novgorod (“the District Court”), sitting in a single-judge formation composed of Judge B., established that, in breach of sections 51 and 59 of the Mass Media Act, the applicant, “acting intentionally and using his official position as chief editor, [had] decided to publish two articles which contained statements aimed at inciting enmity and humiliating the dignity of a group of persons on the grounds of race, ethnic origin and membership of a certain social group”. The court then quoted the expressions referred to in the expert reports of 18 February 2005 (see paragraphs 21-22 above) and observed that 5,000 copies of each of the two issues in which the articles had been published had been distributed in Nizhniy Novgorod, Moscow, Voronezh, Kazan and the Republic of Ingushetia. 33. The District Court found that the applicant’s guilt had been proven “by witness statements and the case material, [in particular] by the conclusions of the forensic expert examinations, according to which the texts [of the impugned articles contained] no appeals to extremist activity, but [contained] statements aimed at inciting racial, ethnic or social discord, associated with violence”. On the basis of the evidence adduced to it, the District Court found it necessary to classify the applicant’s actions as those punishable under Article 282 § 2 (b) of the Criminal Code, namely those aimed at inciting enmity and humiliating the dignity of a group of persons on the grounds of race, ethnic origin, membership of a social group, committed through the mass media by a person using his official position. 34. The trial court then found that, “acting with direct intent, being aware of the nature of his actions and wishing to carry them out, [the applicant], on his own, [had taken] a decision to publish two articles which had, as their basis, statements aimed at inciting enmity and humiliating the dignity of persons on the grounds of race, ethnic origin and membership of a social group”. It observed that “during the trial [the applicant had] repeatedly expressed his support for the points of view reflected in the published articles” and had “pointed out that he [had been] carrying out his duty as a journalist by so doing”. In the court’s opinion, however, the arguments advanced by the applicant in his defence were “untenable from a legal point of view and should be regarded as [his] attempt to defend himself to avoid punishment for the committed offence of medium gravity”. The witness statements in the applicant’s favour were held “to concern only the applicant’s personality” and to be “irrelevant for the present criminal case”. 35. The District Court further pointed out that it had based its guilty verdict “on the lawful and well-founded expert reports [of 18 February 2005], in which [Ms T. had] thoroughly analysed the texts of both articles in their entirety and made a conclusion as to the presence in [them] of statements aimed at inciting racial, ethnic and social discord”. The court considered that it had no reason to doubt or question the conclusions of the expert reports given, in particular, “Ms T.’s competence, professional skills and [past] experience.” 36. The District Court further rejected the report by Ms V. as defective, saying that it was superficial and formalistic and that the expert examination in question had been carried out without due regard to an analysis of the texts. The court also noted in this connection that the applicant had paid for the report and that Ms V. had not been informed of the relevant provisions of procedural legislation which criminalised the drawing up of knowingly false expert reports. 37. The trial court found it necessary to exclude from the charges against the applicant reference to “the statements aimed at advocating the exceptionality and supremacy of the Chechens on the grounds of their ethnicity” “in the absence of such wording in the provisions of Article 282 of the Russian Criminal Code”. 38. As regards the punishment to be imposed on the applicant, the court had regard to the nature and social dangerousness of the offence with which he had been charged and the fact that he had no criminal record, had positive references and had two dependent children. It also stated that there was no evidence at that time that “[his] illegal actions had entailed any serious consequences”. The court therefore considered it appropriate to give the applicant a two-year suspended sentence and four years’ probation. 39. On 9 February 2006 the applicant applied to the District Court to have the trial record amended. He complained that Ms T.’s testimony, which was of crucial importance to his case, had been distorted in the record and that, in particular, it attributed certain statements to her which she had not made at the trial. He pointed out, more specifically, that during the trial Ms T. had refused, in reply to his questions, to give definitions to the notions of “race”, “ethnic origin” and “social group”, stating that it was outside of her competence as a linguist and rather fell within the competence of a sociologist or historian. However, according to the official trial record, Ms T. had defined the aforementioned notions. The applicant also asked the court to include in the case file a copy and transcript of the audio recording of the first-instance hearings, made by the defence, indicating the discrepancies between the actual statements made by Ms T. and those reflected in the trial record. 40. By a decision of 13 February 2006 Judge B. of the District Court rejected the applicant’s application. He noted that the trial record had been made in compliance with procedural law and fully reflected the actual testimony given by all witnesses. The judge further stated that neither the applicant nor his lawyer had notified the District Court of the audio recording of Ms T.’s cross-examination at the trial or requested that the court include it in the case file, and that there were no legal grounds at that time for entertaining the applicant’s application. 41. On 9, 10 and 13 February 2006 respectively the applicant’s two lawyers and the applicant lodged appeals against his conviction. 42. On 17 February 2006 the applicant filed supplementary appeal pleadings, reiterating his complaints concerning the shortcomings in the trial record with respect to Ms T.’s testimony and requesting that the appellate court examine the audio recording made during the trial of Ms T.’s statements and establish the discrepancy between them and those reflected in the trial record. 43. By a letter of 21 February 2006, Judge B. returned the applicant’s supplementary pleadings, stating that, in substance, they reflected his remarks in respect of the trial record, which had already been examined and rejected on 13 February 2006. 44. On 1 March 2006 the applicant resubmitted his supplementary pleadings of 17 February 2006 to the Nizhniy Novgorod Regional Court (“the Regional Court”) and complained about Judge B.’s refusal to accept them. In a letter of 13 April 2006 the Regional Court informed the applicant that it had accepted his pleadings of 17 February 2006 for examination and had examined them during an appeal hearing on 11 April 2006, and therefore the breach of his right of appeal against the judgment of 3 February 2006 had been remedied. The letter also stated that Judge B.’s actions when he had unlawfully returned the applicant’s supplementary pleadings of 17 February 2006 would be discussed by the Regional Court, but that at the same time there were insufficient grounds for instituting disciplinary proceedings against him. 45. In its decision of 11 April 2006 the Regional Court found the judgment of 3 February 2006 reasoned and well-founded and upheld it on appeal. It reiterated the reasoning of the trial court, stating that the applicant’s guilt for the offence with which he had been charged had been proven by the body of evidence examined during the trial – his own statements in which he had admitted having published the impugned articles and the expert reports of 18 February 2005. The Regional Court endorsed the trial court’s argument that there was no reason to question the conclusions of those reports. It also stated that the trial court had addressed Ms V.’s report, which had been favourable to the applicant, having assessed it critically. 46. In February and March 2006 the applicant unsuccessfully attempted to have disciplinary and criminal proceedings instituted against Judge B. for alleged falsifying the trial record, exceeding his powers and obstructing justice. | 1 |
test | 001-168404 | ENG | SRB | ADMISSIBILITY | 2,016 | KAMENICA AND OTHERS v. SERBIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 1. A list of the applicants is set out in the appendix. All the applicants are nationals of Bosnia and Herzegovina and are represented by Ms T. Drobnjak, a lawyer practicing in Belgrade. 2. The Serbian Government (“the Government”) are represented by their Agent, Ms N. Plavšić. 3. Following its declaration of independence from the former Socialist Federal Republic of Yugoslavia (SFRY) in March 1992, a brutal war broke out in Bosnia and Herzegovina. More than 100,000 people were killed and more than 2,000,000 others were displaced as a result of “ethnic cleansing” or generalised violence. The following local forces were the main parties to the conflict: the ARBH (mostly made up of Bosniacs and loyal to the central authorities in Sarajevo), the HVO (mostly made up of Croats) and the VRS (mostly made up of Serbs). The conflict ended in December 1995 when the General Framework Agreement for Peace (“the Dayton Agreement”) entered into force between Bosnia and Herzegovina, Croatia and the Federal Republic of Yugoslavia (succeeded by Serbia in 2006). 4. Žepa, a town in eastern Bosnia and Herzegovina, is situated some twelve kilometres from the border with Serbia. Before the war it had a population of less than 3,000, of whom the majority were Bosniacs. During the war, Žepa was one of three Bosniac enclaves in eastern Bosnia surrounded by the VRS. In 1993 it was declared a “safe area” by the United Nations Security Council. 5. In 1995, there were between 6,500 and 8,000 people living in Žepa, of whom some two-thirds were displaced persons from other parts of Bosnia and Herzegovina. 6. On 12 July 1995 the VRS attacked the Žepa “safe area”, capturing it on 25 July. In the days that followed, several hundred Bosniacs – predominantly able-bodied men who had refused to surrender to VRS forces – managed to cross the border and flee into Serbia. The present applicants were among them. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. When Žepa was captured by the VRS, the applicants crossed into Serbia from Bosnia and Herzegovina, hoping that they would be able to find refuge in a third country. They were discovered by the border guard of the VJ and taken to two detention camps. The applicants claim that they received notification that they had prisoner-of-war status; it would appear that some of them were indeed members of ARBH but some were civilians. The first camp, Šljivovica, was situated in the municipality of Čajetina and the second, Mitrovo Polje, in the municipality of Aleksandrovac, both in Serbia. The Šljivovica detention camp was located in an abandoned workers’ barracks and the Mitrovo Polje camp in a former children’s recreational facility. 9. During their existence the camps were visited by representatives of the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina. The latter compiled a report in which it found that the conditions of detention were disturbing. 10. Between January and April 1996 the UNHCR facilitated the transfer of the camps’ detainees to third countries and the camps were closed in April 1996. 11. On 6 September 2011 the Humanitarian Law Centre (Fond za humanitarno pravo), a Belgrade-based NGO, lodged a criminal complaint on behalf of the applicants with the Office of the War Crimes Prosecutor of Serbia against more than 50 individuals for alleged war crimes. In the criminal complaint it was alleged that, when the applicants were discovered at the Serbian border, the army and the police had used force against them and transported them to the aforementioned camps. Both camps had been guarded by officers of the Serbian police force and none of the applicants had been allowed to leave them. According to the applicants, during the time they spent in the camps they had been regularly verbally abused, taken to mock executions, kicked and punched, and beaten with fists, batons, cables, shovels and metal rods. Some of the applicants had had burning cigarettes held against their skin, had been forced to drink water mixed with motor oil and some had also been sexually abused (in particular, some of the applicants had been forced to perform sexual acts on each other). The applicants who had been suspected of being members of the ARBH had suffered particularly harsh treatment and had been forced to engage in mutual fights, look directly into the sun, move heavy rocks and had been denied medical assistance. 12. In its criminal complaint the Humanitarian Law Centre submitted statements by the camps’ detainees, medical documentation, documentation from the International Committee of the Red Cross and the State Commission for Missing Persons of Bosnia and Herzegovina, and other evidence. Amongst those who were alleged to have taken part in torture, the Centre identified members of the State Security Agency of Serbia, police officers, and military servicemen of various ranks. 13. On 23 September 2011 the Office of the War Crimes Prosecutor undertook preliminary verification of the information submitted by the applicants and requested that the Ministry of Interior and the Ministry of Defence submit information regarding the criminal complaint. 14. On 17 November 2011 and 2 December 2011 the Ministry of Interior submitted two reports to the Office. In their reports it was stated that the situation in the camps had been generally good, that the camps had not been enclosed behind a fence, and that residents who were given refugee status had had access to health services, a canteen, a post office, a phone, a bank, and both private visits and visits by officials from international organisations. While one of the reports describes the conditions in Šljivovica camp as unsatisfactory, the conditions in Mitrovo Polje were described as lodgings with the quality of “hotel accommodation”. 15. On 1 March 2013 the Office of the War Crimes Prosecutor notified the Humanitarian Law Centre that it did not find any grounds for initiating criminal investigation since the alleged acts could not be classified as war crimes or any other crime under the jurisdiction of the Office of the War Crimes Prosecutor. On 8 April 2013 the applicants lodged a constitutional appeal before the Constitutional Court of Serbia claiming violations of Articles 2, 3 and 6 of the Convention. On 4 February 2014 the Constitutional Court rejected the applicants’ constitutional appeal as incompatible ratione materiae with the provisions of the Constitution, finding that the notification in question was not an act which was decisive with respect to the applicants’ human rights. 16. On 13 June 2014 Belgrade Court of Appeal, acting upon a civil action for damages brought by two of the applicants, Enes Bogilović and Mušan Džebo, delivered a final judgment in civil proceedings in which it found that the applicants in question had suffered “intensive torture and inhumane treatment” and that the “applicants survived what was without a doubt the harshest suffering an individual [could] experience”. The court further described the actions of the guards towards the two applicants and other detainees as “conduct ... hardly worthy of a human being”. Each plaintiff was awarded 300,000 Serbian dinars (RSD) in non-pecuniary damage. 17. The decision of the Constitutional Court was delivered to the applicants’ representative on 2 July 2014. 18. The Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 (Official Gazette of the Socialist Federal Republic of Yugoslavia – OG SFRY – nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90, in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01, and in OG RS no. 39/03) was in force until 1 January 2006. The relevant provisions thereof are set out hereunder. 19. Article 95 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows: “(1) If not prescribed differently by this Code, criminal liability shall be statutebarred: 1) twenty-five years from the date on which the offence was committed in instances where the law provides for the death penalty or twenty years’ imprisonment; 2) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years; 3) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years; 4) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years; 5) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year; ...” 20. Article 100 of the same Code is worded as follows: “The statutory limitation of criminal liability does not apply to the crimes covered by Articles 141-145 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by international treaties.” 21. The Criminal code of the Republic of Serbia (Official Gazette of the Republic of Serbia, nos. 85/2005, 88/2005, 107/2005, 72/2009, 111/2009, 121/2012 and 104/2013) entered into force on 1 January 2006. Article 103 governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows: “(1) If not prescribed differently by this Code, criminal liability shall be statutebarred: 1) twenty-five years from the date on which the offence was committed where the law provides for thirty to forty years’ imprisonment; 2) twenty years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding fifteen years; 3) fifteen years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding ten years; 4) ten years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding five years; 5) five years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding three years; 6) three years from the date on which the criminal act was committed where the law provides for a maximum sentence exceeding one year; ...” 22. Article 100 of the same Code is worded as follows: “The statutory limitation of criminal liability does not apply to crimes covered by Articles 370-375 of this Code [genocide and war crimes] or to crimes for which statutory limitation is proscribed by ratified international treaties.” 23. Article 142 - War crime against the civilian population “Whoever, acting in violation of the rules of international law applicable in time of war, armed conflict or occupation, orders that a civilian population be subject to killing, torture, inhumane treatment, biological experiments, immense suffering or violation of their bodily integrity or health; dislocation or displacement or forcible conversion to another nationality or religion; forcible prostitution or rape; application of measures of intimidation and terror, hostage-taking, imposition of collective punishment, unlawful transfer to concentration camps or other illegal arrests and detention, deprivation of rights to fair and impartial trial; forcible service in the armed forces of the enemy’s army or in its intelligence service or administration; forced labour, starvation of the population, property confiscation, pillaging, illegal and intentional destruction or large-scale stealing of property that is not justified by military needs, taking an illegal and disproportionate contribution or requisition, devaluation of domestic currency or the unlawful issuance of currency; or personally commits one of the aforementioned actions, shall be punished by not less than five years’ imprisonment or the death penalty.” 24. Article 144 - War crime against prisoners of war “Whoever, acting in violation of the rules of international law, orders the murder, torture or inhumane treatment of prisoners of war, including biological experiments, extreme suffering or serious injury to their bodily integrity or health, compulsory enlistment in the armed forces of an enemy power, or deprivation of the right to a fair and impartial trial, or personally commits any of the aforementioned acts, shall be punished by not less than five years’ imprisonment or by the death penalty.” 25. The Criminal Code of the Socialist Republic of Serbia (Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77 and 20/79) was in force in until 1 January 2006. Its relevant provisions read as follows: 26. Article 53 – Serious bodily harm “(1) Whoever causes serious injury to another, or serious impairment of another’s health, shall be punished by imprisonment for six months to five years. (2) Whoever causes serious injury to another or impairment of another’s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by one to ten years’ imprisonment.” 27. Article 121 – Serious bodily harm “(1) Whoever causes serious injury to another, or serious impairment of another’s health, shall be punished by imprisonment for six months to five years. (2) Whoever causes serious injury to another or impairment of another’s health resulting in the endangering of the life of that person or the destruction or permanent significant damage to or weakening of a vital function of his body or an organ thereof, or permanent serious health impairment or disfigurement, shall be punished by imprisonment of one to eight years’ imprisonment. (3) If the actions specified in paragraphs 1 and 2 of this Article result in the death of the injured party, the offender shall be punished by imprisonment of two to twelve years. ...” 28. Article 137 – Ill-treatment and Torture “(1) Whoever ill-treats another or treats a party in a humiliating and degrading manner shall be punished by a fine or imprisonment for up to one year. (2) Whoever causes anguish to another with the aim of obtaining information or a confession from him or another person or of intimidating him or a third party or of exerting pressure on such persons, or does so for motives based on any form of discrimination, shall be punished by imprisonment from six months to five years. (3) If the offence specified in paragraphs 1 and 2 of this Article is committed by an official whilst discharging his duty, that person shall be punished for the offence in described in paragraph 1 by imprisonment from three months to three years, and for the offence described in paragraph 2 by one to eight years’ imprisonment.” 29. Article 371 – Crime against humanity “Whoever, acting in violation of the rules of international law, orders as part of a wider and systematic attack against a civilian population: murder; placement of the group in living conditions calculated to bring about its complete or partial extermination, enslavement, deportation, torture, or rape; enforced prostitution; forcible pregnancy or sterilisation aimed at changing the ethnic balance of the population; persecution on political, racial, national, ethical, sexual or other grounds, detention or abduction of persons without disclosing information about such acts in order to deny such person legal protection; oppression of a racial group or establishing domination of one such group over another; or other similar inhumane acts that intentionally cause serious suffering or serious impairment of health, or personally commits any of the aforementioned offences, shall be punished by imprisonment of at least five years or imprisonment of between thirty and forty years. ” 30. Article 372 – War crime against civilian population (1) Whoever, acting in violation of international law in time of war, armed conflict or occupation orders: an attack on the civilian population, a settlement, particular civilians, persons incapable of combat or members or facilities of humanitarian organisations or peacekeeping missions; wanton attack without target selection that harms the civilian population or civilian buildings under the special protection of international law; an attack against military targets knowing that such an attack would cause collateral damage among civilians or damage to civilian buildings that is evidently disproportionate to the military effect; the infliction on the civilian population of bodily injury, torture, inhumane treatment, biological, medical or other research experiments, or the taking of tissue or organs for transplantation or the performing of other acts that impair health or inflict great suffering or the deportation or relocation or forced change of nationality or religion; forcible prostitution or rape; applying intimidation and terror measures, taking hostages, collective punishment, unlawful deprivation of freedom and detention; deprivation of the rights to a fair and impartial trial; declaration of the prohibition, suspension or non-admissibility in court proceedings of the rights and acts of enemy nationals; the coercion into service of a hostile power or its intelligence or administration services; the coercion into military service of persons under seventeen years of age; forced labour; starvation of the population; unlawful seizure, appropriation or destruction of property not justified by military needs; taking unlawful and disproportionate contributions and requisitions; devaluation of local currency or unlawful issuing of currency, or personally commits any of the above offences, shall be punished by at least five years’ imprisonment. ...” 31. Article 374 – War crimes against prisoners of war “(1) Whoever, acting in violation of international law, orders the injury, torture, or inhumane treatment of prisoners of war, or biological, medical or other research experiments on them, or the taking of their tissues or body organs for transplantation or the commission of other acts harmful to health and causing them serious suffering, or compels prisoners of war to serve in the forces of a hostile power or deprives them of the rights to fair and regular trial; or personally commits any such offences, shall be punished by at least five years’ imprisonment. (2) Whoever orders the murder of prisoners of war or personally commits such an offence, shall be punished by at least ten years’ imprisonment or imprisonment of between thirty and forty years.” 32. This Act (published in Official Gazette of the Republic of Serbia no. 67/03, amendments published in Official Gazette nos. 135/04, 61/05, 101/07 and 104/09) entered into force on 9 July 2003. The War Crimes Prosecutor, the War Crimes Police Unit and the War Crimes Sections within the Belgrade Higher Court and the Belgrade Court of Appeal were set up pursuant to this Act. They have jurisdiction over serious violations of international humanitarian law committed anywhere in the former Yugoslavia (see section 3 of this Act). 33. In a number of previous cases concerning war crimes, this Office has treated the war in Bosnia and Herzegovina between 1992 and 1995 as an internal armed conflict (see judgments in cases Škorpioni, Zvornik I, Bijeljina, Prijedor, Zvornik II and Stari Majdan). The majority of the indictments in these cases came into force by 2006. The final judgments in the majority of these cases were adopted by the domestic courts by 2010. 34. Articles 199 and 200 of the Obligations Act (Zakon o obligacionim odnosima; published in the OG SFRY nos. 29/78, 39/85, 45/89, 57/89 and 31/93) provide, inter alia, that anyone who has suffered fear, physical pain or mental anguish as a consequence of a breach of his or her personal rights (prava ličnosti) is entitled, depending on the duration and intensity of the breach, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress capable of affording adequate non-pecuniary satisfaction. | 0 |
test | 001-155199 | ENG | UKR | CHAMBER | 2,015 | CASE OF USHAKOV AND USHAKOVA 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);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) | Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. The applicants are a married couple. They were born in 1976 and 1988 respectively. The first applicant is serving a sentence of imprisonment in Kholodnogirska penitentiary no. 18. The second applicant lives in Kharkiv. 6. At the time of the events the applicants lived in a two-room apartment together with Ms S., the second applicant’s mother. 7. Ms S. had a pending judicial dispute with a certain Mr L. regarding the inheritance of a house. The applicants, being interested in improving their living conditions, provided her with various support in those proceedings. 8. In April 2008 the first applicant visited Mr L. with a view to dissuading him from pursuing the mentioned dispute. 9. On 27 June 2008 Mr L. was found dead in his house. His throat was cut and there were multiple stabs and cuts on his body. One of the windows was broken, and there was a hoe lying nearby on the floor. 10. On the same day a criminal investigation was opened into the murder. 11. At about 10 p.m. on that same day the applicants came home where several police officers were waiting for them. The applicants were taken to the Kharkiv Frunzenskyy District Police Department (Фрунзенський районний відділ Харківського міського управління Головного управління внутрішніх справ МВС України в Харківській області). According to the applicants, this was done under the pretext that they needed to be questioned in respect of the first applicant’s debt vis-à-vis some third persons. As submitted by the Government, the police apprehended the applicants on suspicion of the murder of Mr L. 12. The applicants were questioned regarding their whereabouts and actions on 26 and 27 June 2008. They stated that they had been together shopping, going to the cinema, having meals and so on. 13. Both applicants were held in the police station during the night on 27-28 June 2008. They stated in their submissions to the Court that they had not been subjected to any ill-treatment at that stage. 14. On 28 June 2008 the first applicant underwent a forensic medical examination. According to its report, which was completed on 1 July 2008, the examination revealed multiple bruises and sores on virtually all the body of the first applicant. They included about thirty multidirectional sores on his back and about the same number of sores on his hips, buttocks and knees. The expert gave the following possible dates of the injuries: a bruise on the left shoulder and a sore on the torso – between 22 and 24 June 2008; bruises on the right part of the torso – between 25 and 27 June 2008; sores on the torso, the back and the legs – between 25 and 27 June 2008. Those sores were assessed as having possibly originated from the impact of some protruded blunt objects, such as glass fragments. 15. According to the first applicant, he sustained the injuries discovered on 28 June 2008, having accidentally fallen a day before. 16. The first applicant submitted the following account of the subsequent events. After the aforementioned examination, he was taken to the criminal investigation department, where one of the officers suggested that he should confess to the murder of Mr L. As the first applicant refused to do so, some officers brought in a dirty mattress and a gas mask. They put wet cloths around his wrists and handcuffed him. One of the officers punched him in the solar plexus and pushed him on the mattress. The others twisted his arms behind his back and made him split his legs while beating him to his torso and genitals. The gas mask was then put on the first applicant’s face and the vent was blocked. He fainted several times and was made regain consciousness with cold water. The gas mask was repeatedly put on his face, and he was made inhale cigarette smoke. At the same time, his genitals were being twisted. The first applicant’s ill-treatment continued as described above in several rounds. The officers threated him that they would bring his wife and do the same with her in front of him. He then signed a confession to the murder of Mr L. He had, however, to adjust it many times as dictated by the police. The first applicant was made memorise his confession. 17. The Government maintained that the first applicant had not been subjected to any ill-treatment. 18. According to the detention logbook of the police station, the first applicant was detained at 8.15 p.m. on 28 June 2008 as a criminal suspect. 19. On the same date, 28 June 2008, the investigator appointed a lawyer, Mr M., for the first applicant. He maintained his initial confession during his questioning in the presence of the lawyer. According to the first applicant, he did so fearing further ill-treatment and not having the possibility to talk with the lawyer in private prior to the questioning. 20. As regards the second applicant, in the morning on 28 June 2008 she was taken from the police station to her home, where a search was conducted. The police allegedly threatened her that if she did not testify against her husband, they would accuse her of a drug-related offence having previously planted drugs in her apartment. 21. Thereafter the second applicant was taken back to the police station, where she made a statement, allegedly under coercion, that her husband had admitted to her having murdered Mr L. More specifically, the second applicant submitted that three police officers had hit her several times on the head and had pulled her by the hair. 22. On 30 June 2008 a reconstruction of the crime was conducted in the presence of the first applicant’s lawyer, during which the first applicant confessed again to the incriminated crime. About forty minutes later he, however, retracted his confession as made under duress and complained of his ill-treatment by the police. According to the first applicant, he did so after his first confidential conversation with his lawyer, which had taken place only after the aforementioned event. His lawyer subsequently stated that he had had his first confidential meeting with the first applicant prior to the latter’s questioning on 28 June 2008 (see paragraph 65 below). 23. On 1 July 2008 the investigator submitted for approval to the Frunzenskyy District Prosecutor’s Office (“the Frunzenskyy Prosecutor’s Office”) an application for the first applicant’s pre-trial detention as a preventive measure pending trial. The prosecutor decided to question the first applicant himself before taking a decision. He saw that the first applicant had multiple injuries and concluded that his confession had been extracted by force. Furthermore, the prosecutor noted a number of discrepancies between the confessions of the first applicant and the autopsy report in respect of the victim. The second applicant was questioned too. She submitted that she had incriminated her husband under duress. 24. As a result, the prosecutor refused to approve the investigator’s application, quashed the latter’s decision on bringing the charges against the first applicant and released him. The prosecutor also directed his subordinates to question both applicants about their ill-treatment in police custody and to duly report their submissions. 25. While the applicants were making written statements in the office of the deputy prosecutor, at about 10.30 p.m., four officers of the Frunzenskyy District Police Department, namely, the first deputy head of the department (перший заступник начальника райвідділу) Mr K. (see also paragraphs 68 and 83 below for additional information about this police officer), the head of the criminal investigation department (начальник сектору карного розшуку) Mr Pap., his deputy (заступник начальника карного розшуку) Mr Par., and the chief of the investigation unit (начальник слідчого відділу) Mr M., broke in. Disregarding the objections of the deputy prosecutor and constraining him by force, they took the applicants out. There were more police officers waiting in the corridor. 26. The applicants were handcuffed and taken to the Frunzenskyy Police Department, located near the prosecutor’s office. On the way, one of the officers allegedly hit the first applicant in the right hip. 27. The first applicant was taken to an office on the ground floor where he was made sit quiet with one of the police officers. The office was locked from inside, and the light was switched off. About an hour later, he was taken to another office where the bars on the window could be removed. He was made write a note that he had left the police station at 10.30 p.m. The first applicant was then taken outside through the window behind the building of the police station. The police officers placed him a car, parked that car in a nearby yard and waited there till 3 or 4 a.m. It is not known what happened thereafter. It appears that the first applicant remained detained (see, in particular, paragraph 31 below). 28. After the police had taken the applicants from the prosecutor’s office, at 11.15 p.m. the deputy prosecutor visited the Frunzenskyy Police Department. According to the visitors’ logbook, the applicants had entered the building at 10.30 p.m. and had been remaining there. Having searched the premises, the prosecution officials found the second applicant in tears in one of the offices. The first applicant could not be found. Police officer K. submitted to the prosecutor a note on behalf of the first applicant, but without his signature, that he had left the police department at 10.30 p.m. The prosecution officers went to the applicants’ home, but the first applicant was not there. 29. On 30 June 2008 the first applicant complained to the prosecution authorities that he had been ill-treated by the police (see also paragraph 22 above). It appears that the second applicant raised a similar complaint too. 30. On 2 July 2008 the Frunzenskyy Prosecutor’s Office opened a criminal case against the police officers K., Pap. and Par. under Article 365 § 2 of the Criminal Code (exceeding power by engaging in the violent or degrading treatment of a victim) in respect of the events of the evening of 1 July and the night from 1 to 2 July 2008. 31. On the same date the applicants were assigned victim status and questioned. Also on that day the first applicant underwent a forensic medical examination, after which he was released. 32. On 4 July 2008 a report of the first applicant’s examination was delivered. It documented multiple bruises on his shoulders, torso, back, chest, arms, hips, thighs and legs. Their colouring varied from yellowish to violet and purple. The first applicant also had crust-covered sores and bruises on both wrists. The expert concluded that most of the injuries had originated from the impact of blunt objects between 23 and 27 June 2008. One bruise on the first applicant’s back below the left shoulder blade was assessed as sustained between 30 June and 1 July 2008. Lastly, according to the report, some sores on the right forearm, the left elbow and the right ankle had been inflicted on the first applicant on 1 July 2008. 33. On 2 July 2008 the second applicant underwent a medical examination too, which did not reveal any injuries. According to the second applicant, she complained to the expert that she had headaches and was advised to apply for help to a hospital. 34. On 5 July 2008 she was examined by a neurosurgeon in the local hospital who reported that she had bruises of the head soft tissues. 35. On 8 and 9 July 2008 the applicants were questioned in respect of their alleged ill-treatment by the police. They recognised the officers K., Pap. and Par. at the photos shown to them. 36. On 11 and 14 July 2008 a reconstruction of the events of 28 June and 1-2 July 2008 was conducted with the applicants’ participation. 37. On an unspecified date the Frunzenskyy Prosecutor’s Office directed the management of the police department to establish the whereabouts of the officers K., Pap. and Par., who had not complied with the prosecutor’s summonses. 38. On 18 July 2008 the Chief of the Frunzenskyy Police Department wrote to the prosecutor that all those three officers were on sick leave and that their whereabouts were being established. 39. On 21 August 2008 the police officers K., Pap. and Par. were questioned in respect of the alleged ill-treatment of the applicants. K. and Pap. refused making any statements. It is not known what Par. stated. 40. On 2 September 2008 the Kharkiv Regional Prosecutor’s Office discontinued the criminal investigation in respect of the aforementioned police officers, having concluded that the wrongdoings imputed to them were to be qualified as interference with the activity of a law-enforcement official (the Frunzenskyy Prosecutor) rather than exceeding power by engaging in the violent or degrading treatment of a victim. Accordingly, a different criminal case was opened, with a new charge. 41. On an unspecified date in October 2008 K., Pap. and Par. were questioned again. They denied any ill-treatment of the applicants. As to their behaviour on 1 July 2008, they submitted that they had believed that the applicants had posed a danger to the deputy prosecutor. 42. On 21 October 2008 the prosecutor, who had been involved in the events of 1 July 2008, gave detailed statements regarding those events, when questioned as a witness in the framework of the criminal investigation against the police officers. 43. Between 19 and 23 December 2008 the first applicant underwent a forensic medical examination with a view to establishing the origin of his injuries documented earlier. 44. On 23 December 2008 the examination report was completed. It reiterated the findings of the first applicant’s examinations of 28 June and 2 July 2008 (see paragraphs 14, 31 and 32 above). Furthermore, it noted that the sores on the first applicant’s wrists could have been caused by his handcuffing. The report stated that the findings of the earlier examinations did not contradict the other materials in the case file. 45. On 30 December 2008 the Kharkiv Regional Prosecutor’s Office terminated the criminal investigation into the applicants’ allegations of ill-treatment, for the lack of corpus delicti in the actions of the police officers. The prosecutor noted a contradiction in the first applicant’s submissions, according to which his only injury as of 28 June 2008 had been a bruise on his right hip from an accidental falling the day earlier, and the forensic medical examination report of 28 June 2008, which had established many others injuries. The expert who had examined the first applicant on 2 July and 23 December 2008, had stated during his questioning by the prosecutor that the injuries sustained by the first applicant after 28 June 2008, were located in the body parts accessible for self-infliction, apart from the bruise below the left shoulder blade. It appeared impossible to establish the origin of that bruise. The expert had also noted that no injuries on the first applicant’s genitals had been revealed. Overall, the prosecutor concluded that those few injuries which were dated later than 28 June 2008 “could have been sustained [by the first applicant] in circumstances unrelated to any use of force by the police against him”. It was also noted in the ruling that the first applicant had never raised any complaints before the medical personnel of the detention facility. Lastly, as regards the allegations of the second applicant that she had been ill-treated by the police, the prosecutor noted that her medical examination of 2 July 2008 had not revealed any injuries. In sum, the ill-treatment allegations of both applicants were found to be without basis. 46. On 9 October 2009 the Kharkiv Chervonozavodskyy District Court (“the Chervonozavodskyy Court”) quashed the above decision and directed the prosecution authorities to carry out an additional investigation. It noted, in particular, that the contradictions between the first applicant’s submissions that he had had no injuries as of 28 June 2008 and the forensic medical examination report of that date, according to which he had had numerous injuries, had to be clarified. 47. On 27 May 2010 a reconstruction of the events of 28 June and 12 July 2008 was conducted with the participation of the first applicant. He maintained the allegations of his ill-treatment by the police. 48. On 27 and 28 May 2010 a forensic medical expert examined the available documents in respect of the first applicant with a view to clarifying the origin of his injuries. The case file does not contain a copy of the respective report. It appears that, according to the expert’s conclusions, only some of the first applicant’s injuries could have originated in the circumstances as described by him. 49. On 31 May 2010 the Kharkiv Regional Prosecutor’s Office once again terminated the investigation initiated on 2 July 2008 for the lack of corpus delicti in the actions of the police officers concerned. The prosecutor noted that, even though the first applicant had sustained some injuries while in detention, the exact time and circumstances of their infliction remained unknown. Furthermore, the location of some of the injuries allowed to presume that they could have been self-inflicted. The prosecutor also noted that the first applicant had not “personalised” his injuries: in other words, that he had not specified who exactly of the police officers had inflicted each specific injury on him. The investigator had also questioned the forensic expert who had conducted the examination of the first applicant on 28 June 2008 who had confirmed her findings. 50. On the same date, 31 May 2010, the Regional Prosecutor’s Office delivered two additional rulings refusing to open a criminal case following the complaints of ill-treatment by each of the applicants. 51. On 29 November 2010 the Kharkiv Regional Court of Appeal, acting as a court of first instance in the first applicant’s trial, ordered the Kharkiv Regional Prosecutor’s Office to investigate the first applicant’s allegation of ill-treatment by the police. It noted that, according to the first applicant, the presence of his fingerprint on the hoe seized at the crime scene was explained by the fact that the police officers had put that hoe in his hands by force during his ill-treatment. 52. On 28 December 2010, 25 April and 5 May 2011 the Frunzenskyy Prosecutor’s Office, to which the investigation was re-assigned, refused to open a criminal case against the police, having mainly relied on the respective rulings of 31 May 2010 (see paragraphs 49 and 50 above). All those decisions were, however, quashed as premature. 53. On 18 May 2012 the Frunzenskyy Prosecutor’s Office again refused to open a criminal case against the police officers allegedly involved in the applicants’ ill-treatment. 54. On 11 June 2012 the Kharkiv Regional Prosecutor’s Office ordered a forensic medical examination of the first applicant by an expert panel with a view to clarifying his injuries and the possible circumstances of their infliction. The investigator noted that similar examinations, which had been carried out earlier, were inconsistent in their conclusions. 55. On 12 July 2012 a panel of experts issued a forensic medical examination report, in which they stated, in particular, that the first applicant might have sustained all the injuries (with the exception of two bruises and one sore) at the time and under the circumstances as indicated by him during the reconstruction of the events conducted on 27 May 2010 (see paragraph 47 above). 56. On 6 August 2012 the Kharkiv Regional Prosecutor’s Office, which was apparently investigating the matter in parallel, refused to open a criminal case against the police officers too. On the same day it terminated, on similar grounds as earlier, the criminal investigation initiated on 2 July 2008. On 5 September 2012 the Chervonozavodskyy Court quashed both aforementioned rulings as based on an incomplete and one-sided investigation. 57. On 8 October 2012 the Kharkiv Regional Court of Appeal upheld that decision. 58. On 22 October 2012 the Kharkiv Regional Prosecutor’s Office refused to open a criminal case against the police officers in respect of the second applicant’s allegations of ill-treatment. On the same date it discontinued the criminal investigation against the police officers in respect of the first applicant’s allegations of ill-treatment, which had been launched on 2 July 2008 (see paragraph 30 above). 59. The first applicant unsuccessfully challenged the aforementioned decision before the domestic courts. 60. On 11 November 2008 the first applicant was committed for trial. 61. On 18 May 2009 the Kharkiv Regional Court of Appeal (“the Kharkiv Court”), sitting as a court of first instance, remitted the case for additional investigation. It noted, in particular, that the first applicant’s initial confession could not be relied on because he had later retracted it as obtained under duress and given that his ill-treatment complaint had not been duly investigated. The court also indicated a number of contradictions between the first applicant’s confessions and the case-file materials. 62. On an unspecified date the additional investigation was completed and the case was referred to the trial court again. 63. On 26 January 2011 the Kharkiv Court found the first applicant guilty of murder for profit and sentenced him to fourteen years’ imprisonment with confiscation of all his personal property. It relied, in particular, on the first applicant’s initial confessions, which he had later retracted. Furthermore, the court referred to certain material evidence inculpating the first applicant (such as the hoe with his fingerprint found at the scene of the crime, and his shorts with a blood stain possibly originating from the victim). His allegations that he had been ill-treated and that the evidence against him had been fabricated were dismissed as unsubstantiated. 64. On 20 September 2011 the Higher Specialised Civil and Criminal Court quashed the above judgment mainly on the ground that Article 3 of the Convention and the Court’s case-law required a proper investigation of the first applicant’s allegations of ill-treatment, which had not been done. The Higher Court also remitted the case to the first-instance court for fresh examination. 65. On 4 July 2012 the Kharkiv Court once again found the first applicant guilty of murder for profit and sentenced him to fourteen years’ imprisonment with confiscation of all his personal property. The court relied, inter alia, on his confessions made on 28 June 2008 and further reiterated on 30 June 2008 in the presence of his lawyer (see paragraphs 19 and 22 above). It was noted in the judgment that the first applicant’s lawyer, who had represented him on the aforementioned dates, had been questioned and had stated that he had had a confidential conversation with the first applicant prior to the first questioning and that there had been no violations of the criminal procedure. 66. As regards the first applicant’s allegation that he had been ill-treated on 28 June 2008, the court noted that the prosecution authorities had thoroughly investigated the matter and had decided not to institute criminal proceedings against the police officers concerned. The Kharkiv Court referred in this connection to the prosecutor’s decision of 18 May 2012 (see paragraph 53 above). At the same time, having regard to the ill-treatment allegation on the part of the second applicant, which was still under investigation, the Kharkiv Court decided not to rely on her statements incriminating the first applicant, which she had made during the pre-trial investigation. 67. In so far as the first applicant complained of his kidnapping by the police from the prosecutor’s office on 1 July 2008, the trial court noted that the investigation was ongoing and that it was not necessary to wait for its outcome for the pronouncement of the judgment. 68. The first applicant challenged the judgment on points of law. He submitted, in particular, that that there was no solid evidence proving his guilt and that the trial court had wrongly relied on his self-incriminating statements obtained under duress, without any adequate investigation of his ill-treatment complaint. He referred in this connection to the Court’s judgment in the case of Savin v. Ukraine (no. 34725/08, 16 February 2012), which concerned that applicant’s torture by K., the same police officer who was involved in the alleged ill-treatment of the applicants in the present case. 69. On 22 January 2013 the Higher Specialised Civil and Criminal Court upheld the judgment of the first-instance court and its reasoning. | 1 |
test | 001-177931 | ENG | RUS | CHAMBER | 2,017 | CASE OF KSENZ AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 6. The applicant was born in 1986 and lives in Pskov. 7. At about 2 a.m. on 17 August 2005 the applicant was travelling in a car with B. – who was driving – M. and T. Their car was stopped by the police. Police Officers F. and K. asked for their ID cards. The applicant, who did not have his ID card on him, was taken to Zavelichenskiy police station in Pskov. 8. The applicant described events at the police station as follows. F. and K. had demanded that he stand facing a wall, hands raised, and had searched him. They had allegedly insulted him verbally and physically. In particular, they had punched him repeatedly in the face and the lumbar region and had tried to knock him down. 9. They then took him to the Pskov regional addiction-treatment clinic. When coming out of the police station they were approached by B., M., T. and I., the applicant’s brother. According to statements by B. and I., the applicant was depressed, his sweater was dirty and the bridge of his nose was red. I. also saw injuries on the applicant’s torso when he asked the applicant to lift his sweater. 10. At 2.56 a.m. a doctor at the addiction-treatment clinic carried out a breath test and tested his coordination. She stated in a record of “medical examination for establishment of alcohol consumption and state of inebriation” that the applicant’s examination had been initiated by Officer K. in connection with an administrative offence, and that the applicant had consumed alcohol but had revealed no signs of inebriation. She noted in the part of the record concerning the tested person’s “appearance” that the applicant had no injuries, and in the part concerning “vegetative-vascular reactions” that his face was “hyperemic”. 11. According to the applicant, the doctor did not ask him to undress and did not examine his body. Nor was he asked to sign the record of his examination or given its copy. 12. After the test the applicant was taken back to the police station. At the request of a police officer he signed a statement that at about 1 a.m. on 17 August 2005, when passing by a bus stop in B.’s car, he had called out through an open window to girls at the bus stop inviting them for a drive in the car. After that a police car had followed them and B. had stopped the car. The police officers had ordered him to proceed with them to the police station “for the reason that he had used foul language”. 13. At about 5 a.m. he was released. 14. At 10 a.m. the applicant was examined at his request by a forensic-medical expert at the Pskov Regional Forensic-Medical Bureau. The applicant explained that he had been punched and kicked by two police officers at about 2 a.m. that day. According to the medical report, the applicant had the following injuries: (i) an abrasion measuring 1.2 by 0.2 cm on the bridge of the nose, (ii) a bruise measuring 2 cm by 2 cm in the area of the right cheekbone, (iii) a bruise measuring 2.5 by 1 cm on a finger of the left hand, and (iv) a bruise measuring 2.5 by 2 cm on the left side of the lumbar region. The expert concluded that the injuries, which were not considered harmful to the applicant’s health, could have been caused on that day by hard blunt objects, for example by fists or feet. 15. On the same day Officer K. lodged a criminal complaint that at 2.10 a.m. on 17 August 2005 the applicant had sworn at him through an open car window when passing by. In the course of enquiries into the police officer’s allegations the applicant denied swearing or any other misbehaviour on his part. The Pskov police found no elements of criminal offences such as hooliganism (Article 213 § 1 of the Criminal Code) or insult of a public official (Article 319 of the Criminal Code) in the applicant’s actions and refused to institute criminal proceedings against him (decision of 24 August 2005). 16. On 22 August 2005 the applicant complained to the Pskov town prosecutor’s office about the unlawful actions of the police officers, indicating their service identification numbers. 17. Investigators of the Pskov town prosecutor’s office carried out a preinvestigation inquiry and refused to institute criminal proceedings into the applicant’s complaint. Their two decisions of 7 October and 2 December 2005 were annulled by their superiors, who considered that the decisions had been based on an incomplete inquiry. 18. In the most recent refusal of 23 December 2005 to institute criminal proceedings for lack of the elements of a crime in the actions of the police officers, the investigator established the facts as follows, relying on the police officers’ statements. At 2 a.m. on 17 August 2005 the applicant had addressed F. and K. with foul language from the window of his car, which had stopped near their police car. After that, the car with the applicant had started driving away. F. and K. had pursued the car and stopped it. They had taken the applicant to the police station. K. had explained to the applicant that he had been arrested for having committed a criminal offence under Article 319 of the Criminal Code (insult of a public official). On their way to the police station the applicant had behaved provocatively and threatened the police officers that they would have problems at work and would be dismissed. During the applicant’s escorting to the police station the police officers had not used physical force or any means of restraint. F. and K. had taken the applicant from the police station to an addiction-treatment clinic for a medical examination because he had been drunk. Before leaving for the clinic they had been approached by the applicant’s brother, who had enquired about the reasons for the applicant’s detention and a further procedure. The applicant’s brother had suggested that the applicant should have simulated concussion and complained that he had been beaten up by the police officers. 19. The investigator further noted that the drug-clinic doctor had not recorded any injuries on the applicant; and that in his statement signed at the police station the applicant had not denied using foul language and had not complained of any use of force or means of restraint against him. The investigator dismissed statements by I., M. and T. in support of the applicant’s allegations as unreliable and held that the applicant’s allegations had not been confirmed. 20. On 31 January 2006 the Pskov Town Court dismissed the applicant’s appeal against the investigator’s decision of 23 December 2005. It noted that F. and K. had “categorically” denied that they had beaten up the applicant. It held that there was no evidence of the applicant’s illtreatment at the police station and that his injuries could have been received in “other circumstances”. On 22 March 2006 the Pskov Regional Court upheld the Town Court’s decision on the applicant’s appeal. It stressed that there had been no eyewitnesses to the applicant’s alleged ill-treatment, and that the applicant had not complained of any ill-treatment to the drug-clinic doctor. Referring to the “categorical” denial of any ill-treatment by F. and K., the Regional Court held that the applicant had failed to prove his ill-treatment and that he could have received his injuries in “other circumstances” on 17 August 2005, in a time span between his examination at the addictiontreatment clinic and his examination by the forensic-medical expert. 21. The applicant was born in 1987 and lives in Novyy Toryal in the Mariy-El Republic. 22. At about 1 a.m. on 31 March 2007 a car without a licence plate, in which the applicant and other young men were going home after a party, was stopped by the traffic police officer. Soon another police car arrived with four or five police officers who, according to the applicant, pushed him and the other young men to the ground, and punched and kicked them. The applicant identified the police officers as M., O., S., V. and Zh. 23. The applicant and the other three men were taken to the police station in Novyy Toryal, where they arrived at 1.45 a.m. 24. According to the applicant, the events at the police station were as follows. Police Officers M., O. and S. interviewed him, asking who had been driving the car and whether the car had been stolen. The applicant denied that he had been driving the car and stated that the driver had run away and that he did not know him. The police officers repeatedly punched and kicked him in the head and on other parts of his body. 25. At 3.20 a.m. the applicant and the others were released. The applicant’s mother met them at the police station and called the ambulance. All four men were taken to the emergency unit of Novyy Toryal Central District Hospital, where they were recorded as having injuries. 26. The applicant was examined at 3.26 a.m. and admitted to the hospital surgical unit in a condition of “medium seriousness” at 4.20 a.m. His right ear was swollen and bleeding. He had a swelling on the back of the head measuring 7 by 4 cm, numerous bruises on the face and temples, and numerous abrasions on the back, neck, shoulders, the right side of the torso and one of his fingers. He had no alcohol on his breath. He was diagnosed with closed craniocerebral injury, brain contusion, traumatic perforation of the right eardrum and numerous contusions to the head and the lumbar region. He was exempted from attending school until 22 April 2007 due to his temporary disability on account of the closed craniocerebral injury and concussion. The hospital communicated information about the applicant’s hospitalisation with injuries allegedly received as a result of his illtreatment by police officers to the Novyy Toryal police. 27. On 31 March 2007 the Novyy Toryal police officers reported to their superior that they had pursued a car which had had no licence plates and had not stopped at their initial order. When the car had eventually stopped, several young men, seemingly drunk, had sworn at them, refused to get into the police car and tried to run away. The police officers had used force to overcome their resistance, managing to restrain them on the ground and search them, and had then taken them to the police station. 28. On the same day the applicant’s mother complained to the Novyy Toryal district prosecutor’s office about the unlawful actions of the police officers. An investigator of the Novyy Toryal district prosecutor’s office carried out a pre-investigation inquiry into her complaint. 29. On 4 April 2007 the applicant was examined by a forensic-medical expert from the Novyy Toryal division of the Mariy-El Republic ForensicMedical Bureau. The applicant had bruises around both eyes and an abrasion measuring 4 by 2 cm on the back of the head. Having examined the applicant’s hospital records, the expert concluded in a report of 13 April 2007 that the applicant’s injuries, notably brain contusion, traumatic perforation of the right eardrum, bruises on the face, abrasions on the head, torso and limbs and swelling in the lumbar region, could have been sustained on 31 March 2007 by impacts from hard, blunt objects. The injuries had resulted in short-term health issues for the applicant including a temporary incapacity for work lasting up to three weeks, that is to say minor harm to his health. 30. On 8 May 2007 the Novyy Toryal police brought administrative proceedings against the applicant, issuing administrative-offence records and a decision which stated that at 1 a.m. on 31 March 2007 the applicant had driven a car without a licence plate and without a driving licence and had not stopped the car on a police officer’s repeated order. A fine was imposed on the applicant. 31. On 9 May 2007 a deputy prosecutor of the Novyy Toryal district prosecutor’s office decided that material concerning the applicant’s unlawful driving on 31 March 2007 should be examined separately from the material concerning the applicant’s alleged ill-treatment. 32. On 20 May 2007 the Novyy Toryal police decided that no criminal proceedings should be brought against the applicant, whose actions disclosed no elements of a crime under Article 166 § 1 of the Criminal Code (carjacking). It found that it had been the applicant who had been driving the car with no licence plates before being stopped by the police on 31 March 2007. The applicant had bought it from a third person. However, he had not paid the full price and the previous owner had not given him the documents necessary for reregistering the car in his name and obtaining licence plates. 33. Investigators of the Novyy Toryal district prosecutor’s office thrice refused to institute criminal proceedings in respect of the applicant’s alleged ill-treatment for lack of the elements of a crime in the police officers’ actions. The refusals were annulled by their superiors, who considered that the inquiry was incomplete. 34. In the most recent decision of 22 June 2007 the investigator, relying on the police officers’ statements, established the facts as follows. During the night of 30-31 March 2007 the applicant, who had been driving a car without a licence plate, had disobeyed a traffic policeman’s order to stop and had tried to escape, thereby violating the traffic rules and committing administrative offences. However, administrative proceedings had not been brought against him in accordance with the law as a result of negligence on the part of the police officers responsible for drawing up administrative-offence records. The police had acted lawfully in apprehending the applicant and taking him to the police station. Officers O., M., S., V., S.K. and N.K. had lawfully used physical force in the course of the applicant’s apprehension, as a result of which he had sustained the injuries described in the forensic-medical expert’s report. 35. That decision was declared lawful and well-founded by the Novyy Toryal district deputy prosecutor (report of 24 June 2007) and by the Novyy Toryal District Court (decision of 14 August 2007, upheld by the MariyEl Supreme Court on 26 September 2007). 36. On 25 February 2013 the Mariy-El Republic deputy prosecutor annulled the decision of 22 June 2007 as unlawful and unfounded and ordered a fresh pre-investigation inquiry. 37. The applicant was born in 1988 and lives in Diveyevo in Nizhniy Novgorod Region. 38. At about 11 p.m. on 24 March 2007 the applicant was attending a discotheque at the Diveyevo Cultural Centre when he was approached by Police Officer K., who led him to the police car and took him to the Diveyevo district police station. According to the applicant, Police Officer K. twisted his arms behind his back when leading him to the car. 39. According to the applicant the events at the police station were as follows. He was requested to stand facing the wall. K., who wore army-type boots, kicked him at least ten times on the legs. Then he was placed in an administrative-detention cell, where he stayed until his release at about noon on 26 March 2007. 40. In reports to their superiors dated 24 March 2007 Officer K. and two police trainees stated that at 11.30 p.m. on 24 March 2007 at the Diveyevo Cultural Centre the applicant, who had been drunk, had used foul language in their presence, ignoring their orders to stop. 41. N., a police officer on duty at the Diveyevo police station, drew up an administrative-detention record, in which he stated that the applicant, who had committed petty hooliganism, had been subjected to administrative detention for the purpose of the averting the offence. No injuries on the applicant were mentioned in the part of the record concerning the routine procedure of inspection of detainees for injuries. The time of the record was drawn up was indicated as 11.30 p.m. on 24 March 2007. 42. Officer T. drew up an administrative-offence record, in which he stated that at 11.30 p.m. on 24 March 2007 at the Diveyevo Cultural Centre the applicant, who was drunk, had used foul language and ignored police officers’ orders to stop. He had thereby committed an administrative offence of petty hooliganism. The time of the drawing-up the record was indicated as 11.40 p.m. on 24 March 2007. The acting head of the Diveyevo district police issued the applicant a fine of 1,000 Russian roubles (RUB). The applicant did not appeal against that decision. 43. After his release from the police station, at 3.20 p.m. on 26 March 2007 the applicant was examined by a doctor at Diveyevo Hospital, who recorded bruises on the interior of the left calf (in the upper and middle parts), an abrasion on the front of the left shin, a bruise on the left ankle, a bruise on the right knee, a bruise on the left elbow, and an abrasion on the left hand. The applicant was diagnosed with contusions of the left shin, left ankle, right knee and left elbow, and abrasions of the left shin and left hand. 44. The hospital passed on information about the applicant’s injuries, allegedly inflicted by the police, to the Diveyevo district prosecutor’s office. On the same day the applicant lodged a criminal complaint seeking K.’s prosecution. An investigator of the prosecutor’s office carried out a preinvestigation inquiry. 45. On 27 March 2007 the applicant was examined by a forensicmedical expert from the Nizhniy Novgorod Regional ForensicMedical Bureau. The applicant had two bruises on the interior of the left calf (in the upper and middle parts) measuring 7 by 3 cm and 10 by 5 cm, a 1.5 by 0.5 cm bruise on the front of the left shin, a 2 by 1 cm bruise on the left ankle, and a 3 by 1.5 cm bruise on the left elbow. He also had an abrasion on the front of the left shin measuring 1.5 by 0.8 cm, an abrasion on the right ankle measuring 1 by 0.4 cm and an abrasion on the left hand measuring 3 by 2 cm. The areas of the back of the left shoulder in the middle part, the left knee, the left shin and the left ankle were painful at palpation. The expert concluded that the injuries, which had not resulted in harm to the applicant’s health, had been caused by hard blunt objects two or three days before the examination, as a result of at least five traumatic impacts (report of 27 March 2007). In reply to the investigator’s additional question as to whether the applicant could have received the injuries when getting into the police car, the expert stated that such a possibility could not be excluded. 46. The Diveyevo district police carried out an internal inquiry into the applicant’s allegations of ill-treatment, in the course of which K., other police officers and witnesses gave statements about the events in question. On 28 April 2007 the head of the Diveyevo district police approved a report on the inquiry in which the facts were established as follows. After 10 p.m. on 24 March 2007 K. and two police trainees had approached the applicant and rebuked him for using foul language; he had ignored their commands and continued swearing; K. had ordered that he go with them to the police station but he had refused; K. took him by the sleeve and led him to the police car; they took the applicant to the police station. It was established that no physical force had been used against the applicant. A number of other internal inquiries into the same events were carried out later, with the most recent one (report of 4 March 2013 approved by an acting head of the Nizhniy Novgorod regional police force) finding no disciplinary misconduct in K.’s actions. There was no mention in the report of the applicant receiving injuries when getting into the police car. Nor did K. mention it in his statements given in the course of the internal inquiry on 30 November 2007. K. stated that no physical force or means of restraint had been used against the applicant for lack of resistance on his part. 47. Investigators refused to institute criminal proceedings against Police Officer K. Their refusal was annulled five times by their superiors, who considered that their inquiry was incomplete. 48. The most recent refusal to institute criminal proceedings for lack of the elements of a crime in K.’s actions was taken on 2 September 2008 by an investigator from the Sarov investigative committee of the Nizhniy Novgorod regional prosecutor’s office. Relying on statements by K. and other police officers, who had denied any violence against the applicant, the investigator held that the applicant could have received the injuries when getting into the police car before being taken to the police station on 24 March 2007. The investigator’s decision was declared lawful and wellfounded in the Sarov Town Court’s decision of 16 January 2009, upheld by the Nizhniy Novgorod Regional Court on 13 March 2009. 49. In May 2013 the applicant was examined by a psychiatrist. He complained of a sleep disorder on account of his ill-treatment in police custody on 24 March 2007. He was diagnosed with sleep disorder related to the legs injuries sustained on that day and recommended a consultation and treatment by a neurologist and a trauma specialist. 50. The applicant was born in 1969 and lived in Cheboksary. 51. At about 12.30 a.m. on 29 June 2006 the applicant’s car was stopped by Officers V. and Z. of the traffic police. According to the applicant, they knocked him to the ground and kicked him repeatedly. The police officers then drew up records, stating that he was drunk. He disagreed, requesting that he be taken for a medical examination which would confirm that he was not. The police officers took him to the Kaliniskiy district police station instead. 52. According to records drawn up by V. between 12.30 a.m. and 1.50 a.m.: (i) the applicant was suspended from driving because he had signs of alcohol intoxication (alcohol on his breath, red eyes and slurred speech); (ii) he had been ordered to undergo a medical examination to determine whether he had been in a state of alcohol intoxication, but he had refused to do so; (iii) his car had been impounded; and (iv) the applicant had been found to have committed an administrative offence by refusing to undergo a medical examination at the request of the police. 53. At the police station V. and Z. reported to their superior that the applicant had disobeyed their order to stop his car; that they had pursued him until he had eventually stopped; that he had resisted arrest; and that in order to apprehend him they had twisted his arm behind his back, as a result of which he had fallen. 54. At about 5 a.m. the applicant was released from the Kaliniskiy district police station. 55. On the same day both the applicant and Officer Z. lodged criminal complaints with the Kalininskiy district prosecutor’s office, Cheboksary. The applicant complained that he had been beaten up by V. and Z. The latter complained that in the course of the applicant’s apprehension he had hurt his hand when they both had fallen. 56. On 30 June 2006 an investigator ordered the applicant’s forensicmedical examination, which was carried out on 3 July 2006. A forensic-medical expert from the Chuvashia Republic Forensic-Medical Bureau recorded ten abrasions measuring from 0.2 by 0.1 cm to 10 by 5 cm on the upper and middle parts of the lower right arm, on the right wrist and on both knees. The applicant also had four bruises on the middle part of the right upper arm and on the upper and middle parts of the left upper arm, measuring 1.6 by 1.2 cm, 1.7 by 1.3 cm, 0.9 by 0.3 cm and 0.2 by 0.2 cm. The expert concluded that all injuries, which had not resulted in harm to the applicant’s health, could have been caused by hard blunt objects. 57. On 3 August 2006 the Justice of the Peace of Court Circuit no. 7 of the Kalininskiy District of Cheboksary held a hearing in the administrative proceedings against the applicant. The applicant contested the police officers’ versions of events on 29 June 2006 and stated that he had not been drunk and had demanded to undergo a medical examination that would have confirmed that fact; however, the police officers had not let him be examined. His statements were supported by a witness. The court found the applicant guilty of disobedience of a police officer’s lawful order to undergo a medical examination to detect alcohol intoxication, and sentenced him to the seizure of his driving licence for a year and a half. On 31 August 2006 the Kalininskiy District Court, following a prior appeal by the applicant, upheld the judgment. 58. Investigators refused to institute criminal proceedings into the applicant’s alleged illtreatment by the police officers. Their refusals were annulled by their superiors more than twenty times on the grounds that they had been based on an incomplete inquiry. On several occasions the Kalininskiy District Court of Cheboksary rejected the applicant’s appeals on the grounds that the investigators’ decisions had already been annulled. On two occasions the District Court granted the applicant’s appeals and found the decisions unlawful and unfounded. 59. The most recent refusal to institute criminal proceedings for lack of the elements of a crime in the police officers’ actions was issued on 28 September 2009 by an investigator from the Cheboksary inter-district investigative committee. Relying on the reports by Officers V. and Z. and similar statements given by them later, the investigator held that the applicant’s injuries had been the result of the lawful use of force by the police officers during his arrest. The investigator’s decision was declared lawful and wellfounded in the Kalininskiy District Court’s decision of 12 November 2009, and was upheld by the Chuvashia Supreme Court on 17 December 2009. 60. In the same decision of 28 September 2009 the investigator dismissed the criminal complaint lodged by Z., finding no fault on the part of the applicant as Z. had fallen and hurt his hand when arresting him. 61. The applicant brought civil proceedings, seeking to have the investigating authority’s failure to carry out an effective investigation declared unlawful and claiming compensation. On 26 May 2008 the Leninskiy District Court dismissed his application, finding that he had failed to prove that the investigating authority had acted unlawfully, that he had been harmed as a result of its actions or inaction, that there had been a causal connection between specific unlawful behaviour and any harm, and that there had been evidence of an alleged tortfeasor’s liability. It held that domestic law did not provide for compensation of nonpecuniary damage in a case of a delayed decision in reply to a criminal complaint or in a case of the annulment of such a decision. On 30 June 2008, following an appeal by the applicant, the Chuvashia Supreme Court upheld the judgment. 62. The applicant was born in 1989 and lives in Novocheboksarsk. 63. At about 6 a.m. on 8 February 2008 the applicant and other young men, who were sitting in his parked car, were approached by traffic-police officers and taken to Novocheboksarsk police station following a complaint from a certain P. that they had broken a window in her car and tried to steal a child seat. The applicant was handcuffed. 64. The applicant described events at the police station as follows. One of the police officers had grabbed him by the neck with one hand and by his head with the other and hit his face against a wall. The applicant’s two front teeth had fallen out and he had felt unwell. Later, he had asked to have the handcuffs removed as they had been causing him pain. Instead, a police officer lifted his hands shackled behind him, inflicting more pain. 65. According to the records drawn up by Officer B. between 6.50 a.m. and 9.20 a.m. on 8 February 2008: (i) the applicant was suspended from driving because he had signs of alcohol intoxication (alcohol on his breath, red eyes and trembling fingers); (ii) he was ordered to undergo a medical examination for detecting alcohol intoxication, but refused to do so; (iii) his car was impounded; and (iv) the applicant was found to have committed an administrative offence by refusing to undergo a medical examination at the request of the police. The applicant was subsequently found guilty of disobeying a police officer’s lawful order to undergo a medical examination for detecting alcohol intoxication, and sentenced to the seizure of his driving licence for a year and a half (judgment of the Justice of the Peace of Court Circuit no. 5 of Novocheboksarsk of 14 March 2008, and was upheld by the Novocheboksarsk Town Court on 19 May 2008). 66. In a report to his superior, Officer M. stated that the applicant had behaved aggressively at the police station and that he himself had hit his head against a wall and had broken his tooth. 67. No criminal proceedings were brought against the applicant in relation to P.’s complaint in respect of the attempted theft of a child seat (Novocheboksarsk town police decision of 18 February 2008). 68. After his release at about 6 p.m. on 8 February 2008 the applicant was examined by a doctor at the traumatology unit of the Novocheboksarsk town hospital. The applicant had abrasions on the right side of his face, his lip, the left side of his neck and the wrists, and the crowns of two upper teeth on the right side were broken. On the same day he was examined by a dentist who recorded that the upper front tooth on the right was missing, the crown of the next tooth to the right was broken, and that the two lower front teeth were loose as a result of a traumatic subluxation. 69. On 12 February 2008 the applicant lodged a criminal complaint that he had been ill-treated at the police station. The Novocheboksarsk investigative committee at the Chuvashiya Republic prosecutor’s office carried out a pre-investigation inquiry. 70. An investigator obtained an opinion of a forensic-medical expert from the Novocheboksarsk division of the Chuvashia Republic Forensic-Medical Bureau, who considered that the applicant’s injuries could have been received within twenty-four hours of the applicant’s medical examination on 8 February 2008, as a result of an impact from a hard blunt object, for example as a result of hitting a wall as regards the injuries to the front teeth, lip and face. The injuries had resulted in short-term health problems lasting up to three weeks, that is to say minor harm to the applicant’s health. 71. Investigators of the Novocheboksarsk investigative committee refused to institute criminal proceedings into the applicant’s alleged illtreatment by the police. Their refusal was annulled fourteen times by their superiors, who considered that it had been based on an incomplete inquiry, and a fresh preinvestigation inquiry was ordered. 72. The most recent refusal to institute criminal proceedings for lack of the elements of a crime in the police officers’ actions was taken by an investigator on 5 November 2009. He cited the police officers’ statements that the applicant had tried to run away, they had therefore handcuffed him in order to take him to the police station, where the applicant himself had struck his face against a wall. Relying on the police officers’ statements, the investigator concluded that the applicant had inflicted the injuries on himself by striking his face against a wall at the police station, and that the abrasions on his neck and wrists had been a result of the lawful use of force by the police officers in the course of his arrest. The investigator’s decision was declared lawful and well-founded by the Novocheboksarsk Town Court’s decision of 23 April 2010, and was upheld by the Chuvashia Supreme Court on 25 May 2010. 73. The applicant was born in 1971 and lives in Moscow. 74. At about 5.20 a.m. on 28 May 2008 the applicant was arrested by Police Officers P. and V. in a twenty-four-hour shop and taken to the Mitino district police station of the Moscow North-Western administrative circuit. According to the applicant, in the police car he was slapped in the face several times, and at the police station the police officers repeatedly punched him in the head and other parts of the body and kicked him in the chest. 75. In their reports concerning the incident the police officers did not mention that the applicant had had any injuries. 76. In a record of the applicant’s administrative detention at 5.30 a.m. on 28 May 2008, drawn up at 5.32 a.m. that day, an officer on duty at the police station noted the applicant’s complaint that the police officers had inflicted injuries on him. The record further stated that the applicant’s examination had revealed no injuries on him. 77. At 6 a.m. the applicant was examined by a doctor at an addictiontreatment hospital and was found to be in a state of alcohol intoxication. The doctor noted that the applicant was handcuffed and had abrasions on his face. 78. According to an administrative-offence record drawn up on 28 May 2008 by the officer on duty, at 5.20 a.m. on 28 May 2008 the applicant had breached public order by using foul language in a public place and ignoring police officers’ requests to stop. On the same day the Justice of the Peace of the Mitino District Court Circuit no. 175 found that the applicant had committed petty hooliganism and imposed a RUB 500 fine on him. The applicant, who pleaded guilty, did not appeal against the judgment. He was released after the hearing. 79. On the same day he was examined by a doctor at polyclinic no. 229 who recorded bruising to the area of both eyes and the nose, bleeding of the sclera of both eyes, a fractured nose and a possible concussion. On 3 June 2008 the applicant was examined at town hospital no. 71 and diagnosed with acute rightside perforated post-traumatic otitis and bruising of the soft tissue of the head, in particular in the area of the left eye and the cheek bones. On 9 June 2008 he was examined at polyclinic no. 2 and diagnosed with hearing difficulties on both sides and acute rightside perforated posttraumatic otitis. 80. Following the applicant’s criminal complaint of 2 July 2008, the Tushinskiy district investigative committee at the Moscow prosecutor’s office carried out a preinvestigation inquiry. 81. The applicant’s medical records were examined by a forensicmedical expert from the Moscow City Forensic-Medical Bureau. The expert concluded that the bruising and fracture of the nose (which had resulted in short-term health problems lasting up to three weeks, that is to say minor harm to the applicant’s health), the bruising in the area of both eyes and the cheek bones and the bleeding to the sclera of both eyes could have been sustained on 28 May 2008 as a result of impacts from hard blunt objects. As no injuries had been recorded in the area of the external right ear, the expert doubted that the perforated otitis had been a result of trauma or its connection to the alleged police ill-treatment (the expert’s report of 9 October 2009). 82. Investigators refused to institute criminal proceedings for lack of the elements of a crime in the police officers’ actions. Their three refusals issued between July 2008 and October 2009 were annulled because they were based on an incomplete inquiry. 83. In the most recent refusal to open a criminal case of 28 January 2010 an investigator held that the applicant, who had been drunk, could have fallen and injured himself. It relied, inter alia, on Officer P.’s report dated 7 July 2008 that the applicant had been brought to the police station with “visible injuries”. That decision was declared lawful and well-founded in the Tushinskiy District Court’s decision of 19 March 2010, and later upheld by the Moscow City Court on 17 May 2010. | 1 |
test | 001-146357 | ENG | UKR | CHAMBER | 2,014 | CASE OF DZEMYUK v. UKRAINE | 3 | Remainder inadmissible;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);Non-pecuniary damage - award | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 6. The applicant was born in 1961 and lives in the village of Tatariv, which forms part of Yaremche, a resort town in the Ivano-Frankivsk Region of Ukraine. 7. The applicant owns a house and an adjacent plot of land in Tatariv. The village of Tatariv is situated in a mountainous region and because of its location holds the status of mountainous residential area. It is also known as a resort for “green tourism” in Carpathy region. It is situated on the banks of Prut river. 8. On 10 February 2000 Tatariv Village Council (“Tatariv Council”), having considered four sites on which to construct a new cemetery, chose the land previously occupied by garages belonging to a company called Vorokhtya Lisokombinat (“the VL plot”) as it was not occupied, it was located in the village and the cemetery could be constructed at low cost. 9. The VL plot is located near the applicant’s house (for further details see paragraphs 14 and 33 below), in which he was residing with his family at the time. Two rivers flow at a distance of 30 and 70 metres from the VL plot. Drinking water for Tatariv comes from wells fed by groundwater; there is no centralised water supply system and the wells are not protected. 10. On 24 May 2000 the All-Ukrainian Bureau of Environmental Investigations informed the Chairman of Yaremche Town Council (“Yaremche Council”) that the construction of the cemetery on the VL plot might cause contamination of the river and the wells situated on adjacent plots of land by ptomaine carried by the groundwater flow. 11. The cemetery was opened for use by the Yaremche Council in August 2000. It is being administered by the Yaremche Council. 12. On 6 February 2001 the Yaremche Environmental Health Inspectorate (санітарно-епідеміологічна станція) concluded that the cemetery should not have been constructed on the VL plot in view of its proximity to residential buildings and the risk of contamination of the surrounding environment by ptomaine. 13. On 20 August 2002 the Regional Environmental Health Inspectorate of the Ministry of Health refused to approve the construction plan. In particular, it stated that the cemetery should not be situated in the proposed area as its distance from private housing did not comply with the norms and standards of a health protection zone (санітарно-захисна зона). 14. On 30 August 2002 and 20 January 2003 the Marzeyev Institute of Hygiene and Medical Ecology, part of the Academy of Medical Sciences, informed the applicant and Yaremche Council that another location would have to be found for the cemetery. It was of the view that constructing the cemetery on the VL plot would breach environmental health laws and regulations and would worsen the living conditions of the residents of adjacent houses. In particular, it would be located less than 300 metres from the nearest residential buildings, which are 38 metres away from the edge of the cemetery (which would not allow for the establishment of the necessary health protection zone). It could lead to contamination of the groundwater reservoir used by the residents of adjacent households for drinking water and of the nearby rivers with by-products of human decomposition. It further stated that a health protection zone was also intended to reduce psychological pressure on the residents of adjacent houses. 15. The applicant alleges that from 2002 to the present moment he has been receiving treatment for hypertension and various cardio-related diseases. He supplied in this respect sick leave certificates and medical certificates from 2002 and 2006, relating to him and his wife. He has also provided the Court with death certificates for two of his neighbours Mr R.G. and Mr D.B., who also resided in the vicinity of the prohibited cemetery and died at the age of 68 and 43, respectively. 16. On 17 September 2002 the Ivano-Frankivsk Regional Prosecutor’s Office informed the applicant that it could not intervene in respect of unauthorised burials taking place on the VL plot: the issue was in the competence of local authorities, including the Yaremche Council, which was responsible for management and maintenance of the cemetery. 17. On 22 April 2003 the Executive Board of Yaremche Council informed the Regional State Administration that Tatariv Council was considering resettling the applicant. He had twice been invited to discuss a proposal for resettlement of his family to another part of the village but no response had been received. 18. On 5 May 2003 the Regional Urban Development and Architecture Department (“the Urban Development Department”) informed Yaremche and Tatariv Councils that the area near the applicant’s house was not suitable for construction of the cemetery as it did not respect a 300-metre wide health protection zone that would protect the residential buildings and a 50-metre wide water protection zone to protect the Prutets river. 19. On 18 May 2003 the Tatariv Council resolved inter alia that the relevant local authorities were prepared to consider the purchase of a house or apartment for the applicant, or to pay him compensation if he refused to reside in the cemetery’s vicinity. 20. On 21 April 2004 the issue of the site of the cemetery was examined by officials from the Urban Development Department, the Municipal Housing Department, the environmental health inspectorate and the Land Management Department. They recommended to the Chairman of Tatariv Council that another plot on the outskirts of the village of “Ventarivka” be used as a cemetery. 21. On 22 June 2005 the Regional State Administration informed the applicant that the only way to resolve the issue was to resettle him. They asked him to agree to such a resettlement. They also confirmed that Yaremche Council was willing either to buy a house for the applicant or to provide him with an equivalent plot of land and the funds necessary to construct another house 22. On 18 July 2005 the Chairman of Yaremche Council invited the applicant to inform the authorities whether his family was willing to resettle and, if so, on what conditions. 23. In reply, the applicant sought more information on the proposal, such as, details of the specific land plot, house and facilities to be provided. 24. By letter of 27 July 2005 the Chairman of Yaremche Council, in reply to the applicant’s request for specific proposals, invited the applicant to discuss the proposal in person with a view to a possible compromise. 25. On 15 August 2005 the Chairman of Tatariv Council asked the Ukrainian State Urban Planning Institute (Дніпромісто – “the Institute”) to develop proposals for the site of a cemetery in the village. 26. On 21 December 2005 the Institute informed the applicant that it was not within its competence to decide matters such as the question of where to situate the cemetery. It also mentioned that the local development plan for Tatariv proposed a plot in the Chertizh area for the cemetery. However, this was subject to approval by the local council and environmental health inspectorate. It also informed the applicant that no letter of 15 August 2005 with proposals to investigate possible site of the cemetery (see paragraph 25 above) had been received from Tatariv Council. 27. By letter of 6 March 2006 addressed to the applicant and the Chairman of Tatariv Council, the Urban Development Department stated that it had repeatedly proposed to Tatariv Council that it use an area called Venterivka for the site of the cemetery. However, the council had not taken up that suggestion for unspecified reasons. It also informed the applicant that it was within Tatariv Council’s competence to decide on the allocation of a plot of land for a cemetery. 28. On several occasions between August 2006 and June 2008 the applicant and members of his family, who resided together, asked Tatariv Council to grant each of them a plot of land on which to construct a house because they felt that living in the cemetery’s vicinity was intolerable. Tatariv Council rejected the requests because of a lack of available plots of land. 29. According to the results of examinations of drinking water from the applicant’s well conducted by the Yaremche Environmental Health Inspectorate dated 21 August 2008 and 7 July 2009, the toxicological, chemical and organoleptic indices of the water complied with national standards (no E. coli index examination had been made). A conclusion was reached that water could be used for household needs. 30. On 23 August 2008 and 6 July 2009 the Yaremche Environmental Health Inspectorate carried out a bacteriological analysis of the water from the same well. It established, contrary to the results of the examinations held on 21 August 2008 and 7 July 2009 (see paragraph 29 above) that the E. coli bacteria index in the water gave a reading of 2,380, whereas the normal reading was 10 (see paragraph 72 below), and concluded that the water could not be used for household needs. It also recommended disinfecting the water supply. The cause of water pollution was not established and would require an additional expert report. 31. On 14 December 2009 in response to a request from the Government, the Yaremche Environmental Health Inspectorate concluded that the reading obtained from the bacteriological analysis which had indicated water contamination did not have any connection to the location of the cemetery, but could also have been caused by other sources. 32. On 15 December 2009 the Regional Environmental Health Inspectorate informed the applicant that the reasons for the bacterial contamination of the water supply could be established on the basis of a hydrogeological assessment as to whether there were any connections between the drinking water reservoirs and possible sources of contamination. It further stated that according to an analysis of water taken from different parts of the village, the E. coli index exceeded the allowed reading established by law, which provided that drinking water should not contain any index of E. coli or be less than 1 in that index per 100 cm3 (see paragraph 72 in relation to the domestic drinking water standards), nevertheless the E. coli index ranged from 23 to 2,380. 33. The applicant’s house and well are some 38 metres from the nearest boundary of the cemetery. 34. By letters of 10, 15 and 16 December 2009 from the Tarariv Council, Yaremche Executive Committee and the Ivano-Frankivsk Regional State Administration, the authorities informed the Government’s agent that the applicant had failed to manifest any interest in being resettled. 35. On 10 August 2000 the Verkhovyna Court, following the applicant’s claim in proceedings against the Tatariv Council, held that the Council’s decision to situate the cemetery on the VL plot had been unlawful. 36. At the end of August 2000 residents of Tatariv carried out the first burial at the cemetery. 37. On 1 December 2000 the Yaremche Court, in another set of new proceedings, found that Tatariv Council had failed to follow the proper procedure for the allocation of a plot of land for a cemetery, namely obtaining an environmental health assessment, and ordered it to prohibit burials on the VL plot. 38. On 24 December 2000 the residents of Tatariv were informed of the court’s decision to stop the use of the VL plot as a cemetery. Nevertheless, burials continued at the site. 39. On 29 December 2000 Tatariv Council prohibited burials on the VL plot. On 2 February 2001 the State Bailiffs’ Service terminated enforcement proceedings in the case, considering that the judgment had been fully complied with by the Tatariv Council. 40. On 2 March 2001 Tatariv Council again decided that the VL plot could be used for the new village cemetery. On 26 March 2001 the applicant lodged a new claim against that decision with the Yaremche Court. 41. In the meantime, on 22 August 2001 the Regional Environmental Health Inspectorate informed the relevant judge of the Yaremche Court, which assumed jurisdiction over the claims lodged on 26 March 2001 (see paragraph 40 above), that the site of the cemetery did not comply with national environmental health laws and regulations on the planning and construction of urban areas. In particular, the location did not comply with the requirement of a health protection zone between the cemetery and the nearest residential buildings. 42. On 16 October 2001 the Yaremche Court declared Tatariv Council’s decision of 2 March 2001 unlawful. On 17 April 2002 the Supreme Court upheld that judgment. 43. On 25 December 2001 Tatariv Council cancelled its decision of 2 March 2001 in pursuance of the judgment of 16 October 2001. 44. On 3 July 2003 Tatariv Council approved a new development plan for the village. The plan again authorised the use of the VL plot as a cemetery. 45. On 22 July 2003 the applicant again instituted proceedings against Tatariv Council, seeking to have the approval of the new development plan for the village, insofar as it concerned the location of the cemetery, declared unlawful. He also sought compensation for non-pecuniary damage, court fees and legal expenses. 46. On 22 August 2003 the Verkhovyna Court ordered Tatariv Council to inform the residents of the village that burials at the unauthorised cemetery near the applicant’s house were prohibited. 47. By that time, up to seventy burials had been carried out on the VL plot. The distance between the applicant’s house and some of the graves was less than 120 metres. 48. The Chairman of Tatariv Council argued before the court that there was no other suitable area for a cemetery in the village. She further submitted that the applicant’s allegation of possible contamination of the water supply was unfounded, as the groundwater flowed away from his property. 49. On 26 December 2003 the Verkhovyna Court allowed the applicant’s claims and held that the new construction plan was unlawful as regards the location of the cemetery. It found that the VL plot was not suitable for use as a cemetery. In particular, constructing the cemetery on the VL plot had breached the environmental health laws and regulations requiring the establishment of: (a) a health protection zone 300 metres wide separating residential areas from a risk factor; and (b) a water protection zone 50 metres wide separating water supply sources from a risk factor. It observed that those distances could not be reduced. It ordered Tatariv Council to close the cemetery and to pay the applicant 25,000 hryvnias (UAH) in compensation for non-pecuniary damage and UAH 609.45 for costs and expenses. 50. On 28 May 2004 the Ivano-Frankivsk Regional Court of Appeal (“Court of Appeal”) upheld the judgment of 26 December 2003 in part. In particular, it decided that no award of non-pecuniary damage should be made to the applicant, and it reduced the award for costs and expenses to UAH 151. 51. On 9 October 2006 the Supreme Court upheld the ruling of 28 May 2004. 52. On 18 June 2004 the Verkhovyna Court issued two writs of execution ordering Tatariv Council to adopt a decision declaring the new development plan unlawful and to close the cemetery. 53. On 7 July 2004 the State Bailiffs’ Service instituted enforcement proceedings in the case. 54. Between July 2004 and February 2005 the State Bailiffs’ Service imposed fines on Tatariv Council several times for its refusal to comply with the judgment of 26 December 2003. 55. On 3 March 2005 the Bailiffs terminated the enforcement proceedings, stating that it had been impossible to enforce the decision without the involvement of Tatariv Council, whose members had failed to adopt a decision in pursuance of the judgment of 26 December 2003. 56. In March 2005 the applicant requested the Verkhovyna Court to change the terms of the enforcement of the judgment of 26 December 2003. In particular, he sought to have the Chairman of Tatariv Council ordered to execute the judgment. 57. On 17 October 2005 the Verkhovyna Court rejected the applicant’s request. It held that the Chairman had acted only as a representative of Tatariv Council, the respondent in the case. The Chairman had not been involved as a party to the proceedings. On 6 December 2005 the Court of Appeal upheld the ruling of 17 October 2005. 58. In August 2005 the applicant challenged the alleged omissions and inactivity of the Chairman of Tatariv Council as regards the enforcement of the judgment of 26 December 2003 before the Verkhovyna Court. 59. On 8 November 2005 the Verkhovyna Court found no fault on the part of the Chairman and rejected the applicant’s claim. On 12 January 2006 the Court of Appeal upheld that decision. 60. On 16 August 2006 Tatariv Council again refused to declare the new development plan unlawful and to close the cemetery. 61. On 28 August 2006 the State Bailiffs’ Service informed the applicant that the enforcement proceedings were not subject to renewal. 62. The applicant also unsuccessfully sought to institute criminal proceedings against the Chairman of Tatariv Council for her alleged failure to enforce the judgment of 26 December 2003. 63. On 7 May 2002 the Yaremche Court, acting upon the applicant’s request, refused to institute criminal proceedings against a private individual, K.M., for using the VL plot for a burial. On 16 July 2002 and 21 January 2003 the Court of Appeal and the Supreme Court, respectively, upheld this decision. 64. On 3 October 2002 the Yaremche Court in two separate judgments rejected as unsubstantiated damages claims brought by the applicant and his neighbour, D.B., against K.M. and F.G. (private individuals) concerning the unlawful use of the land near their houses for burial purposes. It found no breach of applicant’s rights by the respondents. 65. The judgments were upheld on 24 December 2002 (in two separate rulings) by the Court of Appeal and subsequently on 15 September 2005 and 15 February 2006 by the Supreme Court. | 1 |
test | 001-161051 | ENG | LTU | COMMITTEE | 2,016 | CASE OF GRIGALIŪNIENĖ v. LITHUANIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano | 5. The applicant was born in 1955 and lives in Kaunas. 6. In February 1993 the Kaunas Region Municipality (Kauno rajono savivaldybė) assigned a plot of land measuring 0.15 hectares in the settlement of Noreikiškės to the applicant for the construction of a house (hereinafter “the land”). In May 1995 she signed a land purchase agreement with the municipality and bought the land for 29.70 “single-use investment vouchers” (investiciniai čekiai). The purchase agreement indicated that the nominal value of the land was 2,976 Lithuanian litai (LTL approximately 862 euros (EUR)). The applicant subsequently obtained a building permit and built a storehouse on the land. 7. On 10 May 2002 the Constitutional Court found that Government regulations which allowed land in Noreikiškės to be sold to private individuals were contrary to the Constitution of the Republic of Lithuania and the Restitution Law (see Padalevičius v. Lithuania, no. 12278/03, § 18, 7 July 2009). 8. In December 2003 the Kaunas County Administration (hereinafter “the KCA”) brought a claim before the Kaunas District Court (Kauno rajono apylinkės teismas) seeking the annulment of the administrative decisions and the purchase agreements on the basis of which plots of land had been sold to the applicant and to several other individuals. The KCA argued that the land in question had to be returned in natura to its former owners and thus had been sold to the applicant and other individuals unlawfully. 9. On 4 June 2004 the Kaunas District Court allowed the KCA’s claim. The court annulled the administrative decision of 1993 assigning the land to the applicant and the land purchase agreement of 1995, and ordered the Kaunas Region Municipality to return 29.70 “single-use investment vouchers” to the applicant. 10. On 7 February 2005 the Kaunas Regional Court partially quashed the first-instance judgment. It found that the lower court had correctly annulled the administrative decision and purchase agreement, and upheld the judgment in that part. However, it noted that the “single-use investment vouchers” could no longer be used as a means of payment. Thus, in accordance with the Civil Code, the applicant should have received the monetary equivalent of what she had paid in 1995. The court remitted that part of the case for re-examination in order to assess the monetary equivalent. On 3 October 2005 the Supreme Court upheld the Regional Court’s judgment. 11. The remitted part of the case was subsequently re-examined by the Kaunas Regional Court sitting as the court of first instance. During those proceedings, the applicant argued that the unlawful allocation and sale of the land had resulted from the State authorities’ negligence. The applicant claimed that she, as a bona fide purchaser, was therefore entitled to receive compensation for the full market value as it was at the time of expropriation, in accordance with Article 6.147 § 2 of the Civil Code (see paragraph 16 below). 12. On 6 March 2008 the Kaunas Regional Court dismissed the applicant’s request for compensation equating to the full market value of the land. The court found that the authorities could not be held solely responsible for the unlawful sale because the applicant had also had a duty to verify whether she had been buying the land lawfully. Thus, the court held that, for the purposes of Article 6.147 § 2 of the Civil Code, the applicant could not be considered a bona fide purchaser and was not entitled to compensation for the full market value. The court awarded her the nominal value of the land in 1995, which it assessed to be LTL 29.70 (EUR 8.60). The court also noted that if the applicant considered that she had suffered pecuniary damage, she had the right to institute separate proceedings against the State for damages. 13. On 19 August 2008 the Court of Appeal partially amended the Regional Court’s judgment. It reiterated that the applicant could not be considered a bona fide purchaser merely because she had bought the land from the State – she had also had a duty to verify the lawfulness of the sale. However, the Court of Appeal found that the lower court had incorrectly assessed the nominal value of the land in 1995. Referring to the text of the purchase agreement (see paragraph 6 above), the court awarded the applicant LTL 2,976 (EUR 862). 14. On 27 January 2009 the Supreme Court upheld the judgment of the Court of Appeal; however, it partially amended the reasoning. The Supreme Court stated that the nominal value of the land had been indicated in the purchase agreement, so it had not been necessary to apply Article 6.147 of the Civil Code and assess the monetary equivalent. As a result, the applicant’s good faith had been irrelevant in determining the amount of compensation and should not have been examined. Nonetheless, the Supreme Court considered that that error had not affected the lawfulness of the Court of Appeal’s judgment. | 1 |
test | 001-165565 | ENG | RUS | ADMISSIBILITY | 2,016 | ISAKOV v. RUSSIA | 4 | Inadmissible | Alena Poláčková;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 1. Mr Abdulazhon Mamadzhanovich Isakov was born in 1963 and lived, prior to his disappearance, in Tyumen. He is a stateless person. The application in his name was submitted to the Court by Ms N. Yermolayeva, a lawyer practising in Moscow. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. In 1989 Mr Isakov moved from Uzbekistan to the Tyumen Region in Russia. 4. In 1998 the Uzbek authorities opened a criminal case against Mr Isakov on charges of attempting to overthrow the State’s constitutional order in Uzbekistan and put his name on the wanted persons’ list. 5. On 6 March 2008 Mr Isakov was arrested in Tyumen, Russia, and remanded in custody with a view to extradition. 6. On 12 August 2008 the Russian Prosecutor General’s office decided to extradite Mr Isakov to Uzbekistan. The domestic courts at two levels of jurisdiction upheld the extradition order. A final decision on the matter was taken by the Supreme Court of the Russian Federation on 22 December 2008. 7. On 21 March 2008 Mr Isakov lodged an application with the Court in which he complained about his detention in Russia with a view to extradition to Uzbekistan where he faced politically-based persecution by the local authorities. On 30 September 2008 Mr Isakov signed an authority form authorising several lawyers, including Ms Yermolayeva, to represent him in the proceedings before the Court. 8. On 10 November 2008 the Court granted Mr Isakov’s request for the application of interim measures under Rule 39 of the Rules of the Court and indicated to the Russian Government that he should not be extradited to Uzbekistan until further notice. On the same date the application was communicated to the Government which were requested to submit observations concerning the risk of ill-treatment if the extradition order in respect of Mr Isakov were enforced, lawfulness and review of his detention in Russia and alleged lack of effective remedies in this respect. The parties’ observations were received on 28 July and 2 October 2009 respectively. The Government complied with the Court’s request as to the application of interim measures and submission of observations. 9. On 5 March 2010 Mr Isakov was released from custody and on 17 March 2010 he was granted temporary asylum in Russia. 10. On 8 July 2010 the Court delivered a judgment in Mr Isakov’s case (see Abdulazhon Isakov v. Russia, no. 14049/08, 8 July 2010) where it found, inter alia, that in the event of the extradition order against Mr Isakov being enforced, there would be a violation of Article 3 of the Convention. 11. On 1 June 2011 the Presidium of the Supreme Court quashed the decision of 12 August 2008 and the ensuing judicial decisions, including the Supreme Court’s decision of 22 December 2008 (see paragraph 6 above). 12. Mr Isakov and his family (wife and children) continued to reside in Tyumen, Russia. 13. On 3 February 2012 the Government informed the Committee of Ministers of the individual measures taken within the framework of the execution of the judgment in Mr Isakov’s case. In particular, the Government reported that (1) the judgment had been enforced as regards the payment of non-pecuniary damage and reimbursement of costs and expenses and (2) the extradition-related judicial decisions had been quashed. 14. In September 2013, within the framework of the supervision of the execution of a number of judgments against Russia relating to disappearances and/or forcible transfers and also repeated allegations of such incidents, the Committee adopted an Interim Resolution (CM/ResDh(2013)200) exhorting the Russian authorities to develop without further delay an appropriate mechanism tasked with both preventive and protective functions to ensure that applicants belonging to the risk group benefit from immediate and effective protection against unlawful or irregular removal from the Russian territory. 15. In the night of 21-22 July 2014 Mr Isakov’s car was found damaged on the road and Mr Isakov had disappeared. His family’s attempts to establish his whereabouts were to no avail. 16. On 22 July 2014 A.M., Mr Isakov’s nephew, reported Mr Isakov’s disappearance to the regional department of the interior. Mr Isakov’s family retained counsel Kh. to represent them in connection with the investigation into Mr Isakov’s disappearance. 17. On 23 July 2014 the Court granted a request lodged by Ms Yermolayeva, under Rule 39 of the Rules of the Court, and indicated to the Government that Mr Isakov should not be extradited, expelled or otherwise involuntarily removed from Russia to Uzbekistan or another country for the duration of the proceedings before the Court. The Government were also requested to furnish any information about Mr Isakov’s whereabouts and possible arrest and detention in Russia and/or removal to Uzbekistan. The application was also granted priority under Rule 41 of the Rules of the Court. 18. On 6 August 2014 the Government reported that the investigation into Mr Isakov’s disappearance was pending and that his whereabouts were unknown to the authorities. 19. On the same date, relying on the authority form issued by Mr Isakov in 2008, Ms Yermolayeva lodged an application in Mr Isakov’s name. She alleged that Mr Isakov had been abducted by Russian state agents and forcefully removed to Uzbekistan where he would be subjected to treatment contrary to Article 3 of the Convention. Referring to Article 34 of the Convention, she argued that the Government had failed to comply with the Court’s indication made under Rule 39 of the Rules of the Court. 20. On 25 August 2014 the senior investigator with the regional investigative committee opened criminal investigation into Mr Isakov’s disappearance. 21. On 4 September 2014 the senior investigator in charge of Mr Isakov’s disappearance questioned Kh.I., Mr Isakov’s brother. Kh.I. submitted that, according to his older sister who lived in Uzbekistan, Mr Isakov was allegedly in Tashkent, Uzbekistan. 22. On 12 September 2014 the President of the Section gave notice of the application to the Government and invited the latter to submit written observations on the admissibility and merits of the case. 23. On 24 October 2014 the senior investigator in charge of Mr Isakov’s disappearance questioned Z.I., Mr Isakov’s son. 24. On 29 October 2014 the Government submitted the observations. 25. On 8 January 2015 Ms Yermolayeva submitted the observations on the matter maintaining the complaints on Mr Isakov’s behalf and claims for just satisfaction. 26. On 12 February 2015 the Government provided comments on the claims for just satisfaction and further observations. 27. On 15 April 2015 the President of the Section invited the parties, under Rule 54 § 2 (c) of the Rules of the Court, to submit further observations on the admissibility and merits of the case. The parties were to comment as to whether the application was compatible ratione personae with the provisions of the Convention and the Government’s failure to submit a complete investigation file concerning Mr Isakov’s alleged abduction and disappearance. 28. On 31 May and 1 June 2015 Ms Yermolayeva and the Government respectively submitted further observations (see paragraphs 34-35 below). 29. Mr Isakov’s whereabouts remain unknown to date. 30. In its decisions adopted at 1214th and 1230th meetings (December 2014 and June 2015), the Committee of Ministers, responding to the situation concerning disappearances and/or forcible transfers, noted that the Russian authorities adopted a number of awareness-raising measures and instructions. Nevertheless, the Committee of Ministers considered that these measures were insufficient and invited the authorities to adopt special protective measures in respect of the applicants who were exposed to such risks and underlined the need for special measures to ensure rapid and effective investigations into such incidents. 31. On 2-4 December 2014 (CM/Del/Dec(2014)1214E/05 December 2014) at its 1214th meeting (DH), the Committee of Ministers noted as follows, as regards Mr Isakov’s situation: “As to the investigation of the alleged abductions of Messrs Abdulazhon Isakov and Mukhitdinov reported in July 2014, criminal cases have been opened. No evidence has thus far been obtained regarding the removal of Mr Abdulazhon Isakov from the territory of the Russian Federation. The Russian authorities also insisted that the Committee of Ministers was not competent to supervise this issue as it was already being examined in the adversarial proceedings before the European Court. As regards the Russian authorities’ comments with respect to the Committee’s competence to supervise the investigations into the recent alleged abductions of Messrs Abdulazhon Isakov and Mukhitdinov, the following factors have to be taken into account. As regards the first case, there already exists a final Court judgment establishing a violation, granting the Committee full competence to look into both individual and general measures, irrespective of any new application made on behalf of the same person to the Court. Such situations are frequent and have never led the Committee to exempt the State concerned from its obligation to keep the Committee informed of the developments. As regards the second case, while it is true that there is no final judgment at the moment, the case is relevant for execution purposes as an example, among others, of the development of the situation and the efficiency of the general measures adopted (see e.g. the Court’s indication in the Savriddin Dzhurayev judgment (§263).” | 0 |
test | 001-172608 | ENG | POL | ADMISSIBILITY | 2,017 | IRZYK v. POLAND | 4 | Inadmissible | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 1. The applicant, Mr Franciszek Irzyk, is a Polish national who was born in 1951 and lives in Wiśniowa. He was represented before the Court by Ms P. Borzymowska, a lawyer practising in Krakow. 2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was an activist for the political party “Samoobrona”. During one of the party meetings he met a certain E.Z., who had been a member of the same party since 2002. 5. In 2005 E.Z. had some financial problems and was seeking employment opportunities. She asked the applicant whether he could find a job for her. The applicant put E.Z. in contact with S.Ł., a deputy in the Polish parliament (poseł na Sejm) who was a member of the same party. In December 2005 E.Z. went to Warsaw to meet S.Ł. They met at first in the Sejm building and subsequently went to the Sejm hotel, where E.Z. and S.Ł. had sexual intercourse. S.Ł. told E.Z. that she would have to obey his orders if they were to work together. 6. In 2006 a so-called “sex scandal” erupted in Poland. It involved public figures, including activists of the Samoobrona party who had offered and accepted personal benefits of a sexual nature in connection with exercising public functions. 7. On 6 December 2006 the applicant telephoned E.Z. to ask her whether she had given any information to the press. He referred to an article “Praca za seks” (“Work for sex”) published in the daily Gazeta Wyborcza on 4 December 2006. 8. On 8 December 2006 E.Z. was heard as a witness by the prosecutor in the investigation into the scandal. In the course of her interview she described her relationship with S.Ł. and with the applicant. 9. On 9 December 2006 the applicant again phoned E.Z. to ask her whether she had been heard as a witness by the Kraków Regional Prosecutor. E.Z. said that she had not. The applicant also told E.Z. that S.Ł. had experienced difficulties as a result of the investigation into the so-called “sex scandal” and the sexual conduct of some Samoobrona party members. The applicant asked E.Z. if he could talk to her again later the same day. Their phone conversation was recorded by journalists from the TV channel “TVN”, who had invited E.Z. to participate in one of its popular programmes. 10. The applicant did not telephone E.Z. again that day. E.Z. tried to reach him five times without success and finally left a message on his voice mail. 11. The applicant phoned E.Z. on 10 December 2006 and asked her if she had been heard by the prosecutor the previous day. E.Z. replied that she had not. 12. On 12 December 2006 E.Z. phoned the applicant using the telephone number provided by the TVN channel. The conversation was recorded by journalists working for the station. The applicant again asked E.Z. whether she had been heard by the prosecutor and when she confirmed that she had, he started to instruct her as to how she should testify when she was questioned again. He told her not to accuse anyone and not to disclose that she had had sexual intercourse with Samoobrona activists. He also suggested that she testify that relations between employees were “normal” at the Kraków party headquarters. E.Z. understood these words as amounting to a form of incitement to give false testimony and a form of protection for S.Ł. by withholding information about his sexual affairs with women who were members of the Samoobrona party. 13. On 14 June 2007 the applicant was heard as a suspect by the Łódź District Prosecutor. 14. On 29 February 2008 a bill of indictment against the applicant was prepared and lodged with the Kraków District Court on 3 March 2008. 15. On 12 January 2007 the Łódź Regional Prosecutor issued a decision allowing minidiscs containing recordings of the telephone conversations with E.Z. to be included in the applicant’s case-file as evidence. The applicant was informed of his right to appeal against this decision within a period of 7 days. He did not appeal. 16. On 13 January 2009 the Kraków District Court found the applicant guilty of attempted obstruction of criminal proceedings and incitement to give false testimony and sentenced him to 8 months’ deprivation of liberty suspended for a probationary period of 4 years. The court heard several witnesses including E.Z., the journalists who had recorded the conversations, and the applicant himself. 17. The testimony of E.Z. given in the investigation phase of the proceedings was consistent with the contents of the recorded telephone conversations. However, in the proceedings before the trial court E.Z. decided to change her version of events and submitted that the applicant had in fact only requested her not to disclose to the prosecutor that they had had sexual intercourse. The court found the testimony given by E.Z. in the judicial phase of the proceedings to be not credible. It held that, “the witness’s (E.Z.’s) submissions as regards the change of her version of events as well as her explanation of some of the accused’s statements made in the telephone conversation are illogical and naïve”. 18. The court went on to say that the applicant’s conviction had been based on the “entire evidentiary material, in particular on the contents of the telephone conversations with E.Z. recorded between 6 and 12 December 2006”. However from the court’s reasoning it is evident that, after it had found E.Z.’s statements not to be credible, the actual basis for the conviction was the recording of the telephone conversations. 19. On 3 March 2009 the applicant’s lawyer appealed against the firstinstance judgment. He claimed, in particular, that the first-instance court had not respected the principle of free assessment of evidence. He further asserted that there had been a violation of Article 424 of the Code of Criminal Procedure (see relevant domestic law, below) since the firstinstance court had based its judgment exclusively on evidence which weighed against him and ignored facts which weighed in his favour. Moreover, it had done so without any detailed reasoning and without indicating which facts it had found to be proved and on what evidence it had based its findings. 20. In the reasoning set out in the appeal, the applicant’s lawyer explained that: “the court had wrongly assessed the testimony given by E.Z. and her motivation; her behaviour was not spontaneous; it was inspired by journalists who exercised pressure on her and manipulated her...” 21. The applicant’s lawyer concluded his appeal by the following words: “the overall assessment of evidence leads to the clear conclusion that the accused is a victim of carefully planned and precisely executed journalistic provocation and the prohibited acts referred to in the bill of indictment are groundless and find no support in the collected evidence”. 22. On 6 May 2009 the Kraków Regional Court upheld the challenged judgment, finding that the first-instance court had assessed the evidence properly, “in accordance with personal experience and Article 7 of the Code of Criminal Procedure”, which sets out the principle of free assessment of evidence (see relevant domestic law below). 23. A cassation appeal was not available in the present case. 24. Article 13 § 1 provides as follows: “Whoever with the intent to commit a prohibited act directly attempts its commission through his conduct which, subsequently however does not take place, shall be held liable for an attempt”. 25. Article 13 § 2 provides as follows: “Whoever, willing that another person should commit a prohibited act, induces the person to do so, shall be liable for incitement”. 26. Article 233 § 1 provides as follows: “Whoever, in giving testimony which is to serve as evidence in court proceedings or other proceedings conducted on the basis of law, gives a false testimony or conceals the truth shall be subject to the penalty of deprivation of liberty of up to three years.” 27. Article 239 § 1 provides as follows: “Whoever obstructs or frustrates penal proceedings by aiding a perpetrator to evade penal liability and especially whoever hides the perpetrator or obliterates physical evidence of the offence or undergoes penalty for a sentenced person shall be subject to the penalty of deprivation of liberty for a term between three months and five years.” 28. Article 7 provides as follows: “The authorities conducting the proceedings shall make their decisions on the basis of their own conviction, upon all evidence taken assessed at their own discretion, with due consideration to the principles of sound reasoning, knowledge and personal experience.” 29. Article 242 provides, in so far as relevant, as follows: “The reasoning [of a judgment] should contain: 1. indication which facts have been found by the court to be proven or unproven, on what evidence it based its findings in this respect and reasons for which it did not accept the evidence to the contrary.” | 0 |
test | 001-170614 | ENG | LVA | ADMISSIBILITY | 2,016 | ZENTAS LOGINAS MUZEJS v. LATVIA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Erik Møse;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary | 1. The applicant, the Zentas Loginas Muzejs foundation (hereinafter “the applicant organisation”) is a non-profit organisation registered in Latvia. It was represented before the Court by the chairperson of the organisation’s board, Mr P. Ērglis. 2. The Latvian Government (“the Government”) were represented by their Agents, Ms I. Reine and later Ms K. Līce. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant organisation was created in 1995 with the purpose of preserving and promoting the artistic heritage of two late Latvian artists, Zenta Logina and her sister Elīze Atāre. Their complete body of work comprises over 800 art pieces created using different techniques over a period of fifty years. After the two artists died the entire collection of their art works remained in a six-room apartment located in the centre of Riga where the two sisters had lived (“the contested apartment”). At that time the apartment belonged to the Riga municipality and the applicant organisation’s intention was to acquire it in order to create a memorial museum there. 5. On 16 October 1995 the applicant organisation wrote to the Culture, Art and Religious Affairs Committee of Riga City Council outlining its intentions and requesting the committee’s support for the creation of the memorial museum in the contested apartment. Between February and September 1996 the State Inspectorate for Heritage Protection, the Minister of Culture, and the Artists’ Union of Latvia each wrote to Riga City Council confirming the importance of the collection and expressing their support for the creation of the memorial museum. 6. On 12 December 1995 the Culture, Art and Religious Affairs Committee of Riga City Council invited the Governing Board of the Riga Centre District (hereinafter “the Governing Board”) – the local executive body – to investigate and determine ways of supporting the initiative to place the contested apartment at the applicant organisation’s disposal (atstāt rīcībā) in order for it to create a memorial museum of the two artists’ work. On 4 January 1996 the Apartment Committee of Riga City Council (hereinafter “the Apartment Committee”) also supported the same proposition. 7. On 29 May 1996 the Cabinet of Ministers issued order no. 198 whereby several apartment houses in Riga were not to be privatised but were to be retained as the property of the State. Possession (valdījums) of these apartments was to be transferred to the State Real Estate Agency, which was then to enter them in the land register as State-owned property. The building in which the contested apartment was situated was listed in this order. 8. On 8 July 1996 the manager of the contested apartmenta municipality-owned enterprise that was overseen by the Governing Boardinformed the Apartment Administration of the Property Department of Riga City Council (hereinafter “the Apartment Administration) that five rooms in the contested apartment had become available for rent. On 23 July 1996 the Apartment Administration issued recommendation no. 1202 authorising the manager of the contested apartment to rent the five rooms available to a certain V.B.S. and her family. According to the Government, V.B.S. had been registered to receive housing aid from municipal funds since 21 March 1995. The applicant organisation denied that V.B.S. had ever been registered for housing aid and argued that recommendation no. 1202 had been unlawful. 9. On 5 August 1996, on the basis of recommendation no. 1202, the manager of the contested apartment concluded a rental agreement with V.B.S. for an indefinite period of time. 10. On 27 August 1996 Culture, Art and Religious Affairs Committee of Riga City Council expressed its dissatisfaction with the fact that the Governing Board had not informed the Apartment Administration of the decisions adopted by the two Riga City Council committees. It decided that the Apartment Administration ought to annul the recommendation that the contested apartment be rented out to V.B.S. and to examine again the possibility of excluding the said apartment from the residential fund and allocating it to the applicant organisation. In addition, it decided that the Apartment Administration should open an inquiry into why the decisions taken by the Riga City Council committees had not been examined. 11. On 5 September 1996 the Apartment Committee declared that recommendation no. 1202 had become invalid and that the declaration of V.B.S.’s and her family’s residence in the contested apartment had been annulled. 12. On 24 September 1996 the Audit Commission of Riga City Council, having carried out an examination, concluded that the Governing Board had not responded to numerous letters sent by different persons and institutions (the Ministry of Culture, a member of parliament, the Art Academy of Latvia, the Artists’ Union of Latvia, and the applicant organisation) concerning the artistic heritage of the late artists. Despite the fact that the Governing Board had been fully aware of the situation, the manager of the contested apartment had not informed the Apartment Administration about the substantial artistic collection located in that apartment, thereby misleading it. The Audit Commission proposed to annul, under a procedure set out in law, the rental agreement concluded with V.B.S. It also suggested that the issue regarding the housing of the art collection should be resolved by Riga City Council and the State Real Estate Agency, acting together. 13. On 10 October 1996 the Apartment Committee (on the grounds that the manager of the contested apartment had provided false information to the Apartment Administration) decided to annul the allocation of the apartment to V.B.S. and her family and to place it at the applicant organisation’s disposal. V.B.S.’s family was to be allocated another apartment. It also invited the director of the Property Department of Riga City Council to hold responsible those who had misinformed the Apartment Administration. 14. The parties disagreed on the nature of the decisions taken by the two Riga City Council committees. The Government contended that these decisions had been of a purely recommendatory nature, as the committees were not competent to vest any rights in the applicant organisation or to adopt legally binding decisions, that being the exclusive competence of Riga City Council. The committees had merely consultative functions and were responsible for preparing issues to be examined and decided upon by Riga City Council. The applicant organisation disagreed. It contended that, under the Rules of the Riga Municipality, the Riga City Council committees had the right to instruct officials of the Riga municipality and its institutions. Hence, the decisions of the two committees had to be complied with. 15. On 17 October 1996 the State Real Estate Agency informed the applicant organisation that on 1 September 1996 it had taken possession (pārņēmusi valdījumā) of the building in which the contested apartment was situated. It drew attention to recommendation no. 1202 and the rental agreement that had been concluded with V.B.S. on 5 August 1996. The Agency noted that it was bound by the rental agreements in force. It advised that with regard to the issue of using the contested apartment for the foundation’s needs the applicant organisation would need to address the Apartment Administration, which had issued the recommendation. 16. On 23 December 1996 the State Real Estate Agency invited the applicant organisation to move the art collection from the contested apartment, noting that it had no legal grounds to use it. It also stated that it had not received a response from the applicant organisation concerning the allocation of different premises. Referring to V.B.S., it added that a person who had “all legal rights to said apartment” had declared her address there. The Agency also noted that in the event of the applicant organisation’s failure to vacate the contested apartment it would be forced to evict the applicant organisation therefrom. On 7 January 1997 and 22 January 1997 the State Real Estate Agency wrote further letters offering the applicant organisation different premises for the housing of the art collection and warning it that in the event of failure to vacate the apartment the property belonging to the applicant organisation contained therein would be moved to different premises. The letter of 22 January 1997 also noted that the lawful tenant wished to start renovating the apartment. On 31 January 1997 there was further correspondence between the State Real Estate Agency and the applicant organisation concerning possible rental fees of the different premises already offered to the applicant organisation and additional premises that could be made available to the applicant organisation. 17. In the light of this correspondence the Government contended that offers to move the art collection to different premises had been made to the applicant organisation repeatedly but that the applicant organisation had failed to reply. In response, the applicant organisation asserted that it had visited all the premises offered; however, none of them had been suitable for the needs of the art collection or a museum. 18. On 4 February 1999 the manager of the contested apartment, on the basis of an authorisation issued by the State Real Estate Agency, concluded a new rental agreement with V.B.S. 19. By virtue of amendments dated 8 March 2000 to order no. 198 of the Cabinet of Ministers (see paragraph 7 above) the building in which the contested apartment was located was excluded from the list of properties that were not subject to privatisation. 20. On 25 July 2000, the Central Privatisation Commission of Residential Buildings transferred the ownership rights to the contested apartment to V.B.S. prior to the privatisation of the residential building (nodot īpašumā līdz dzīvojamās mājas privatizācijai). On 4 February 2002 the Central Privatisation Commission of Residential Buildings, on the basis of the Law on the Privatisation of State and Local Self-Government Apartment Houses (Par valsts un pašvaldību dzīvojamo māju privatizāciju), sold the apartment to V.B.S. 21. By a judgment of 2 October 1998 A.N. was recognised as the inheritor of the collection of art works of Zenta Logina and Elīze Atāre. 22. On 26 October 1998 A.N. instituted civil proceedings challenging the rental agreement of 5 August 1996 that had been concluded with V.S.B and requesting that the privatisation of the contested apartment be discontinued. 23. On 20 July 1999 the Riga City Centre District Court terminated those civil proceedings on the grounds that they had been brought by a person who had had no standing. In particular, the court noted that it had received no evidence that A.N.’s civil rights had been infringed. 24. On 13 April 2000 the Riga Regional Court upheld this decision. It established that prior to her death Elīze Atāre had rented the contested apartment, which had not been privatised. The apartment had been in the possession of the Riga municipality. The rental agreement concluded with V.B.S. had not affected A.N.’s rights to her inheritance. The court considered that the arguments raised concerning the rights of other persons (including the rights of the applicant organisation) were not relevant as the civil claim had only been brought in the name of A.N. Further, the court noted that under domestic law rental agreements could only be challenged by landlords, tenants or members of a tenant’s family. Neither the State Real Estate Agency, nor V.B.S. or members of her family were contesting the tenancy agreement. Besides, no competent institution of the Riga municipality had ever concluded a rental agreement with A.N. Hence, the appeal court agreed with the conclusion that the proceedings had been brought by a person who had had no standing. 25. On 28 June 2000 the Senate of the Supreme Court upheld this decision on the same grounds. It also noted that the question of the protection of the artistic heritage of the late artists did not fall to be decided in judicial institutions. 26. In October 2000 A.N. donated the art collection to the applicant organisation. 27. In November 2001 the applicant organisation addressed the Prosecutor General’s office requesting it to examine whether V.B.S. had acquired the right to rent the contested apartment lawfully. According to the Government, on 19 November 2001 the prosecutor’s office attached to the Riga Regional Court (“the Prosecutor’s Office”) refused to lodge a civil claim contesting the rental agreement because it had concluded that there was no dispute about the applicant organisation’s title to the collection of art works and that the fact the collection was stored in the contested apartment did not vest any right to the mentioned premises in the applicant organisation. Subsequent appeals to the Prosecutor General’s Office and the Prosecutor General were dismissed on 11 January and 3 April 2002 respectively. 28. In relation to this point the applicant organisation submitted to the Court two letters prepared by the Prosecutor’s Office. One letter, dated 19 November 2001, stated that the Prosecutor’s Office had examined the applicant organisation’s request and had concluded that there had been no breaches of law meriting the bringing of a civil claim. However, the other letter, dated 12 November 2001, bearing the same number and the signature of the same official, stated that the Prosecutor’s Office had examined the applicant organisation’s request and had prepared a civil claim, to be brought before the Riga Regional Court. It also noted that on 18 October 2001 this claim had been submitted to the relevant department of the Prosecutor General’s Office for its approval. According to the applicant organisation, the existence of the two contradictory letters and the fact that the claim was never brought proved that the Prosecutor’s Office had not acted independently and impartially and that its decision-making had been influenced by other persons with an interest in the outcome of this case. In particular, the applicant organisation noted the political influence of V.B.S.’s son-in-law, who had been a member of parliament at the time in question. 29. On 21 August 2004 V.B.S. died. 30. On 5 January 2005 the applicant organisation lodged a claim requesting the annulment of the following: the rental agreement that had been concluded with V.B.S. on 5 August 1996; the decision of 25 July 2000 by the Central Privatisation Commission of Residential Buildings transferring the ownership rights to the contested apartment prior to the privatisation of the residential building in which it was located, to V.B.S.; the purchase agreement concluded with V.B.S. on 4 February 2002; and the entry in the land register concerning V.B.S.’s property rights over the contested apartment. The applicant organisation also requested the recognition of its right to use the contested apartment. In subsequent submissions the applicant organisation clarified that it did not request the recognition of its own property rights over the contested apartment and indicated that V.B.S.’s heir, J.L., should be one of the defendants in these proceedings. 31. On 20 April 2005 the Riga Regional Court opened proceedings. On 7 October 2005 it decided to terminate the proceedings on the grounds, inter alia, that the applicant organisation had had no standing to bring the above–mentioned claims. In particular, the applicant organisation had contested a rental agreement and a purchase agreement to which it was not a party. 32. The applicant organisation lodged an ancillary complaint with the Civil Cases Chamber of the Supreme Court. On 16 December 2006 the Civil Cases Chamber upheld the decision of the Riga Regional Court. It noted that the applicant organisation had never been a party to the rental agreement in question or a beneficiary of the privatisation proceedings concerning the contested apartment. 33. On 27 December 2005 the applicant organisation lodged a further ancillary complaint with the Senate of the Supreme Court. The applicant organisation reiterated that the privatisation of the contested apartment had been unlawful and had been carried out in bad faith. It also argued that there had been no legal grounds for the termination of the proceedings. The courts had indicated no legal basis for their conclusion that a person who was not a party to a rental agreement but whose rights to use the rented premises in question had been affected had no right to bring a claim to protect its rights. The applicant organisation, insofar as relevant, relied on sections 1, 1403, 1415, 2004 and 2006 of the Civil Law; sections 1 and 127 of the Civil Procedure Law; and sections 13, 72 and 73 of the Law on the Privatisation of State and Local Self-Government Apartment Houses. The applicant organisation contended that none of these provisions prevented it from bringing its claims. 34. On 8 February 2006 the Senate of the Supreme Court upheld the decision to terminate the proceedings. It noted that section 127 of the Civil Procedure Law defined the right to bring a claim as the possibility for an interested person to bring proceedings in order to protect his or her infringed or contested rights. Accordingly, a person could benefit from court protection if his or her claim was connected with an interference with that person’s rights. Moreover, when deciding on a person’s right to bring proceedings, a court had to take into account the fact that nobody had the right to interfere in another person’s civil-law relationships if those relationships did not affect them (either legally or in practice). The court continued: “The Senate considers that the [appeal] court has justly found that because the Zentas Loginas Muzejs foundation is not a party to the rental agreement, it cannot contest it. To consider that the interest of a third party – which the applicant is with regard to the rental agreement – in the annulment of a contract (and hence the restoration of the previous situation) is justified, it is necessary to establish that as a result of the annulment of that agreement an interference with that person’s rights would be eliminated. However, in the present case, given that the contested apartment has never been in the possession (valdījums) of the Zentas Loginas Muzejs foundation one cannot speak of an interference with the plaintiff’s rights. The fact that the collection of art works is situated in the disputed premises, which have the legal status of residential premises, contrary to the opinion expressed in the ancillary complaint, does not grant the Zentas Loginas Muzejs foundation the right to acquire possession of the apartment. As correctly indicated by the [appeal] court, the plaintiff’s right to contest the privatisation and J.L.’s property rights should be assessed within the same context. An object such as the apartment owned by J.L. can only be claimed from his [that is to say J.L.’s] possession by its owner [by lodging] a property claim (section 1041 of the Civil Law), which serves as an owner’s protection against the illegal holding of a possession (valdījuma prettiesīgu aizturējumu) of its immovable property. In the present case the aforementioned ground for contesting the defendant’s property rights cannot be established because the plaintiff’s right to possess the contested object has not been established in a procedure set by law, which, in turn, precludes the reason to talk about interference with rights, as they have not been acquired.” 35. Sections 13, 14, 19, and 20 with regard to different types of situations provide that all rented apartments shall be offered for privatisation to their tenants and their family members. Such persons can acquire title to a rented apartment if no proceedings have been brought requesting the termination of the rental agreement in question and the eviction of the tenants. Under section 40(1), the relevant privatisation commission decides on whether to conclude a purchase agreement with a person who has applied for privatisation. On the basis of this decision, the privatisation commission then concludes a purchase agreement. Section 48(1) provides that only the person who is registered in the land register in respect of a particular property can be recognised as the owner of the privatised object. 36. Under section 29(1), rented apartments are offered for privatisation after the privatisation of the residential building in which they are situated has commenced. Nonetheless, the Law also sets out the procedure whereby the ownership rights to an apartment can be transferred to tenants prior to the privatisation of the residential building. The decision on whether to transfer the ownership rights to an apartment prior to the privatisation of the residential building is taken by a privatisation commission upon a request of a tenant (section 733). The name of the person who has acquired ownership rights to an apartment prior to the privatisation of the relevant residential building shall be registered in the cadastral register and from the moment of this registration that person shall be recognised as the owner of the apartment (sections 738(1) and 739(1)). However, under section 739(8), after the privatisation of a residential building has commenced, the person who acquired the ownership rights to an apartment prior to the privatisation of the relevant residential building still has to conclude a purchase agreement, as mentioned in section 40. 37. Section 72(1) provides that a court is competent to examine disputes, inter alia, concerning the rights of a beneficiary of privatisation to privatise an apartment, the registration of the privatised object in the land register, and other disputes which may arise in the course of the privatisation of residential buildings and which do not fall to be examined by local municipalities. Under section 73, the privatisation of an apartment shall be declared unlawful in the following circumstances: the apartment has been privatised in a manner disregarding the sequence of steps set out in this Law; the person concerned has privatised a previously rented apartment without having first informed his or her family members thereof; or other requirements set out in this Law or rules of the Cabinet of Ministers adopted on the basis of this Law have been disregarded. 38. Section 1 states that rights shall be used and obligations shall be fulfilled in good faith. 39. Section 876 provides that possession of property is actual control over property conforming to ownership rights. It exists where tangible property is in actual fact under the total control of a person and, in addition, that person demonstrates the intention to act with the property in a similar manner as that of an owner. 40. Under section 911, from possession arises the right to protect the existing possession and to renew a possession that has been taken away. These rights apply in respect of every possession, regardless of whether such possession is legal or illegal or is based on good faith or bad faith. Section 912 expressly stipulates that every possession is protected by law. 41. Section 1041 provides that an owner may reclaim his or her property from any third person that holds possession thereof by bringing an ownership claim. 42. Section 1403 defines a legal transaction as an action, carried out in a permitted manner, which establishes, alters or terminates lawful relationships. Section 1415 further states that an illicit or indecent action, the purpose of which is contrary to religion, laws or moral principles, or which is intended to circumvent the law, may not be the subject matter of a legal transaction; such a transaction shall be void. 43. Section 1537, as worded at the relevant time, provided that if a contract was entered into between absent parties, it should be regarded as definitively concluded from the moment at which the party to whom the offer was made announced to the offering party his or her unconditional acceptance. 44. Section 2004 stipulates that a purchase agreement shall be considered to have been entered into when both parties have agreed on the subject of the purchase and the purchase price. Under section 2006, if both parties, neither of the parties, or only the purchaser knew that it was not permitted to alienate (atsavināt) the object that was being sold, then the contract shall be void. However, if only the seller had that knowledge, then the contract shall remain in effect and the seller must compensate the purchaser for any losses [incurred as a result of the sale]. 45. Section 1 grants every natural and legal person the right to protect in court their infringed or contested civil rights and those of their interests that are protected by law. A person who has brought a case to court has the right to have his or her case examined in accordance with the procedures laid down by law. 46. Section 127(1) provides that any person, natural or legal, who has reached the age of majority and has capacity to act may bring a claim in court in order to protect any of their civil rights that have been infringed or contested. Section 127(3) states that a prosecutor may bring a claim in order to protect the infringed or contested civil rights of other persons. 47. Pursuant to section 132(1)(2), a judge shall refuse to entertain a claim if it has been brought by a person who does not have standing. Pursuant to section 223(1)(2), a court shall terminate proceedings if the claim in question has been lodged by a person who has no standing. 48. Section 22 states that the work of the city council takes place in meetings and in the permanent committees. 49. Section 33 provides that during its meetings the city council examines the draft decisions, which have been proposed by the chairperson, the permanent committees or the members of the city council. The draft decisions shall be submitted to the chairperson, who shall decide which permanent committee will assess the draft. 50. Under section 50, the permanent committees have the following functions: 1) to prepare questions for examination in the city council meetings; 2) to give their opinion concerning matters that are within its competence; 3) in the procedure set out in the rules of the municipality, to oversee the work of municipality institutions and enterprises; 4) to examine the budget proposals of the municipality institutions and enterprises and to submit them to the finance committee; 5) to approve and control the expenditure estimates of the municipality institutions and enterprises; 6) to carry out other obligations in accordance with the rules of the municipality. 51. In accordance with Rules 2, 3 and 7 of the Rules of the Riga Municipality, as in force from 13 December 1994 until 20 August 1997, the Riga City Council was to create permanent committees from amongst its members. The permanent committees were to prepare issues for examination in the Riga City Council meetings and their work was to be coordinated by the Presidium of the City Council. 52. Rule 28 stated that the Riga City Council committees should: 1) prepare questions for examination in City Council meetings; 2) give opinions regarding questions falling within its competence; 3) oversee the relevant municipal institutions and enterprises; 4) examine the budget proposals of the municipal institutions and enterprises that were under its supervision and oversee the implementation of the budget; 5) carry out other tasks in accordance with these Rules and the decisions of the City Council. 53. Rule 36 stipulated that the Culture, Art and Religious Affairs Committee was to oversee the Culture Administration. 54. Rule 38 stated that the Apartment Committee was to participate in the development of the programme for the construction of new apartments and oversee the distribution and exchange of apartments. It was to oversee the apartment divisions of the city districts and suburbs, as well as the Apartment Division and the Construction Division of the Immovable Property Administration. 55. Rule 41 detailed the rights of the permanent committees when carrying out their supervision tasks. In particular, they had a right to: 1) check the paperwork of the municipality officials, institutions and enterprises and receive copies of such paperwork that were necessary for deciding on issues raised in the committee meetings; 2) receive the necessary documents and explanations from the City Council officials, municipal institutions and enterprises with regard to questions that were within the committee’s competence; 3) charge the officials of those institutions with carrying out preparatory tasks necessary for submitting draft decisions to the City Council; 4) involve in its work, in a consultative function, experts from the relevant fields. 56. Under Rule 42, decisions as to how to resolve disputes between the permanent committees and the municipality officials, institutions and enterprises were to be taken by the chairperson of the City Council or the Presidium of the City Council. 57. In accordance with Rules 52 and 53, following examination by the committees each draft decision was to be examined by the Presidium of the City Council. If the Presidium had objections to the draft decision, it could return it to the committees for another examination. The draft decisions that had been accepted by the Presidium were to be included in the agenda of the next City Council meeting for their adoption. 58. Section 4(2) determines who can be a tenant or a subtenant under a rental agreement concerning residential premises. It provides that any natural person who lives in Latvia permanently or who has received a residence permit in a procedure set out in law may be a tenant or a subtenant in such agreements. | 0 |
test | 001-177683 | ENG | ESP | CHAMBER | 2,017 | CASE OF N.D. AND N.T. v. SPAIN | 3 | Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-3-a - Ratione materiae);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);Violation of Article 13+P4-4 - Right to an effective remedy (Article 13 - Effective remedy) (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general};Prohibition of collective expulsion of aliens);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova | 9. The first applicant was born in 1986 and the second applicant in 1985. 10. The first applicant left his village in Mali on account of the 2012 armed conflict. He arrived in Morocco in March 2013. He spent approximately nine months in the makeshift camp for migrants on Gurugu Mountain, near the Spanish border crossing into Melilla, a Spanish enclave on the North African coast. He spoke of several raids on the camp by the Moroccan law-enforcement authorities. 11. The second applicant arrived in Morocco in late 2012. He also stayed in the camp on Gurugu Mountain. 12. On 13 August 2014 the applicants left the Gurugu Mountain camp and attempted to enter Spain as part of a group of sub-Saharan migrants, via the Melilla border crossing. The crossing comprises three successive fences: two six-metre-high outer fences and a three-metre-high inner fence. A system of infrared CCTV cameras and movement sensors is in place. The applicants and other migrants scaled the first fence in the morning. They claimed that stones had been thrown at them by the Moroccan authorities. The first applicant managed to climb to the top of the third fence, and remained there until the afternoon without medical or legal assistance. The second applicant stated that he had been hit by a stone while climbing the first fence and had fallen, but had subsequently succeeded in climbing over the first two fences. During this time the applicants allegedly witnessed violence against some of the sub-Saharan migrants by the Spanish Guardia Civil and Moroccan law-enforcement officials. At around 3 p.m. and 2 p.m. respectively the first and second applicants climbed down from the third fence, assisted by Spanish law-enforcement officials. As soon as they reached the ground they were apprehended by members of the Guardia Civil, who handcuffed them and sent them back to Morocco. At no point were the applicants’ identities checked. They had no opportunity to explain their personal circumstances or to be assisted by lawyers, interpreters or medical personnel. 13. The applicants were then transferred to Nador police station, where they requested medical assistance. Their request was refused. They were subsequently taken, together with other individuals who had been returned in similar circumstances, to Fez, some 300 km from Nador, where they were left to fend for themselves. The applicants stated that between 75 and 80 migrants from sub-Saharan Africa had also been returned to Morocco on 13 August 2014. 14. Journalists and other witnesses were at the scene of the assault on the fences and the expulsions of 13 August 2014. They provided video footage which the applicants submitted to the Court. Some non-governmental organisations subsequently lodged a complaint with the Melilla investigating judge no. 3, seeking the opening of an investigation. 15. On 9 December and 23 October 2014 respectively, the first and second applicants succeeded in entering Spanish territory by the Melilla border crossing. Two sets of proceedings were commenced concerning them and orders were subsequently issued for their expulsion. N.D. was returned to Mali on 31 March 2015 under an expulsion order issued on 26 January 2015, after his asylum application of 17 March 2015 had been rejected by the administrative authorities on 26 March 2015. He is currently in the Bankoumana area (Koulikoro region, south-west of Bamako). An order for N.T.’s expulsion was issued on 7 November 2014 and was upheld on 23 February 2015 after the dismissal of his administrative appeal (de alzada). His current situation is unknown. Both applicants were represented by lawyers during these proceedings. | 1 |
test | 001-184064 | ENG | ROU | CHAMBER | 2,018 | CASE OF GÎRLEANU v. ROMANIA | 3 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Carlo Ranzoni;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano | 6. The applicant was born in 1963 and lives in Focşani. 7. At the material time the applicant was a local correspondent for the national daily newspaper România liberă. The applicant’s articles covered various fields, including investigations into the activities of the armed forces and the police. 8. In the summer of 2004 secret documents were leaked, accidentally or deliberately, from the Romanian unit of an international military base in Afghanistan. The leak consisted mostly of copies of documents produced by the Romanian unit and classified as secret. The documents referred to the military operations of the Romanian troops at the said base in 2002 and 2003, such as operations orders or military maps. Copies of secret documents produced for the use of the Romanian unit by a military unit belonging to another country were also leaked. 9. In March 2005 three Romanian journalists, including O.O., who was working for România liberă, were kidnapped by a terrorist group in Iraq. Their release in May 2005 was negotiated by the Romanian State and an investigation was immediately started by the Romanian authorities. The following year the media extensively reported on this case and the role played by the authorities. 10. On 31 January 2006 O.O., together with other journalists, participated in a television show on a national channel. They criticised the authorities’ negligence in allowing leaks of secret sensitive military information and mentioned the existence of a compact disc (“CD”) with secret documents belonging to a Romanian military unit in Afghanistan. When the host of the show questioned the authenticity of the information on the CD, O.O. showed his computer to the camera. Some of the documents, including several military maps with the positions of the Romanian troops, were thus made visible to the public. 11. The journalists speculated as to whether such information could have reached terrorists too and demanded an investigation in order to establish whether the leaks had been voluntary. O.O. also said that although at that stage, the information no longer posed a threat to the lives of Romanian soldiers, it could have more serious implications in connection with the conflict in Afghanistan and Iraq. 12. During the show it was mentioned that the newspapers România liberă and Ziua had received the secret information in question but had decided not to publish it, fearing possible damage to national security. 13. On 7 February 2006 the national daily newspapers, România liberă and Ziua, published articles drawing attention to the fact that confidential information which could threaten national security had been leaked from a military unit under the authority of the Ministry of Defence. 14. On 8 February 2006 O.O. participated in a radio show together with the chairman and vice-chairman of the Defence Commission of the Romanian Senate, the director of Ziua and an investigative journalist from a national newspaper. The show followed a day of discussions and explanations about the leak of secret documents given by the Minister of Defence, the Chief of the Armed Forces and the head of the Information Department of the Army before the Defence Commission of the Senate. When asked how they had obtained the documents in question, O.O. refused to disclose his source, while the director of Ziua stated that he had received them anonymously. The chairman of the Defence Commission mentioned that the security of classified information had been one of the main chapters in Romania’s negotiations for joining NATO. He emphasised the importance of the Ministry of Defence undertaking a thorough investigation in connection with the leak, which put into play Romania’s credibility as a member of NATO. 15. On 3 March 2006 the Minister of Defence held a press conference during which he announced that an internal inquiry into the leak of classified information had been finalised and that seventy-nine members of the army were being punished with disciplinary sanctions. Further investigations were being conducted by the prosecutors with respect to two other members of the army. The minister also confirmed the fact that he had been informed about the leak by the Romanian Intelligence Service (Serviciul Român de Informaţii) in October 2005 and that the specialised army departments had immediately started preliminary verifications. 16. On 7 February 2006 the prosecutor’s office attached to the High Court of Cassation and Justice opened of its own motion an investigation on the basis of the articles published the same day in România liberă and Ziua (see paragraph 13 above). At the same time, the Ministry of Defence informed the same prosecutor’s office about the leak of information from within its structures. 17. Shortly afterwards the prosecutor decided to institute criminal proceedings against the applicant and four other people (P.I. – a former member of the armed forces, O.S. – a journalist, E.G. and I.M.) for disclosing classified information on national security under Article 169 of the Criminal Code, and for the gathering and sharing of secret or confidential information under Article 19(1) of Law no. 51/1991 on national security. 18. Authorisations had been issued for the interception of telephone calls made from the phone numbers belonging to E.G., I.M. and P.I., as well as for the surveillance of E.G. and I.M. and the ambient recording of their discussions. As a result, transcripts of discussions between the applicant and E.G. and I.M. had been included in the investigation file. 19. At 4.30 p.m. on 16 February 2006, after his house had been searched by the police and the hard drive of his computer seized, the applicant was taken into police custody. 20. On 17 February 2006 the applicant’s pre-trial detention was authorised by a judge for a period of ten days. An appeal lodged by the applicant against the measure was allowed and he was released on 18 February 2006. 21. The prosecutor established that at the beginning of July 2005 O.S., a journalist specialised in military issues, working for local newspapers in Focşani, had received on a CD a copy of the secret military documents leaked in 2004. At that time, three people, including P.I., had been in possession of the above-mentioned documents. On 2 July 2005 O.S. had met the applicant and had given him a copy of the CD. 22. A list of the applicant’s telephone calls showed that on 4 July 2005 he had called the head of the public relations department of the Romanian Armed Forces. In the following months, both the applicant and O.S. had discussed the content of the CD with other journalists and on several occasions with employees of the Romanian Armed Forces and of the Romanian Intelligence Service. 23. The investigation further established that by the end of 2005 the applicant had shown the content of the CD to a few people and had given a copy of the CD to E.G. and I.M., who the applicant believed were former members of the police. Furthermore, in January 2006 O.O. (see paragraph 10 above) went to Focşani and met the applicant and O.S., who showed him the documents. 24. In a statement given before the prosecutor on 16 February 2006, the applicant said that he could not remember having discussed the secret documents with O.O. He also said that as soon as he had found out about the information in question, he became interested in it as a journalist. Because there were doubts about the authenticity of the documents, he had had to contact a number of people in order to verify the information. It was in that context that he had discussed and shown the said documents to E.G. and I.M., who had let him believe they had connections with high-ranking politicians. He acknowledged that he might have told some of his friends that he had seen secret documents in order to be given more credit as an investigative journalist. 25. On 2 July 2007 the head of the Romanian Armed Forces informed the chief prosecutor of the prosecutor’s office attached to the High Court of Cassation and Justice that the documents which formed the object of the investigation and which had been issued by the Romanian army, and had been compromised by their publication in the media, had been de-classified. 26. On 15 August 2007 the prosecutor’s office attached to the High Court of Cassation and Justice decided that “by receiving (obtaining) from O.S. a CD that he [had] watched three times; by saving on the hard drive of his computer the information classified as State secret and work secret and by giving the CD to I.M. and E.G., outside the legal framework set forth by the provisions of Law no. 182/2002 and Government Decision no. 585/2002”, the applicant had committed, in a continuous form, the crime proscribed by Article 19(1) of Law no. 51/1991. The prosecutor decided, however, not to indict the applicant but to sanction him with an administrative fine of 800 Romanian lei (ROL) (approximately 240 euros (EUR)). The applicant was further ordered to pay part of the judicial costs incurred in the investigation in the amount of ROL 1,912 (EUR 572). The prosecutor also ordered the confiscation of the hard drive seized from the applicant on 16 February 2006. 27. The prosecutor’s decision was based on the Romanian legal framework on classified information, which was held to include Law no. 182/2002 on the protection of classified information, Government Decision no. 585/2002 approving national standards for the protection of classified information, Government Decision no. 781/2002 on the protection of professional secrets and Law no. 51/1991 on national security. The decision further mentioned that the applicant had received the secret military information and had proceeded to verify its nature and importance. He had further shared the information with other people. From the elements in the file, the prosecutor concluded that the purpose of the applicant’s actions was just to make himself more visible as an investigative journalist and not to serve the public interest. Noting that the protection of classified information was an obligation incumbent only on authorised personnel, the prosecutor nevertheless considered that information concerning national defence was classified and could not be of public interest, as provided for by Article 12(1)(a) of Law no. 544/2001 on access to public information. As a result, although anyone unauthorised in the field of national defence – such as a journalist – was not bound by a duty to protect this type of information, he or she did not have the right to disclose it to the public. 28. In view of the above, the prosecutor considered that the applicant had acted with intent to disclose classified information outside the above-mentioned legal framework. However, the prosecutor considered that the crimes committed by the applicant and the other four suspects were not serious enough to require the pursuit of the criminal investigation. In this connection, the prosecutor noted firstly that the information in dispute was not likely to endanger national security but only to harm the interests of the Romanian State and its armed forces. In addition, the information was outdated and hence was no longer likely to endanger the Romanian military structures in Afghanistan. The information in question had already been “compromised” (disclosed by a member of the armed forces to a civilian) as early as the summer of 2004, with no measures having been taken by the institution concerned. The prosecutor also mentioned that the actions undertaken by O.S and the applicant in order to gather information concerning the content, nature and importance of the secret documents in question, by contacting active or reserve members of the armed forces or other journalists were part of the working methods of investigative journalists and did not necessarily present a danger for society. 29. The applicant complained against that decision to the superior prosecutor, who rejected the complaint as ill-founded on 6 November 2007. 30. On 3 December 2007 the applicant complained against the prosecutors’ decisions before the Bucharest Court of Appeal. He submitted that he had been wrongfully found guilty of the crime proscribed by Article 19(1) of Law no. 51/1991. In his opinion, that Article, as well as the entire law, imposed obligations only on people authorised to work with secret information. He contended that he had not made any steps to gather military secrets but had merely passively received information that was already in the public domain. Invoking Article 10 of the Convention, the applicant submitted that the Court had already decided that once information concerning national security had entered the public domain, it was difficult to justify the imposition of sanctions for its publication. He therefore urged the court to acknowledge that his actions could not be regarded as crimes. 31. On 5 February 2008 the Bucharest Court of Appeal rejected the applicant’s complaint as ill-founded. The court held that the facts established during the investigation had led to the conclusion that the applicant had secretly transmitted the CD containing secret information to other people he knew, avoiding handing it over to the competent authorities of the Ministry of Defence or the Romanian Intelligence Service. The court further held: “The accused’s capacity as a journalist cannot exonerate him from the commission of this crime because anyone who finds out about secret military information does not have the right to publish it since this might endanger the lives of soldiers, officers in the conflict environment. But the applicant, by the means described above, covertly shared the secret information, which could have reached people interested in putting military structures in danger. The accused did not even wish to use his profession in order to bring to the public’s knowledge the leak of information, as he failed to ask the newspaper for which he worked to make public the breach of state secrets in the military (obviously the military secret information could not have been published). The freedom of the press invoked by the accused cannot give a journalist the right to make public, to unofficial people, secret military information, because this may endanger the right to safety of certain military structures.” 32. The applicant was ordered to pay court fees in the amount of ROL 50 (EUR 13). 33. The applicant appealed against that judgment. He alleged that the information in dispute had already been in the public domain at the time it had been brought to his attention. He submitted that the prosecutor’s decision had breached his freedom of expression in an attempt to cover up an embarrassing situation for the authorities, who had allowed the information to be leaked to the public. 34. On 23 March 2009 the High Court of Cassation and Justice rejected the applicant’s complaint with final effect. The court held that Article 19 of Law 51/1991 applied to anyone who gathered and shared secret information outside the legal framework. It further held that the applicant had not contested the fact that he had come into possession of secret information which he had then shared with other people outside the legal framework. Moreover, he had done this with direct intent. Considering that the information in question had not been in the public domain, the court held that journalists coming into possession of such information must submit it to the competent authorities and were allowed by law to share with the public only the failure of the institution concerned to protect its confidentiality. Having failed to act in that way, the applicant had committed the crime proscribed by Article 19(1) of Law no. 51/1991. The court concluded that the prosecutor had correctly considered that the crime had not, however, attained the degree of seriousness to require criminal sanctions. 35. The applicant was ordered to pay court fees of ROL 200 (EUR 47). | 1 |
test | 001-179861 | ENG | ARM | COMMITTEE | 2,018 | CASE OF FIDANYAN 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) | Aleš Pejchal;Armen Harutyunyan | 4. The applicant was born in 1950 and lives in Yerevan. 5. The applicant was employed by the State Revenue Service (“the Service”), division no. 2. On 23 February 2009 the head of the Service decided to terminate the applicant’s employment. 6. On 2 April 2009 the applicant initiated proceedings in the Administrative Court against the Service seeking to 1) have the decision of 23 February 2009 annulled; 2) be reinstated in her previous position; and 3) recover her average salary starting from the moment of her dismissal until her reinstatement to the previous position. 7. On 17 September 2009 the Administrative Court granted the applicant’s three claims. In particular, it annulled the decision of 23 February 2009, ordered the Service to reinstate her to her previous position and to pay her her average monthly salary starting from 23 February 2009 until her reinstatement. It reasoned its decision, inter alia, by stating that while the Service had been under an obligation to offer the applicant another position within the Service before deciding to dismiss her, it had failed to do so, even though such a position had existed in the Service at the material time. 8. This judgment was upheld in the final instance by the Court of Cassation and it became final on 4 November 2009. 9. On 29 November 2009 the Service paid the applicant 1,197,748 Armenian drams (AMD) (approximately 2,131 euros (EUR) at the material time) as compensation for her unemployment during the period from 23 February to 29 November 2009. 10. On 11 December 2009 the Administrative Court issued a writ of execution. 11. On 25 February 2010 the Department for the Enforcement of Judicial Acts (“the DEJA”) initiated enforcement proceedings. On the same day the DEJA gave a decision obliging the Service to comply with the writ of execution of 11 December 2009 within two weeks. 12. It appears that no further actions were taken by the DEJA and the Service in relation to the enforcement of the judgment of 17 September 2009 between the period of 25 February 2010 and 18 July 2011. 13. On 18 July 2011 the bailiff decided to discontinue the enforcement proceedings on the basis of section 41(1)(8) of the Enforcement of Judicial Acts Act. The bailiff reasoned that the Service had already paid the applicant AMD 1,197,748 while the reinstatement of the applicant in her previous position in the Service was impossible because that position was no longer vacant. 14. On 29 May 2012 the applicant asked the DEJA to resume the enforcement proceedings. 15. On 1 June 2012 the bailiff granted the applicant’s request and decided to resume the enforcement proceedings. On the same day the bailiff gave a decision on obliging the Service to take certain actions. In particular, the bailiff obliged the Service to 1) annul the decision of the head of the Service of 23 February 2009; 2) reinstate the applicant to her previous position; and 3) pay her her average monthly salary for the period between her dismissal and her reinstatement to the previous position. 16. On 2 July 2012 the bailiff decided once again to terminate the enforcement proceedings on the basis of section 41(1)(8) of the Enforcement of Judicial Acts Act. In particular, the bailiff reasoned that the Service had already paid the applicant AMD 1,197,748 as ordered by the judgment of 17 September 2009 while the reinstatement of the applicant in her previous position in the Service was impossible because Division no. 2, where the applicant had previously worked, no longer existed. | 1 |
test | 001-149201 | ENG | HUN | CHAMBER | 2,015 | CASE OF VÉKONY v. HUNGARY | 3 | Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 5. The applicant was born in 1950 and lives in Sopron. 6. From 1994 the applicant’s family operated a grocery with the personal involvement of the applicant. They sold, initially under the excise licence of the applicant’s mother, merchandise subject to excise tax, that is, alcohol and tobacco products. On average, the turnover of tobacco retail represented about one-third of the family’s business. The applicant himself obtained a shop-keeping licence in 1999 (see also paragraph 15 below). In 2001 he qualified as a trader and shop manager. In 2005, he was registered in his own right as a trader of excise goods. 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. The Act was subsequently amended on several occasions, and the final version was enacted on 6 June 2013. It entered into force on 1 July 2013. 8. According to the Act, tobacco retail – previously exercised at about 42,000 retail points nationwide – was to become a State monopoly (exercised through a State-owned company, ND Nemzeti Dohány-kereskedelmi Nonprofit Zrt, “ND Zrt”), and tobacco retailers would become licensed through a concession tender, advertised on 15 December 2012, for up to five retail points per tenderer. In applying for the new concessions, tenderers were required to produce business plans reflecting, inter alia, the new governmental policy to limit to the utmost the access of minors to tobacco products, notably by prohibiting the entry of those less than 18 years of age into shops selling tobacco. Under the new licences, tobacco retail could take place only in shops with separate entrances, with dark shades in the shop windows preventing seeing through, and with only a limited selection of other goods on sale. The final time-limit for applying was 22 February 2013. Entities previously engaged in tobacco retail had no privileges in the tender. The decision about the tenders was to be taken by ND Zrt. In the tender, altogether some 6,800 licences were granted nationwide. 9. The applicant applied for a concession on 4 February 2013, for the would-be licence to be used in the family enterprise. The application was signed by the applicant, and witnessed by his wife and their son. The applicant then amended the application according to the upcoming new rules, on 20 February 2013. According to the Government, the application was very succinct and in no way developed; in particular, it contained no appropriate business plan, which was part of the criteria for the tenders. The applicant submitted that no information was ever made available about the assessment of the tender. 10. On 23 April 2013 the applicant was informed that he had not obtained a tobacco retail concession. The decision contained no reasons or any indication of the applicant’s score on the 120-point tender adjudication score-sheet, and it was not subject to any legal remedy. The enterprise run by the applicant’s family was obliged to terminate the sale of tobacco products by the statutory deadline, that is, 14 July 2013. Tobacco wholesalers were under a legal obligation to re-buy any outstanding stocks from terminated retailers. The remaining sales activities of the applicant’s family enterprise were no longer profitable, entailing the winding-up of the business. 11. Under the law, no compensation is available for former holders of tobacco retail licences who, by not having been awarded a concession, lost part of their livelihood. The applicant submitted that this was the case of his family; and that he had, after losing the retail licence, considerable difficulties in supporting his family including a minor son. 12. The applicant further submitted that others in comparable situations – and in the case of those who had never been doing tobacco retail beforehand, in non-comparable situations – had been granted concessions, which difference in treatment could not be explained by any circumstance other than political adherence. In his view, this was corroborated by the fact that some successful tenderers had obtained more than one concession for multiple selling points. 13. On 14 January 2014 the Constitutional Court declared admissible a number of complaints relating to the same matter. In decision no. 3194/2014 (VII.14.) it dismissed these motions on the merits (see below in paragraph 16), noting in particular that the legislature had aimed to eliminate underage smoking and therefore restricted the accessibility of tobacco retail, measures reflecting Hungary’s obligations under the WHO Framework Convention on Tobacco Control as well as the findings of the Global Youth Tobacco Survey. 14. Act no. CXXXIV of 2012 on the Repression of Smoking of the Youth and on Tobacco Retail provides as follows: “(1) Tobacco retail in Hungary is an activity falling under State monopoly, the exercise of which may be licensed through fix-term concession contracts concluded according to the provisions of this Act, as well as of Act no. XVI of 1991 on Concessions.” “(1) If this Act does not provide otherwise, tobacco retail may only be pursued in tobacco shops.” 15. According to Act no. CIII of 1997 on Excise Tax and the Special Rules of Trading in Merchandise Subject to Excise Tax (“the Excise Tax Act”), as in force until 1 May 2004, trading in excise goods was possible in two manners: (a) subject to an excise licence, in which case the holder of such a licence could sell the products to non-end-consumers; (b) the sale of excise goods to end-consumers was also possible without a specific excise licence, if the owner of the business had an appropriate shop-keeping licence, covering also the sale of the excise goods in question. The relevant provisions of the Act provided as follows: “(1) Non-excise-licensed free trade of excise goods ... is only allowed in possession of a shop-keeping licence, specified by the law on the operation of shops ... if a) the shop-keeping licence is issued for a scope of retail, catering or accommodation activities in the framework of which the law allows the sale of excise goods, and b) the non-excise-licensed dealer pursues his or her commercial activity ... in a shop.” 16. In its relevant part, Act no. CLI of 2011 on the Constitutional Court (“the Constitutional Court Act”) provides as follows: “(1) In accordance with Article 24 § 2 (c) of the Fundamental Law, any person or organisation affected by a concrete case may submit a constitutional complaint to the Constitutional Court if due to the application of a legal regulation contrary to the Fundamental Law in the judicial proceedings: a) their rights enshrined in the Fundamental Law were [allegedly] violated, and b) the possibilities for legal remedy have already been exhausted or no possibility for legal remedy is available. (2) By way of derogation from paragraph (1), Constitutional Court proceedings may also be initiated – by exception – relying on Article 24 § 2 (c) of the Fundamental Law, if: a) due to the entry into force or the application of a legal provision contrary to the Fundamental Law, the complainant’s rights were [allegedly] violated directly, without a judicial decision, and b) there is no legal remedy capable of redressing the violation of rights, or the complainant has already exhausted the remedy.” “The Constitutional Court admits constitutional complaints if a conflict with the Fundamental Law significantly affects the judicial decision [in question] or the case raises constitutional law issues of fundamental importance.” “(1) The Constitutional Court decides on the admission of a constitutional complaint sitting as a panel ... (2) The panel examines in its discretionary power the content-related requirements of the admissibility of a constitutional complaint ....” The Constitutional Court analysed the motions mentioned in paragraph 13 above from two aspects: whether the impugned legislation infringed the complainants’ right to protection of their property and whether it breached their right to pursue an entrepreneurial activity. As regards the property right, the Constitutional Court held in essence that the complainants’ business activities in tobacco retail – however long-standing it may have been – did not constitute per se acquired possessions or constitutionally protected legitimate expectations. Prior to 1 July 2013, they had not possessed specific licences for tobacco retail, this kind of licence having been instituted only by the impugned legislation as of that date. Therefore, the legislation did not deprive them of pre-existing, acquired possessions, nor did it annul their shop-keeping licences in general. Moreover, their licences to sell merchandise subject to excise tax (a licence different from the one instituted by the impugned legislation, issued by the Tax Authority as a pre-condition for engaging in tobacco retail) were non-transferable and revocable permits, which did not constitute possessions. The Constitutional Court emphasised that the legislation did not prevent the complainants from applying for tobacco retail concession under the new system and, if successfully licensed, from continuing their activities. As regards the complaint concerning the right to pursue an entrepreneurial activity, the Constitutional Court agreed that the complainants’ activity fell within the scope of constitutional protection. Nevertheless, it underlined that this right did not give an unrestricted or inalienable entitlement to pursue an activity of one’s choice. In the Constitutional Court’s view, the impugned legislation did not prejudice the essence of the right to pursue an entrepreneurial activity, namely it did not permanently deprive the complainants of the possibility to continue their tobacco retail business, let alone to pursue entrepreneurial activities in general. It only subjected that activity to conditions, which they were not unable to meet. The Constitutional Court found that limitation to be in the public interest and to be sufficiently proportionate to the underlying public health considerations, all the more so since the goods merchandised by the complainants represented well-known health risks and the treatment of smoking-related diseases put a considerable burden on the State – which, in the Constitutional Court’s view, enjoyed a wide margin of appreciation in the regulation of the matter in question. 17. The standing case-law of the Supreme Court/Kúria concerning the lawmaker’s tort liability was recapitulated by the Budapest Court of Appeal in leading case no. EBD2014.P.1 as follows: “[T]he Supreme Court held in leading case no. EBH1999.14 that rules of tort liability cannot be applied to legislation, that is, to the activity aimed at adopting general and abstract legal rules of behaviour. In leading case no. BH1993.312 it also considered that the damage potentially resulting from the entry into force of a law laying down a general rule of normative force does not create a relationship of civil law liability between the lawmaker and the alleged victim of the legislation. ... Furthermore, leading case no. BH1994.31 also reflects the jurisprudence according to which the lawmaker cannot be held liable for the adoption of normative rules, unless there are additional findings of fact (többlettényállás).” In the leading case, such additional findings of fact were constituted by the underlying decision of the Constitutional Court holding that the law-making process in question had been dysfunctional in that the resultant legal provision was nothing less than an individual decision to the detriment of the complainant, couched in terms of a legislative act. | 1 |
test | 001-155093 | ENG | AZE | CHAMBER | 2,015 | CASE OF TAHIROV v. AZERBAIJAN | 2 | Preliminary objection dismissed (Article 37-1 - Striking out applications);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1952 and lives in Sumgayit. 6. The applicant nominated himself to stand as an independent candidate in the parliamentary elections of 7 November 2010 and applied for registration as a candidate in the single-mandate Sumgayit-Absheron Electoral Constituency No. 44. 7. As the Electoral Code required that each nomination as a candidate for parliamentary elections be supported by a minimum of 450 voters, on 6 October 2010 the applicant submitted to the Constituency Electoral Commission (“the ConEC”) twelve signature sheets containing 600 voter signatures collected in support of his candidacy. 8. Before the ConEC’s decision on the question of the applicant’s registration as a candidate, the accuracy of the signature sheets and other registration documents submitted by the applicant were to be first examined by a special working group (işçi qrupu) established by the ConEC. 9. On 11 October 2010, the applicant was invited to the ConEC. He was informed that the validity of supporting signatures submitted by him had already been examined by the ConEC working group and that, based on the results of that examination, the ConEC had held a hearing on whether to register him as a candidate. According to the applicant, he orally protested to the fact that he had not been informed of the time of the examination by the working group of his signature sheets and that the ConEC had taken a decision without his participation. 10. On 12 October 2010 the applicant was informed that by a decision of 11 October 2010 the ConEC had refused the applicant’s request for registration as a candidate. The ConEC found that, according to the opinion of the working group, a number of submitted supporting signatures were invalid, and that the number of the remaining valid signatures was below 450. According to the ConEC decision, the working group had relied on opinions of two of its experts. In particular, expert M.M. found that 172 signatures were not authentic, because they had been executed repeatedly by the same persons who had already signed the signature sheets. Expert A.V. found that a total of 243 signatures were invalid. No more detail was given in the ConEC decision as for the reasons for the invalidation of those signatures. 11. The applicant was provided with a copy of the ConEC decision on 12 October 2010. However, the relevant expert opinions were not made available to him until a further written request by the applicant to this effect. 12. According to the applicant, the expert opinion by M.M. was undated, while the expert opinion by A.V. was dated 11 October 2010. No copies of those expert opinions were submitted to the Court either by the applicant or the Government. However, it can be discerned from other documents in the case file that, according to those expert opinions, the following grounds were given for invalidation of some of the signatures: (a) 86 groups of signatures, consisting of a total of 258 signatures, had been “probably (ehtimal ki) executed by the same person in each group”; for these reasons, 86 of those signatures were deemed valid, while the remaining 172 were considered invalid; (b) eight signatures were found to be invalid because the information on voters’ addresses was incomplete (only the city of residence was mentioned); and (c) 60 signatures were considered invalid because the information on the relevant voters’ addresses omitted the city of residence (all those voters lived in Sumgayit). 13. On 14 October 2010 the applicant lodged a complaint with the Central Electoral Commission (“the CEC”) against the ConEC decision to refuse registration. He complained, inter alia, of the following: (a) contrary to the requirements of Article 59.3 of the Electoral Code, the applicant had not been invited to participate in the process of examination of the signature sheets by the ConEC working group and, thus, deprived of the right to give necessary explanations to the experts; (b) contrary to the requirements of Article 59.13 of the Electoral Code, he had not been provided with a copy of the record on the results of the examination of the signature sheets at least twenty-four hours prior to the ConEC meeting on the applicant’s registration; (c) the applicant’s presence at the ConEC meeting of 11 October 2010 had not been ensured; and (d) the findings of the ConEC working group that such a large number of signatures were invalid were factually wrong, arbitrary and unjustifiably formalistic. In particular, the finding that 172 signatures were “executed by the same person” was accepted as an established fact merely on the basis of an indication of such probability by the expert, in the absence of any further factual verification. Furthermore, invalidation of the remaining signatures owing to incomplete information on the voters’ addresses had been wrong, because such information was not “incorrect” within the meaning of Article 59.7.1 of the Electoral Code (on which the ConEC had relied), but simply incomplete and could, therefore, be rectified if the applicant had been given an opportunity to do so as required by the Electoral Code. In the applicant’s view, taking into account the territorial location of the constituency, it should have been clear to the ConEC that the relevant voters resided in Sumgayit, even though they had not mentioned the city of residence on the signature sheets. 14. Enclosed with his complaint to the CEC, the applicant submitted written statements by ninety-one voters, whose signatures had been declared invalid, affirming the authenticity of their signatures. He also submitted photocopies of ID cards of several voters in order to clarify the situation with their residence addresses. However, according to the applicant, those documents were not taken into consideration by the CEC. 15. The CEC conducted another examination of the signature sheets by members of its own working group. The applicant was not invited to participate in this process. According to the working group’s minutes of 15 October 2010 and two expert opinions, a total of 178 signatures were considered to be invalid. In particular, expert A.A. found that three signatures were invalid because they belonged to persons with no right to vote (minors under eighteen years of age) and that three other signatures had been executed by persons whose identification document number was stated incorrectly. Expert U.A. found that “45 groups of signatures, consisting of a total of 217 signatures, had been probably executed by the same person in each group” (“217 ədəd imza 45 qrup olmaqla öz aralarında ehtimal ki, eyni şəxs tərəfindən icra olunmuşdur”). This meant that one signature in each such group should be considered valid (a total of 45), while the remainder should be considered invalid (a total of 172). 16. The applicant was not invited to the CEC meeting dealing with his complaint against the ConEC decision of 11 October 2010. 17. By a decision of 17 October 2010 the CEC dismissed the applicant’s complaint and upheld the ConEC decision of 11 October 2010. It found that, based on the findings of the CEC’s own working group, 178 out of 600 signatures submitted by the applicant were invalid and that the remaining number of 422 valid signatures was below the minimum required by law. 18. The applicant was given copies of the CEC decision and the relevant working group documents on 18 October 2010. 19. On 20 October 2010 the applicant lodged an appeal against the CEC decision with the Baku Court of Appeal. He reiterated his complaints made before the CEC concerning the ConEC decision and procedures. Moreover, he raised, inter alia, the following complaints: (a) contrary to the requirements of the electoral law, the CEC failed to notify him of its meetings and to ensure his presence during the examination of the signature sheets and the examination of his complaint; (b) the relevant CEC documents had been made available to him in a belated manner, which was contrary to the requirements of the electoral law and had deprived him of the opportunity to challenge the decisions of the CEC and its working group more effectively; (c) both electoral commissions’ decisions were based on expert opinions that contained nothing more than conjecture and speculation (that the signatures were “probably” (“ehtimal ki”) falsified), instead of properly established facts; (d) the CEC had ignored the written statements by ninety-one voters confirming the authenticity of their invalidated signatures and had failed to take them into account; and (e) the CEC had failed to provide any reasoning and had not addressed any of the applicant’s arguments in its decision. 20. By a judgment of 23 October 2010 the Baku Court of Appeal dismissed the applicant’s appeal. In its judgment, the court took note of the ConEC and CEC decisions, proceeded to cite a number of provisions of the Electoral Code and the Code of Civil Procedure without explaining their relevance to the facts of the case at hand, did not address any of the applicant’s arguments, and dismissed his appeal as “unsubstantiated” without providing reasons for reaching such a conclusion. 21. On 30 October 2010 the applicant lodged a further appeal with the Supreme Court, reiterating his previous complaints and arguing that the Baku Court of Appeal had not carried out a fair examination of the case and had delivered an unreasoned judgment. 22. On 2 November 2010 the Supreme Court dismissed the applicant’s appeal as unsubstantiated, without examining his arguments in detail and finding no grounds for doubting the findings of the electoral commissions and the Court of Appeal. | 1 |
test | 001-178179 | ENG | LTU | CHAMBER | 2,017 | CASE OF BAURAS v. LITHUANIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence) | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Georges Ravarani | 5. The applicant was born in 1964 and lives in Vilnius. 6. In 1989 the applicant and R.Ž. started a company which imported and sold various goods. D.A., who was the stepson of the applicant’s sister, sometimes worked as a security guard on the company’s premises and as the applicant’s bodyguard. 7. In July 1993 R.Ž. and another individual, A.Č., were found murdered in R.Ž.’s flat in Vilnius. 8. In August 1993, while the applicant was in a car with D.A., the latter threatened him with a firearm. When the applicant tried to escape, D.A. hit him with the barrel of the gun, fired some shots into the ground, took the applicant’s Rolex watch and fired at several passers-by, injuring them. 9. On an unspecified date the authorities opened a pre-trial investigation into the murder of R.Ž. and A.Č. (see paragraph 7 above) and the incident between the applicant and D.A. in the car (see paragraph 8 above). 10. In September 1993 the Lithuanian authorities issued a search warrant in respect of D.A. It appears that he had left Lithuania and lived in several different countries. In July 2009 D.A. was apprehended in Ukraine and subsequently extradited to the Lithuanian authorities. 11. In December 2007 the applicant was officially notified that he was suspected of having organised the murder of R.Ž. and A.Č. for personal gain while they were in a helpless state, as set out in Article 129 § 2 (2), (5), (6) and (9) of the Criminal Code (see paragraph 34 below). It was suspected that the applicant had acted together with D.A. Further details were subsequently added to that notice in September 2012 and March 2013. 12. In October 2009 D.A. was officially notified that he was suspected of having murdered R.Ž. and A.Č. for personal gain while they were in a helpless state. D.A. was also notified that he was suspected of having attempted to murder the applicant and several other individuals, as set out in Article 129 § 2 (5), (7), (8), (9), (10) and (11) of the Criminal Code (see paragraphs 8 above and 34 below). 13. In May 2010 the prosecutor decided to separate the pretrial investigation against the applicant and D.A. (see paragraph 37 below). He noted that the investigation concerned two criminal offences – the murder of R.Ž. and A.Č. (see paragraph 7 above) and the attempted murder of the applicant and other individuals (see paragraph 8 above). The prosecutor observed that the applicant had been suspected of the former offence and that he had been granted victim status in respect of the latter offence, and the prosecutor considered that one person could not have dual status in the same investigation. He also noted that the investigation in respect of D.A. was almost complete and the case would soon be ready for trial, whereas the investigation in respect of the applicant was still ongoing. For those reasons, the prosecutor concluded that it was necessary to separate the investigation against the applicant from that against D.A. 14. D.A. was charged with the murder of R.Ž. and A.Č. for personal gain while they were in a helpless state (hereinafter “the first charge”) and with the attempted murder of the applicant and several other individuals (hereinafter “the second charge”). The criminal case was transferred to the Vilnius Regional Court for examination on the merits. With regard to the first charge, the applicant had the status of witness, and with regard to the second charge, he had the status of victim. 15. The Vilnius Regional Court issued its judgment on 20 June 2011. It found D.A. guilty of the first charge as set out in Article 129 § 2 (2), (5) and (9) of the Criminal Code (see paragraph 34 below). The court based its conclusion on multiple witness testimonies, the examination of various material objects, and conclusions delivered by forensic experts. 16. One of the documents examined by the court was a handwritten letter which D.A. had addressed to the applicant at some point in 1993. The applicant had received that letter from D.A.’s father and presented it to the police. A forensic examination revealed that the letter had indeed been written by D.A. In the letter, D.A. stated that he had killed R.Ž. on the applicant’s orders so that the applicant would get all the profit from their business. D.A. also alleged that the applicant had bought him weapons to carry out unspecified criminal activities for the applicant’s benefit, and had bribed judges and prosecutors in order to help D.A. avoid criminal responsibility for some unspecified offences. D.A. further alleged that the applicant had promised to pay him for the murder, but had still not done so, and that that had been the reason for their conflict in the car (see paragraph 8 above). He threatened to forward the letter to various newspapers if the applicant failed to pay him. 17. When questioned by the court, D.A. submitted that the contents of the letter were false. He claimed that the applicant had owed him some money for another debt, so he had made up the story in the letter in order to scare the applicant into paying him back. The applicant, who was questioned as a witness in respect of that charge, also denied all the allegations in the letter and stated that he had no connection to the murder. 18. However, the court held that the letter constituted D.A.’s confession to the murder. The court considered it unlikely that D.A., who at the time of writing the letter had already been suspected of the murder, would falsely incriminate himself in the letter to the applicant, especially as their relationship at that time had not been friendly. It then stated that several of the allegations in the letter had been proved – for example, the applicant had admitted to having bought weapons for D.A., and there had indeed been several sets of criminal proceedings against D.A. which had eventually been discontinued. The court concluded: “As the facts laid out in the letter are consistent and objective, there are no grounds to doubt the truthfulness of the contents of the letter; the statement in the letter that [D.A.] – upon the orders of the individual in respect of whom a separate pretrial investigation was opened – killed [R.Ž.] so that all the profit would go to that individual alone, and that all the money which they had jointly owned would belong to the individual in respect of whom a separate pre-trial investigation was opened, must be considered true.” 19. The descriptive part of the judgment also stated that D.A. had killed R.Ž. and A.Č. while acting with unidentified accomplices. However, the court did not take that into account as an aggravating circumstance. 20. As for the second charge against D.A., the court changed its legal classification. The court considered that it had not been proved that D.A. had intended to kill the applicant or any of the passers-by (see paragraph 8 above). However, it found D.A. guilty of stealing the applicant’s property of high value (the Rolex watch) while threatening him with a firearm, and of negligently injuring several other individuals in his attempt to escape. D.A. was given a cumulative sentence of sixteen years’ imprisonment. The court also allowed the applicant’s civil claim submitted in respect of the second charge in its entirety, and ordered D.A. to pay him 40,000 Lithuanian litai (LTL – approximately 11,600 euros (EUR)) in pecuniary damages for the stolen watch. 21. The prosecutor, D.A., the applicant and another victim submitted appeals against the Vilnius Regional Court’s judgment of 20 June 2011. In his appeal, the applicant argued that the court had de facto found him guilty of having instigated the murder of R.Ž. and A.Č., despite the fact that he had not been the accused in that case and had not been able to defend himself. The applicant asked the Court of Appeal to remove from the descriptive part of the judgment all the passages which alleged his involvement in the murder, in particular those which discussed D.A.’s letter (see paragraphs 16-18 above). 22. In its judgment of 12 June 2012 the Court of Appeal amended the first-instance judgment in part. It held that the Vilnius Regional Court had erred in changing the legal classification of the second charge, found D.A. guilty of the second charge as it had been originally presented (see paragraph 14 above), and increased the sentence to nineteen years’ imprisonment. In addition, the court removed from the descriptive part of the judgment the phrase that D.A. had killed R.Ž. and A.Č. while acting with unidentified accomplices (see paragraph 19 above) – it held that, without identifying such individuals, inter alia, it could not be determined whether there had been an intention for them to act together. 23. The court dismissed D.A.’s appeal contesting his guilt in respect of both charges. With regard to the first charge, D.A. argued, inter alia, that his letter to the applicant (see paragraphs 16-18 above) should not have been considered evidence of his guilt. In response to D.A.’s arguments, the court stated: “D.A.’s guilt in respect of the charge against him – the murder of R.Ž. and A.Č. for personal gain while they were in a helpless state – has been proved by a series of pieces of indirect evidence collected in the case and adequately assessed in the [firstinstance] judgment, as well as one of the main pieces of direct evidence D.A.’s letter to [the applicant], allowing [the court] to make well-founded conclusions regarding the nature of the convicted individual’s actions and the form of his guilt. ... It is underlined that the principal statements of the letter, assessed together with the other evidence collected in the case, correspond to the events which took place at that time ... The chamber concludes that the facts indicated in D.A.’s letter are not made up, he refers to actual events which took place in his life, and there is no indication that he intended to threaten [the applicant] with that letter to make the latter pay him money.” 24. As to the applicant’s appeal, the court stated: “Contrary to what is alleged in [the applicant’s] appeal, the first-instance court, while examining the evidence related to [D.A.’s] guilt in respect of the murder of R.Ž. and A.Č., did not assess [the applicant’s] actions relating to the organisation of the murder of those individuals. As can be seen from the case file, on 22 December 2007 [the applicant] was notified that he was suspected of having organised the murder of R.Ž. and A.Č. ... [The applicant] is entitled to exercise his defence rights and defend himself against the accusation in that criminal investigation. Only that investigation can determine [the applicant’s] guilt in respect of the criminal offence of which he is suspected ... [The applicant] essentially contests his guilt in respect of the part of the judgment in which he does not have the status of either convicted individual or victim ... and his request goes beyond his procedural rights as a witness ... [The applicant’s appeal] is thereby dismissed.” 25. D.A. and the applicant submitted appeals on points of law against the Court of Appeal’s judgment of 12 June 2012. The applicant raised essentially the same arguments as in his previous appeal (see paragraph 21 above). 26. On 28 February 2013 the Supreme Court dismissed the appeals. In response to the applicant’s submissions, the Supreme Court stated that the criminal proceedings in question concerned D.A.’s and not the applicant’s guilt in respect of the murder of R.Ž. and A.Č., and the applicant had not had victim status with regard to that charge, so he was not legally entitled to submit an appeal on points of law (see paragraph 40 below). 27. On 11 April 2013 the applicant was served with an indictment and charged with having incited D.A. and another unidentified individual to murder R.Ž. and A.Č. for personal gain while they were in a helpless state, as set out in Article 24 § 5 and Article 129 § 2 (2), (5), (6) and (9) of the Criminal Code (see paragraphs 34-35 below). The case was transferred to the Vilnius Regional Court for examination on the merits. 28. When questioned by the court, the applicant denied his guilt in respect of the murder. He submitted that all the allegations against him in D.A.’s letter had been false, and that D.A. had written the letter with the purpose of blackmailing the applicant, which was why the applicant had decided to give it to the police. D.A. was questioned as a witness and gave essentially the same statements as in the previous criminal proceedings, including those relating to his letter (see paragraph 17 above). 29. On 9 October 2014 the Vilnius Regional Court acquitted the applicant. It considered that neither direct nor indirect evidence adequately proved that he was guilty of having instigated the murder of R.Ž. and A.Č. The court underlined that it had not been proved that the death of R.Ž., who had been the applicant’s business partner, had been beneficial to the applicant; on the contrary, after his death, their company had suffered great losses and had eventually ceased operating. In addition, the court considered that the prosecution had not established any motive for the applicant to kill A.Č. 30. With regard to D.A.’s letter, the court stated that, although the letter included facts which were true, some of its other contents appeared to be “characteristic of blackmail”, in particular those which alleged that the applicant had bought D.A. weapons specifically to commit criminal offences, or that he had bribed some officials to help D.A. avoid criminal responsibility (see paragraph 16 above). The court also considered that D.A.’s threat to forward the letter to the media further indicated that it had been written with the purpose of blackmailing the applicant. Lastly, the court underlined that the applicant had not paid D.A. the money which he had demanded, nor had he destroyed the letter, but had submitted it to the police, which confirmed that the applicant had not been connected to the murder of R.Ž. and A.Č. 31. The prosecutor appealed against that judgment. He submitted, inter alia, that the contents of D.A.’s letter had been examined in the previous criminal proceedings which had been concluded by a final court judgment (see paragraphs 18, 23 and 26 above), and the courts in the proceedings against the applicant should have followed that assessment. 32. On 5 March 2015 the Court of Appeal upheld the applicant’s acquittal. In response to the prosecutor’s arguments concerning D.A.’s letter, it stated that the courts in the criminal proceedings against D.A. had not examined the applicant’s actions in relation to the murder of R.Ž. and A.Č., so the prosecutor’s arguments had to be dismissed. From the information which the parties submitted to the Court, it appears that no appeal against that judgment was lodged before the Supreme Court. | 0 |
test | 001-173780 | ENG | AUT | CHAMBER | 2,017 | CASE OF J.M. AND OTHERS v. AUSTRIA | 3 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms;Article 6-3-d - Examination of witnesses) | André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 5. The first applicant was born in 1959. From 2004 until 16 January 2012 he was Minister (Landesrat) of the Regional Government of Carinthia (Kärntner Landesregierung). He was also head of the Austrian Peoples’ Party in Carinthia (Österreichische Volkspartei Kärnten – ÖVP Kärnten), which was coalition partner of the Alliance for the Future of Austria (Bündnis Zukunft Ӧsterreich, BZӦ) under the leadership of J.H. 6. The second applicant was born in 1970 and lives in KlagenfurtWölfnitz. He studied law and worked as a lawyer before becoming an employee of the Landes-und Hypothekenbank (“H. Bank”) in 1999. In 2004 he became a board member of that bank. In 2007 he became a member of the board of Kärntner Landes- und Hypothekenbank-Holding (hereinafter referred to as “Landesholding”). 7. The third applicant was born in 1964 and lives in Maria Wörth. He studied law and worked as a lawyer before becoming an employee of the law department of the H. Bank in 1999. In 2001 he was appointed head of that department. In 2005 he became a member of the board of the Landesholding. 8. The Landesholding is a corporate body governed by public law (Anstalt öffentlichen Rechts). It was set up to manage the estate of the Land of Carinthia considering its interests (unter Berücksichtung der Interessen des Landes). The Land of Carinthia is liable as a guarantor in the event of Landesholding’s insolvency. 9. The Landesholding is governed by a board of management (Vorstand), consisting of two people, which represents it. The board is supervised by a supervisory body (Aufsichtsrat), which appoints the board’s members and participates in special commercial transactions specified by the law. The supervisory body itself is appointed by the Regional Government of Carinthia and is composed of representatives of the political parties to the regional parliament (Landtag). 10. It is the task of one member of the regional government – the commissioner (Aufsichtskommissär), a position defined by the relevant law – to monitor the supervisory board. He or she has the power to appeal against decisions of the supervisory board if they run counter to the interests of the Land. 11. On 1 January 1991 the H. Bank was disjoined from Landesholding and became a public limited company (Aktiengesellschaft). The majority of its shares were held by Landesholding until 2006. Following an increase in capital stock at the end of 2006, Landesholding still owned 44.91% of the shares. 12. From 1999 to 2008 Regional Governor and Head of the Regional Government of Carinthia was J.H. 13. In 2007, as Governor of Carinthia, J.H. was the commissioner. The first applicant was chairperson of the supervisory board of the Landesholding. 14. After careers as managers in H. Bank, the second applicant and the third applicant were appointed as members of the board of management of Landesholding. 15. In 2007 B. Bank showed an interest in taking over H. Bank by buying a certain number of its shares. The ensuing negotiations involved J.H. and the first applicant as the political leaders of the Regional Government of Carinthia, the head of the management board of H. Bank, the head of another shareholder, as well as an investors group. The main negotiations were carried out by investment banks and law firms. J.H. and the first applicant appointed D.B., an accountant and financial consultant (Wirtschaftsprüfer und Steuerberater) based in Villach, Austria, to take part in and supervise the negotiations. 16. The board of management of Landesholding itself was not informed and did not participate in the negotiation process. Not only did it not appoint D.B. but it was not informed about his mandate. It was informed about the negotiation process just a short time before the signing of the contract. D.B.’s mandate was not communicated to it. 17. The Landesholding management board had to sign the contract for the transfer of the shares and the supervisory board had to authorise the transaction in advance. On 21 May 2007 the supervisory board was informed by the first applicant on behalf of the management board, and the deal was confirmed by four votes to three. The contract was signed on 22 May 2007. 18. On 9 October 2007 all the legal arrangements necessary for finalising the transaction were completed. B. Bank bought around 25% of the shares previously held by Landesholding for 809,544,534 euros (EUR). 19. In a plenary debate of the Carinthian Regional Parliament on 9 August 2007, J.H. stated that the costs of the consultation service connected to the share deal would not exceed EUR 250,000. 20. In February 2008 the first applicant and J.H. informed the second applicant that they had entrusted D.B. with supervising the negotiations on behalf of Landesholding and that he was entitled to a fee of 1.5% of the total sales profit (EUR 12,143,168). They said that Landesholding should pay that fee. The second applicant informed the third applicant, and on 12 February 2008 they both presented D.B.’s claim for fees as reasonable to the supervisory board of Landesholding. The lawfulness of the claim was a matter of discussion at the supervisory board meeting. No final conclusion was reached in that regard. 21. After the meeting of the supervisory board, the media reported on D.B.’s claim and expressed doubts as to his contribution to the negotiation process and the amount of the fee. Following the media coverage and the discussion at the supervisory board’s meeting, the Landesholding management board (the second applicant and the third applicant) commissioned lawyers and legal experts and asked them to confirm the appropriateness and reasonability of the claim for fees. 22. Three external legal experts examined the case put before them. They assessed the risk of civil claims being raised and the potential consequences under criminal law, under the explicit assumption that the bill for D.B.’s services was reasonable. The core question – whether D.B.’s claim for fees was reasonable – was to be answered by another three external experts. One of those experts, however, informed the second applicant, the third applicant and their lawyers that he would not conclude that the claim for fees was reasonable. According to a note of 7 March 2008 written by a lawyer appointed by the second and the third applicant, they tried to persuade the privately commissioned expert in a telephone conversation to make several changes to his report and to declare that the fees were reasonable. The expert refused to do so. In the end, he agreed to delete one paragraph which had stated that the services provided by D.B. were not equivalent to those of an investment bank. 23. As the media controversy did not cease and the expert had not confirmed the reasonableness of the fee, D.B. agreed in talks with J.H. and the first applicant to reduce his claim for fees by half. The expert was then asked to amend his report and in March 2008 he concluded that a fee of EUR 6,000,000 could be considered reasonable considering the fees generally charged by investment banks. 24. Based on this expert’s report, the supervisory board discussed the payment of the fee at its meetings held on 25 April and 29 May 2008 and finally agreed to the payment by four votes to three. 25. On 4 June 2008 the third applicant ordered the payment of EUR 4,500,000 to D.B. On 17 December 2009 the second applicant and the third applicant ordered the payment of the remaining amount to D.B. 26. The share deal was the subject of intense debate within the Carinthian Regional Parliament and the Bavarian Regional Parliament, as B. Bank’s head office was in Munich. That led to parliamentary enquiries (Untersuchungsausschuss) in both parliaments. 27. The Carinthian branch of the Social Democratic Party of Austria (SPӦ Kärnten) and R.H., a Member of the Carinthian Regional Parliament, lodged separate criminal complaints (Strafanzeige) against J.H., the first applicant and D.B. In March 2008 the public prosecutor opened preliminary proceedings against J.H., the first applicant and D.B. for breach of trust and fraud. 28. On 21 June 2008 the second applicant and the third applicant submitted four expert reports indicating that the fees claimed by D.B. for his services in the negotiation process had been appropriate and reasonable. 29. J.H., the first applicant and D.B. gave statements to the public prosecutor and refuted the accusations. 30. On 2 September 2008 the second applicant and the third applicant gave statements and submitted a contract of 28 April 2008 concluded between J.H., the first applicant, Landesholding and D.B. in which D.B. had reduced his claim for fees from EUR 12,143,168 to EUR 6 million. 31. On 19 January 2009 the Klagenfurt public prosecutor closed the preliminary proceedings. The investigations against J.H. were closed because he had died on 11 October 2008. The preliminary proceedings against the first applicant and D.B. for breach of trust were closed because a new contract had been concluded fixing a lower fee and the expert reports submitted by the accused had indicated that the claim for fees was appropriate and reasonable. The proceedings against the first applicant for perjury (Falsche Beweisaussage) committed at a hearing of the parliamentary enquiry carried out by the Carinthian Regional Parliament were closed because it could not be proved that he had intended to commit that crime. 32. On 13 February 2009 R.H. filed a request for the reopening of the preliminary proceedings. 33. On 17 September 2009 the Graz Court of Appeal rejected the request for the reopening of the preliminary proceedings. 34. On 1 March 2010, eleven people lodged criminal complaints with the Procurator General’s Office (Generalprokuratur). They accused all of the Klagenfurt public prosecutors of abuse of authority. They asked for the reopening of the preliminary proceedings and the transfer of the case to another public prosecutor’s office. The Procurator General’s Office transferred the file to the Public Prosecutor’s Office for Crimes of Corruption (Korruptionsstaatsanwaltschaft) (“the KStA”). The KStA conducted an investigation, closed the preliminary proceedings against the public prosecutors and transferred the file to the Klagenfurt public prosecutor’s office, proposing the reopening of the preliminary proceedings. 35. On 19 January 2011 the public prosecutor reopened the proceedings against the first applicant and D.B. On 9 February 2011 the investigations were extended to the second applicant and the third applicant for breach of trust. 36. On 6 April 2011 the public prosecutor appointed F.S. as an expert in the preliminary proceedings and instructed him to submit a report dealing with the following questions: “- whether the services of D.B. as described in a letter of April 2007 and the progress report of 20 February 2008 were comparable to the services normally offered by an investment bank in similar circumstances - what fee was appropriate and reasonable for the services D.B. had provided.” 37. The accused were informed about the appointment of the expert and told that they could object to his appointment within three days. The applicants did not object. At an unspecified date the case file was transferred to F.S. 38. On 28 June 2011 F.S. delivered his expert report. The report stated that the services provided by D.B. were not comparable to the services of an investment bank and that a fee of EUR 200,000 would be appropriate and reasonable for the services provided by D.B. 39. The report was served on the applicants. 40. On 19 September 2011, the second applicant submitted reports by two court-approved experts which he had commissioned on a private basis. The private expert reports stated that fees of 1.5% of the sum of the transaction were reasonable for the services provided by an investment bank when negotiating a share deal in a similar situation. The services provided by D.B. could in part be seen as those of an investment bank. The second expert certified that D.B. had carried out 43% of the activities normally carried out by an investment bank. Those expert reports were transmitted to F.S. for further consideration. 41. On 28 September 2011 F.S. commented on the private expert reports submitted by the second applicant. He said that he had examined carefully the findings of the two experts and that the methods used to assess which activities D.B. had been involved in within the negotiations were not plausible. F.S.’s comment was served on the accused. 42. On 5 October 2011 the third applicant submitted another expert report by a court-approved expert which he had commissioned on a private basis to counter the findings of F.S. The expert report stated that F.S. had overstepped his competence by weighting the evidence. He had also not fulfilled the formal requirements of an expert report. The calculation of EUR 240,000 as a reasonable fee was criticised as wrong. 43. On 6 October 2011 that expert report was sent to F.S. for further consideration and, if necessary, amendment of his report. 44. On 14 October 2011 F.S. commented on the expert report commissioned by third applicant and concluded that there was no need to alter his findings. His comment was submitted to the accused. 45. On 16 December 2011 Landesholding submitted another expert report which its supervisory board had commissioned from a private limited company. The report examined the liability of the board members under civil law and concluded that the second applicant and the third applicant could not be held liable for their actions under civil law. 46. On 19 December 2011 the second applicant commented on that expert report. 47. On 21 March 2012 the public prosecutor filed a bill of indictment, charging the second applicant and the third applicant for breach of trust under Article 153 of the Criminal Code and the first applicant and D.B. for aiding and abetting in breach of trust. Based on the expert’s report prepared by F.S., the public prosecutor claimed that the applicants and D.B. knew that only a fee of a maximum of EUR 240,000 was reasonable for D.B.’s assistance in the negotiation process, but had nevertheless instructed Landesholding to pay a fee of EUR 6 million. Therefore they had caused damage amounting to EUR 5,760,000. 48. The Klagenfurt Regional Court sent out summonses and appointed F.S. as official expert to the trial. 49. All the applicants and D.B. submitted statements disputing the contentions of the public prosecutor but none of them appealed against the bill of indictment. The second applicant submitted eleven reports by private experts commissioned by the accused in the preliminary proceedings and requested that two of those experts be summoned as official experts to the trial. 50. On 4 July 2012 the trial started. 51. After several hearings D.B. conceded on 11 July 2012 that the findings of the official expert, F.S., were correct inasmuch as his services to the negotiation process had not corresponded to a fee of EUR 6 million but only to a fee of EUR 300,000. He further stated that, in his view, the second applicant and the third applicant had known at the relevant time that his fee was inappropriate and unreasonable. Also, his bill had been established together with the second applicant in February 2007 when the latter had stated that he needed documentation to present to the supervisory board of Landesholding. 52. The applicants disputed D.B.’s confession and argued that the fee paid to him had been reasonable. 53. On 18 July 2012 the third applicant asked the court not to include the expert report of F.S. in the case file. He argued that F.S. had to be treated as a witness for the prosecution and not as an impartial expert assisting the court. Moreover, F.S. was a professional lawyer and university professor in Germany and not registered in Austria as an expert for book-keeping, cost accounting or financial auditing in the list of court appointed experts and therefore lacked the necessary expert knowledge for assessing whether the remuneration of D.B. had been appropriate. Lastly he submitted that F.S. had been biased because in the course of the preliminary investigations he had answered questions of assessment of evidence and questions of law. Should the court not appoint another official expert for the trial, the third applicant requested that the privately commissioned expert reports presented to the court be included in the file. He also requested that the experts who had drawn up those reports be summoned for questioning as official experts in the trial. The other applicants joined those requests. 54. The Regional Court dismissed all the requests. As regards the challenge for bias of F.S. and the request not to hear him as expert or to read out his report, it found that from the case file and the evidence collected hitherto it did not appear that there were reasons for considering him as being biased. Since F.S. had been summoned to the hearing by the trial court, he had at the same time been appointed as expert by that court. As regards the argument that he had answered questions of assessment of evidence and questions of law in the preliminary proceedings, the court found that, even assuming that this had been the case, such statements had to be disregarded by the court. As regards the private experts commissioned by the applicants as court appointed experts the Regional Court pointed out that only after having examined and discussed the report by the court appointed expert, the necessity of appointing other experts could be decided. 55. The public prosecutor extended the charge, claiming that the damage caused by the accused amounted to EUR 6 million. 56. On 25 July 2012, D.B. confessed that in 2007, after his bill had been paid by Landesholding, the first applicant had asked him to share the money with him and J.H. D.B. had handed over part of the payment to the first applicant. Other leading members of the Alliance for the Future of Austria party had asked for money as well. 57. At the same hearing, the first applicant conceded that after the deal with B. Bank had been concluded, he and J.H. had decided that part of D.B.’s fee should be used to finance the Austrian Peoples’ Party in Carinthia and the Alliance for the Future of Austria party. He further confessed that he had received a portion of the fee from D.B. 58. The second applicant and the third applicant maintained their initial statements and claimed that they had acted in good faith without knowing that D.B.’s fees were not reasonable. 59. On 9 August 2012 F.S. was heard by the court. He gave a brief summary of his written expert report and answered the questions raised by the court and the parties to the trial. While F.S. was being questioned, an expert commissioned by the defence sat next to the applicants’ lawyers and advised them but was not allowed to question F.S. on his own. There is no indication that F.S. took part in any other hearing or put questions to witnesses or the accused. 60. After the questioning of F.S., the applicants and their co-accused reiterated their request to appoint another official expert. In their view, the answers given by F.S. had shown that his expert report was deficient. They further argued that the appointment of another expert was necessary because F.S. had to be considered as a witness for the prosecution and not as an impartial expert assisting the court. 61. The court dismissed those requests. 62. On 1 October 2012 the Klagenfurt Regional Court reached a verdict. It convicted the accused as charged and sentenced the first applicant to five and a half years, the second applicant to three years, the third applicant to two years and D.B. to three years of imprisonment. In addition, they were ordered to repay EUR 4,765,193 plus interest to Landesholding for compensation. The Regional Court found that the services provided by D.B. in the negotiation process only corresponded to fees in the amount of EUR 300,000 and that the second applicant and the third applicant had been aware of that fact but had breached their obligation of diligence by authorising the payment of EUR 6 million to D.B. As the first applicant had asked them to authorise the payment, he was guilty of abetting them. 63. The applicants lodged pleas of nullity and appeals against the sentence. D.B. also lodged an appeal against the sentence. The public prosecutor appealed against the sentences imposed on the second applicant, the third applicant. and D.B. 64. In their pleas of nullity the applicants, relying on Article 281 subparagraph 4 of the Code of Criminal Proceedings (Strafprozessordnung, hereinafter referred to as CCP), stated that the Regional Court should have appointed another official expert. The proceedings had made it clear that F.S.’s expert report had been deficient. F.S. had been appointed by the public prosecutor and had delivered the basis for a bill of indictment, which showed that he was biased. F.S. had to be considered as a witness for the prosecution and not as an impartial expert assisting the court. Moreover, under Article 126 § 4 of the CCP a challenge for bias against an official expert could not be made on the grounds that he had previously been appointed as official expert in the preliminary investigations. They argued that this provision was not in line with the right to a fair trial under Article 6 of the Convention, as they did not have a real chance to counter F.S.’s expert report. This was aggravated by the fact that the expert reports commissioned by the applicants and their co-accused and submitted to the trial court had not been admitted to the file and the experts had not been summoned as requested. They therefore asked the Supreme Court to request a review of the constitutionality of Article 126 § 4 of the CCP by the Constitutional Court. 65. On 11 March 2014 the Supreme Court dismissed the applicants’ pleas of nullity and the appeals of the second applicant and of the public prosecutor, but partly granted the appeals of the first applicant, the third applicant and D.B. The sentence imposed on the third applicant was added to a sentence previously imposed on him on of 2 February 2013 (Zusatzstrafe), and the sentences imposed on the first applicant and D.B. were reduced to four and a half years and two and a half years of imprisonment respectively. 66. With regard to the alleged violation of Article 6 of the Convention, the Supreme Court found that Article 126 § 4 of the CCP should in general ensure that two different official experts were not appointed in the preliminary proceedings and the trial, as this would result in delays in the proceedings. Article 126 § 4 of the CCP did not exclude a challenge for bias, except when it was merely argued with the fact that the expert had been appointed previously in the preliminary proceedings. The requests to appoint another expert had been dismissed by the court not on the grounds of Article 126 § 4 of the CCP but for other reasons. In fact, it had dismissed the requests because the applicants had not given valid reasons for their bias challenge. It had not been shown that the expert had a close relationship with the public prosecutor that would cast doubts on his objectivity. 67. Moreover, the neutrality of the expert was ensured as he or she was obliged by law to act in an objective manner. His or her findings had to be based on facts established using scientific methods and principles. Criminal law (perjury) as well as the provisions on challenge for bias would ensure that his or her findings and conclusions were in accordance with the law. The expert was not part of the public prosecutor’s office, and the results of the proceedings had no effect on his or her payment. In the event of a dispute between the public prosecutor and the accused about the amount of the expert’s fees, it was up to the court to fix the amount and to pay the expert. 68. The Supreme Court also reasoned that in preliminary proceedings as well as in a trial, an accused could address written questions to the official expert and question him or her in court and, in so doing, the accused could be assisted by a privately appointed expert. The Supreme Court noted that the applicants had made use of this opportunity. In that way, the accused had an opportunity to show that the official expert’s report contained errors or shortcomings. If those errors or shortcomings could not be corrected by the official expert, the court had to dismiss him or her and appoint another expert to draw up a report. Furthermore, the findings and conclusions of the official expert could be challenged even before the trial stage by lodging an objection (Einspruch) against the bill of indictment, but this had not been done in the case at hand (see paragraph 50 above). 69. The Supreme Court rejected as inadmissible the first applicant’s complaint that contacts between the public prosecutor and F.S. had influenced the latter and rendered him biased vis-à-vis the accused as this complaint had not been submitted following the proper proceedings. It added, however that such a complaint was in any event ill-founded, since the initial contact between the public prosecutor and F.S. merely had the purpose of clarifying under which conditions F.S. would accept the task of drawing up an expert report and subsequent contacts consisted in supplementing the case file which had been transmitted to F.S. for drawing up the report. Thus, it could not be seen how this kind of contact could give rise to doubts as to the neutrality of the expert. 70. The Supreme Court held further that the applicants in the present case had not used their opportunity to question the competence of F.S. or to object to his appointment in the preliminary proceedings. Moreover, the Regional Court had based its findings and decision primarily not on the expert report, but on D.B.’s confession. Citing the Court’s case-law (Brandstetter v. Austria, 28 August 1991, Series A no. 211; Bönisch v. Austria, 6 May 1985, Series A no. 92; and C.B. v. Austria, no. 30465/06, 4 April 2013), the Supreme Court found that the applicants had had sufficient opportunities to question F.S. during the hearing of 9 August 2012. Consequently, the Supreme Court had no doubt that the right to equality of arms in the trial had been maintained. 71. The written decision of the Supreme Court was served on the applicants on 27 March 2014. | 0 |
test | 001-163944 | ENG | POL | ADMISSIBILITY | 2,016 | WYŻGA v. POLAND | 4 | Inadmissible | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano | 1. The applicant, Mr Mirosław Wyżga, is a Polish national who was born in 1976 and lives in Kraków. He was represented before the Court by Mr J. Krupa, a lawyer practising in Kraków. 2. The Polish Government (“the Government”) were represented by their Agent, Mrs J. Chrzanowska of the Ministry of Foreign Affairs 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On an unknown date the applicant was charged with several offences and in particular uttering threats (committed mostly in 2008). 5. On 10 July 2008 the Kraków District Prosecutor asked the Kraków District Court to remand the applicant in custody. The prosecutor indicated that the applicant had failed to report for a court-ordered psychiatric observation. The applicant was arrested and placed in the hospital on 18 June 2008. However, he escaped two days later. 6. The applicant was remanded in custody on 31 August 2008 and placed in the psychiatric ward of the Kraków Remand Centre Hospital. Between 22 September 2008 and 3 November 2008 he was under psychiatric observation. On 19 November 2008 two expert psychiatrists gave an opinion and determined that the applicant was suffering from paranoid schizophrenia. They observed that the applicant should be placed in a psychiatric hospital as there was a very high probability that he would commit another, similar offence. 7. On 9 March 2009 the Kraków District Court gave a decision and discontinued the criminal proceedings against the applicant. The court, referring to the experts’ opinion, established that the applicant could not be held criminally responsible as he was suffering from paranoid schizophrenia. It ordered that the applicant be placed in a psychiatric hospital. On 28 April 2009 the Kraków Regional Court upheld that decision. 8. The applicant’s remand in custody was subsequently extended. On 6 May 2009 a doctor confirmed that the applicant could be treated in the hospital wing of the detention facility until he could be transferred to a psychiatric hospital. 9. On 17 June 2009 the Psychiatric Commission on Preventive Measures (“the Commission”) ruled that the applicant should be placed in the Jarosław Psychiatric Hospital. On 22 July 2009 the Kraków District Court asked the Commission to indicate the Kraków Babinski Psychiatric Hospital (“Babinski Hospital”) as the hospital where the applicant should be placed, since sending him to the Jarosław Hospital would make it difficult for him to maintain contact with his family. On the same day, the Commission recommended Babinski Hospital. 10. On 24 September 2009 the applicant was transferred from the detention centre to Babinski Hospital. 11. On 4 March 2010 the Kraków District Court, citing an expert opinion of 18 January 2010, confirmed that the applicant’s condition had not changed and that it was necessary to keep him in the hospital. The applicant appealed. On 28 May 2010 the Kraków Regional Court upheld the district court’s decision. 12. Meanwhile, another set of criminal proceedings against the applicant (charges of computer hacking committed in 2003) was discontinued by the Kraków District Court on 27 May 2010. The court held that the applicant could not be held criminally responsible. It further considered, citing a psychiatric opinion of 13 April 2010 given by expert psychiatrists D.W. and S.T. that the applicant needed constant pharmacological treatment but he could be treated outside a psychiatric hospital. 13. At a session held on 22 October 2010 the Kraków District Court confirmed that the applicant’s condition had not changed. Its decision given on that day was identical to that of 4 March 2010. The court examined an expert opinion of 16 July 2010, signed by two psychiatrists (including D.W.) and two psychologists, who confirmed that the applicant should continue to be treated in a psychiatric hospital. The court also refused a request by the applicant’s lawyer for experts to be appointed from outside the Kraków region. It further noted that the two expert opinions (of April and July 2010) could not be compared, as different circumstances had been examined in these two sets of proceedings. 14. The applicant’s lawyer appealed against this decision, claiming that D.W.’s opinions were contradictory and that it had not been reliably shown that the applicant’s continued detention was necessary. On 10 December 2010 the Kraków Regional Court upheld the district court’s decision, concurring that the applicant’s confinement should be extended. 15. On 21 April and 11 October 2011 the Kraków District Court again extended the applicant’s detention in a psychiatric hospital. These decisions were identical to the two previous decisions. However, the court referred to fresh experts’ opinions, of 14 January and 14 July 2011 respectively. These decisions were upheld on 11 July and 15 December 2011 by the Kraków Regional Court. 16. On 27 January 2012 the Kraków District Court confirmed that the applicant’s detention in a psychiatric hospital should be continued, basing this decision on an opinion of 12 January 2012. The court referred to the applicant’s attempted escape of 11 January 2012. The applicant’s appeal was dismissed by the Kraków Regional Court on 29 February 2012. 17. On 23 May 2012 expert psychiatrists confirmed that the applicant should continue to be treated in hospital, as he was still completely uncritical as regards the acts he had committed and his illness. 18. On 11 June 2012 the Kraków District Court confirmed that the applicant’s detention in a psychiatric hospital should be continued. The court cited a fresh expert report and the applicant’s attempted escape of 11 January 2012. On 30 July 2012 the Kraków Regional Court upheld the district court’s decision. 19. On 3 December 2012 the Kraków District Court, on the basis of an experts’ opinion of 23 November 2012, held that the applicant’s detention in a psychiatric hospital should be continued. An appeal against this by the applicant was dismissed by the Kraków Regional Court on 25 January 2013. 20. In their opinions of 16 May and 15 July 2013 experts found that the reasons for applying the preventive measure remained. However, owing to the applicant’s inappropriate behaviour (harassment of other patients and uttering threats towards patients and the hospital staff) they recommended that he be transferred to a different hospital. Nevertheless, on 8 August 2013 the Kraków District Court decided to keep the applicant in Babinski Hospital. That decision was upheld by the Kraków Regional Court on 24 September 2013. 21. On 19 September 2013, upon a recommendation by the Psychiatric Commission, the Kraków District Court decided to place the applicant in the Dębica Medical Centre (“Dębica Hospital”). The applicant was transferred there on 25 September 2013. 22. On 10 December 2013 two expert psychiatrists and a psychologist from the Tarnów region confirmed that the applicant did not see a need to continue treatment, he was uncritical about his illness, and there was a risk that he might commit yet another offence. Therefore, he should continue treatment in a secured psychiatric facility. Referring to this opinion, the Kraków District Court decided to extend the applicant’s confinement on 27 January 2014. The decision was upheld by the Kraków Regional Court on 23 May 2014. 23. On 24 April 2014 two expert psychiatrists and a psychologist held that the applicant’s condition had deteriorated and there was still a risk that he might commit yet another offence. For these reasons it was necessary to continue his treatment in a secure psychiatric facility. Subsequently, on 26 June 2014 the Kraków District Court extended the applicant’s detention. 24. On 21 August 2014 the Kraków District Court decided to transfer the applicant to the Branice Psychiatric Hospital – a high-security psychiatric facility. On 16 October 2014 the Kraków Regional Court dismissed the applicant’s appeal against that decision. The court stressed, referring to a recent expert opinion that the applicant’s condition had deteriorated since March 2014. He was aggressive and threatened other patients and medical staff. 25. The applicant was transferred to Branice Hospital on 4 September 2014. 26. On 10 February 2015 expert psychiatrists from the Opole region observed some improvement in the applicant’s mental state. He was no longer threatening other patients and had not attempted to escape. However, the improvement was not permanent, and there was still a high risk that the applicant would commit another similar offence. 27. On 19 March 2015 the Kraków District Court again extended the applicant’s detention. In view of the experts’ opinion it also ordered that the applicant be transferred to a less secure psychiatric facility - the Rybnik Psychiatric Hospital. 28. According to the information available to the Court on the date of adoption of the present decision the applicant is still detained in a psychiatric hospital. 29. Conditions for the detention of persons of unsound mind who are not criminally responsible on medical grounds are laid down in the Polish Criminal Code of 1997: Article 93 “The court may impose a preventive measure as provided for in this chapter, which involves committal to a secure medical institution only if necessary in order to prevent the repeated commission of a prohibited act by an offender suffering from mental illness ... mental impairment or addiction to alcohol or other narcotic drugs. Before imposing such a measure, the court shall hear evidence from psychiatrists and a psychologist...” Article 94 “1. If an offender has committed a prohibited act in a state of insanity as specified in Article 31 § 1, causing significant harm to the community, and there is a high probability that he will commit such an act again, the court shall commit him to a suitable psychiatric institution. 2. The duration of the stay in the institution shall not be fixed in advance; the court shall release the offender from the institution if his stay there is no longer deemed necessary. 3. The court may reorder the committal of an offender (as specified in paragraph 1) to a suitable psychiatric institution if it is advisable in the light of the circumstances specified in paragraph 1 or Article 93; such an order may not be issued more than five years after release from the institution.” 30. Pursuant to Article 22 § 1 of the Code of Execution of Criminal Sentences of 1997, as applicable from 1 January 2012, an offender and his defence lawyer may take part in a court hearing only if this is expressly provided by law. Article 204, as applicable at the material time, provided: “1. The court shall, no less frequently than every six months, and in the event of receiving an opinion that further detention of the offender in a secure medical institution in which a preventive measure is being executed is unnecessary, immediately make a decision as regards the further execution of that measure. If necessary, the court shall refer to the opinion of other medical experts. 2. A decision on the further execution of a preventive measure may be appealed against.” 31. On 1 July 2015 Article 204 was amended to the effect that it now provides explicitly for the obligatory participation of a prosecutor (always) and a defence lawyer (if the offender is deaf, mute or blind, or a minor, if there are justified doubts as to whether he could be held criminally responsible or if the court finds that the defence may be particularly difficult). | 0 |
test | 001-182869 | ENG | GRC | CHAMBER | 2,018 | CASE OF ZABELOS AND OTHERS v. GREECE | 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) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos | 5. The applicants were or are still detained in Korydallos Prison Hospital (“the Prison Hospital”). They all suffer from HIV infection, apart from the third applicant who suffers from chronic obstructive pulmonary disease. 6. The first applicant, Dimitrios Zabelos, was detained in the Prison Hospital from 6 March 2014 until 17 June 2015, when he made use of the remedy provided for by Article 110A of the Criminal Code. 7. The second applicant, Adriatik Berberaj, was detained in the Prison Hospital from 6 April 2010 until 21 January 2011 and from 7 February 2012 until 1 July 2015, the date on which he was released following use of the remedy provided for by section 12 of Law no. 4322/2015, having served one third of his sentence. 8. The third applicant, Dimitrios Berberidis, was detained in the Prison Hospital on 6 December 2012 and was released on 11 June 2015 following use of the remedy provided for by section 12 of Law no. 4322/2015, having served one third of his sentence. 9. The fourth applicant, Pola Honein, was detained in the Prison Hospital from 18 December 2012 until 1 July 2015. He was released after having made use of the remedy provided for by Article 110A of the Criminal Code. 10. The fifth applicant, Theodoros Iliopoulos, was detained in the Prison Hospital from 8 January 2013 until 2 June 2015, the date on which he was released following use of the remedy provided for by section 12 of Law no. 4322/2015, having served two fifths of his sentence. 11. The sixth applicant, Marouf Kamoli, was detained in the Prison Hospital from 30 December 2013 until 19 May 2015, the date on which he was released following use of the remedy provided by section 11 of Law no. 4274/14, having served two fifths of his sentence. 12. The seventh applicant, Davit Khutsishvili, was detained in the Prison Hospital from 1 July 2014 until 27 October 2016. He was released after having made use of the remedy provided for by section 12 of Law no. 4322/2015. 13. The eighth applicant, Roustam Konstantinidis, was detained in the Prison Hospital from 23 August 2013 until 14 December 2015. He was released following an application on the basis of section 3 of Law no. 4322/2015. 14. The ninth applicant, Ioannis Machos, was detained in the Prison Hospital from 1 November 2012. He was still in detention when the parties submitted their observations. 15. The tenth applicant, Andreas Martzaklis, was detained in the Prison Hospital from 28 May 2013 until 3 August 2015, when he was released after he lodged an application on the basis of section 12 of Law no. 4322/2015. He was again detained in the Prison Hospital from 22 January 2016, and was still in detention there when the parties submitted their observations. 16. The eleventh applicant, Saeed Hamo Moradyan, was detained in the Prison Hospital from 8 February 2013 until 27 January 2016, the date on which he was released on the basis of section 12 of Law no. 4322/2015, having served one third of his sentence. 17. The twelfth applicant, Antonios Oikonomakos, was detained in the Prison Hospital from 27 November 2013 until 30 September 2015, when he was released, having served one tenth of his sentence, on the basis of section 12 of Law no. 4322/2015. He was again detained from 6 November 2015 until 23 December 2015 when he was released, having served two fifths of his sentence, on the basis of the same provision. 18. According to the documents before the Court, the thirteenth applicant, Nikolaos Papadopoulos, was detained in the Prison Hospital for significant periods of time from 4 April 2014 until 16 July 2015. 19. The fourteenth applicant, Spiridon-Xenofon Pirpiniadis, was detained in the Prison Hospital from 20 December 2013 until 13 August 2015, when he was released on the basis of section 12 of Law no. 4322/2015, having served two fifths of his sentence. 20. The fifteenth applicant, Sabri Sabrioglou, was detained in the Prison Hospital from 22 January 2013 until 24 December 2014 and from 11 February until 20 October 2015. 21. The sixteenth applicant, Dimitrios Samlidis, was detained in the Prison Hospital from 8 July 2014 until 26 February 2015, when he was released, after having made use of the remedy provided for by Article 110A of the Criminal Code. 22. The seventeenth applicant, Emmanouil Toufektsis, was detained in the Prison Hospital from 30 October 2013 and was still in detention there when the parties submitted their observations. 23. The eighteenth applicant, Chrisovalantis Tsiriklos, was detained in the Prison Hospital from 4 July 2013 until 8 July 2015, when he was released after having made use of the remedy provided for by Article 110A of the Criminal Code. He was again detained on 21 August 2015 and was still in detention there when the parties submitted their observations. 24. The applicants submitted that the Prison Hospital had been overcrowded which, in addition to causing poor sanitary conditions, had resulted in the deterioration of their already fragile health. They maintained that all of them had been detained in hospital wards which had measured 44 sq. m and which had been occupied by twelve detainees on average for the period between 2013 and 2015. In addition, the second and third applicants had been detained in cells measuring 17 sq. m and which had held four inmates. They further argued that they had not been able to move freely within the wards owing to the space occupied by furniture. In particular, bunk beds were not used in the Prison Hospital and extra furniture, such as medical equipment, was required; therefore half the area of each ward had been occupied by furniture, which had resulted in them having a personal space in which they could move freely of below 2 sq. m. 25. The above-mentioned conditions had led them to receiving inadequate health care. There had been a high risk of infection with contagious diseases as there had not been effective separation of detainees according to the disease from which they had suffered. In addition, only four toilets had been available for the detainees in a total of five wards on the first floor. 26. Meals had been insufficient and of poor quality and the absence of recreational activities had affected their psychological health. Central heating had been inadequate and collection of rubbish, especially in the kitchens, had not been sufficient, creating hygiene problems and resulting in bad smells and the presence of pests. The applicants also complained of the lack of medical staff and properly equipped laboratories for their medical examinations. In particular, during the period 2013-14 only one general practitioner had been available to the hospital. 27. The applicants acknowledged that the conditions of their detention had improved in mid-2016 and that the medical-staff numbers had increased, resulting in conditions which met the requirements of Article 3 of the Convention but only for the period after June 2016. 28. On 18 December 2014 the applicants lodged a complaint with the Prison Board under Article 6 of the Penal Code (Law No. 2776/1999), to which they have not received any reply to date. 29. According to the Government, the Prison Hospital’s official capacity was sixty patients and at the time of the applicants’ detention the hospital had held between 180 and 220 patients. Specifically as regards the applicants, some of them had been detained in wards 7 and 8 on the first floor of the hospital and some others in wards 1, 2 and 3 on the second floor. The wards measured 44.40 sq. m each, and each of them hosted eight to thirteen detainees. Therefore, the personal space available to them ranged from 3.4 sq. m to 5.5 sq. m. It was also noted that toilets had been in the corridors, not inside the wards, which had remained unlocked so as to ensure unobstructed access to the bathrooms. 30. The Prison Hospital was an establishment providing primary medical care by operating as a clinic. Detainees who required more intense or specialised care were referred to public hospitals, a procedure which was used for the third, fourth, ninth, fifteenth and seventeenth applicants. The patients were separated by disease. They were examined regularly by doctors and they were submitted often to general and specialised laboratory examinations. 31. Wards were sufficiently ventilated and heated and had adequate natural light via six large windows. Hot water was ensured by solar water heaters and by boilers which operated for four hours per day. Wards were regularly cleaned by cleaning crews consisting of detainees and disinfected by specialist companies. The hospital’s social service provided personal hygiene products to detainees who could not afford them. All wards and corridors had rubbish bins which were emptied regularly. 32. As regards detainees’ meals, they were designed under medical supervision to ensure that patients received all necessary nutrients. The Government submitted the menu of two random weeks to demonstrate that they had been comprised of a variety of food. 33. According to the Government, detainees were not obliged to spend all day in the wards; on the contrary, they could move along the corridors and spend time in the yard. Various recreational activities were organised and detainees had had the opportunity to enrol in educational programmes since October 2015. Detainees were also granted days of leave that they could spend outside the prison hospital; the third, fifth and eleventh applicants had benefitted from such leave. 34. Lastly, according to the Government, during 2015 and 2016 conditions of detention in the Prison Hospital were drastically improved. That was mainly due to measures taken to reduce overcrowding in prisons under Law no. 4322/2015, which provided for early release schemes. In November 2014 a women’s ward had been opened at the hospital and work had been carried out to improve the facilities. In addition, new and updated medical equipment was procured and medical-staff numbers had been reinforced by the recruitment of three new doctors of various specialties. The Government specified that all the above-mentioned improvements had made the Prison Hospital a detention facility significantly different to the image given in the Greek Ombudsman’s (Συνήγορος του Πολίτη) report, which had been prepared on the basis of a visit in February 2012, that is to say on a date that had no relevance to the present case. | 1 |
test | 001-182867 | ENG | NOR | CHAMBER | 2,018 | CASE OF WOLLAND v. NORWAY | 4 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for home;Respect for private life) | André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer | 5. The applicant, Mr Steingrim Wolland, was born in 1961 and lives in Oslo, Norway. He ran a law firm in his own name in Oslo until his licence to practice was suspended as a result of the opening of bankruptcy proceedings against him personally in April 2009. 6. On 9 March 2010, the prosecuting authority (Økokrim – The National Authority for Investigation and Prosecution of Economic and Environmental Crime) issued charges (siktelse) against the applicant for aiding and abetting fraud in connection with art sales (kunstbedrageri), an application for a bank loan (lånebedrageri), and forgery of documents in connection with the latter. 7. On 10 March 2010 the Oslo City Court (tingrett), finding that there were reasonable grounds for suspicion (skjellig grunn til mistanke) in respect of the charges, decided at the request of the prosecuting authority to authorise that a search be carried out at the applicant’s premises, including his office. The applicant did not lodge an appeal against the City Court’s decision. 8. On 23 March 2010 the police were at the applicant’s premises – his home and office. In accordance with Article 205 § 3 of the Code of Criminal Procedure (see paragraph 37 below) a third party – a lawyer acquaintance of the applicant – was present. As there was a presumption that some material would be covered by the applicant’s statutory legal professional privilege as a lawyer, and therefore be exempt from seizure pursuant to Article 204 § 1 (ibid.), documents were put in sealed bags instead of being searched for evidence by the police. The police also collected a hard disk and a laptop. The third party had no objections as to how the police had proceeded. 9. Mirror copies (speilkopier) of the hard disk and laptop were taken; the hard disk and laptop were returned to the applicant two days later. 10. On 3 May 2010, at the prosecuting authority’s office, the applicant went through the paper documents that had been collected and sorted out those which he considered to be covered by legal professional privilege. This material was stored separately and placed under seal. 11. On 5 January 2011 the prosecuting authority applied to the City Court to examine the paper material that had been collected at the applicant’s premises and to have those documents that could lawfully be seized made available to it for search. As to the mirror copies, the prosecuting authority proposed that the City Court authorise a staff member at Økokrim’s computer department to acquaint him or herself with the material. The prosecution authority would thereafter return to the City Court with an application for a decision on whether specific documents would be exempt from seizure owing to legal professional privilege. The City Court accepted this procedure (see, however, paragraph 31 below). Subsequently, the prosecuting authority, upon discussions with the applicant as to which keywords (søkeord) should be used when looking for documents on the mirror copies, made keyword-searches which gave results in 2,309 files. 12. By a letter of 16 February 2011 the applicant’s lawyer disputed the lawfulness of what he categorised as the “seizure” (“beslag”), arguing that there had been no reasonable grounds for suspicion against the applicant and requested that the City Court quash the “seizure” decision and order that the collected material be returned to him. 13. On 6 May 2011 the prosecuting authority submitted the 2,309 files from the mirror copies to the City Court for examination. 14. In response to the letter from the applicant’s lawyer of 16 February 2011 (see paragraph 12 above), the City Court wrote a letter of 11 May 2011, pointing out that the procedure applicable to material allegedly covered by legal professional privilege had been set out by the Supreme Court (Høyesterett) in its decision of 3 March 2011, reported in Norsk Retstidende (Rt.) 2011 page 296 (see paragraphs 38-39 below). In line with that procedure, there were no grounds on which the City Court could at that time hold a court hearing devoted to the discontinuation of any “seizure” and return of the material. No seizure had been decided – the court was at the time carrying out the task of reviewing the material collected in order to decide on what should be made available to the prosecuting authority for it to search. The City Court would obtain the views of the parties in a hearing before making a formal decision as to whether to authorise the search of the prosecution. Its decision would be amenable to appeal. Since the handling of the case so far had taken considerable time, the City Court’s examination would be expedited. 15. The applicant and his lawyer disagreed with the City Court’s description of the procedure to be followed. After further exchanges between the parties, the City Court reiterated in a letter of 22 July 2011 – which was formally a judicial decision amenable to appeal (see paragraphs 16-24 below) – that a decision on seizure had not yet been taken. There was a presumption to the effect that documents and other materials in the office of a private lawyer were subject to legal professional privilege. In such cases the court would first go through the material in order to examine what could be made available to the prosecuting authority for it to search. The City Court also informed the parties that it was about to complete this task, having examined each document. It also reiterated its disagreement with the applicant’s view that before carrying out its perusal of the material it ought to consider anew whether there were reasonable grounds for suspicion against him, failing which its examination of the material would be unlawful, and that in the absence of such grounds it ought to return all the material to him with the seals intact. 16. On 19 August 2011 the applicant appealed against the City Court’s decision of 22 July 2011 not to examine the merits of his request to quash what was in his view a “seizure”, and to return the material. 17. On 9 November 2011 the Borgarting High Court (lagmannsrett) dismissed the appeal. 18. The High Court, as had the City Court, reiterated that the relevant procedure for the search and seizure of material allegedly subject to legal professional privilege had been thoroughly examined by the Supreme Court in Rt. 2011 page 296 (see paragraphs 14 above and 38-39 below). The City Court was at the time in the process of sorting out which documents could be lawfully searched by the prosecuting authority, and there had been no decisions on seizure taken. 19. From the above it was apparent, in the High Court’s view, that the applicant was not at that stage of the procedure entitled to have the question of whether to maintain the “seizure” in force (spørsmålet om opprettholdelse av beslaget) under Article 208 reviewed (see paragraph 37 below), and it could not see how him disputing the existence of reasonable grounds for suspicion in his case could lead to a different result. The Supreme Court’s decision contained no statements suggesting that the procedure should be different in such cases. Nor could the High Court find that there were other grounds, even if regard were had to Articles 6, 8, 10 and 13 of the Convention, as invoked by the applicant, suggesting that the accused had a wider right to judicial review in cases where he or she disputed the grounds for suspicion. 20. The High Court also noted that the Code of Criminal Procedure contained several provisions conferring on the accused a right to judicial review in respect of enforcement measures taken in the form of search and seizure, inter alia could a decision by a court to the effect that documents were to be handed over to the prosecution authorities after perusal of the documents in accordance with Article 204 (see paragraph 37 below) – which was what the City Court was doing at the time – be appealed against. The High Court considered that the Convention did not give the applicant any rights to have the legality of searches and seizures judicially reviewed beyond what followed from the Code of Criminal Procedure. The search had been authorised by the City Court on 10 March 2010, finding that there were reasonable grounds for suspicion against the applicant. The applicant had not filed any timely appeals against the decision and the search had been effectuated. 21. From the reasoning above it also followed that the applicant’s alternative submission that he ought to have a right to judicial review of whether there was a legal basis for an “ongoing search” (om det er grunnlag for en “pågående ransaking”) could not succeed. 22. It was also clear that the accused did not on a general basis have a right to judicial review of the reasons for the charges brought against him, whether there were reasonable grounds for suspicion or not, regardless of the use of any enforcement measures. The existence of such reasons could be examined again but then only in connection with, for instance, future investigative measures where the latter were required. The Convention provisions relied on could not lead to any different result. 23. Against this background, the High Court concluded that the City Court’s procedure had suffered from no defects. Its decision of 22 July 2011 had been based on a correct approach to the handling of the material gathered at the applicant’s premises. 24. On 20 December 2011 the Appeals Leave Committee of the Supreme Court (Høyesteretts ankeutvalg), whose jurisdiction was limited to reviewing the High Court’s procedure and interpretation of the law, rejected the applicant’s appeal in both respects. 25. On 25 January 2012 the City Court held a hearing (see paragraph 14 above) on the issue of which materials could be sent to the prosecuting authority for it to search. In the court records it was registered that the court had informed the parties that it was desirable if a decision could be reached as soon as possible and preferably within a month. In a decision of 11 May 2012, it ruled that 1,264 documents collected from the data carriers could be handed over. The applicant accepted the decision with respect to 858 of the documents, but appealed in respect of the remaining 406 and some of the paper documents. The prosecuting authority also appealed. 26. On 4 September 2012 the High Court dismissed the prosecuting authority’s appeal and rejected the applicant’s appeal except for one issue relating to a bank account transcript. 27. On 26 October 2012 the Supreme Court quashed the High Court’s decision in so far as it had rejected the applicant’s appeal (Rt. 2012 page 1639). It found, in essence, that the High Court had applied a too narrow understanding of what was lawyer’s work (egentlig advokatvirksomhet) that could bring legal professional privilege into play. 28. During its reconsideration of the case, the High Court, on 8 January 2013, concluded that thirty-six of the disputed 406 documents could be submitted to the prosecuting authority for it to search. On 22 May 2013 the Supreme Court rejected an appeal by the applicant against the High Court’s decision. 29. On 11 June 2012 the applicant applied to have some of the material, including the mirror copies, returned to him. The City Court, on 18 September 2012, refused his application in so far as it concerned the mirror copies, but granted the other parts thereof. 30. The applicant appealed against the decision to the High Court, which on 8 January 2013 ordered that the mirror copies were to be returned to the applicant unless the prosecuting authority promptly (relativt omgående) requested that the City Court examine them. It referred, inter alia, to the general obligation to ensure progress in investigations, as reflected in Article 226 of the Code of Criminal Procedure (see paragraph 37 below). 31. Upon an appeal by the prosecuting authority, the Supreme Court, on 27 June 2013 (Rt. 2013 page 968) agreed with the High Court that the prosecuting authority’s continued possession of and searches on the mirror copies (see paragraph 11 above) had been unlawful. The mirror copies should, like the paper documents, have been placed under seal and transferred to the City Court without the prosecution authority having accessed material on them through keyword-searches. Unlike the High Court, however, the Supreme Court did not for that reason find that the copies should necessarily be returned to the applicant. It quashed the High Court’s decision in order for that court to further assess the prosecuting authority’s submissions that the copies should instead be kept with the City Court, as the High Court had not sufficiently considered that possibility. 32. The prosecuting authority transferred the mirror copies to the City Court on 2 September 2013. 33. When, on 20 May 2014, the High Court contacted the prosecuting authority, its decision concerning the mirror copies having been quashed by the Supreme Court (see paragraph 31 above), the authority responded by informing the High Court of the developments in the criminal case against the applicant (see paragraph 35 below). It moreover stated that the seizure had been lifted on 28 May 2014 and requested that the case therefore be dismissed. The material could be deleted by the court or the data carrier could be handed over to the applicant. The applicant argued that the case should not be dismissed and requested that the High Court examine the merits of his application to have the mirror copies returned, in order for him to have a judicial review of whether his Convention rights had been violated. 34. In a letter of 25 June 2014 the High Court set out its views on the matter. It stated, inter alia, that the case concerned the applicant’s application to have the mirror copies returned. This request would be met if the copies were actually returned, which was what the prosecuting authority had proposed. This made it difficult to see why the applicant should have legal standing to require that the courts examine his application. Moreover, the court assumed that the applicant could obtain a review of his Convention claims in other ways. The case as concerned the mirror copies was ultimately dismissed on 22 August 2014. There is no information about the applicant having appealed against this decision. 35. On 10 January 2013 the City Court acquitted the applicant of having obtained credit by way of fraud (lånebedrageri) (see paragraph 6 above). On 12 June 2013 the High Court convicted him for having shown gross negligence in that respect. This judgment became final when the Supreme Court’s Appeal Committee refused leave to appeal on 18 October 2013. The charges concerning forgery of documents (ibid.) were dropped on 11 February 2013. Some of the charges concerning aiding and abetting art fraud (kunstbedrageri) (ibid.) were dropped on 16 February 2011 and the remainder on 21 August 2013. | 0 |
test | 001-158177 | ENG | ROU | COMMITTEE | 2,015 | CASE OF IULIAN MOCANU AND OTHERS v. ROMANIA | 4 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Branko Lubarda;Mārtiņš Mits | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of criminal proceedings. In some of the applications, the applicants also raised complaints under other provisions of the Convention. | 1 |
test | 001-179427 | ENG | UKR | COMMITTEE | 2,017 | CASE OF DAKUS v. UKRAINE | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home) | Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer | 4. The applicant was born in 1978 and lives in Kalush. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. In 1996 V.D., the applicant’s future husband and his parents living in corporate housing (“flat A”) owned by “K.T.”, a State company (hereinafter “the K.T. company”), were offered the chance by the latter to exchange this accommodation for larger corporate housing accommodation (“flat B”), which was also owned by the same Company. Having accepted this offer, the three of them signed a written undertaking to vacate flat A when they moved to flat B. 7. In July 1997 the applicant married V.D. and joined him, his parents and brother to live in flat A. 8. In 1998 the applicant’s and V.D.’s son was born. Along with the applicant, he was registered by the local authority as a co-tenant of flat A on the grounds that both of them had become members of the original tenants’ family. 9. In 1999 the K.T. company transferred ownership of flat A to the municipality. 10. At various subsequent dates the applicant’s husband and parents-in-law moved out into flat B and registered their residence at the new address. 11. According to the Government, the applicant and her son also moved into flat B at the material time. 12. According to the applicant, she and her son remained residents in flat A, as her marriage with V.D. was falling apart and living together had become intolerable. 13. In August 2004 V.D. and the applicant divorced. 14. On 20 July 2005 the K.T. company decided to reallocate flat A to the family of R., its employee, who lived in an accommodation hall (гуртожиток). 15. In October 2005 the K.T. company lodged a claim in the Kalush Town Court, seeking, in particular, to evict the applicant and her son from flat A. It argued that there was no legal basis for them to remain in the property, which had been reallocated to a new tenant (R.). 16. On 25 July 2006 the court dismissed the claim for the eviction of the applicant and her son. It found, in particular, that the applicant had lawfully moved into flat A as a member of the original tenants’ family and so had acquired all the rights of a social tenant, within the meaning of Article 64 of the Housing Code (1983). She and her son had never promised to relocate and had remained residents of flat A at the material time. They had not been included in the occupancy voucher («ордер») of flat B and had not been provided with any other housing. They could therefore not be evicted without being provided with alternative accommodation. Moreover, in 1999 the K.T. company had transferred flat A to municipal ownership. It had therefore had no standing in 2005 to reallocate the same flat to R.’s family or to bring the present proceedings. 17. The K.T. company appealed, referring to Article 55 of the Housing Code. 18. On 14 September 2006 the Ivano-Frankivsk Regional Court of Appeal quashed the judgment of 25 July 2006 and ordered the applicant’s and her son’s eviction “without provision of any other accommodation”. It held that the Kalush Court, having properly established the relevant facts, had interpreted the law incorrectly. Notably, according to Articles 55 and 99 of the Housing Code, the applicant (together with her son) – having settled in flat A as a member of the original tenants’ family – was bound by the duty of the original tenants to vacate the flat. There was therefore no legal basis for the applicant’s and her son’s continued residency in flat A, and this fact constituted a sufficient basis for their eviction without the provision of any other housing. Furthermore, the Kalush Court had erred in respect of the K.T. company’s legal standing. Under Article 55 of the Housing Code, notwithstanding the transfer of the property to the municipality, the K.T. company had retained the right to allocate the flat to one of its employees. It had therefore had legitimate standing to seek the vacation of the flat by its previous tenants. 19. The applicant lodged a request for leave to appeal in cassation. She noted that she and her minor son had been lawful and registered residents of the disputed flat for eight years. During this period, she had dutifully engaged in the payment of all expenses relating to her occupancy of the flat. Unlike her former husband and in-laws, she and her son had not given any promises to vacate flat A and had not acquired any rights to live in flat B with them. Accordingly, her and her son’s eviction would effectively render them homeless. 20. On 16 November 2006 the Supreme Court of Ukraine rejected the applicant’s request for leave to appeal in cassation, ruling that her submissions did not contain any argument creating an appearance that there could be a problem under applicable law. 21. On 15 December 2006 the applicant requested the Kalush Court to postpone her eviction, in particular, because she had no other accommodation and her salary was too small for her to rent private-sector housing. 22. On 21 December 2006, while the applicant’s request was pending consideration, the State bailiffs arrived at flat A and had the applicant vacate it and surrender the keys. 23. On 25 December 2006 the local registration authority annulled the applicant’s and her son’s registration as residents of flat A. 24. On 29 December 2006 the Kalush Court allowed the applicant’s request for her and her son’s eviction to be postponed; it postponed their eviction for three months, referring to her indigent status and the interests of a minor child. 25. According to the applicant, after her eviction she had to seek emergency refuge in the home of a colleague and subsequently rented odd accommodations at various places. She submitted testimony given by various acquaintances and copies of some fixed-term lease agreements. 26. The Government contested this account, insisting that the lease agreements were fictitious and the applicant had de facto lived in flat B permanently since 2004 without proper registration. | 1 |
test | 001-177129 | ENG | LTU | ADMISSIBILITY | 2,017 | KAZLAUSKAS v. LITHUANIA | 4 | Inadmissible | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque | 1. The applicant, Mr Aidas Kazlauskas, is a Lithuanian national who was born in 1968 and is detained in Lukiškės Remand Prison. He was represented before the Court by Ms L. Meškauskaitė, a lawyer practising in Vilnius. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant has been serving a life sentence since 1994. In 2005 he was transferred to Pravieniškės Correctional Facility. In April 2005 the applicant attempted to murder another convicted inmate and in 2007 he was transferred back to Lukiškės Remand Prison. In his written appeal concerning his conviction for the attempt of murder, the applicant asked to be transferred back to Lukiškės Remand Prison and never to be returned to freedom, because he was afraid of liberty. 5. In 2009 the applicant married. At that time his wife was also serving a sentence in Lukiškės Remand Prison but in 2011 was transferred to Panevėžys Correctional Facility. 6. In June 2011 the applicant wrote to the administration of Lukiškės Remand Prison requesting a visit from his spouse; the duration of the visit was not specified in the applicant’s request. His request was granted; however, the director of Panevėžys Correctional Facility refused to allow his wife to attend the visit, referring to the provisions of domestic law (see paragraph 19 below). 7. In July 2011 the applicant complained to the Parliamentary Committee on Human Rights about the refusal of Panevėžys Correctional Facility to bring his wife to the visit. The complaint was forwarded to the Prison Department. In August 2011 it issued a response stating that the applicant did not have a right to long-term conjugal visits because he was serving his sentence in prison. The Prison Department stated that the law did not provide for short–term visits for spouses who were both convicted and serving their imprisonment sentences. In February 2012 he received similar response from the Parliamentary Committee on Human Rights. In the same month the applicant also received a response from the Ministry of Justice stating that long-term conjugal visits were not available to convicted inmates serving their sentences in prison. He was also informed that, in accordance with the provisions of domestic law, he would have been entitled to a long-term conjugal visit if he had been transferred to a correctional facility. 8. In September 2012 the Parliamentary Commission on Petitions examined the applicant’s proposal to amend the Code for the Execution of Sentences, so it allowed the spouses who were both serving their imprisonment sentences, and one of them was serving his or her sentence in prison, to have three long-term or short-term visits per year without the guards’ supervision. The Parliamentary Commission on Petitions held that the applicant’s proposal did not follow the principles of just and progressive execution of sentences and that if the applicant’s proposal had been adopted, the convicted spouses, both serving their sentences in correctional facilities, would have been deprived of visits, and would be discriminated. It was also observed that in a number of European Union Member States long-term conjugal visits were not allowed for convicted prisoners, and that they could communicate with their family members through short-term or home visits, as well as telephone conversations and letters. 9. The applicant brought court proceedings complaining about the refusal of his request to be allowed a short-term visit of up to four hours from his imprisoned spouse without guards’ supervision. The representative of Panevėžys Correctional Facility claimed that long-term conjugal visits were not allowed if one of the spouses was serving his or her sentence in prison. Convicted inmates, serving their sentences in prisons, had a right to short-term visits but this right was restricted by the provisions of domestic law (see paragraph 19 below). The Prison Department stated that the contested provision of domestic law was not applicable to convicted inmates, serving their sentences in prisons because such persons had a right only to short-term visits. But because the provisions of domestic law were silent about short-term visits when both spouses were serving their prison sentences, the Prison Department considered that short-term visits were not available to persons in the applicant’s situation. On 12 July 2012 the Panevėžys Regional Administrative Court held that the applicant and his wife had a right to a short-term visit of up to four hours and that his wife also had a right to a long-term conjugal visit of up to two days. The court also noted that, under the provisions of domestic law, the applicant could see his spouse at a short-term visit without guards’ supervision, in equipped premises, upon the approval of the prison director. The court therefore ordered Panevėžys Correctional Facility to organise a short-term visit of up to four hours for the applicant and his wife. 10. The Prison Department appealed, and on 20 December 2012 the Supreme Administrative Court held that a convicted inmate serving a life sentence in prison and belonging to the “ordinary” group of prisoners had a right to short-term visits of up to four hours every two months. However, the court also held that the court of first instance should not have ordered the Panevėžys Correctional Facility to organise a short-term visit and instead ordered it to reconsider the applicant’s request to be allowed a shortterm visit. 11. Following the decision of the Supreme Administrative Court (see paragraph 10 above), on 6 February 2013 Panevėžys Correctional Facility decided that the applicant’s wife could attend a short-term visit of up to four hours at Lukiškės Remand Prison. 12. On 25 April 2013 the applicant received a response from Panevėžys Correctional Facility stating that it had decided to allow his wife to attend a short-term visit at Lukiškės Remand Prison. 13. The applicant was granted short-term visits of up to four hours with his imprisoned spouse on five occasions in 2013 (14 May, 31 July, 30 September, 8 October and 10 December), six occasions in 2014 (12 February, 15 April, 18 June, 19 August, 22 October and 30 December), five occasions in 2015 (3 March, 5 April, 7 June, 8 September and 10 November) and five occasions in 2016 (12 January, 30 March, 31 May, 9 August and 6 September). The applicant used his right to ask for additional short-term visits and was granted them on 30 September 2013 and 6 September 2016. 14. According to the information available to the Court, the applicant never requested any long-term conjugal visits from his wife; he also never complained that he was not provided with more short-term visits up to four hours. 15. In February and July 2016 the applicant refused to participate in social rehabilitation programmes. 16. Article 62 § 1 provides that there are four types of correctional institutions: correctional facilities, juvenile correctional facilities, prisons and open colonies. 17. Article 72 provides that convicted inmates serving their sentences in a correctional facility are divided into ordinary, light and disciplinary groups. At the material time, Article 73 provided that convicted inmates in a correctional facility assigned to the ordinary group of prisoners had a right to receive one long-term and one short-term visit every three months. Since an amendment that came into force on 1 January 2017, convicted inmates in a correctional facility assigned to the ordinary group of prisoners have had the right to two long-term and one short-term visit every two months. 18. Article 84 provides that convicted inmates in prisons are assigned to ordinary and disciplinary groups of prisoners. Article 85 § 1 provides that convicted inmates in prisons assigned to the ordinary group of prisoners have a right to receive one short-term visit every two months. Article 85 § 2 provides that a short-term visit may take place without the supervision of a representative of the correctional facility. In such cases, visits take place in special premises. 19. At the material time, Article 94 § 1 provided that convicted inmates had the right to short-term visits of up to four hours and long-term visits of up to forty-eight hours. The nature and number of visits depended on the group of convicted inmates and the correctional institution. Article 94 § 6 provided that a husband and wife both serving prison sentences were allowed to have two long-term visits a year. 20. Article 165 § 1 provides that life prisoners serve their sentences in prison. Convicted inmates who have served the first ten years of their life sentence may, taking into account their behaviour in prison and the security risk they pose, at the request of the prison administration or by a decision of the district court be transferred to a correctional facility for the remainder of their sentence. 21. At the material time, Article 51 of the Criminal Code provided that life prisoners served their sentences in prison. | 0 |
test | 001-166746 | ENG | RUS | COMMITTEE | 2,016 | CASE OF GRABOVOY AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 4. The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained of the excessive length of their pre-trial detention. | 1 |
test | 001-158709 | ENG | FRA | CHAMBER | 2,015 | CASE OF BIDART v. FRANCE | 3 | No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | André Potocki;Angelika Nußberger;Helena Jäderblom;Josep Casadevall;Síofra O’Leary;Vincent A. De Gaetano | 5. The applicant was born in 1953 and lives in Béziers. 6. The applicant is the former head of the Basque separatist organisation Iparretarrak. After his detention in 1988, he was convicted several times: on 4 March 1991 he was sentenced to six years’ imprisonment for criminal association with a view to preparing a terrorist offence; on 10 November 1992 he was sentenced to life imprisonment for murder in the framework of terrorist activity, killing two members of the State security police force (“CRS”); on 9 April 1993 he was sentenced to six years’ imprisonment for armed robbery; on 9 June 1993 he was sentenced to life imprisonment for murder in the framework of terrorist activity, killing a gendarme; and on 31 March 2000 he was sentenced to twenty years’ imprisonment for conspiracy to murder, complicity in murder and armed robbery. 7. By judgment of 1 February 2007 the Sentence enforcement division of the Paris Court of Appeal released him on licence from 14 February 2007 to 14 February 2014, ordering to follow a seven-year programme of assistance and supervision. The Government pointed out that the applicant was the first person sentenced to life imprisonment for offences linked to terrorism ever to have been released on licence. 8. The Sentence enforcement division reiterated in its judgment that the applicant’s release on licence would be accompanied by the following general obligations (Article 132-44 of the Penal Code): complying with the instructions of the sentence enforcement judge or of the social worker from the Prison rehabilitation and probation service; receiving visits from the latter and providing him or her with information or documents facilitating supervision of his livelihood and compliance with his obligations; informing the social worker of any job changes and, if such changes are liable to hamper compliance with his obligations, obtaining prior authorisation from the sentence enforcement judge; informing the social worker of any changes of address and of any travel lasting for more than two weeks, reporting back to the latter on his return; and obtaining the authorisation of the sentence enforcement judge for any foreign travel and for any change of job or of address liable to impede compliance with his obligations. The division added the following special obligations (Article 132-45 [1], [3], [5] and [14] of the Penal Code): exercising an occupation or following vocational education or training; residing in Béziers; continuing, in accordance with his means, to pay into the Guarantee Fund for the compensation of victims of terrorism; and refraining from possessing or carrying a weapon. 9. On 7 November 2007 the Criminal Chamber of the Court of Cassation dismissed the appeal on points of law lodged by the Public Prosecutor with the Paris Court of Appeal. 10. On 24 December 2007 the applicant took part in a peaceful demonstration outside Agen Prison in support of Basque detainees being held there. The media reported on that demonstration. 11. Consequently, the Paris Sentence Enforcement Court delivered a judgment on 14 May 2008 imposing additional special obligations on the applicant: refraining from attending, in the vicinity of a prison or other detention facility, any demonstration in support of persons detained for terrorist offences or of any association or movement which is committing or has committed terrorist acts (Article 135-45 [9] of the Penal Code); refraining from distributing any document or audiovisual material produced or co-produced by himself concerning, in whole or in part, an offence committed by himself, and refraining from discussing that offence in public (Article 132-45 [16] of the Penal Code). 12. That judgment was upheld by judgment of the Paris Court of Appeal on 2 October 2008. However, the latter judgment was quashed by judgment of the Criminal Chamber of the Court of Cassation on 10 June 2009, on the grounds that the sentence enforcement court did not have jurisdiction to modify the obligations for release on licence, for which matter the sentence enforcement judge held jurisdiction. 13. On 18 February 2010 the Public Prosecutor’s Office requested that the sentence enforcement judge of the Regional Court of Paris add both the aforementioned obligations to the applicant’s list of obligations for release on licence, as well as a prohibition on “contacting any person actively engaged in promoting Basque separatism or supporting detainees convicted of or charged with terrorist acts pursuant to Articles 421-1 to 421-6 of the Penal Code, particularly with a view to expressing support for such detainees (Article 132-42 [12] of the Penal Code)”. 14. By judgment of 28 June 2010 the sentence enforcement judge decided to impose on the applicant the obligation set out in Article 132-45 (16) of the Penal Code: “refraining from distributing any document or audiovisual material produced or co-produced by himself concerning, in whole or in part, the offence committed, and refraining from discussing that offence in public, whereby [these] provisions [are] applicable only in cases of convictions for serious offences of intentional homicide, sexual assault or sexual abuse”. He noted that in its judgment of 1 February 2007 the Paris Court of Appeal had described the applicant “as a calm, respectful person who spent most of his time writing his memoirs”. The judge inferred that “although it is unclear what the word ‘memoirs’ entails, it is quite possible that Mr Bidart might be tempted to publish his memoirs and make statements on the offences of which he was convicted”. Nor did the judgment go into further detail on that point. It explained, however, that “during the adversarial proceedings Mr Bidart was reminded that the prosecution had requested the prohibition only of writings or statements connected with the offences of which he had been convicted”. 15. That judgment was upheld by judgment of the Paris Court of Appeal on 31 August 2010, stating that the obligation in question “merely prohibited commenting on or condoning the offences committed” and “that the obligation was not a disproportionate measure in the light of the need to protect public order, nor does it prevent Philippe Bidart from expressing his political convictions”. 16. By judgment of 30 March 2011 the Criminal Division of the Court of Cassation dismissed the appeal on points of law lodged by the applicant, on the grounds that in its judgment the Court of Appeal had properly applied Article 132-45 [16] of the Penal Code, in compliance with the legal texts and conventions relevant to the applicant’s appeal (including Article 10 of the Convention). ... | 0 |
test | 001-147715 | ENG | GBR | ADMISSIBILITY | 2,014 | J.L. v. THE UNITED KINGDOM | 4 | Inadmissible | Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicant, J.L., is a British national who was born in 1946 and lives in Leeds. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 3). She was represented before the Court by Mr K. Lomax of Lester Morrill Solicitors, a lawyer practising in Leeds. 2. The United Kingdom Government (“the Government”) were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant was married to an army officer. He was an alcoholic who had been violent towards her and had abused one of her twin daughters. In 1989 he resigned from the army following a court martial which found him guilty of ungentlemanly conduct. The army therefore no longer had any duty to house the applicant but on compassionate grounds, because of her husband’s misconduct towards her and her family, it was arranged that she should move to Ministry of Defence accommodation in Leeds where her daughters, then aged thirteen, were attending boarding school. 5. The applicant and her daughters moved into the accommodation in Leeds in September 1989 as “irregular occupiers”. However, the accommodation in Leeds was supposed to be temporary until the applicant was able to obtain housing through the local council and her licence to occupy was terminated on 26 September 1990. 6. The Ministry of Defence was granted a possession order in July 1993 and attempts were made to find alternative accommodation for the applicant and her children. However, the applicant has a history of spinal surgery, osteoarthritis, poor mobility and chronic pain. She is currently registered disabled and has to use a wheelchair. When an offer of alternative accommodation was made, it was refused because it was not suitable for wheelchair use. 7. On 19 July 1994 a letter was sent from the headquarters of the Eastern District of the army stating that the applicant was ill-advised to reject the offer because she had removed herself from the Leeds Council priority housing list and the only alternative was to rent or purchase in the private sector. It was asserted that the applicant had been rejecting all attempts to provide help and advice and, in the absence of a specific plan to obtain alternative accommodation, there was no alternative but to apply for a warrant of possession. 8. In December 1994 a further letter was sent indicating that the army would do everything they could to help in a difficult situation. The letter also asked for a medical report and an indication of what steps would be taken. Nothing appears to have happened following receipt of the letter and the applicant and her family remained in occupation. 9. In September 1996 the Ministry of Defence sold its property to a company called Annington Homes and leased it back. In October 1999 it was said that the applicant’s dwelling was surplus to requirements for the Ministry of Defence and should be handed back to Annington Homes. On 4 November 1999 a fresh notice to quit was served on the applicant. 10. There was a further delay and on 13 July 2001 a warrant for possession was sought based on the order made in 1993. The court refused to grant the order as it concluded that a fresh tenancy had been granted since 1993. 11. Due to a shortage of Ministry of Defence housing in the Leeds area, a further notice to quit was served in November 2005. In April 2007 the Ministry of Defence Assistant Director of Housing met with Leeds Social Services. At the meeting social services offered to write to the applicant to provide help and advice on re-housing. 12. On 26 June 2007 the Ministry of Defence commenced possession proceedings in Leeds County Court. On 3 September 2007 the applicant served a defence and counterclaim in which she asserted that the claim for possession was unlawful and would constitute a breach of her rights under Article 8 of the Convention. At the time the applicant was living in the property with her two daughters. One daughter suffered from mental health problems while the other daughter had a young son who suffered from Crohn’s disease. 13. On 22 November 2007 the case was transferred to the Administrative Court. 14. On 5 May 2009 the Administrative Court made a possession order in favour of the Ministry of Defence. It observed that following Doherty and others v. Birmingham City Council [2008] UKHL 57 the applicant could only challenge the decision to bring possession proceedings and not the proceedings themselves. In the present case there had been no obligation on the authority to enquire into the personal circumstances of the applicant and even if it were aware of her circumstances, personal disability would not generally provide a proper basis for declining to take proceedings. Moreover, while the Ministry of Defence had not always acted in a way which lived up to the proper standards of good administration, there was no reason to doubt that there was a real need for the property. As the Ministry’s need for available accommodation overrode the applicant’s rights under Article 8, it followed that she could not stay in the property forever and therefore could not have security. Possession had to be attained in due course, although it fell to Leeds City Council to consider the question of rehousing. 15. On 21 September 2009 the Court of Appeal refused to grant the applicant leave to appeal. Following renewal of the application, permission was again refused on 28 January 2010. 16. The applicant introduced her complaints to the Court on 4 November 2010. At that time the possession order had not been executed as suitable alternative accommodation had not been identified. 17. A few days later the Supreme Court handed down its judgment in Manchester City Council v. Pinnock [2010] UKSC 45 (see paragraphs 2528 below). In that judgment the Supreme Court considered that in order for domestic law to be compatible with Article 8 of the Convention, where a court was asked by a local authority to make an order for possession of a person’s home, the court had to have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant dispute of fact. 18. In February 2011 the Secretary of State for Defence decided to take action to enforce the possession order. He applied for and obtained a writ of possession issued on 9 March 2011. 19. The applicant subsequently issued domestic proceedings, requesting that the decision to enforce the possession order made against her be judicially reviewed in light of the judgment in Pinnock. In particular, she submitted that Article 8 entitled her to a single proportionality review of the eviction process and following Pinnock this review had to be conducted when the domestic court was deciding whether or not to make a possession order. As a consequence, such a right could not arise at the enforcement stage. 20. On 7 November 2011 the Court adjourned the application pending the outcome of the domestic proceedings. 21. The High Court handed down its judgment on 30 July 2012. It held, inter alia, that there was no reason to doubt that Article 8 remained engaged at the enforcement stage, as enforcement itself involved a significant and direct infringement of the tenant’s occupation of her home. That being said, the court held that it would not be in every case that a proportionality review would be appropriate at the enforcement stage. Indeed, where the question of proportionality had been raised and addressed at the possession stage, or where it could have been raised and addressed, it would be difficult for the tenant successfully to invoke it at the enforcement stage absent a marked change in circumstances or some other exceptional reason justifying its consideration. In the vast majority of cases where enforcement took place within days or weeks of the possession order, it would be unlikely that such justification could be established. In the present case, the court noted that the domestic courts had been unable to consider Article 8 in making the possession order, and concluded that in such circumstances she was entitled to a proportionality review at enforcement stage. 22. The High Court therefore conducted a proportionality review in the applicant’s case. It considered her longstanding mobility and ill-health difficulties; her daughter’s longstanding psychiatric disorder and the impact a forced eviction would have on her; the family’s need for particular and accessible accommodation; and the hardship they would face if required to move. However, given the Secretary of State for Defence’s legitimate aim in seeking possession (his right to do so under domestic law and his public law duty effectively to manage the Ministry of Defence’s resources), and in light of the high threshold identified by the Supreme Court in both London Borough of Hounslow v Powell and Others [2011] UKSC 8 and Pinnock (see paragraphs 26-38 below), the court held that the applicant’s circumstances did not render it disproportionate to seek enforcement of the possession order. 23. In reaching this conclusion, the court found the following considerations to be of particular relevance: the high threshold that applied to an Article 8 defence in possession proceedings applied with even more force at the later stage; the Ministry of Defence did not have the public function of providing social housing generally; Leeds City Council had such a public function, and it had awarded the applicant the highest level of priority possible; even if the family had to be placed in temporary accommodation pending the identification of a suitable permanent home, they would be placed together in accommodation that suited their needs; the applicant had been warned that she could not remain in the property indefinitely; the Secretary of State had refrained from seeking to enforce the possession order for more than a year and a half after it became enforceable to give the applicant an opportunity to find alternative accommodation; no one could say with any certainty that the applicant’s situation would be different within any fixed time-frame; and finally, there was no evidence to suggest that the eviction would be more detrimental now than in the future. 24. The applicant appealed to the Court of Appeal, which dismissed the appeal on 30 April 2013. In doing so, it agreed with the High Court that while in the overwhelming majority of cases the occupant’s Article 8 rights could be appropriately and sufficiently respected by the provision of a proportionality review during the possession proceedings themselves, in exceptional cases such as the present the raising of Article 8 at enforcement stage would not be an abuse of process. It also accepted that in the present case such a review could only have taken place at enforcement stage and the judge had been correct to carry it out when she did. It found that the judge had carried out a careful and sympathetic analysis of the consequences for the applicant and her family of the threatened eviction and her conclusions on proportionality could not be faulted. 25. Pursuant to the 1977 Act, in order to evict a tenant a landlord must first serve a notice to quit, giving the tenant at least four weeks’ notice. If the tenant does not leave the property voluntarily, the landlord must apply to court for an order for possession. If the court grants the order, it will specify the date on which the tenant must give up possession of the property. If the tenant does not give up possession on that date, the landlord must apply to court for a warrant of possession (see Rule 17 of CCR Order 26, as set out in Schedule II to the Civil Procedure Rules). 26. For a general summary of domestic proceedings prior to November 2010 regarding the right of defendants to rely on Article 8 in the context of a defence to possession proceedings, see the Court’s judgment in Kay and Others v. the United Kingdom, no. 37341/06, §§ 18-43, 21 September 2010. 27. Notably, in Kay and others v. London Borough of Lambeth and others; and Leeds City Council v. Price and others [2006] UKHL 10, Lord Hope of Craighead clarified the two “gateways” via which a defendant in possession proceedings could challenge his eviction: “... Where domestic law provides for personal circumstances to be taken into account, as in a case where the statutory test is whether it would be reasonable to make a possession order, then a fair opportunity must be given for the arguments in favour of the occupier to be presented. But if the requirements of the law have been established and the right to recover possession is unqualified, the only situations in which it would be open to the court to refrain from proceeding to summary judgment and making the possession order are these: (a) if a seriously arguable point is raised that the law which enables the court to make the possession order is incompatible with article 8 [“gateway (a)”], the county court in the exercise of its jurisdiction under the Human Rights Act 1998 should deal with the argument in one or other of two ways: (i) by giving effect to the law, so far as it is possible for it do so under section 3, in a way that is compatible with article 8, or (ii) by adjourning the proceedings to enable the compatibility issue to be dealt with in the High Court; (b) if the defendant wishes to challenge the decision of a public authority to recover possession as an improper exercise of its powers at common law on the ground that it was a decision that no reasonable person would consider justifiable [“gateway (b)”], he should be permitted to do this provided again that the point is seriously arguable ...” 28. Lord Brown of Eaton-under-Heywood referred to the amendment to the 1968 Act allowing the County Court to suspend, for up to twelve months at a time, any possession order in respect of a local authority caravan site and noted: “... Now, therefore, the county court would be entitled to suspend the order made against someone in Mr Connors’ position; previously, it was not. By the same token moreover that the county court judge would have been unable, under the pre-existing law, to decline or postpone a possession order in the case of someone in Mr Connors’ position, so too in my judgment he is unable in other cases to give greater effect or weight to the occupier’s right to respect for his home than is allowed for under domestic law ...” 29. He added: “The difficulty with such [a public law] defence, however, is that it would be well nigh impossible to make good, the challenge necessarily postulating that under domestic property law the claimant authority was entitled to possession. Accordingly the argument could only be that no reasonable public authority could properly invoke that domestic law right. This would be a more stringent test than would apply were the court ... under a primary duty to reach its own judgment on the justifiability of making a possession order. For my part I think that such an argument could perhaps have been mounted successfully in Connors: having regard to the great length of time (most of the preceding sixteen years) that that gypsy family had resided on the site, it was unreasonable, indeed grossly unfair, for the local authority to claim possession merely on the basis of a determined licence without the need to make good any underlying reason for taking such precipitate action ... It is difficult to suppose, however, that a defence based on a public law challenge of this character to a public authority’s decision to pursue its domestic law rights could properly succeed except in such an infinitely rare case as Connors itself ...” 30. The subsequent case of Doherty and others v. Birmingham City Council [2008] UKHL 57 considered the Kay gateways. As regards the scope of gateway (b), Lord Hope clarified: “52. ... [T]he speeches in Kay show that the route indicated by this gateway is limited to what is conveniently described as conventional judicial review ... 53. ... [I]t will be open to the defendant by way of a defence to argue under gateway (b) that the order should not be made unless the court is satisfied, upon reviewing the respondent’s decision to seek a possession order on the grounds that it gave and bearing in mind that it was doing what the legislation authorised, that the decision to do this was in the Wednesbury sense not unreasonable ... ... 55. I think that in this situation it would be unduly formalistic to confine the review strictly to traditional Wednesbury grounds. The considerations that can be brought into account in this case are wider. An examination of the question whether the respondent’s decision was reasonable, having regard to the aim it was pursuing and to the length of time that the appellant and his family have resided on the site, would be appropriate. But the requisite scrutiny would not involve the judge substituting his own judgment for that of the local authority. In my opinion the test of reasonableness should be, as I said in para 110 of Kay, whether the decision to recover possession was one which no reasonable person would consider justifiable.” 31. On 3 November 2010 the Supreme Court sitting as a panel of nine judges in Manchester City Council v. Pinnock [2010] UKSC 45 (“Pinnock”) considered the application of Article 8 to a claim for possession brought against a demoted tenant under Chapter 1A of Part V of the Housing Act 1996 (as inserted by paragraph 1 of Schedule 1 to the Anti-social Behaviour Act 2003). Following a review of the case-law, the Supreme Court considered the following propositions to be well established in the jurisprudence of this Court: “(a) Any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to raise the question of the proportionality of the measure, and to have it determined by an independent tribunal in the light of article 8, even if his right of occupation under domestic law has come to an end ... (b) A judicial procedure which is limited to addressing the proportionality of the measure through the medium of traditional judicial review (i e, one which does not permit the court to make its own assessment of the facts in an appropriate case) is inadequate as it is not appropriate for resolving sensitive factual issues ... (c) Where the measure includes proceedings involving more than one stage, it is the proceedings as a whole which must be considered in order to see if article 8 has been complied with ... (d) If the court concludes that it would be disproportionate to evict a person from his home notwithstanding the fact that he has no domestic right to remain there, it would be unlawful to evict him so long as the conclusion obtains – for example, for a specified period, or until a specified event occurs, or a particular condition is satisfied.” 32. The Supreme Court thus considered that in order for domestic law to be compatible with Article 8 of the Convention, where a court was asked by a local authority to make an order for possession of a person’s home, the court had to have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact. 33. In terms of the practical implications of this principle, the Supreme Court noted that if domestic law justified an outright order for possession, the effect of Article 8 could, albeit in exceptional cases, justify granting an extended period for possession, suspending the order for possession on the happening of an event, or even refusing an order altogether. 34. Finally, the court observed that the need for a court to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home might require certain statutory and procedural provisions to be revisited. 35. In London Borough of Hounslow v Powell and Others [2011] UKSC 8 (“Powell”), handed down on 23 February 2011, the Supreme Court held that the principle in Pinnock applied not only to demoted tenancies but to all cases where a local authority was seeking possession in respect of a property that constituted a person’s home for the purposes of Article 8. 36. Lord Hope observed that following Pinnock the court had to have the ability to assess the Article 8 proportionality of making a possession order in respect of a person’s home, even if his or her right to occupation had come to an end. The question of whether the property in question constitutes the defendant’s “home” was likely to be of concern only in cases where an order for possession was sought against a defendant who had only recently moved into accommodation on a temporary or precarious basis. Therefore, in most cases it could be taken for granted that a claim by a person who was in lawful occupation to remain in possession would attract the protection of article 8. 37. With regard to the proportionality assessment, Lord Hope stated that: “33. The basic rules are not now in doubt. The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupier’s eviction is a proportionate means of achieving a legitimate aim.” 38. The threshold for raising an arguable case on proportionality was a high one which would only succeed in a small proportion of cases. However, if the threshold was crossed, the court would have to consider whether making an order for possession was a proportionate means of achieving a legitimate aim. Lord Hope continued: “The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authority’s ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. Various examples were given of the scope of the duties that the second legitimate aim encompasses – the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub-standard accommodation, the need to move people who are in accommodation that now exceeds their needs and the need to move vulnerable people into sheltered or warden-assisted housing. In Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) (unreported) given 2 December 2010, para 46 the Strasbourg court indicated that the first aim on its own will not suffice where the owner is the State itself. But, taken together, the twin aims will satisfy the legitimate aim requirement. So, as was made clear in Pinnock, para 53, there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre-requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The court need be concerned only with the occupier’s personal circumstances and any factual objections she may raise and, in the light only of what view it takes of them, with the question whether making the order for possession would be lawful and proportionate. If it decides to entertain the point because it is seriously arguable, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority: Kryvitska and Kryvitskyy v Ukraine, para 44. ... In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court.” | 0 |
test | 001-164508 | ENG | RUS | ADMISSIBILITY | 2,016 | DOSHUYEVA AND YUSUPOV v. RUSSIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova | 1. The applicants, Ms Seda Doshuyeva, who was born in 1978 and Mr Ismail Yusupov, who was born in 1998, are Russian nationals who live in Grozny. They were represented before the Court by lawyers of Stichting Russian Justice Initiative (in collaboration with NGO Astreya), an NGO based in the Netherlands with a representative office in Russia. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 2. The application was communicated on 8 June 2011, and on 7 February 2012 the parties exchanged their observations on the admissibility and merits of the application. On 24 September 2015 the Court requested additional factual information from the parties. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicants are the wife and the son of Mr Isa Yusupov, who was born in 1969. 5. At about 3 p.m. on 19 June 2002 Mr Isa Yusupov was driving with Mr Alisan (also known as Iriskhan) Bakayev through the Voykovo (sometimes spelled Voikovo) settlement in Grozny when their car was stopped in Leningradskaya Street by a group of about twenty military servicemen who had been taken there in two armoured personnel carriers (APCs) and two UAZ vehicles. It appeared that the servicemen were manning a mobile military checkpoint. 6. In the presence of a number of local residents both men were blindfolded and taken away in the APCs. The applicants’ relative, Mr Isa Yusupov, has not been seen since then. 7. In response to the Court’s request for a copy of the investigation file, the Government submitted copies of the documents from the initial criminal case file no. 50109 (in the documents submitted the number is also referred to as 55109) that was opened into the abduction of just Mr Bakayev. This file has 36 pages and chronicles the steps taken by the investigation between July 2002 and May 2010. In response to the Court’s request for additional information, the Government submitted copies of the updated criminal case file no. 50109, which contains 418 pages concerning the investigation into the abduction of both Mr Bakayev and Mr Isa Yusupov and chronicles the steps taken by the investigation between May 2010 and August 2014. The relevant information may be summarised as follows. 8. On 2 July 2002 Ms L.D. complained to the prosecutor’s office that her husband, Mr Bakayev, together with “a man called Isa” had been abducted. 9. On 12 July 2002 Ms L.D. was questioned. She stated that her husband Mr Bakayev had been abducted by servicemen in two APCs on the bridge in the Voykovo settlement. 10. On 26 July 2002 the Grozny town prosecutor’s office initiated a criminal investigation into the abduction of Mr Bakayev in response to his wife’s complaint. The case file was given the number 50109. The decision in this regard stated: “On the evening of 19 June 2002 Mr A. Bakayev and a man named Isa were abducted on the bridge in the Voykovo settlement by unidentified men in camouflage uniforms driving two APCs. The abduction of Mr Bakayev took place in the presence of civilians and military servicemen stationed in Voykovo...” 11. In their submission on the admissibility and merits of the case of 20 December 2011 the applicants stated that they “had been informed about it [the decision to open criminal case no. 50109]” without specifying the date or the circumstances under which they were informed thereof. ’s abduction, whereas the relatives of Mr Bakayev had been informed thereof on 26 July 2002. 13. On 8 August 2002 the investigators ordered the Zavodskoy district department of the interior (“Заводской районный отдел внутренних дел”) (hereinafter the Zavodskoy ROVD) in Grozny to carry out operative search measures stating, amongst other things, the following: “The investigation established that... Mr A. Bakayev and an unidentified person known as Isa were taken away to an unknown destination by unidentified men wearing camouflage uniforms in two APCs. The abduction took place in the presence of civilians and servicemen stationed in the settlement of Voykovo, specifically, in the presence of serviceman A.E....” 14. In October 2002 the investigators forwarded requests for information to various authorities, asking whether any special operations had been carried out on the date of the abduction of Mr Bakayev and if so, whether anyone had been detained. These requests did not yield any pertinent information. 15. On 26 November 2002 the investigation was suspended. The suspension decision referred only to the abduction of Mr Bakayev; it did not contain any references to the applicants’ relative Mr Isa Yusupov: “...the present criminal case was opened on 26 July 2002 in connection with the abduction on 19 July 2002 of A. M. Bakayev. The preliminary investigation established that on the evening of 19 July 2002 unidentified persons in camouflage uniforms had detained Mr Bakayev on the bridge in the Voykovo settlement and taken him to an unknown destination. His whereabouts have remained unknown since. Taking into account that the time-limit for the preliminary investigation has been reached and all of the possible steps have been taken.... It has been decided to suspend the investigation in the criminal case...” 16. From the documents submitted by the parties it is apparent that between 2002 and 2010 the applicants neither complained of Mr Isa Yusupov’s abduction to the Zavodskoy ROVD nor did they maintain contact with the relatives of Mr Bakayev concerning the proceedings in criminal case no. 50109. 17. On 4 May 2010 the first applicant contacted the investigators in criminal case no. 50109. She submitted a request that the investigations department of the Zavodskoy district prosecutor’s office in Grozny grant her victim status in the criminal case as follows: “ ...On 19 June 2002 my husband Mr Isa Yusupov, who was born in 1969, was detained by armed men in military vehicles in Leningradskaya Street in the Oktyabrskiy district of Grozny. My husband disappeared thereafter. In connection with this, the Oktyabrskiy district prosecutor’s office opened a criminal case. A long time has passed since the incident and I have started to doubt the effectiveness of the criminal investigation. I therefore decided to have recourse to the [procedural] rights given to victims in criminal proceedings under Articles 42, 119121, and 123-125 of the Code of Criminal Procedure and Article 46 of the Russian Constitution... However, neither I nor my relatives have been granted victim status in the criminal case. For that reason I have not been able to participate in the proceedings to the extent allowed by the Code of Criminal Procedure... Mr Isa Yusupov is my husband. The crime committed against him has caused me psychological and material damage. On the basis of the above I request that you: 1. Grant me victim status in the criminal case opened in connection with the disappearance of my husband Isa Yusupov; 2. Inform me of the progress in the investigation of the criminal case; 3. Resume the investigation if it has been suspended; 4. Inform me of the results of the examination of the present request... ” 18. On 21 May 2010 the investigation in criminal case no. 50109 was resumed. The decision stated: “... On 19 June 2002 Mr A. Bakayev and Mr Isa Yusupov were detained and taken away in two APCs by unidentified men wearing camouflage uniforms. In connection with this, on 26 July 2002 the Grozny prosecutor’s office opened criminal case no. 50109 under Article 126 of the Criminal Code. On 26 November 2002 the investigation in the criminal case was suspended under part 1 of paragraph 1 of Article 208 of the Code of Criminal Procedure, that is to say for failure to identify the perpetrators. On 20 May 2010 Ms S. Doshuyeva, the wife of the abducted Mr I. Yusupov, requested that the Zavodskoy district investigations department grant her victim status in the criminal case. In connection with the decision to grant Ms S. Doshuyeva victim status in the criminal proceedings and her questioning on the matter, it is necessary to resume the investigation in criminal case no. 50109...” 19. On the same date, 21 May 2010, the first applicant was granted victim status and questioned. She stated that on 19 June 2002 her husband had left by car to do an errand, together with fellow villager Mr Bakayev, and had not returned home. Several days later she had found out from her neighbours that her husband Mr Isa Yusupov and Mr Bakayev had been abducted by armed men in APCs. 20. On the same date, 21 May 2010, the first applicant requested the investigators to grant her access to the contents of criminal case file no. 50109. It is unclear whether any reply was given to her request. 21. On 22 May 2010 the investigation was suspended and then resumed on 4 August 2011. The proceedings were subsequently suspended and resumed on several occasions; the last suspension took place on 6 August 2014. The proceedings are still pending. 22Октябрьский районный отдел внутренних дел“) (hereinafter the Oktyabrskiy ROVD) in Grozny to produce a copy of the first applicant’s complaint concerning Mr Isa Yusupov’s abduction, which had been lodged on 20 June 2002. In reply the police informed the applicants that the document no longer existed as the relevant registration logs had been destroyed following expiry of the time-limit for their storage. 23’s abduction to the police in June 2002, but had no written proof of the complaint. She also stated that at the end of June 2002 she had been approached by a military officer who had threatened to harm her and her relatives if she were to continue searching for her husband. Out of fear for her life and that of her relatives, on an unspecified date in 2002 she had moved to Moscow and only returned to the Chechen Republic in 2010. The applicants did not enclose any documents substantiating this information other than the first applicant’s written statement dated 17 October 2015. 24. According to the Government, the applicants did not lodge any official complaints concerning their relative’s alleged abduction within the framework of the criminal case. 25. On 25 March 2004 the Leninskiy district court of Grozny granted the first applicant’s request and declared Mr Isa Yusupov a missing person as of 19 June 2002. The decision, which made no reference to proceedings in criminal case no. 50109 and referred only to proceedings in criminal case no. 40120, stated: “...Ms Doshuyeva requested the court to declare her husband a missing person on the basis of the following: At about 11 a.m. on 19 June 2002 her husband Mr Isa Yusupov had left home and had not returned. She has had no news of him since that date. In connection with this occurrence, the Oktyabrskiy district prosecutor’s office in Grozny had opened a criminal case. The measures taken by the investigation failed to produce results. According to Ms Doshuyeva, the declaration of her husband as a missing person is a prerequisite for preparing a pension application in respect of the loss of a breadwinner... According to the information statement of the Oktyabrskiy district department of the interior in Grozny no. 32/34 of 24 December 2003, [on an unspecified date] the Oktyabrskiy district prosecutor’s office opened criminal case no. 40120 in connection with the abduction of Mr Isa Yusupov on 19 June 2002. The whereabouts of Mr Isa Yusupov remain unknown. Considering that the establishment of the above fact is of legal significance for the applicant, and that it is impossible otherwise, non-judicially, to establish that fact, on the basis of the above the court, decides ... To recognise Mr Isa Yusupov as a missing person as of 19 June 2002...” The decision became final on 5 April 2004. 26. According to the Government’s submission of 15 November 2015, criminal case no. 40120 was erroneously mentioned in the court’s decision as the criminal case concerning the investigation of the abduction of another person, Mr Adam S. | 0 |
test | 001-147470 | ENG | TUR | CHAMBER | 2,014 | CASE OF YILMAZ YILDIZ AND OTHERS v. TURKEY | 3 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Pecuniary and non-pecuniary damage - award | András Sajó;Egidijus Kūris;Guido Raimondi;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 5. The applicants are Turkish nationals who were born in 1972, 1965 and 1961 respectively. Mr Yılmaz Yıldız lives in Niğde and the others live in Mardin. 6. The first applicant, Yılmaz Yıldız, is a health officer and the branch chairman of the Health and Social Services Workers’ Union (Sağlık ve Sosyal Hizmet Emekçileri Sendikası – “the SES”) in Niğde. The second applicant, Kamiran Yıldırım, is a doctor and the branch chairman of the SES in Mardin. The third applicant, Mehmet Metin Çılgın, is a doctor and also a member of the SES in Mardin. 7. On 4 February 2005 several members of the union gathered in front of the Niğde Social Security Institution (Sosyal Sigortalar Kurumu – “the SSK”) Hospital. Subsequently the first applicant read out the SES’s press statement drawing attention to the problems that could arise as a consequence of the transfer of hospitals incorporated in the SSK to the Ministry of Health. 8. The statement read as follows: “For the attention of the press and the public: Hospitals incorporated in the SSK have been transferred to the Ministry of Health pursuant to Law no. 5283. Following that structural change patients were unable to take their medication for a long time and hospital staff have been working in a tense atmosphere. Before the structural changes our union warned the Government and the public. The probable administrative and bureaucratic problems were pointed out: SSK was going to be under a huge economic burden, people would have to pay for health care services and an additional tax was going to be imposed on workers. Our union maintains that the Government should allocate more funds from the budget to the health care services to redress the structural problems. Our union states that all citizens should be provided with equal, accessible, sufficient and free health care services.” 9. On 25 February 2005 the second and third applicants together with another thirty persons gathered in the Mardin Yenişehir SSK Hospital yard. Subsequently, the second applicant read out the press statement in his capacity as chairman of the Mardin branch of the union. 10. The police did not prevent anyone from entering the yard during either gathering. Nor did they interfere with the demonstrations or the reading out of the press statements. 11. According to the police reports of 4 February 2005 in Niğde and 25 February 2005 in Mardin, the two groups of demonstrators had been warned verbally that their gatherings were illegal and ordered to disband for the protection of public order and safety. 12. The Niğde and Mardin public prosecutors filed indictments charging the applicants with intentionally disobeying orders issued by the authorities aimed at protecting public order and safety, pursuant to section 32 of the Misdemeanours Act, Law No. 5326 (see paragraph 17 below). 13. On 8 June and 14 July 2005 the Mardin Magistrates’ Court and the Niğde Magistrates’ Court, respectively, convicted the applicants as charged and imposed on them administrative fines of 100 Turkish liras (TRY) (approximately 62 euros (EUR)). 14. The applicants appealed against the courts’ decisions. 15. On 20 June 2005 and 26 July 2005 the Mardin Assize Court and the Niğde Assize Court, respectively, dismissed the applicants’ appeals. These decisions were notified to the applicants respectively on 15 July 2005 and 3 August 2005. 16. On 23 August 2005 and 11 October 2005 the applicants paid the fines to the relevant tax departments. | 1 |
test | 001-160998 | ENG | SWE | CHAMBER | 2,016 | CASE OF ARLEWIN v. SWEDEN | 3 | Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione personae);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 5. The applicant was born in 1970 and lives in Stockholm. He is self-employed and runs a business. 6. On 22 April 2004 the Swedish commercial television channel TV3 broadcast an episode of a television show entitled “Insider”, in which it was claimed that “shady transactions and shady characters” were revealed. The show was broadcast live with a few recorded features. In the show, the applicant, who was unknown to the broader public, appeared in pictures and was mentioned by name. He was singled out as the central figure of organised crime within media and advertising and as being guilty of several counts of fraud and other economic offences. The programme was rebroadcast on 25 April and 17 September 2004. At this time, no criminal investigation had been initiated against the applicant. 7. The television programme was produced in Sweden by the Swedish company Strix Television AB. It was sent by satellite link from Sweden to the London-based company Viasat Broadcasting UK Ltd and from there sent unaltered to a satellite which transmitted the programme to the Swedish audience. The encoded programme was viewable via a satellite receiver or a cable connection in Sweden a fraction of a second after it had been sent by satellite link. Even if it was viewable in the United Kingdom, which is doubtful, it would have been watched there by a small audience. It was presented in the Swedish language for a Swedish-speaking audience, and was sponsored by companies competing in the Swedish market. The anchorman of the show, X, a Swedish national, was a celebrity and a well-known television personality in Sweden; he was also the Chief Executive Officer of Strix Television AB. The show had a long run and was watched by many viewers. 8. In October 2006 the applicant brought a private prosecution against X for gross defamation, claiming damages in the amount of 250,000 Swedish kronor (SEK; approximately 27,000 euros). He maintained that he had been unreservedly pointed out as the central figure of organised crime within media and advertising and as being directly or indirectly responsible for a large number of serious crimes. He further alleged that X was responsible for the content of the programme since he had failed in his duty to appoint a legally responsible editor (ansvarig utgivare) for the programme and because he had been its anchor. 9. The applicant relied on Chapters 5 and 6 of the Constitutional Law on Freedom of Expression (Yttrandefrihetsgrundlagen, 1991:1469; hereafter “the Constitutional Law”), regarding freedom of expression offences and liability rules, and Chapter 5 of the Penal Code (Brottsbalken), dealing with defamation, as well as Articles 6 § 2, 8 and 13 of the Convention. In the latter respect, he argued that his appearance in the show breached his right to privacy as well as his right to be presumed innocent and that a decision to dismiss his claims would constitute a violation of his right to an effective remedy. The applicant submitted a legal opinion stating that it would be impossible, or at least not useful, to bring an action in the United Kingdom in the present case since the damage flowing from the television programme at issue had not occurred in the United Kingdom. 10. X disputed the claim on the grounds, inter alia, that he was not the responsible editor of the show and that he enjoyed the freedom to communicate information as provided for under Chapter 10, section 2 of the Constitutional Law and as clarified by the Supreme Court (Högsta domstolen) in the case NJA 2005 p. 884 (see paragraphs 32 and 33 below). 11. In a preliminary ruling on 20 May 2008 the Stockholm District Court (Stockholms tingsrätt) dismissed the claim in so far as it was based on the Constitutional Law. It referred to the Supreme Court judgment in an almost identical case, NJA 2002 p. 314 (see paragraphs 28-31 below), and held that Chapters 1-9 of the Constitutional Law were not applicable to the television programme since it could not be regarded as emanating from Sweden. This was because the programme had first been sent by satellite link to Viasat Broadcasting UK Ltd, the British company responsible for the programme content, and thereafter uplinked to a satellite, which had in turn transmitted the programme to viewers in Sweden. As Chapters 1-9 of the Constitutional Law were not applicable, X could not be held responsible for the programme content under Chapter 6. The District Court further held that the applicant’s claims under the Penal Code were to be determined following the main hearing in the case. The court finally drew the parties’ attention to the Supreme Court case NJA 2005 p. 884. 12. The applicant appealed, repeating what he had stated in his earlier submissions. He further argued that all companies involved in the case were Swedish, including the receiving company in London, allegedly named Viasat AB, with its seat in Stockholm. Although Viasat AB had acquired the right to transmit the show from the Swedish company TV3 AB, it had had no impact on or responsibility for the programme selection. Having regard to the above, the offence committed against the applicant through the programme could not be examined by United Kingdom courts. The applicant also submitted that Swedish courts were competent to examine the case under the Brussels I Regulation (see further paragraph 35 below). X contested the arguments and submitted that it was the company Viasat Broadcasting UK Ltd, whose seat was in the United Kingdom, which was responsible for the programme service and decided on the final content of the programmes. 13. On 20 March 2009 the Court of Appeal (Svea hovrätt) upheld the District Court’s decision. It held that the issue for it to determine was whether the general provisions in the Constitutional Law were applicable to the programme in question, that is, whether or not the broadcasting of the programme could be considered to have originated from Sweden within the meaning of Chapter 1, section 6(2) of that law. It further stated that the burden of proof concerning the applicability of the Constitutional Law rested on the applicant and that he had not, in response to X’s refutation, established that the decisions concerning the programme content were taken in Sweden. Consequently, Chapters 1-9 of the Constitutional Law were not applicable in the case. The court further held that the material before it indicated that it was possible for the applicant to bring claims before a British court. 14. The applicant appealed and referred to his earlier submissions. In addition, he requested that a question concerning the interpretation of the Brussels I Regulation be referred to the Court of Justice of the European Union (ECJ) for a preliminary ruling. According to the applicant, the regulation entitled a person claiming non-contractual damages to bring actions where the harmful event occurred. In the present case, the harmful event had occurred in Sweden and the applicant thus should have had the right to bring his action before the Swedish courts. Consequently, the position hitherto taken by the Swedish courts ran contrary to Community law. 15. On 21 September 2009 the Supreme Court rejected the applicant’s referral request and refused leave to appeal in the case. It held that, since the District Court had found itself competent to examine the applicant’s claims in so far as they were based on grounds other than the Constitutional Law, there was no reason to request a preliminary ruling from the ECJ. 16. The applicant subsequently withdrew his remaining claims before the District Court since there was no practical prospect of success in a continued procedure. On 17 November 2009 the District Court struck the case out of the list and ordered the applicant to pay X’s legal costs and expenses. 17. Criminal proceedings were taken against the applicant in regard, inter alia, to the matters described in the television programme. He was convicted of aggravated fraud as well as tax and bookkeeping offences and sentenced to five years’ imprisonment. The criminal proceedings were finalised by a Supreme Court decision to refuse leave to appeal on 4 October 2010. These proceedings, in particular their compliance with Articles 6 and 7 of the Convention, are the subject of an application lodged with the Court on 4 April 2011 (no. 32814/11). | 1 |
test | 001-166776 | ENG | SRB | COMMITTEE | 2,016 | CASE OF M.B. - MAK ČAČAK DOO v. SERBIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | A. As regards the first applicant 5. On 29 June 2005 the Čačak Commercial Court ordered a socially-owned company Fabrika Reznog Alata Čačak AD (hereinafter “the debtor”) to pay the first applicant specified amounts on account of damages, plus the costs of the civil proceedings. 6. On 22 February 2006 the Belgrade High Commercial Court amended the first instance judgment by ordering the debtor to also pay the first applicant specified amounts on account of lost profits and increasing the awarded costs of proceedings. This judgment became final on an unspecified date. 7. On 26 June 2007, upon the first applicant’s request to that effect, the Čačak Commercial Court ordered the enforcement of the said judgments and further ordered the debtor to pay the first applicant the enforcement costs. 8. On 17 March 2009 the debtor paid the first applicant a part of the sums specified in the said judgments. 9. On 30 March 2010 the Privatisation Agency ordered the restructuring of the first applicant’s debtor. As a result, the ongoing enforcement proceedings against the debtor were stayed. 10. On 11 March 2011 the first applicant lodged a constitutional appeal. 11. On 21 May 2014 the Constitutional Court found a violation of the first applicant’s right to a hearing within a reasonable time and of its right to the peaceful enjoyment of its possessions. It further awarded the first applicant 1,000 euros (EUR) as just satisfaction for non-pecuniary damage and ordered the court in Čačak to expedite the proceedings. The Constitutional Court dismissed the first applicant’s request for pecuniary damages as premature, since the enforcement proceedings were still pending. B. As regards the second applicant 12. On 11 July 2003 the Kraljevo Commercial Court established the secured property right of the applicant on certain commercial premises and ordered GP Jastrebac (hereinafter “the debtor”) , a socially-owned company undergoing insolvency proceedings, to finish the construction of that property. The Commercial Court further ordered the debtor to pay the second applicant a certain amount if it failed to do so. This decision became final on an unspecified date. The debtor never finished the construction of the property in question. 13. On 9 September 2009 the debtor paid the applicant a part of the amount established by the decision. 14. On 11 May 2011 the second applicant lodged a constitutional appeal. 15. On 26 March 2014 the Constitutional Court found a violation of the second applicant’s right to a hearing within a reasonable time. It further awarded him EUR 500 as just satisfaction for non-pecuniary damage and ordered the competent court to expedite the insolvency proceedings. The Constitutional Court dismissed the second applicant’s complaint concerning his right to the peaceful enjoyment of his possessions as well as his request for pecuniary damages, since the insolvency proceedings were still pending. C. As regards the third applicant 16. On 22 September 2003 the Belgrade Commercial Court ordered a socially-owned company, DP Fabrika termotehničkih uređaja i montaže “CER” Čačak (hereinafter “the debtor”), to pay the third applicant specified amounts on account of damages, plus the costs of the civil proceedings. This judgment became final by 17 October 2003. 17. On 30 October 2006, upon the third applicant’s request to that effect, the Belgrade Municipal Court accepted the enforcement of the said judgment and further ordered the debtor to pay the first applicant the enforcement costs. 18. On 12 October 2011 the third applicant lodged a constitutional appeal. 19. On 17 April 2014 the Constitutional Court found a violation of the third applicant’s right to a hearing within a reasonable time. It also awarded the third applicant EUR 800 as just satisfaction for non-pecuniary damage and ordered the competent court to expedite the proceedings. The Constitutional Court dismissed the third applicant’s complaint concerning its right to the peaceful enjoyment of possessions and its request for pecuniary damages as premature, since the enforcement proceedings were still pending. | 1 |
test | 001-173387 | ENG | RUS | COMMITTEE | 2,017 | CASE OF GASHIMOV 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. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-177349 | ENG | NOR | CHAMBER | 2,017 | CASE OF BECKER v. NORWAY | 1 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression;Freedom to impart information);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction) | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev | 5. The applicant is a journalist for DN.no, a Norwegian Internet-based version of the newspaper Dagens Næringsliv (“DN”), published by the company DN Nye Medier AS. 6. On 23 June 2010 Mr X was indicted for market manipulation and insider trading under the 1997 Act on the Trade of Financial Assets (verdipapirhandelloven). He was accused of having requested Mr Y, an attorney, to draft a letter concerning the Norwegian Oil Company (“DNO”), a limited liability company quoted on the stock exchange. The letter, addressed to a trustee company representing the interests of bond holders in DNO (“the bond trustee company”), gave the impression that it had been written on behalf of a number of bond holders who were seriously concerned about the company’s liquidity, finances and future. In fact, it had been written only on Mr X’s behalf. He had owned only one bond, which he had acquired the same day as he had asked attorney Y to draft the letter. 7. Mr X had sent a copy of the above-mentioned letter by fax to the applicant on Friday 24 August 2007, and in this connection he had a telephone conversation with her. The following day, on Saturday 25 August 2007, the applicant wrote an article entitled “Fears of DNO collapse” (“Frykter at DNO rakner”), in which she expressed strong concerns about the content of Attorney Y’s letter, a central feature in the article. 8. The price of DNO stock fell by 4.1% on Monday 27 August 2007, the first trading day after the content of the letter had become known in the press. On the same day, a new article on the topic was published in DN. Other media also reported on the first article, including an online newspaper (Hegnar online) which on 28 August 2007 reported that an analyst had stated that he would not be surprised if the letter had been sent by a person with a short-position or who wanted cheap stocks. The Oslo stock exchange (Oslo børs) suspected market manipulation and, having looked into the matter, forwarded the case to the Financial Supervisory Authority (Kredittilsynet) with suspicions that Mr X had infringed the Act on the Trade of Financial Assets. During subsequent questioning by the Financial Supervisory Authority, Mr X confirmed that he had initiated the letter and been the source of the article in DN. 9. The applicant was questioned by the police on 19 June 2008. They informed her that Mr X had told the police that he had given her the letter. She was handed a signed statement from Mr X in which he confirmed this. The applicant was willing to say that she had received the letter on which the article was based by fax on Friday 24 August 2007, at 5.35 p.m. She also stated that the article had been published on DN.no at 3 a.m. on 25 August 2007. The applicant further explained that she had considered the information in the letter as price-sensitive. She had no particular thoughts as to how many persons were behind the letter, beyond the fact that it had been signed on behalf of several bond holders. The applicant refused to give additional information, referring to the journalistic principles on protection of sources. 10. During the criminal case against Mr X in February 2011 before the Oslo City Court (tingrett), the applicant was summoned as a witness. She refused to answer questions about possible contacts between her and Mr X and other sources, if any, related to the publication by DN.no on 25 August 2007. Relying on Article 125 of the Code of Criminal Procedure and Article 10 of the Convention, she argued that she was under no obligation to give evidence on those points. 11. The prosecutor requested that the court impose on the applicant an order to testify. In the court records (“rettsboken”), his arguments in favour of issuing such an order are restated as having included the following: “The prosecutor rose to speak and argued that the witness had an obligation to give testimony about her contact with the defendant in connection with the letter to [the bond trustee company] of 24 August 2007 and asked the court to make a decision on the matter. The prosecutor further justified the obligation of the witness to make a statement and argued that undoubtedly in this case it was desirable to hear her explanation, even if the prosecuting authority found the case adequately disclosed (fullgodt opplyst) without her statement. The press was sometimes abused by investors to take actions liable to affect the share price. The element of abuse should suggest that in a case like this the press would also have an interest in making a statement in order to avoid being abused in this way. Whether or not consent had been given by the source to the witness making her statement had no bearing on the obligation to give evidence. ...” 12. From the same records, it appears that Mr X, through his counsel and cocounsel, had submitted that he had described his contact with the applicant and that she could contribute nothing further of interest. 13. By a decision of 15 February 2011, the City Court held that the applicant had a duty to give evidence about her contacts with Mr X in relation to the letter of 24 August 2007 from Attorney Y to the bond trustee company. As to the scope of that duty, the City Court held: “The obligation to make a statement is, however, limited to the contact with the defendant as a source and not her communication with possible other unknown sources with whom she has been in contact and who may be protected by the protection of sources.” 14. The prosecutor then stated, according to the hearing protocol, “that he would not ask for postponement of the case as the prosecuting authority considers the case to be sufficiently disclosed (“tilstrekkelig opplyst”) even without the statement of the witness [the applicant]”. It was then clarified that the applicant’s appeal against the order would not be forwarded to the High Court until after the City Court’s judgment in the case against Mr X had been delivered. 15. On 3 March 2011 the City Court convicted Mr X in accordance with the indictment and sentenced him to one year and six months’ imprisonment, of which nine months were suspended for a probationary period of two years. 16. The judgment contains the following passage: “One of the witnesses pleaded, as a journalist, the protection of sources under Article 125 of the Code of Criminal Procedure and was not willing to explain about her potential contact with the accused. The court held that the witness had an obligation to explain about her contact with the accused since he, as the source of the DN.no article, was known and the court ruled accordingly. An appeal was immediately made against the decision. No motion for extension was made (pending a final decision) as according to the prosecutor the case was sufficiently disclosed (tilstrekkelig opplyst) even without the statement by [the applicant] and this was used as a basis by the court.” 17. On 28 March 2011 Mr X appealed to the Borgarting High Court (lagmannsrett) against the City Court’s assessment of the evidence and application of the law in relation to the issue of guilt, its procedure and the sentence (see paragraphs 34-36 below). 18. The applicant appealed to the Borgarting High Court against the City Court’s order of 15 February 2011. It rejected the appeal by a decision of 28 April 2011, finding it generally decisive whether the source was known. In this case, it had been established beyond reasonable doubt that Mr X had been the applicant’s source. 19. An appeal by the applicant to the Supreme Court was rejected by three votes to two on 30 September 2011 (Norsk Retstidende – Rt. 2011 page 1266). The appeal had been directed at the High Court’s assessment of evidence as well as its application of the law. The disagreement in the Supreme Court concerned primarily the interpretation of the first paragraph of Article 125 of the Code of Criminal Procedure, according to which, inter alia, journalists may refuse to answer questions as to who is the source of information confided to them for use in their work (see paragraph 37 below). The two factions of the Supreme Court disagreed, in particular, as to whether this provision was applicable if the source had stepped forward or the identity of the source had otherwise been established. 20. The majority observed that it did not appear from the wording of Article 125 § 1 of the Code of Criminal Procedure that it was relevant whether the source had disclosed his or her role or that this role had in other ways become known. However, the wording could not be given decisive weight. It emerged from the preparatory work that the legislature had not, with the chosen formulation, taken a stance on the issue at stake in the present case. There was therefore greater reason to assess whether the rationale underpinning the main rule, namely the right not to answer questions concerning the identity of the source, could also be given significant weight when the person, who had been the source of the information, had given evidence concerning his or her role and had confirmed being the source. It was difficult to see that this should be the case. 21. If the imposition of an obligation on the press to give evidence were limited to cases where the source had come forward, the person who was considering giving information to the press would know that it was up to him or her to determine whether the person who received the information would have an obligation to give evidence. There was thus no cogent reason why such a conditional obligation to give evidence should lead to increased scepticism towards providing information to the press. The same would, to a great extent, be true if the obligation to give evidence also applied when the identity of the source had become known in some other way. While the possibility that the identity of the source might be disclosed could well constitute a deterrent, it would hardly make much difference if information already known was also confirmed by the recipient of the information. 22. An obligation on the press to give evidence in such cases was not thought likely to weaken the public’s general trust that the press would protect its sources. The situation under review did not concern the disclosure of sources but rather whether the person’s role had become known by other means. 23. The majority further disagreed with the applicant’s view that there was no reason to treat a situation, where the informant had identified himself or herself as the source, differently from those cases where the source had consented to being identified. A person who so consented could do so, trusting that the recipient of the information would respect the protection of sources as long as the identity of the source was unknown. Once an informant had confirmed that he was the source, this fact would become known. Should the recipient of the information then refuse to give evidence, this would normally appear futile. In such a situation, an exemption from the obligation to give evidence would in reality not constitute a protection against having to disclose the source, but rather a right to avoid contributing to the elucidation of a criminal case. 24. Interpreting Article 125 § 1 of the Code of Criminal Procedure in the light of certain statements made in the preparatory work (Ot.prp. nr. 55 (1997-1998), pp. 17 and 18) as followed up in the Supreme Court’s caselaw (Rt. 1995 page 1166 and 2003 page 28), the majority held that this provision did not apply when the source had come forward and had confirmed his or her role. The same ought probably to apply when the identity of the source had been established beyond reasonable doubt by other means. If the state of the evidence was such that confirmation by the journalist of the identity of the source could not be said to assist in identifying the source, it seemed unquestionable to maintain the obligation to testify. 25. As to whether a more wide-reaching protection of journalistic sources followed from Article 10 of the Convention, the majority had regard to the Strasbourg Court’s case-law, including Goodwin v. the United Kingdom (27 March 1996, Reports of Judgments and Decisions 1996II), Financial Times Ltd and Others v. the United Kingdom (no. 821/03, 15 December 2009) and the Chamber judgment in Sanoma Uitgevers B.V. v. the Netherlands (no. 38224/03, 31 March 2009 – noting that the Grand Chamber had decided the latter case on a different ground). They observed that in the two British cases, a violation had been found under the necessity test even though strong countervailing arguments had been present. The majority further noted that there was no decision where the Court had examined the situation where the source had come forward and where in this sense there was no source to protect (“ingen kilde å beskytte”). The principal justification for source protection, as elaborated by the Court in its case-law, was based on the consequences that the disclosure of a source’s identity might have for the free flow of information. However, these considerations did not apply where the source had confirmed his or her participation. 26. Against this background, one could safely assume that no violation of the Convention would arise where a source had come forward and the obligation of the witness to give evidence had been expressly limited so as not to include questions that might lead to other sources being revealed. Also, the charge in this case had been based on the fact that the journalist had allowed herself to be used by the source in his efforts to manipulate the bonds market in a criminal manner. It was a serious criminal case, where it seemed likely that the applicant’s evidence might significantly assist in elucidating the concrete circumstances of the defendant’s contact with her. 27. The minority observed that, should the applicant be ordered to testify concerning her possible contact with Mr X about Attorney Y’s letter of 24 August 2007 to the trustee company, she would have to confirm or deny that Mr X was the source for her article on DN.no on 25 August 2007. By making a statement on this matter, she might also inadvertently reveal other potential sources. The legal question at hand was whether a journalist might rely on source protection if the source, without the journalist having revealed it, could be identified with more or less certainty by other evidence. 28. The wording of Article 125 of the Code of Criminal Procedure was absolute and granted members of the press, broadcasting and other media the right to “refuse to answer questions concerning who is ... the source”. The provision made no exception for cases where the identity could be established with more or less certainty in some other way. 29. The protection of sources by journalists was, according to the European Court’s case-law, “one of the basic conditions for press freedom” (Goodwin, cited above, § 39). The purpose was not to protect the source, but rather the public interest in free communication of news and opinions (Rt. 2010 page 1381). If journalists were allowed to protect their sources, they would obtain information enabling them to uncover matters in society that were worthy of criticism more easily than they would otherwise. The fact that it was for the journalist to decide to what extent he or she would rely on such protection reflected that it was not the source who was protected. If the journalist was willing to reveal the source, the source could not prevent it. 30. If it were a precondition for the protection of journalistic sources that no other proof of the source had been presented, such protection would be undermined. This would enable a source to be tracked down, even if a requirement for waiver of source protection was that the source be identified with a criminal standard of proof. If the hearing of evidence on the identity of a source were to be allowed, the media’s working conditions would become considerably more constricted and society’s interest in free communication of information and opinions would suffer. 31. If consent to source disclosure by a potential source should have the effect of removing source protection, the actual source might easily be identified and source protection would be undermined. In the present case Mr X had stated that he was the source. A situation where someone claimed to be the source ought to be considered in the same way as where the source consented to disclosure of his or her identity. A person might incorrectly claim to be the source so that the actual source might be identified by a process of elimination. And even if it were true that this person was the source, it would erode the journalist’s right to source protection should the person who was the source be able to cancel the journalist’s right. In addition, journalists often had several sources. If a journalist could be ordered to describe his or her contact with a person who claimed to be the source, his or her contact with other sources might also be revealed. 32. Equally, a combination of someone claiming to be the source and other evidence confirming this, should not lead to source protection being removed. Effective source protection was necessary in order to ensure free communication of information and opinions. It should not be permissible for press journalists to confirm or deny that a person claiming to be the source was in fact the source, even where there was weighty evidence to this effect. As mentioned above, it was not the source, but society’s interest in free communication of news and opinions, which was to be protected. 33. The prosecutor had argued that Mr X had used the applicant as a tool to commit serious crimes, and this would have constituted a relevant argument, had the case been one concerning a possible individual exception to the right to non-disclosure of sources made under the third paragraph of Article 125. However, the prosecutor had not relied on that paragraph of the provision, and the source’s motive could not render the principle of source protection as such inapplicable. Within the ambit of Article 10 of the Convention, freedom of speech did not protect only information and views that were positively received, but also those which offended, shocked or disturbed the State or parts of the population. Therefore, the fundamental right of journalists to protect their sources could not be dependent on the sources’ motives. 34. Mr X’s appeal against the City Court’s judgment of 3 March 2011 (see paragraph 17 above) was examined by the High Court, which summoned and heard the applicant as a witness on 13 January 2012. She answered certain questions but affirmed that she still would not reply to questions about her contacts with Mr X. The court records contain the following passage: “When heard as a witness [the applicant] stated that she had received Attorney [Y]’s letter by fax on 24 August 2007 at 5.35 p.m. She does not wish to answer questions about who she had received the letter from or on her possible contact with Mr [X] during the period before or after this point in time. The presiding judge pointed out to the witness that after a legally enforceable decision by the Supreme Court she was obliged to give evidence about her contacts with Mr [X]. The presiding judge underlined that an omission to reply to such questions could constitute a ground for the imposition of a fine for an offence against the good order of court proceedings [“rettergangsbot”]. It was emphasised that the duty to reply lay on the witness personally and that a possible fine would be imposed on her personally.” 35. On account of her refusal to comply, the High Court, by a decision of 25 January 2012, ordered the applicant to pay a fine of 30,000 Norwegian kroner (NOK), approximately 3,700 euro (EUR) for an offence against the good order of court proceedings, failing which she would be liable to ten days’ imprisonment. The applicant did not appeal against that decision. 36. By a judgment of the same date, the High Court convicted Mr X on the charges and sentenced him to one year and six months’ imprisonment. | 1 |
test | 001-147043 | ENG | UKR | CHAMBER | 2,014 | CASE OF VOROBYEV v. UKRAINE | 4 | Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 4. The applicant was born in 1972 and before his arrest lived in Kerch. In 2000 he contracted pulmonary tuberculosis. It remains unknown whether the applicant received any treatment for this condition while at liberty. | 1 |
test | 001-152295 | ENG | NLD | ADMISSIBILITY | 2,015 | A.M.E. v. THE NETHERLANDS | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 1. The applicant claims to be a Somali national, born in 1994. At the time of the introduction of the application, he was in the Netherlands. He is represented before the Court by Ms J. van Veelen-de Hoop, a lawyer practising in Rotterdam. 2. The Government of the Netherlands are represented by their Agent, Mr R.A.A. Böcker, of the Ministry of Foreign Affairs. The Italian Government are represented by their Agent, Ms E. Spatafora, and their CoAgent, Ms P. Accardo. 3. The facts of the case, as submitted by the parties and the Italian Government, may be summarised as follows. Some of the facts are disputed. 4. The applicant claims to hail from Mogadishu and that he belongs to the Gaaljecel clan, a Hawiye sub-clan. He further claims that in August 2008 members of al-Shabaab came to his school where they called upon the applicant and his brother I. to join al-Shabaab. The applicant and I. refused. Some days later, on 17 August 2008, the applicant’s parental home had been attacked and I. killed. Considering that it had been a targeted attack owing to the refusal to join al-Shabaab, the applicant left Somalia on 20 August 2008 and, via Kenya, Uganda, Sudan and Libya, travelled to Italy. 5. On 11 April 2009 the applicant entered Italy in a group of about 200 persons who had landed in Ibleo Pozzallo (Ragusa province). The next day the local police took his fingerprints and registered him as having illegally entered the territory of the European Union. He stated that his name was M.A., that he was a Somali national and that he was born on 1 January 1985. On 14 April 2009, the applicant was transferred to the BariPalese Reception Centre for Asylum Seekers (Centro di Accoglienza per Richiedenti Asilo; “CARA”), where he applied for international protection, giving slightly different personal details, namely that his name was A.M.I., that he was a Somali national and that he was born on 1 January 1990. 6. On an unspecified date, the applicant was granted an Italian residence permit for subsidiary protection under Article 15(c) of the European Union Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“Qualification Directive”). This residence permit was valid for three years, i.c. until 23 August 2012. On 7 May 2009, the applicant left the Bari-Palese reception centre of his own volition for an unknown destination. 7. On 29 October 2009, the applicant applied for asylum in the Netherlands, stating that his name was A.R.M.E., that he was a Somali national and that he was born in Mogadishu on 28 May 1994. The next day, the Netherlands immigration authorities conducted a first interview (eerste gehoor) with the applicant, during which he declared inter alia that he had travelled by road from Somalia to Kenya from where he had travelled by air, with a stopover in Egypt, to the Netherlands. He wrote down his name, his date and place of birth and his last address, and signed this document. 8. The examination and comparison of the applicant’s fingerprints by the Netherlands authorities generated a Eurodac report on 29 October 2009, indicating that he had been registered in Pozzallo on 13 April 2009 and in Bari on 7 May 2009. 9. On 31 October 2009, a Dublin Claim interview (gehoor Dublinclaim) was held with the applicant. After the results of the Eurodac report had been put to him, he confirmed that he had been in Italy. He had lied about his age in Italy. He had stated that he was an adult. He had further been forced to give his fingerprints. He denied having applied for asylum in Italy and further stated that he had not had shelter or food in Italy. 10. On 1 November 2009, the Deputy Minister of Justice informed the applicant of her intention to reject his asylum request. The applicant filed his written comments (zienswijze) on this intention on 25 November 2009. 11. On 16 April 2010 the Netherlands authorities requested the Italian authorities to take back the applicant under the terms of Article 16 § 1 (c) of Council Regulation (EC) no. 343/2003 of 18 February 2003 (“the Dublin Regulation”). As the Italian authorities failed to react to that request within two weeks, they were considered under Article 20 § 1 of the Dublin Regulation as having acceded implicitly to that request. 12. The applicant’s asylum request filed in the Netherlands was rejected on 2 June 2010 by the Deputy Minister, who found that, pursuant to the Dublin Regulation, Italy was responsible for the processing of the asylum application. The Deputy Minister rejected the applicant’s argument that the Netherlands could not rely on the principle of mutual interstate trust in respect of Italy. The Deputy Minister did not find it established that Italy fell short of its international treaty obligations in respect of asylum seekers and refugees, and rejected the applicant’s argument that he risked treatment in breach of Article 3 of the Convention in Italy. 13. The applicant’s appeal against this decision, filed on 2 June 2010, was rejected on 29 July 2010 by the single-judge chamber (enkelvoudige kamer) of the Regional Court (rechtbank) of The Hague. It rejected, as insufficiently substantiated, the applicant’s claim that the reception of minor aliens in Italy was deficient and also rejected his argument that, in his case, the Italian authorities had fallen short of their international obligations in respect of asylum seekers. It noted inter alia that the applicant had been given the opportunity to apply for asylum in Italy and found that it did not appear that the applicant had no access to adequate legal remedies. As regards the alleged risk of refoulement from Italy to Somalia, the Regional Court considered that he should and could raise this in proceedings in Italy and did not find it established that, where it concerned his possible removal from Italy, he would not be given the possibility to use a legal remedy against removal, including requesting the Court for an interim measure under Rule 39 of the Rules of Court. 14. On 27 August 2010, the applicant filed an objection (verzet) against this ruling with the Regional Court. 15. On 6 September 2010, the Minister of Justice notified the applicant of his intention to transfer the applicant to Italy on 22 September 2010 and not later than 1 November 2010. 16. The application was introduced to the Court on 7 September 2010. On 10 September 2010, the President of the Section decided, under Rule 39 of the Rules of the Court, to indicate to the Netherlands Government that it was desirable in the interest of the parties and the proper conduct of the proceedings before the Court not to remove the applicant to Italy. 17. On 22 December 2010, following a hearing held on 7 December 2010 and apparently after a decision to accept the applicant’s objection of 27 August 2010, a three-judge chamber (meervoudige kamer) of the Regional Court of The Hague examined and rejected the applicant’s appeal of 2 June 2010. The Regional Court held that the applicant had not demonstrated that Italy would fall short of its obligations under the 1951 Refugee Convention or Article 3 of the Convention. This finding was not altered by the fact that, on 10 September 2010, a Rule 39 indication had been given to the Netherlands as this temporary measure could not be interpreted as an indication about the eventual finding on the merits by the Court. 18. On 20 January 2011, the applicant filed a further appeal with the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State). On 11 November 2011, the Administrative Jurisdiction Division accepted the further appeal, quashed the judgment of 22 December 2010, accepted the applicant’s appeal against the Deputy Minister’s decision of 2 June 2010, and quashed this decision but ordered that its legal effects were to remain entirely intact. In view of the Court’s judgment of 21 January 2011 in the case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, it noted that the applicant had relied from the outset on documents containing general information and found that these had not been examined in the manner as described in the M.S.S. v. Belgium and Greece judgment. As it did, however, not find any reason for reaching a different decision in the applicant’s case, the Administrative Jurisdiction Division decided that the legal consequences of the impugned decision of 2 June 2010 were to remain intact. No further appeal lay against this decision. 19. On 18 January 2012, the President of the Section decided that information was required from the Italian Government and a number of factual questions were put to the Government of Italy which concerned the applicant’s situation in Italy before his arrival in the Netherlands. The Italian Government submitted their replies on 12 March 2012 and the applicant’s comments in reply were submitted on 13 May 2012. He stated, inter alia, that he had lied about his age at the time of his initial arrival in Italy as well as when he later applied for asylum, fearing that admitting that he was a minor would entail his separation from his countrymen with whom he had arrived in Italy. The applicant denied having left the Bari-Palese centre of his own volition. He was forced to leave this centre because it was about to be closed down. As no subsequent reception facilities were provided to him, he had been forced to live in the streets in horrendous circumstances. 20. The relevant European, Italian and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum seekers and transfers of asylum seekers under the Dublin Regulation have recently been summarised in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 28-48, 4 November 2014; Hussein Diirshi v. the Netherlands and Italy and 3 other applications (dec.), nos. 2314/10, 18324/10, 47851/10 & 51377/10, §§ 98-117, 10 September 2013; Halimi v. Austria and Italy (dec.), no. 53852/11, §§ 21-25 and §§ 29-36, 18 June 2013; Abubeker v. Austria and Italy (dec.), no. 73874/11, §§ 31-34 and §§ 37-41, 18 June 2013; Daybetgova and Magomedova v. Austria (dec.), no. 6198/12, §§ 25 29 and §§ 32-39, 4 June 2013; and Mohammed Hussein v. the Netherlands and Italy (dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013. | 0 |
test | 001-145346 | ENG | BIH | COMMITTEE | 2,014 | CASE OF MIŠKOVIĆ v. BOSNIA AND HERZEGOVINA | 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) | George Nicolaou;Zdravka Kalaydjieva | 6. The applicant lives in Bosnia and Herzegovina. 7. By a judgment of the Prijedor Court of First Instance of 24 November 2000 which became final on 12 January 2001, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to pay, within 15 days, 7,000 convertible marks (BAM) in respect of non-pecuniary damage and BAM 600 in respect of pecuniary damage together with default interest at the statutory rate to the applicant. 8. The Banja Luka Court of First Instance issued a writ of execution (rješenje o izvršenju) on 24 August 2001. 9. The applicant complained of non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). On 20 December 2005 the Constitutional Court found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. The applicant did not claim compensation, but even if she had done so, her claim would most likely have been refused (see, for example, the Constitutional Court’s decisions AP 774/04 of 20 December 2005, § 438; AP 557/05 of 12 April 2006, §195; AP 1211/06 of 13 December 2007, §79; AP 224/08 of 8 December 2010, §37). 10. After the extensive information campaign explaining the available options for the settlement of the Republika Srpska’s public debt (including its debt arising from domestic judgments), on 25 April 2012 the applicant informed the authorities that she agreed to be paid the principal debt and default interest in bonds. Government bonds were then issued to the applicant on 31 May 2012. On 17 September 2012 the applicant sold all of her bonds on the Stock Exchange. | 1 |
test | 001-181604 | ENG | TUR | CHAMBER | 2,018 | CASE OF GİRİŞEN v. TURKEY | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström | 5. The applicant was born in 1979 and is detained in Diyarbakır. 6. On 23 December 2001 the applicant was arrested and taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. During his detention in police custody, the applicant was allegedly subjected to ill-treatment by police officers. In particular, electric shocks were administered to his testicles. 7. On 25 December 2001 the applicant was interrogated by the police in the absence of a lawyer. During his interrogation, he confessed in detail to his involvement in the activities of the illegal organisation and gave detailed information about the organisation and its members. 8. On 26 December 2001 the applicant gave a statement to the public prosecutor in the absence of a lawyer in which he denied the statements he had given to the police. 9. On the same day the applicant was brought before the investigating judge at the Diyarbakır State Security Court, who questioned him in the absence of a lawyer. The applicant again denied his statements to the police. During his questioning, the applicant alleged to the investigating judge that he had been subjected to ill-treatment while in police custody and that his statements had been taken under duress. However, a medical report issued by Bağlar Health Clinic dated the same day stated that there was no sign that he had been subjected to violence. At the end of the hearing, the court ordered that the applicant be placed in pre-trial detention. 10. On 9 January 2002 the Diyarbakır public prosecutor filed a bill of indictment, charging the applicant under Article 146 of the former Turkish Criminal Code with attempting to undermine the constitutional order of the State. 11. On 19 March 2002 the Diyarbakır State Security Court held the first hearing on the merits of the case. During the hearing, the applicant repeated his allegations of having been subjected to ill-treatment in police custody and denied his statements to the police. 12. On 27 January 2004 the applicant lodged a criminal complaint with the Diyarbakır public prosecutor’s office against the police officers who had allegedly ill-treated him. He stated that electric shocks had been administered to his body through his testicles and that his testicles had been squeezed, which had caused serious harm. He attached a medical report dated 20 September 2002 from Fırat University on the state of his testicles. The report stated that the applicant had a dilation of the veins in his left testicle of up to 2.6 mm, which had resulted in a varicocele. 13. State Security Courts were abolished by Law no. 5190 of 16 June 2004, published in the Official Gazette on 30 June 2004. The case against the applicant was transferred to the Diyarbakır Assize Court. 14. On 25 June 2004 the Diyarbakır public prosecutor issued a decision to discontinue the criminal proceedings against the police officers on account of a lack of evidence. 15. During the criminal proceedings against the applicant, the first-instance courts examined the applicant’s continued detention at the end of the hearings, either on their own motion or at the applicant’s request. The courts ordered that he be kept in detention owing to the nature of the offence, the state of the evidence and the contents of the file. 16. On 12 June 2008 the Diyarbakır Assize Court convicted the applicant as charged and sentenced him to life imprisonment. The sentence, however, was reduced to twenty years of imprisonment as the applicant was a minor at the time of the offence. 17. On 18 January 2010 the Court of Cassation quashed the decision for procedural reasons. 18. On 2 April 2010 the applicant asked the Diyarbakır Assize Court for his release pending trial. On 9 April 2010 the court dismissed his application for release on the grounds of the nature of the offence. 19. On 30 September 2010 the Diyarbakır Assize Court issued a decision of lack of jurisdiction (görevsizlik kararı), pursuant to section 8 of Law no. 6008, which provided that juveniles could not be tried before assize courts, which had special jurisdiction to try a number of aggravated crimes enumerated under Article 250 § 1 of the Code of Criminal Procedure at the material time. The case was thus referred to the Diyarbakır Juvenile Court. 20. On 2 November 2010 the applicant was released pending trial. 21. On 5 June 2012 the Diyarbakır Juvenile Court found that, inter alia, on the basis of the applicant’s statements to the police, the applicant had committed the offence under Article 146 of the former Turkish Criminal Code and sentenced him to sixteen years and eight months’ imprisonment. 22. On 17 June 2014 the Court of Cassation upheld the Diyarbakır Juvenile Court’s judgment. | 1 |
test | 001-164006 | ENG | MKD | ADMISSIBILITY | 2,016 | KOČEVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" | 4 | Inadmissible | Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano | 1. The applicant, Mr Kiril Kočevski, is a Macedonian national, who was born in 1947 and lives in Skopje. He was represented before the Court by Mr Ž. Hadži-Zafirov, a lawyer practising in Skopje. 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 10 September 1996 bankruptcy proceedings were opened against a formerly socially-owned company (“S.”). 5. On 13 March 2000, while the bankruptcy proceedings were still pending, the applicant was appointed acting manager of S. 6. By a decision which became final on 26 September 2000 the Skopje Court of First Instance upheld a claim (утврдува пријавено побарување) against S. in favour of a certain Mr D.T. (a former employee of S.) in the amount of 55,270 Macedonian denars (MKD). 7. On 24 December 2001 the bankruptcy proceedings against S. were stayed and consent (согласност) was given for proceedings to be instituted for the restructuring of S. under the Transformation of Socially-Owned Companies Act (see paragraph 30 below). 8. According to a document (аналитичка картица) issued on 26 December 2005 by S., Mr D.T. owed S. MKD 9,067,814. 9. On 28 April 2006 an investigating judge questioned the applicant and opened an investigation against him and four other people suspected of abuse of office (злоупотреба на службената положба и овластување). 10. At a hearing held on 30 November 2006, the trial court dismissed an application lodged by 203 former employees of S. to be represented as victims (оштетени) at the trial. It is not evident from the case file whether Mr D.T. was among those employees. 11. On 6 February 2007 the applicant was remanded in custody. Subsequently, he submitted several requests to be released on bail which were to no avail. In those requests he made no reference to his state of health. 12. On 22 February 2007 the Skopje Prison (“the prison authorities”) requested that the Skopje Court of First Instance (“the trial court”) allow the applicant to be medically examined as his health had deteriorated. The request referred to a note of the same date in which the prison doctor diagnosed the applicant as suffering from sindroma psihoorganicum incipiens (presumably early-stage psycho-organic syndrome). On 23 February 2007 Judge V.M. granted that request. No information was submitted as to whether the applicant was examined or the results of the examination. 13. On 1 March 2007 the prison authorities requested that the trial court allow the applicant to undergo a psychological examination. They referred to a note dated 28 February 2007, in which the prison doctor had made the same diagnosis (see paragraph 12 above). 14. At a hearing held on 12 April 2007, the applicant, who was represented by two lawyers, lodged his own request for his psychological examination. The trial court dismissed both requests on the grounds that they were not sufficiently detailed. At that hearing the court examined two witnesses. Тhe applicant questioned one of them. 15. On 30 April 2007 a three-judge panel of the trial court presided by Judge V.M. convicted the applicant and sentenced him to six years’ imprisonment. The court found that in the period between 2000 and 2002 the applicant had ordered the four co-accused to acknowledge false claims made by another company, E. (also undergoing bankruptcy proceedings) against S. and to transfer those claims to a third company, B., which had been owned by the applicant. The false claims had later been transformed into 98% of S.’s capital, on the basis of which B. (subsequently renamed to company S.1) became S.’s main shareholder. The court found that a programme for the financial transformation of S. (“the programme”) had been prepared at the applicant’s request. On 19 November 2001 appendices to the programme had been prepared, but they had not been presented to the creditors in the bankruptcy proceedings or to the Privatisation Agency. The court concluded that the competent institutions had taken a positive stance (позитивно се произнеле) concerning S.’s transformation, but that they had been unaware of the circumstances concerning the acknowledgment of the debt towards E. and concerning the transformation of the debt into a share in S. The judgment further stated that, as a result of the alleged debt, S. had been brought to insolvency (негативна состојба) and that without that debt, the deficit of S. would have been significantly smaller and could have been consolidated by selling some of S.’s immovable property. 16. On 10 May 2007 S. complained to the State Judicial Council that Judge V.M. had been biased, since Mr D.T. was the unmarried partner of Judge V.M. and a former employee of S. He had rented business premises from S. for which he owed S. approximately MKD 4,000,000 in unpaid rent. He allegedly owed S. a further MKD 271,220. A claim against S. had been established by a court decision (see paragraph 6 above). 17. The weekly newspaper Fokus (according to the applicant, in its edition of 11 May 2007) published an article about the criminal proceedings against the applicant. The article stated that Mr D.T. had both a claim against and a debt (which he had never paid) to S. and that he was Judge V.M.’s unmarried partner. It included a statement by the applicant’s brother according to which the applicant and his family had learnt about those facts the day the trial court’s judgment had been pronounced. 18. The applicant’s three representatives lodged three separate appeals against the judgment of 30 April 2007. A fourth appeal was lodged by the applicant’s son. In the appeals it was argued, inter alia, that the trial court had not been impartial given that Mr D.T., the unmarried partner of Judge V.M., owed S. money and had a claim against it. On 11 May 2007 details concerning Mr D.T.’s alleged financial relations with S. had been published in a weekly newspaper. It was further argued that the trial court had failed to obtain an expert opinion about the applicant’s poor state of health, which had affected his ability to follow the trial. 19. On 21 June 2007 a psychiatrist (V.V.) examined the applicant in the detention department of Skopje hospital. According to a handwritten note issued by V.V. on 25 June 2007, it was necessary to transfer the applicant to a psychiatric hospital. In view of his psychological state, he could not attend the trial, nor could his statements be considered valid until a definitive diagnosis was established. 20. The applicant stayed in the psychiatric hospital from 26 June to 22 October 2007. 21. On 5 July 2007 a psychologist drew up a report on the applicant’s psychological state, at his own request. The report stated, inter alia, that the applicant’s thinking process was slow and that he was unable to respond to complex tasks requiring an increased level of abstraction and generalisation. A memory deficit was noted. The report concluded as follows: “The results of the psychological examination confirm affective and thought distortions of a depressive and paranoid character, as well as psycho-organic syndrome (психоорганицитет), which are deeply disrupting the mental state of the examinee resulting in profound psychological deviation. The examinee lacks insight and criticality for the condition in which he has been placed following the indictment”. 22. On 7 November 2007 the Skopje Court of Appeal (“the appellate court”) held a public session, which the applicant and his three representatives attended. The applicant notified the second-instance court of the deterioration in his health. The applicant’s lawyers argued that the applicant’s defence rights had been infringed at the hearing of 12 April 2007 because witnesses had been heard despite the fact that the applicant had requested a psychological examination in order to assess his capacity to follow the trial. They did not submit copies of the note of 25 June 2007 or of the report of 5 July 2007. The lawyers also repeated the arguments as to the alleged impartiality of Judge V.M. given that her partner had both a debt to and a claim against S. 23. On the same day, the appellate court dismissed the applicant’s appeal and upheld the first-instance judgment. The relevant parts of the judgment read as follows: “The court assessed the complaint concerning an [alleged] substantial violation of procedural law of section 381(1)(2) of [the Criminal Proceedings Act] ... that the unmarried partner of [Judge V.M.] had a direct interest in the outcome of these criminal proceedings ... but dismissed the complaint as groundless. Namely, under the provision of section 381(1)(2) of [the Criminal Proceedings Act], there is an absolute substantial violation of procedural law only if a judge or a lay judge who needed to be excluded (section 36(1)(5)) participated at the trial. It is obvious from the complaints in this respect that they are based on an alleged existence of a reason for exclusion under section 36(2) of the Act, that is to say outside the reasons for mandatory exclusion under the provision of section 36(1)(5) of the Act ... Subsequently, the court assessed the complaint concerning an [alleged] substantial violation of procedural law of section 381(2) in conjunction with section 36(1)(2) of [the Criminal Proceedings Act] with the same content, but did not accept it as grounded, because on the basis of the established facts of the case it cannot be found that there existed a direct link between the pecuniary interests of the unmarried partner of [Judge V.M.] and the object of these criminal proceedings, which would be of such a nature as to put into doubt the impartiality of the Judge in the performing of her adjudicating function in the criminal proceedings. The court assessed the complaint concerning an [alleged] substantial violation of procedural law ... that the trial court, contrary to law, had examined witnesses ... on 12 April 2007 outside the trial, ... [notwithstanding that there had been a] previous request for a psychiatric examination of the [applicant] in order to assess his mental capacity to follow the trial, but dismissed the complaint as groundless. Namely, it is evident from the record from the witnesses’ ... questioning ... [that] all of the accused who were present at the hearing had the right to put questions to the witnesses, [and] this right was exercised by some of the accused, including [the applicant], which clearly points to the conclusion that [the applicant] was not only capable of following the trial, but he could also actively participate by putting questions to the witnesses as one of the corpus of minimum rights guaranteed to each accused by the Constitution ..., the Criminal Proceedings Act and the European Convention on Human Rights as a basic international document on the matter.” 24. The court further found that the bankruptcy proceedings against S. had been opened on 10 September 1996 and stayed on 24 December 2001. On the latter date, consent (согласност) had been given for the institution of proceedings for the transformation of S. on the basis of the programme for financial and ownership transformation, which had been approved by the Privatisation Agency. 25. The applicant challenged that judgment by means of a request for extraordinary review of a final judgment (барање за вонредно преиспитување на правосилна пресуда). He reiterated his complaints concerning the alleged lack of impartiality of Judge V.M. and concerning his request for a psychological examination. He did not submit a copy of the report of 5 July 2007 (see paragraph 21 above). 26. On 23 December 2009 the Supreme Court dismissed the applicant’s request and upheld the lower courts’ judgments. It referred to section 36(1) (2) of the Criminal Proceedings Act and found as follows: “In the present case... it does not transpire (никаде не произлегува) that the unmarried partner of [Judge V.M.] submitted a compensation or [other] pecuniary claim ... in these proceedings. ... neither in the preliminary proceedings nor at the trial did the unmarried partner of [Judge V.M.] lodge a compensation claim and he does not have the status of a victim in the proceedings, within the meaning of the provisions of the Criminal Proceedings Act. In such circumstances ... the impartiality of [Judge V.M.] in the performance of her judicial function in the criminal proceedings cannot be put into doubt. ... all those convicted who attended the examination (of the witnesses) had the right to question them, [and] this right was exercised by some of the accused, including [the applicant], which leads to a conclusion that [the applicant] was not only capable of following the trial, but he was also able to participate actively by putting questions to the witnesses ...” 27. On 25 December 2009, the applicant, who was transferred in the meantime to Idrizovo Prison, lodged a request for extraordinary mitigation of his sentence (барање за вонредно ублажување на казната). The prison authorities immediately communicated the request to the Supreme Court. The request was accompanied by a medical report drawn up by the prison doctor on 23 December 2009 regarding the applicant’s health since 8 August 2002. 28. On 2 March 2010 the Supreme Court upheld the applicant’s request and reduced his sentence to five years and six months’ imprisonment. It took into account as new relevant circumstances the deterioration of his health and that of members of his family, as well as the positive opinion of the prison authorities. 29. The relevant provisions of the Criminal Proceedings Act in force at the material time provided as follows: ... (2) Every accused person has the following minimum rights: ... - to have sufficient time and possibilities (можности) to prepare his or her defence ... (1) A judge or a lay-judge cannot perform his or her judicial function if: (1) he or she has suffered damages as a result of the criminal offence; (2) the accused, his or her defence lawyer, the claimant (тужителот), the damaged party or their legal or other representative is a married or unmarried partner or a relative ...; (3) he or she is a custodian, an adoptive parent, an adoptive child ... of the accused, his or her defence lawyer, the claimant or the damaged party; (4) he or she has undertaken investigative measures in the same criminal proceedings or has participated in assessing the indictment before the trial, or has participated in the proceedings as a claimant, defence lawyer, legal or other representative of the damaged party or the claimant, or has been heard as a witness or as an expert; and (5) in the same proceedings, he or she has participated in the rendering of the decision by a lower court or, in the same court, he or she has participated in the rendering of the decision challenged with the appeal. (2) A judge or a lay-judge can be excluded from performing the judicial function, apart from the cases listed under subsection (1) of this section, if evidence is submitted casting doubts as to his or her impartiality. When he or she learns that a reason for exclusion of section 36 subsection (1) of the Act exists, a judge or a lay-judge is obliged to stop his or her work on the case and to inform the president of the court, who will name a replacement. ... (1) Exclusion can be also sought by the parties. (2) The parties can seek exclusion until the commencement of the main hearing, and if they found out later about the reason for exclusion, immediately after finding out. ... (1) Apart from the cases explicitly provided for by this Act, the main hearing will be adjourned with a decision of the panel if it is necessary to obtain new evidence, or if during the main hearing it is established that, after the offence had been committed, the accused started suffering from a temporary psychological illness or temporary mental disorder or if there are other obstacles to the trial being conducted successfully. ... (1) There is a substantial violation of procedural law if: ... (2) a judge or lay-judge who had to be excluded (section 36(1)(5)) participated at the trial... (2) There is also a substantial violation of procedural law if the court, while preparing the trial or at the trial, or in adopting its decision did not apply or wrongfully applied a provision of this Act, or violated the right to defence at the trial, which affected or could have affected the lawful and correct adjudication. ... Mitigation of a finally imposed sentence is allowed when, after the judgment became final, circumstances come to light which did not exist when the judgment was pronounced, or the court was not aware of their existence, and which would obviously lead to a more lenient conviction (поблага осуда).” 30. The relevant provisions read as follows: The creditors can apply to the bankruptcy panel for a temporary stay of the bankruptcy proceedings and for the company to be allowed to continue to operate. ... Within sixty days the executive board adopts a programme for financial and ownership transformation, which encompasses the measures, actions and activities for long-term consolidation of the company, and in particular ... - ... - conversion of the debt into a permanent share (конверзијата на долгот во траен влог); ... After the recovery (санирањето) and reorganisation of the debtor company, the executive board adopts a decision to transform ownership to a joint stock company (акционерско друштво) or a limited liability company (друштво со ограничена одговорност). On the basis of an opinion of the [Privatisation Agency] on the decision mentioned in ... [the paragraph above], the bankruptcy panel adopts a decision giving consent (согласност) to the institution of transformation proceedings, which stays the bankruptcy proceedings. ... If the recovery and reorganisation of the debtor company do not provide the expected results, the executive board proposes that the bankruptcy panel continue the bankruptcy proceedings. The bankruptcy proceedings are also continued if the bankruptcy panel does not give the consent mentioned in ... this section.” | 0 |
test | 001-167313 | ENG | SMR | ADMISSIBILITY | 2,016 | BIAGIOLI v. SAN MARINO | 4 | Inadmissible | Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano | 1. The applicant, Mr Carlo Biagioli, is an Italian national, who was born in 1969 and lives in San Marino. He was represented before the Court by Mrs A. Mascia, a lawyer practising in Verona, Italy. summarised as follows. 3. The applicant is the son of the Commander in Chief of the San Marino Police. He was a lawyer and notary by profession before being disbarred (radiato) as a result of criminal proceedings which were instituted in 2005 against both father and son for making false declarations in public documents (reato di falso in atto pubblico) under Articles 73 and 295 of the Criminal Code on 1 March 2002. It was alleged that they had altered the content of the police daily record (foglio di servizio) of 16 June 1999 by adding that they had carried out a check-up on a specific car and person, whereas such a check-up had never been undertaken. 4. By a judgment of 4 April 2012 no. 81/2012, filed in the registry on 11 May 2012, both the applicant and his father were found guilty. The applicant was sentenced to two years and six months’ imprisonment and prohibited from holding public office for fifteen months. 5. By judgment no. 154/2012 of 28 September 2012 the Appeal Court upheld the first-instance judgment, reducing, however, the punishment. The applicant was sentenced to two years’ imprisonment and prohibited from holding public office for a year. His sentence was suspended for two years. 6. More factual details about the criminal proceedings can be found in Biagioli v. San Marino, (dec.), no. 8162/13, 8 July 2014. 7. In the meantime on 21 August 2005, the San Marino Chamber of Advocates and Notaries (OAN) (hereinafter “the CAN”) had asked the applicant to submit an explanation as to the facts surrounding the criminal proceedings. By a letter of 5 September 2005, the applicant informed the CAN that no charges had been issued against him and that any impugned conduct had not been in connection with the carrying out of his profession. 8. On 3 April 2007, following the issuance of a bill of indictment against the applicant, the CAN once again asked him for explanations, and the applicant submitted the relevant bill of indictment. 9. Following the delivery of the first-instance judgment, on 12 April 2012 the CAN requested the applicant to provide a copy of the operative part of the judgment. The applicant complied with the request on 18 April 2012, also submitting a copy of his appeal application. 10. On 4 May 2012 the applicant was notified that the CAN was instituting disciplinary proceedings against him in respect of a breach of Article 9 of legislative decree no. 56 of 26 April 1995, as well as Article 45 (1) of law no. 28 of 20 February 1991 (see relevant domestic law below). 11. At the hearing of 22 June 2012, as well as in his written submissions, the applicant argued that the disciplinary action against him was timebarred. In any event he requested the suspension of any sanction against him until the judgment finding him guilty had become final. 12. On 5 July 2012, the CAN rejected his argument concerning prescription but suspended the disciplinary proceedings until the criminal proceedings had become final. 13. On 19 July 2012, the applicant challenged that decision before the National Commission of Liberal Professions (libere professioni) (CNLP), hereinafter “the Commission”. 14. On 12 September 2012 the Commission rejected the applicant’s challenge concerning prescription on the basis that the decision of 5 July 2012 was not a decision on the merits, namely as to whether or not to apply the disciplinary measure, and thus was not subject to an autonomous challenge. Such a challenge could be raised in the context of an appeal in the event of the CAN ordering a disciplinary measure. 15. On 3 October 2012 the applicant challenged the decision of the Commission. 16. Eventually, by a judgment of 4 March 2013 the Administrative Court rejected the applicant’s challenge and upheld the Commission’s decision. 17. Following the Court of Appeal judgment of 28 September 2012 in the criminal proceedings against the applicant, on 5 October 2012 the CAN informed the applicant that disciplinary proceedings were to be continued and that he was to appear at a hearing. 18. Hearings in the presence of the applicant and his lawyer took place on 15 and 17 October 2012, and written submissions were also filed. The applicant made submissions concerning, inter alia, the invalidity of the CAN owing to its constitution; the generic nature of the accusation; the fact that the impugned conduct had taken place outside the ambit of his professional activities; and the lack of proportionality of the measure. He also reiterated his argument that the disciplinary action was time-barred, and requested the suspension of the measure. Without prejudice to his arguments he claimed that in any event, the sanction should not be anything other than suspension for a month. 19. By a decision of 23 October 2012 the CAN disbarred the applicant. It noted that Article 51 of law no. 28 of 20 February 1991 provided that disbarment applied (importa, di diritto) in cases of a final finding of guilt under Article 295 of the Criminal Code (relevant to the present case). Thus, the CAN had no room for evaluation, discretion or decision making, save for the determination of whether an irrevocable criminal judgment finding guilt actually existed. In the present case, that fact had been ascertained and the judgment had been submitted by the applicant himself. It followed that the CAN’s finding applying such a sanction was simply declaratory, the legislator having prescribed mandatory disbarment in such cases. It further rejected the applicant’s plea concerning prescription in respect of the disciplinary action and his request for suspension of the disciplinary proceedings. It also considered that the disciplinary punishments provided for by law were justified by a general principle, namely that of behaving in line with the duties of correctness, dignity and honour for the profession, even beyond the exercise of the professional activity, in so far as such behaviour may harm the common beliefs of the community. Indeed, the law (Article 39 of legislative decree no. 56 of 1995) could only be interpreted in the sense that actions undertaken outside the scope of one’s activity must be subject to disciplinary action if they affected society’s values, reflected on the professional reputation of lawyers or notaries, or compromised the image of the forensic and notarial categories. The correctness of this interpretation was evident given that, according to the law, a finding of guilt brought about disbarment mandatorily, as well as from the wording of Article 5 of Decree no. 105 of 2011 concerning the statute of the Chamber of Advocates and Notaries, and the correlation between law no. 28 of 1991 and legislative decree no. 56 of 1995. 20. On 4 October 2012 the applicant challenged this decision. 21. On 16 January 2013 the Commission confirmed the decision of the CAN in its entirety and rejected the applicant’s challenges concerning the prescription of the disciplinary action, and the composition and constitution of the CAN. It also rejected his allegations concerning the lack of detail about the accusation, the automatic application of the sanction and the incoherence of the CAN’s decision, which had not followed the expert opinion. As for the applicant’s complaint that the facts that had led to the accusation had occurred outside his professional duties, as well as the proportionality of the measure, the Commission referred back to the decision of the CAN, which had found that such arguments were irrelevant given the content of Article 51 of law no. 28 of 1991 and its application in the present case. 22. On 18 April 2013 the applicant challenged the Commission’s decision before the Administrative Court, reiterating the arguments he had already put forward. 23. In his application lodged on 18 April 2013 against the decision of the Commission of 16 January 2003, the applicant raised a number of pleas (in a 100-page document). His pleas concerned issues relating to the law and its application, whether in substance or as a matter of procedure. 24. In his requests dated 24 May and 7 August 2013 the applicant raised two more procedural pleas. In a further request he also challenged the constitutional legitimacy of Articles 30 and 40 of legislative decree no. 56 of 1995 in so far as they did not provide for the possibility of requesting the withdrawal of or abstention by persons sitting on the disciplinary body. He also challenged the legitimacy of Article 51 of law no. 28 of 1991 and Article 39 of legislative decree no. 56 of 1995. The applicant argued that the fact that the legislation provided for an automatic sanction, without the possibility of a progressive application of sanctions depending on the specific case, subject to evaluation by the disciplinary body, was contrary to the principles of reasonableness and proportionality. 25. By a decision of 23 July 2013 the Administrative Court rejected the applicant’s pleas concerning the irregularity of the CAN’s constitution. In particular, as to the constitutional legitimacy of Articles 30 and 40 of legislative decree no. 56 of 1995, it considered that, in the present case, the applicant’s inability to request the withdrawal of a member of the organ had not breached his rights. As to the constitutional legitimacy of Article 51 of law no. 28 of 1991 and Article 39 of legislative decree no. 56 of 1995, the court considered that the automatic application of a sanction would be in breach of constitutional principles only if it were not preceded by disciplinary proceedings. In the present case, the applicant had been subjected to disciplinary proceedings during which he had been able to put forward all his arguments and defend himself before both the CAN and the Commission. Indeed, it transpired from the decision of the CAN that that organ had: verified the existence of the disciplinary breach (by establishing the existence of a final criminal judgment); heard the applicant various times; established the facts and indicated the relevant provisions relating to the breach at issue; allowed the applicant’s legal representative full access to the disciplinary file; and allowed the applicant to make written submissions and call witnesses as well as make any oral submissions in his defence. It followed that although the law provided for automatic application of the measure, as happened in the present case, the measure was applied only after disciplinary proceedings had been carried out in compliance with the relevant rules of procedure. In the present case the disciplinary organs had correctly interpreted and applied the law in conformity with the constitutional principles invoked. The applicant’s complaint was therefore ill-founded. 26. During the proceedings before the Administrative Court, the applicant’s request to suspend the effects of the Commission’s decision pending a decision in the administrative proceedings was rejected on 3 May 2013 following an oral hearing. The Administrative Court rejected the request on the grounds that the applicant had not shown what prejudice he had suffered and bearing in mind the interests of third parties and the crimes of which the applicant had been found guilty by means of a final judgment. 27. The applicant challenged that decision, but the Administrative Appeal Court dismissed his appeal on 5 May 2013. 28. On 7 August 2013 the applicant reiterated his challenges in respect of the constitutionality of Articles 30 and 40 of legislative decree no. 56 of 1995 as well as of Article 51 of law no. 28 of 1991, but this time in the light of the San Marino Fundamental Human Rights Charter and the Convention. 29. An oral hearing took place on 29 August 2013. The decision on the matter was delivered in the main proceedings (see below). 30. By a judgment of 10 October 2013 the Administrative Court dismissed the applicant’s claims (by means of a fifty-page judgment). 31. The court held that as it had already stated in various decisions in the present case, its jurisdiction in the instant case was that provided for under law no. 68 of 28 June 1989, as set out in Article 54 of legislative decree no. 56 of 1995, namely judicial review of administrative action (giurisdizione di legittimita`). Thus the impugned acts could only be challenged on the basis that the decision in the disciplinary proceedings was not in accordance with the law, had been delivered by a body that did not have the requisite jurisdiction or had been delivered in abuse of power. It was not for the administrative court to assess the facts or conduct leading to the decisions, which was the responsibility of the disciplinary body in accordance with the law. According to jurisprudence, in disciplinary proceedings against lawyers the establishment of the misconduct leading to the disciplinary breach was the exclusive competence of the disciplinary organs. However, the decision was subject to a control concerning its reasonableness, in judicial review proceedings. This was also confirmed by the disciplinary bodies’ statements. Other jurisprudence had confirmed that the factual assessment made by the disciplinary organ would be irreproachable as long as it was backed up by sufficient and appropriate reasons, and that judicial review should not extend to an assessment of the evidence or of the gravity of the offence, or the appropriateness of the sanction imposed. The court further noted that those were administrative proceedings and as such were not subject to the guarantees of criminal proceedings. 32. Bearing in mind the above, the court found that the applicant’s complaints were ill-founded. Concerning constitutional legitimacy, the court confirmed the decision it had delivered on 23 July 2013 (see paragraph 25 above) and noted that the applicant had again reiterated those complaints. 33. On 13 November 2013 the applicant appealed against the Administrative Court judgment of 10 October 2013. He once again reiterated his claims concerning constitutional legitimacy (mentioned above) and the lack of adequate reasoning given in this respect by the previous organs. He also challenged the first-instance court’s findings in so far as they had repeatedly relied on previous decisions given in his case. They had also relied on Italian jurisprudence without considering the fact that San Marino law was different from Italian law. He further considered that the first-instance court had wrongly interpreted and applied relevant laws in relation to each and every one of his claims. 34. On 11 February 2014 the applicant submitted further written submissions on his grounds of appeal. On 11 February 2014 the parties agreed that no oral pleadings were necessary since the arguments had already been exhaustively made. 35. The applicant’s appeal was dismissed and the judgment of the Administrative Court was upheld on appeal on 24 March 2014. The Administrative Appeal Court noted that the issues of constitutional legitimacy had once again been reiterated. It considered that the CAN and the Commission were disciplinary organs to which Articles 6 and 13 of the Convention, or the equivalent articles of the San Marino (human rights) Declaration did not apply. Furthermore, the Administrative Appeal Court highlighted that the law distinguished between minor crimes and more grave crimes when regulating the application of the various applicable sanctions, including disbarment from a profession. The application of such a serious sanction, which only applied to more serious crimes, in the applicant’s case had been wilfully and consciously decided by the legislator, leaving no discretion to the disciplinary Commission. It was worth noting that in San Marino, lawyers also carried out the functions of notaries, and a criminal conviction for making false declarations in public documents was objectively incompatible with the function of a public official which was, by definition, the guarantor of truthfulness and the veracity of documents. Thus, the fact that the law provided an automatic application of the sanction in such cases could not be considered unreasonable or disproportionate, and was thus in conformity with Article 4 of the San Marino Declaration. 36. As to the applicant’s complaints concerning the first-instance administrative decision, the court found that the first-instance court had given relevant and sufficient reasons in its decision and that its findings were valid. The mere fact that in some instances that decision had relied on Italian jurisprudence only served to further the reasoning in relation to the arguments raised. As to each of the remaining grounds of appeal, the Administrative Appeal Court entered into each and every one and reached the conclusion that they were all manifestly ill-founded. 37. The decision to disbar the second applicant was communicated to the Employment Office, which in turn and in accordance with Articles 12, 13, 49 and 50 of law no. 28 of 1991, namely the legal framework concerning the exercise of the liberal professions, struck him off its list of liberal professionals. That entailed the automatic cancelling of his VAT number (codice operatore economico) as from 18 February 2013. 38. Article 295 of the Criminal Code, concerning the offence of making false declarations in public documents, reads as follows: “A public official who, in the exercise of his duties, counterfeits or alters a public deed shall be liable to imprisonment and interdiction from public office of the third degree. The same actions carried out by an individual attract a sanction of imprisonment of one lesser degree.” 39. Article 9 of legislative decree no. 56 of 26 April 1995, concerning the professional ethics of lawyers and notaries, and in particular their general duties, reads as follows: “The conduct of anyone registered with the Chamber of Advocates must be irreprehensible and characterised by the decorum, dignity and morality associated with his functions, even beyond the exercise of his or her profession as a lawyer or notary.” 40. Article 39, concerning sanctions, reads as follows: “The Chamber of Advocates and Notaries may institute (dar corso) disciplinary proceedings against an advocate or notary registered with the Bar, who, in the exercise of the profession, has by any means tarnished the dignity of the profession and the decorum and independence of the forensic and notarial sector, or has been lacking in the performance of his or her professional duties. Having established responsibility in accordance with the gravity of the violation and applying the principle of progressive application of sanctions (principio di gradualità), the Chamber shall apply one of the following sanctions: (a) - private reprimand (il richiamo) to be applied in the case and as provided for in Article 47 of Law no. 28 of 1991 - formal reprimand (la censura) to be applied in the case and as provided for in Article 48 of Law no. 28 of 1991 - temporary suspension from the exercise of the profession to be applied in the case and as provided for in Article 49 of Law no. 28 of 1991 - removal from the Bar (la cancellazione dall’albo) to be applied in the case and as provided for in Article 50 of Law no. 28 of 1991 - disbarment from the profession (la radiazione dalla professione) to be applied in the case and as provided for in Article 51 of Law no. 28 of 1991. 41. Article 54 reads as follows: “Decisions of ... the Chamber of Advocates and Notaries may be appealed against by means of a challenge (opposizione) and an application before the administrative courts as provided for by Law no. 68 of 28 June 1989.” 42. Under Article 37 of law no. 28 of 20 February 1991 (concerning discipline in the liberal professions – libere professioni), decisions of the Chamber of Advocates and Notaries may be challenged before the National Commission of Liberal Professions, and the latter’s decisions may be challenged under Article 44 of the same decree (see below). 43. In so far as relevant, the pertinent articles of law no. 28 of 20 February 1991 read as follows: “The National Commission of Liberal Professions has the following functions: N. to decide by administrative means challenges to decisions made by the Chamber of Advocates and Notaries on disciplinary matters”. “The decisions of the National Commission of Liberal Professions may be challenged before the Administrative Tribunal established by Law no. 68 of 28 June 1989.” “Disciplinary action may be taken in respect of any conduct by a professional, both during the exercise of his functions and beyond such exercise, in so far as such conduct may be detrimental to his own professional dignity, as well as to the decorum and independence of the category of professionals to which he belongs.” The Chamber of Advocates and Notaries, may, if it considers it appropriate in view of the nature and gravity of the impugned conduct, and applying in so far as possible the principle of progressive application of sanctions (principio di gradualità), apply the following sanctions - private reprimand (il richiamo) - formal reprimand (la censura) - temporary suspension from the exercise of a profession - removal from the Bar (la cancellazione dall’albo) - disbarment from the profession (la radiazione dalla professione). “The sanction of disbarment from the profession is provided for in cases in which the professional has been punished for committing an offence, by means of a final judgment, to imprisonment, interdiction from public office, or to disbarment from the profession, for a term of more than two years. Disbarment from the profession is mandatory in cases where a guilty verdict has been passed by means of final judgment for the offences referred to in Articles 295, 296, 354, 358 and 361 of the Criminal Code, irrespective of the punishment handed down in the specific case. Decisions in respect of the preceding Articles nos. 48, 49, 50 and 51 can be adopted only following disciplinary proceedings. The rules relevant to each respective profession shall determine the method and form of disciplinary proceedings, ensuring in every case the principle of proportionality of the sanction to the infraction committed, the obligation to notify the accused of the accusation, as well as to the latter’s right of defence. “... A professional who has been disbarred may be reinstated only if he or she has been rehabilitated and it has been shown that his or her conduct has been irreprehensible.” 44. Administrative proceedings are provided for by law no. 68 of 28 June 1989 concerning jurisdiction in administrative matters, the review of legitimacy and administrative sanctions. The relevant provisions, in so far as relevant, read as follows: “Whosoever has a direct and immediate interest in respect of an act on the part of the public administration, social security institution or autonomous State agencies or entities which is deemed to be detrimental to his interests may seek a judicial remedy (può ricorrere in via giurisdizionale) before a first-instance administrative judge.” ... “The first-instance administrative judge is competent to decide in the first instance. If the request is upheld, the impugned act is annulled.” (The judge may also award costs and give instructions as to the enforcement of the decision.) “The decisions of the first-instance administrative judge may be appealed against before the administrative appeal judge within thirty days of the notification given by the registry. ... The appeal does not suspend the enforcement of the measure.” 45. Other relevant provisions of domestic law can be found in Biagioli, (dec.), cited above. | 0 |
test | 001-163114 | ENG | LVA | GRANDCHAMBER | 2,016 | CASE OF AVOTIŅŠ v. LATVIA | 1 | No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms) | Aleš Pejchal;András Sajó;André Potocki;Dean Spielmann;Egidijus Kūris;Elisabeth Steiner;Ganna Yudkivska;George Nicolaou;Ineta Ziemele;Ján Šikuta;Jon Fridrik Kjølbro;Josep Casadevall;Krzysztof Wojtyczek;Ledi Bianku;Mark Villiger;Nona Tsotsoria;Päivi Hirvelä;Paul Lemmens;Robert Spano;Vincent A. De Gaetano;Zdravka Kalaydjieva;Ksenija Turković | 13. The applicant was born in 1954 and lives in Garkalne (Riga district). At the time of the events which are the subject of the present application he was an investment consultant. 14. On 4 May 1999 the applicant and F.H. Ltd., a commercial company incorporated under Cypriot law, signed an acknowledgment of debt deed 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 deed also contained choice of law and jurisdiction clauses according to which it was governed “in all respects” by Cypriot law and the Cypriot courts had nonexclusive jurisdiction to hear any disputes arising out of it. The applicant’s address was given as G. Street in Riga and was indicated as follows: “[FOR] GOOD AND VALUABLE CONSIDERATION, I, PĒTERIS AVOTIŅŠ, of [no.], G. [street], 3rd floor, Riga, Latvia, [postcode] LV-..., (‘the Borrower’) ...” 15. 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 principal debt together with interest. In the Strasbourg proceedings the applicant submitted that he had in fact already repaid the debt before the proceedings were instituted in the Cypriot court, not by paying the sum of money in question to F.H. Ltd. but by other means linked to the capital of F.H. Ltd.’s parent company. However, he acknowledged that there was no documentary evidence of this. The respondent Government contested the applicant’s submission. 16. In an order dated 27 June 2003 the District Court authorised the “sealing and filing of the writ of summons”. On 24 July 2003 a “specially endorsed writ” was drawn up, describing the facts of the case in detail. It gave the applicant’s address as G. Street in Riga, the address indicated on the acknowledgment of debt deed. 17. Since the applicant was not resident in Cyprus, F.H. Ltd. made an ex parte application to the same District Court on 11 September 2003 seeking a fresh order enabling a summons to be served on the applicant outside the country and requiring him to appear within thirty days from the date of issuing of the summons. The claimant company’s lawyer produced an affidavit declaring that the defendant was habitually resident at an address in G. Street in Riga and could actually receive judicial documents at that address. The applicant, for his part, contended that it would have been physically impossible for him to receive the summons at the address in question, which was simply the address at which he had signed the loan contract and the acknowledgment of debt deed in 1999 and was not his home or business premises. 18. On 7 October 2003 the Limassol District Court ordered that notice of the proceedings be served on the applicant at the address provided by the claimant company. The applicant was summoned to appear or to come forward within thirty days of receiving the summons. If he did not do so the court would make no further attempt to contact him and would instead post all future announcements concerning the case on the court noticeboard. 19. 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 had been sent by recorded delivery to the address in G. Street in Riga on 16 November 2003. However, the copy of the summons furnished by the Latvian Government indicated that it had been drawn up on 17 November 2003. The slip produced by the Cypriot postal service stated that the summons had been sent on 18 November 2003 to the address in G. Street, and had been delivered and signed for on 27 November 2003. However, the signature on the slip did not appear to correspond to the applicant’s name. The applicant claimed never to have received the summons. 20. As the applicant did not appear, the Limassol District Court ruled in his absence on 24 May 2004. It 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, the final version of which was drawn up on 3 June 2004, the applicant had been duly informed of the hearing but had not attended. The judgment did not state whether the decision was final or indicate possible judicial remedies. 21. 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 temporary precautionary measure applied. It stated that the applicant was the owner of real property in Garkalne (Riga district) 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 in question and record the charge 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. 22. On 28 April 2005 the Latgale District Court adjourned examination of F.H. Ltd.’s request, informing the company that the request contained a number of defects which it had one month to correct. In particular, F.H. Ltd. had not explained why it had given an address in Č. Street when the applicant was supposedly resident in G. Street. 23. On 26 May 2005 F.H. Ltd. submitted a corrigendum in which it explained, among other points, that according to the information contained in 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. In that connection the Latvian Government provided the Court with a copy of a letter from the authority responsible for the register of residents according to which, prior to 19 June 2006, the applicant’s officially declared address had been in Č Street. 24. 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 therefore 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 on 23 January 2006 set aside the order of 31 May 2005 and remitted the case to the District Court in order for the latter to examine the request for recognition and enforcement as rectified by the corrigendum of 26 May 2005. 25. In an order of 27 February 2006 issued without the parties being present, the Latgale District Court granted 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. 26. According to the applicant, it was not until 15 June 2006 that he learned, from the bailiff responsible for enforcement of the Cypriot judgment, of the existence of that judgment and of the Latgale District Court order for its enforcement. On the following day (16 June 2006) he went to the District Court, where he acquainted himself with the judgment and the order. The respondent Government did not dispute these facts. 27. The applicant did not attempt to appeal against the Cypriot judgment in the Cypriot courts. However, he lodged an interlocutory appeal (blakus sūdzība) against the order of 27 February 2006 with the Riga Regional Court, while asking the Latgale District Court to extend the time allowed for lodging the appeal. Arguing that there was nothing in the case file to confirm that he had been given notice of the hearing of 27 February 2006 or of the order issued following the hearing, he submitted that the thirty-day period laid down by the Civil Procedure Law should start running on 16 June 2006, the date on which he had taken cognisance of the order in question. 28. 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 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.]. The order further states that the defendant may 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 arguments advanced by the applicant, P. Avotiņš, to be wellfounded, to the effect 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 the 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 ... Further, the court does not share 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 change of address promptly, and that the time allowed [for lodging an appeal] should not therefore be extended. The fact that the applicant did not take the necessary legal steps concerning registration of residence is not sufficient to justify a refusal by the court to allow him 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, with the consequences this is likely to entail. ...” 29. In his grounds of appeal before the Riga Regional Court the applicant contended that the recognition and enforcement of the Cypriot judgment in Latvia breached Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Brussels I Regulation”) and several provisions of the Latvian Civil Procedure Law. He submitted two arguments in that regard. 30. Firstly, the applicant argued that in accordance with Article 34(2) of the Brussels I 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 had not been served with the document instituting the proceedings in sufficient time and in such a way as to enable him to arrange for his defence. He maintained that he had not been duly informed of the proceedings in Cyprus, although 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. In support of that allegation he submitted that he had had professional dealings with the Cypriot lawyers, who had telephoned him and sent faxes to his office, and had met the Latvian lawyers in person. Hence, they must all have been aware of his business address. He added that he could also have been reached at his home address in Garkalne, as he had a residence there that was officially declared in accordance with the law and the lawyers could have consulted the municipal land register, where the property he owned was registered under his name. However, instead of serving notice of the proceedings on him at one of those addresses, which had been known and accessible, the lawyers had given the courts an address which they should have realised could not be used. 31. Secondly, the applicant argued that, under the terms of Article 38(1) of the Brussels I Regulation and section 637(2), second subparagraph, of the Civil Procedure Law, a judgment had to be enforceable in the State of origin in order to be enforceable in the Member State addressed. In the instant case, there had been a threefold breach of those requirements. First, the claimant had only submitted the text of the Cypriot court judgment to the Latvian court and not the certificate required by Annex V to the Brussels I Regulation. In that connection the applicant acknowledged that under Article 55(1) of the Brussels I Regulation the court in which enforcement was sought could, in some circumstances, exempt the claimant from the obligation to produce a certificate. However, in the present case the Latgale District Court had not made clear whether it considered that the claimant could be exempted from that obligation and, if so, for what reason. Second, the Cypriot judgment had contained no reference to the fact that it was enforceable or to possible judicial remedies. Third, although a judgment had to be enforceable in the country of origin in order to be enforced in accordance with the Brussels I Regulation, the claimant company had not produced any documentary evidence demonstrating that the judgment of 24 May 2004 was enforceable in Cyprus. In view of all these circumstances, the applicant contended that the judgment could on no account be recognised and enforced in Latvia. 32. 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. 33. F.H. Ltd. lodged an appeal against that judgment with the Senate of the Supreme Court, which examined it on 31 January 2007. At the start of the hearing F.H. Ltd. submitted copies of several documents to the Senate, including the certificate referred to in Article 54 of the Brussels I Regulation and Annex V thereto. The certificate was dated 18 January 2007 and had been signed by an acting judge of the Limassol District Court. It stated that 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 contended that they were clearly insufficient to render the judgment enforceable. 34. In a final judgment of 31 January 2007 the Supreme Court quashed and annulled the Regional Court judgment of 2 October 2006. It granted F.H. Ltd.’s request and 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 evidence in the case file that the Limassol District Court judgment became 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 lack relevance [nav būtiskas nozīmes]. Having regard to the foregoing, the Senate finds that the judgment of the Limassol District Court (Cyprus) of 24 May 2004 must be recognised and enforced in Latvia. Article 36 of the [Brussels I] 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 that Law. ...” 35. On 14 February 2007 the Latgale District Court, basing its decision on the Supreme Court judgment, issued a payment order (izpildu raksts). The applicant complied immediately with the terms of the order 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 his property. | 0 |
test | 001-173463 | ENG | RUS | CHAMBER | 2,017 | CASE OF MURTAZALIYEVA v. RUSSIA | 4 | No violation of Article 6+6-3-b - Right to a fair trial (Article 6 - Criminal proceedings) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-3-b - Access to relevant files);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings) (Article 6 - Right to a fair trial;Article 6-3-d - Obtain attendance of witnesses) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 5. The applicant was born in 1983 and lives in Paris. 6. The facts of the case may be summarised as follows. 7. The applicant is an ethnic Chechen. In September 2003 she arrived in Moscow from Chechnya and started working at an insurance company. In October 2003 she went to a mosque where she made the acquaintance of V. and Ku. two young Russian women who had converted to Islam. 8. In December 2003 the applicant was stopped on the street by two policemen, allegedly for an identity check. She was then taken to the police station to have her identity verified. In the meantime she was dismissed from work on the grounds of her unauthorised absence. According to the applicant, she was released from the custody of police several days later upon the intervention of certain A., who was also an ethnic Chechen and a police officer in the organised crime division of the Moscow police department. 9. In February 2004 A. helped the applicant to be reinstated at work. He also found a flat for her, where he visited her on several occasions. The applicant shared that flat with V. and Ku. The flat was located in a dormitory block which belonged to the police department. It was equipped with secret videotaping and audiotaping device. The police put the applicant under surveillance because she was suspected of affiliation with a terrorist group related to the Chechen insurgency movement. The Moscow City Court authorised the use of a secret surveillance device in the flat from 5 February until 4 March 2004. 10. On the evening of 4 March 2004 the applicant was stopped by a police patrol for an identity check as her physical appearance allegedly matched the profile of a suspect in a wanted persons notice. The applicant immediately telephoned A., who briefly spoke to the police officers who had stopped her. The applicant was then taken to the police station because the official registration of her stay in Moscow had expired, which constituted an administrative offence under Russian law. 11. At the police station, the applicant was informed that she had been apprehended (задержана). Her bag was searched by a female police officer I. in the presence of two attesting witnesses, B. and K., and her fingerprints were taken. The record of the personal search showed that the search of the applicant lasted from 8.35 p.m. until 9.03 p.m. Following the personal search, I. discovered two square packages of an unknown substance wrapped in aluminium foil inside the applicant’s bag. The substance, together with the inner lining of the applicant’s bag and the pockets of her jacket, was taken for forensic examination. The forensic examination report stated that the applicant’s fingerprints were taken at 9.30 p.m. The police did not test the applicant’s hands for residue from the substance; neither did they search for her fingerprints on the packages found in her bag. Later on the same day the applicant was arrested on charges of terrorism and questioned by the police. A criminal investigation was opened. 12. On 12 March 2004 an expert examination of the substance found in the applicant’s bag was carried out. The examination report showed that the substance contained 196 grams of Plastit-4, an industrial explosive prepared on the basis of hexogen. In the course of the examination the explosives were destroyed. The examination of the applicant’s bag and the lining of the pockets of her jacket revealed the presence of hexogen. 13. The police searched the flat where the applicant lived with V. and Ku. and seized a note handwritten by the applicant. The note criticised Russian policy in Chechnya, glorified suicide bombers, preached the way of jihad, and spoke harshly of Russians. The police also found several photographs of an escalator in the Okhotnyi Ryad shopping centre in the centre of Moscow. 14. A transcript of the conversations on the video tapes recorded at the flat showed that the applicant had been proselytising Islam to V. and Ku. discussing her hatred for Russians and the necessity of “holy war” against them, and telling them about the camps of the Chechen insurgents in the Caucasus. 15. A. was questioned by the investigator at the request of the applicant during the pre-trial stage. A. testified that at the end of December of 2003, at the order of his superiors, he had established a relationship of trust with the applicant, who had also introduced him to V. and Ku. A. further stated that with the support of the police department he had helped the applicant to find housing. She had moved into the flat in the dormitory block together with V. and Ku. On 4 March 2004 the applicant had called him because she had been stopped by the police patrol. He had advised her to obey the orders of the police officers and to follow them to the police station. 16. On 2 December 2004 the applicant received a copy of the case file for review. The applicant was charged with preparing an act of terrorism (an explosion) in the Okhotniy Ryad shopping centre and inciting V. and Ku. to commit an act of terrorism. 17. On 22 December 2004 the Moscow City Court commenced the trial of the applicant. The applicant was represented by two lawyers, U. and S. 18. At the trial the applicant pleaded not guilty to the charges against her. She testified that on 4 March 2004 after the police patrol had driven her to the police station, she had first been taken to a room where a police officer, S., had been filling in some papers. He had told her that she had been apprehended and that her fingerprints would be taken. She had left her jacket and her bag in that room. Another police officer, B., had then taken her to another room, where a further police officer, L., had taken her fingerprints using ink, after which she had gone to a bathroom to wash the ink off her hands. When she had returned to the first room, she had been informed that she would be searched in the presence of two attesting witnesses B. and K. The police officer had searched the applicant’s bag and discovered two packages wrapped in aluminium foil which had not belonged to her. The applicant stated that her fingerprints had been taken before and after the search, and that only the second episode had been recorded. 19. The applicant further stated that the police had questioned her in the absence of a lawyer, and had then decided to detain her. Furthermore, the applicant testified that she had been told to sign a record of her questioning, on pain of ill-treatment. In the following days she had been beaten by the policemen who had questioned her. However, she had continued to deny her involvement in any terrorist activity. 20. The applicant stated that the packages found in her bag had not belonged to her, that the police had planted them in her bag and that she had never incited V. and Ku. to commit a terrorist attack. When the prosecutor asked her whether she had noticed that her rather small bag had become heavier than it had been before the personal search, the applicant stated that she had not noticed anything conspicuous about her bag before her search. 21. She further stated that six photos of the escalator that had been seized from her flat had been taken by her. However, she had been taking photos of random people in the shopping centre in question and not of the escalator and she had done so for recreation. 22. The applicant admitted writing the note that had been seized from the flat but stated that she had copied its text from the Internet because she had liked it and had simply wanted to have a copy of it. The applicant’s lawyer argued that her words had been misinterpreted and that there had been nothing in them that demonstrated her link to any terrorist activity. She stated that the applicant’s bitter perception of the situation in Chechnya was absolutely natural for someone who had been living in a war zone since childhood and that her words should have been analysed more carefully. 23. V. testified at the trial that she and Ku. had first met the applicant at a mosque in October 2003. They had become friends and had started frequenting Islamist chats and surfing pro-insurgency web-sites together. After a while, they had decided to form a religious community (dzhamaat) to study Islam and live together. In their conversations the applicant had glorified terrorism and had approved of suicide bombings and the methods and targets of the Chechen insurgents. The applicant had told them about a camp in Azerbaidzhan near Baku where Muslims received training to become suicide bombers, and that she knew someone from there. She had mentioned that she herself had participated in the Chechen war on the side of the insurgents. Together they had often visited an Internet café in the Okhotniy Ryad shopping centre. The applicant had also taken photos of an escalator from different positions there. 24. On 3 March 2004 the applicant had told V. and Ku. that if something were to happen to her, they would have to remove all Islamic literature and her diary from the flat, and to call her mother in Chechnya. She had also told them that she had just received a call from a friend who had arrived in Moscow to “blow himself up”, and that she (that is to say the applicant) “was in danger” and “under suspicion” [of the authorities]. The applicant had not threatened them and had not incited them to commit a terrorist act but she had asked them if they were capable of doing it. She had constantly preached “the way of jihad” to them and had given them Islamist books and audiocassettes. Some of those books had been given to her by her acquaintance, A.. 25. V. denied having seen any explosives in the flat where they had lived. 26. At the request of the prosecutor, the trial judge allowed V.’s pre-trial testimony to be read out, as it contradicted in part statements she had made at the trial. In particular, during her pre-trial questioning, V. had testified that the applicant herself had undergone terrorist training in a camp near Baku and that she had been indoctrinating V. and Ku. in order to prepare them to become suicide bombers. When the prosecutor asked V. about her contradictory statements, V. stated that she was not sure whether the applicant had really participated in a terrorist training camp. However, she stated that the applicant had been preparing her and Ku. to become suicide bombers. 27. Ku. confirmed that she, V. and the applicant had taken photos in the Okhotniy Ryad shopping centre, at the initiative of the applicant, and that the applicant had “taken snapshots randomly”. In particular, the applicant had taken photographs of the escalator and the people on it. Ku. submitted that the applicant had disapproved of the policy of the Russian federal forces in the Caucasus. However, she had not incited Ku. to become a suicide bomber. According to Ku. they had simply wanted to live together to pray, read and live free from the control of their parents. 28. Ku. further stated that the applicant’s acquaintance, A., was a policeman and that he had paid for the flat where the three of them had lived and that he had also given them money occasionally. Once the applicant had told her that she liked A. 29. Ku. further stated that during the pre-trial questioning the investigator had misinterpreted her words concerning a suicide attack and that she had never planned to commit any such attack. She denied having given her pretrial statements under pressure. 30. The court questioned several police officers who had participated in her arrest and personal search (P., S., B., I. and Ke.). They stated that the applicant’s apprehension had occurred during a regular patrolling operation, and that they had not been aware that her bag had contained explosives. 31. P. testified that on the day of the applicant’s arrest he had decided to check the applicant’s documents because “she had been aimlessly walking to the Prospekt Vernadskogo metro station”. She had showed them her passport and the registration stamp confirming her right to stay in Moscow, which had expired. The policemen took her to a police station. At the moment of the arrest she had been nervous and aggressive. They had decided to search her bag because such an action “was compatible with the law”. P. further explained that he had stopped the applicant “because it had been unclear where she had been going to”, because she had “resembled a girl from a wanted persons’ notice”, and because she was “a person of Caucasian ethnicity [that is to say from the North Caucasus region]”. P. also stated that the expiry of her registration had been sufficient reason to apprehend the applicant. He further testified that they had been routinely searching all people with expired registration. 32. S. gave similar testimony. He added that the applicant had been walking fast and that she had started to threaten the police officers with disciplinary sanctions when they had stopped her. 33. B. testified that they had decided to stop the applicant because she had been wearing black and was of “Caucasian ethnic origin”. He added that the applicant’s appearance had matched the description of someone on their wanted persons notice. He also testified that the applicant had had her bag with her up until the moment of her undergoing a personal search at the police station. 34. The court also questioned the police officers who had been on duty at the Prospekt Vernadskogo police station on the day of the applicant’s arrest. 35. I. testified that she had searched the applicant in the presence of two attesting witnesses and had found two square yellow objects wrapped in the aluminum foil in her bag, which had been later confirmed to be explosives. The applicant’s fingerprints had been taken only once – after the objects had been discovered in her bag. 36. Ke. testified that before the search the applicant had had all her personal belongings with her and that it had taken approximately twenty minutes before the start of the search to find attesting witnesses who had been invited to observe the personal search. 37. The applicant stated that the transcripts of the video tapes recorded in the flat by the police and read out in court had not been accurate and that she had requested the tapes to be played during the hearing. The court granted her request. It does not transpire from the trial transcript that the applicant submitted any requests or complaints concerning the quality of the tapes or the manner in which the tapes had been shown. 38. The applicant’s lawyers requested the court to summon police officer A. for questioning. They did not submit any reasons for their request. However, the court refused their request because at that time A. had left Moscow for a work mission. 39. According to the applicant, the court had not tried to verify whether or not A. was indeed on a mission and whether or not it would be possible to question him upon his return. 40. As can be seen from the transcript of the hearing, the applicant and her lawyers did not object to the record of the questioning of A. at the pretrial stage being read in the hearing. 41. The applicant further requested the court to question two attesting witnesses, B. and K., who had been present while she had been searched at the police station. 42. However, the court refused to call them. As can be seen from the documents in the case file, the court decided that the attesting witnesses would in any case be unable to confirm the applicant’s allegations because the applicant herself had claimed that the explosives had been planted before the arrival of the attesting witnesses. 43. After four days of trial hearings the judge asked the parties whether they wished to close the examination of evidence and proceed to the pleadings, in the absence of those witnesses who had not appeared. The parties agreed to proceed to the pleadings. 44. During the proceedings the court admitted the following material as evidence: 45. The court examined and dismissed the applicant’s claim that the explosives had been planted on her. The court referred to the testimony of the patrol officers and the officers of the police station, who had denied those allegations, and to the fact that according to the official report the personal search of the applicant had preceded the taking of her fingerprints, and there had been no evidence that the fingerprints had been taken twice, as the applicant suggested. 46. The court further found that the applicant must have drafted the text of the handwritten note herself and that she had not copied it from Islamist websites on the Internet, as she had claimed, since the note had contained modifications and corrections. 47. On 17 January 2005 the court convicted the applicant of preparing an act of terrorism (an explosion), inciting others to commit an act of terrorism, and carrying explosives, and sentenced her to nine years’ imprisonment. 48. The applicant and her lawyers appealed against her conviction. In the statement of appeal they complained, inter alia, that only one out of sixteen surveillance videotapes had been shown in the hearing and that for “technical reasons” the applicant had not been able to point out inaccuracies between the transcripts and the recordings of conversations on the videotapes. They further complained that the court had unreasonably refused their request to be allowed to question police officer A. and that there had been no documents in the case file showing that A. had been away on a work-related mission at the time of the hearing. Moreover, the court should have called the attesting witnesses, B. and K., because they could have testified about the circumstances preceding the personal search of the applicant in the police station. 49. On 17 March 2005 the Supreme Court of Russia upheld the judgment, reducing the applicant’s sentence to eight years and six months. 50. The Supreme Court held that the videotape had been shown at the request of the defence and that no objections or complaints had been lodged with the court after the videotape had been played, including that not all of the videotapes had been shown. 51. The Supreme Court further considered that the questioning of A. had not been possible due to his absence on a work-related mission and that his pre-trial statement had been read out with the consent of the defence. As for two attesting witnesses B. and K., their personal appearance had not been necessary since the applicant claimed that the explosives had been planted in her bag before their arrival. In any event, the defence agreed to proceed to the closing arguments and had not had any objections or additional requests about the examination of the applicant’s case. | 0 |
test | 001-172361 | ENG | ARM | COMMITTEE | 2,017 | CASE OF AVAKEMYAN 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);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Access to court) | Aleš Pejchal;Armen Harutyunyan;Ledi Bianku | 5. The applicant was born in 1947 and lives in Yerevan. 6. On an unspecified date the applicant brought a claim in the Arabkir and Kanaker-Zeytun District Court of Yerevan against K., a private individual, seeking payment of a certain amount of money. It appears that before the beginning of the court’s examination of the case the applicant and K. concluded an agreement to settle the debt, which envisaged, inter alia, a time-frame for payment. 7. On 3 May 2005 the District Court delivered a judgment upholding the settlement. It also stated that bailiffs would enforce the judgment if it was not complied with. No appeal was lodged and the judgment became final. 8. As K. did not comply with the terms of the settlement, the District Court issued a writ of execution and on 13 June 2005 a bailiff instituted enforcement proceedings. According to the applicant, the bailiff found no funds or property belonging to K. during the enforcement procedure. 9. By a letter of 7 June 2007 the bailiff informed the applicant that he had found out during the enforcement proceedings that K. had inherited a house but had not registered her ownership of it. The bailiff advised the applicant to institute proceedings against K. in order to have her ownership of the house recognised. 10. It appears that later in 2007 the applicant brought a claim in the Arabkir and Kanaker-Zeytun District Court to have K.’s ownership of the house recognised. 11. On 24 October 2007 the District Court, relying on Article 1225 § 5 of the Civil Code, granted the applicant’s claim and recognised K. as the owner of the house in question. There was no appeal and the judgment became final. 12. On 19 November 2007 the bailiff, acting on a writ of execution issued by the District Court, instituted proceedings to enforce the judgment of 24 October 2007. 13. On 22 November 2007 the bailiff requested that the State Committee of the Real Estate Registry recognise K.’s ownership of the house, register it and issue a copy of the ownership certificate. 14. In reply, the Real Estate Registry on 4 December 2007 informed the bailiff that in order to register K.’s rights to the house it needed an application from K., the original of the District Court’s judgment of 24 October 2007 and receipts for the State fee and other related payments. It also mentioned that K. was unlawfully occupying a plot of land whose status was unclear. 15. On 8 February, 4 July and 4 August 2008 respectively, the bailiff made similar requests to the Real Estate Registry in which he stated, with reference to section 22 of the Law on the State Registration of Property Rights, that an application from K. was not required. He also stated that the issue of registration-related payments would be decided upon initiation of the registration process and that receipts would be submitted. 16. In 2008 the applicant brought a claim in the Administrative Court against the Real Estate Registry and the bailiff, seeking to oblige them respectively to register K.’s ownership of the house and to confiscate it from her. 17. On 1 December 2008 the Administrative Court granted the applicant’s claim by ordering the Real Estate Registry to register K.’s rights to the house and the bailiff to confiscate it from her. In particular, the Administrative Court found that both the refusal of the Real Estate Registry to register K.’s ownership rights and the non-enforcement by the bailiff of the judgment of 3 May 2005 owing to a lack of funds on the part of K. had been groundless as K.’s ownership of the house had been recognised by the final court judgment of 24 October 2007. It appears that no appeal was lodged against the Administrative Court’s judgment and it became final. 18. According to the applicant, none of the three court judgments was enforced. 19. On 18 February 2010 the applicant sought the payment of interest by K. via a claim in the District Court. On 1 March 2011 the District Court accepted his claim and ordered K. to pay him 17,727 US dollars (USD), to be converted into Armenian drams. The judgment became final on 1 April 2011. The applicant sought enforcement of the judgment on 2 April 2012 but was refused by the bailiff since he had failed to act within the time-limit of one year starting from the final judgment. That term had expired on 1 April 2012. Moreover, the applicant had also failed to submit a power of attorney to the bailiff. 20. On 10 February 2012 K. submitted a receipt for the payment of the debt to the bailiff and he terminated the enforcement proceedings on 13 February 2012. | 1 |
test | 001-150429 | ENG | ROU | ADMISSIBILITY | 2,014 | POPA v. ROMANIA | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Nicolae Popa, is a Romanian national who was born in 1955 and lives in Orşova. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. By an order issued on 19 June 2001 the applicant was discharged from the position of deputy chief of the Caraş Severin Border Police Department. The discharge order was not communicated to him. 4. From July 2001, the applicant began to submit letters to different authorities asking to be sent a copy of the order and contesting the discharge measure. 5. On 11 February 2002, the applicant lodged an action with the domestic courts seeking the withdrawal of the discharge order of 19 June 2001 and the recalculation of his salary rights. 6. After a first set of proceedings, by a judgment of 30 July 2005 the Mehedinţi County Court dismissed the applicant’s action on the ground that it had not been lodged within thirty days of the communication of the order, as required by law. It held that the applicant’s enquiries to the authorities proved that he had become aware of the discharge order more than thirty days before lodging his action. 7. The applicant lodged an appeal on points of law on the ground that the order of 19 June 2001 had never been communicated to him, and stated that in his letters to the authorities he had in fact been requesting them to communicate to him the reasons for his discharge. Moreover, the authority that had issued the order had an obligation to prove that it had communicated such reasons to him, which it had not done. 8. On 22 March 2006, the Craiova Court of Appeal dismissed the appeal. It found that the applicable legislation was section 5 of the Administrative Litigation Act (Law no. 29/1990). The relevant excerpts of its decision read as follow: « The applicant was discharged by Order no. 231645 of 19 June 2001... On 9 September 2001 the applicant complained of [his discharge] to the Ministry of the Interior. On page 3 of his written complaint (memoriu) he claimed to have been unjustly discharged, which proves that the applicant was already aware of the order on 9 September 2001. The time-limit for administrative complaint (contestare pe cale administrativă) runs from this date. Having in mind the date on which the applicant was aware of the content of Order no. 231645/19 June 2001, more precisely on 9 September 2001 at the latest, the firstinstance court correctly allowed the exception and found that the action was lodged out of time ... The applicable legal norm ... is section 5 of Law no. 29/1990. According to section 5 paragraphs 1 and 2 of Law no. 29/1990, an individual who is deemed to have suffered as a result of an administrative act ... is to address himself to the administrative litigation tribunal within thirty days of the communication of the decision or within thirty days of the expiry of the time-limit for the administrative complaint (contestaţia administrativă). Therefore, [the applicant] should have lodged the action on 10 November 2001 at the latest.” 9. The relevant provisions of the Administrative Litigation Act, in force at the material time, read as follows: “(1) Every individual or legal person who considers that his or her rights recognised by law have been prejudiced by an administrative act or by the unjustified refusal of a public authority to resolve an issue related to a right recognised by law may address himself to the competent court to seek the quashing or withdrawal of the act, the recognition of the right that is claimed, or the reparation of the damage thus caused. (2) If the public authority does not respond to the petitioner within thirty days of the registration of the claim, unless the law sets a different time-limit, this is also considered to be an unjustified refusal to solve a request related to a right recognised by law.” “(1) Before requesting the courts to quash or withdraw an act or to render its delivery mandatory, the person who is deemed to have suffered damage shall address himself to the authority that issued it [the act], within thirty days of the communication of the administrative act or within thirty days of the expiry of the time-limit set out in section 1 paragraph 2; the authority that issued the act must resolve the claim within thirty days. (2) If the person who is deemed to have suffered damage is not satisfied with the resolution of his or her claim, he or she can address the courts within thirty days of communication of the outcome ... (4) The courts may be addressed even when the administrative authority that issued the act or its hierarchical superior have not resolved the claim within the timelimit set out in paragraph 1. (5) In all instances, the courts may be addressed no later than one year from the day of the communication of the act in question.” “The petitioner shall simultaneously attach the contested administrative act or, as the case may be, the response of the administrative authority which communicated the refusal to resolve the claim (which is related to a right recognised by law). If the claimant does not receive a response, he or she shall attach a copy of the request, certified for conformity ...” | 0 |
test | 001-145784 | ENG | RUS | CHAMBER | 2,014 | CASE OF NEMTSOV v. RUSSIA | 4 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);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) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 6. The applicant was born in 1959 and lives in Moscow. He is a professional politician who has held in the past the posts of Nizhniy Novgorod governor, Deputy Prime Minister, and Minister for Energy. He later became one of the best-known opposition leaders, a founder of the political party the Union of Right Forces, and subsequently of the political movement Solidarnost. 7. On 10 December 2010 eight individuals, none of whom are applicants in the present case, submitted notice of a public demonstration to the mayor of Moscow. They indicated, in particular, that a meeting would be held from 6 p.m. to 7.30 p.m. on Triumfalnaya Square, Moscow. They estimated that about 1,500 people would take part in the event. The notice stated that the proposed demonstration was intended “to demand respect for the constitutional right to peaceful demonstration and assembly guaranteed by Article 31 of the Constitution of the Russian Federation”. The organisers indicated, inter alia, that it would not be necessary to divert the traffic. 8. On 22 December 2010 the Moscow Government’s Department for Liaison with Security Authorities informed the organisers that the event had been approved by the deputy mayor of Moscow. The number of participants had been limited to 1,000, and a particular sector of Triumfalnaya Square had been designated for the event: “in the area between the First and the Second Brestskaya Streets, opposite the Pekin Hotel and the adjacent road leading to the Tchaikovsky Concert Hall”. 9. In the meantime, on 16 December 2010 another group of three individuals, none of whom are applicants in the present case, submitted notice of an alternative public demonstration to the mayor of Moscow, at the same time and place as the authorised event and with the same title. It appears that this second public demonstration was not authorised, but on 22 December 2010 a number of alternatives as to the time and place were offered to the organisers. Moreover, none of its organisers could go to the venue on 31 December 2010 because two of them had been arrested earlier on the same day; the third had been abroad. 10. The authorised meeting began at 6 p.m. on 31 December 2010 at Triumfalnaya Square, as planned. According to the applicant, the perimeter of the square was cordoned off and was guarded by the riot police. The only access to the meeting venue was at Tverskaya Street. The applicant claimed that he had arrived at the meeting with his daughter; he had parked his car at Tverskaya Street and they had entered Triumfalnaya Square from Tverskaya Street through the only opening in the cordon. 11. During the meeting the applicant addressed the participants with a speech in which he criticised the criminal conviction of Mikhail Khodorkovskiy, the former owner of the Yukos oil company, and Platon Lebedev, his associate. He also condemned the corruption in the State administration. He chanted the slogans “The authorities to resign!”, “Putin to resign!”, “Happy New Year without Putin!” 12. At the end of the meeting the applicant, accompanied by his daughter, headed across Triumfalnaya Square towards Tverskaya Street. At the exit he saw the riot police arresting one of the participants in the demonstration. Shortly afterwards the applicant was also arrested and put into a police vehicle. 13. The parties disagreed as to the circumstances of the applicant’s arrest. 14. The applicant claimed that on the way to his car his passage had been obstructed by police officers and he and his daughter had found themselves in a crowd. They heard the police instruction over a loudspeaker calling for people to stay calm and to pass through. The applicant saw two people being arrested and put in police vans, and then he was arrested too, without any warning or explanation. The applicant claimed that he had not disobeyed or resisted the police; on the contrary, he had followed their instructions “to pass through”. He had been arrested by an officer who had been wearing a fur hat, an indication of his higher rank, as opposed to the crash helmets worn by the riot police troops guarding the cordon. 15. The applicant alleged that there existed at least three video recordings of his arrest, including the events immediately leading up to it; they had been produced by two media channels and one independent photographer, Mr T. He also maintained that there existed an official video of the public demonstration and the ensuing arrests, which had allegedly been shot by the police and kept at the Moscow Department of the Interior. 16. According to the Government, at the end of the meeting the applicant had headed towards Tverskaya Street and had begun calling passers-by to take part in another, unauthorised, meeting while shouting out anti-government slogans. They alleged that two police officers, Sergeant X and Private Y, had warned the applicant; they had ordered him to stop agitating the crowd and to return to the authorised meeting. They further contended that the applicant had ignored the warning and had continued shouting out the slogans and disobeying the police. Confronted with this behaviour, X and Y arrested him. 17. At 7 p.m. on the same day the applicant was taken to the police station of the Tverskoy District Department of the Interior. At 7.10 p.m. Private Y drew up a report stating that the applicant had been escorted to the police station “in order to draw up the administrative material”. Also at 7.10 p.m., the on-duty police officer drew up a report on the applicant’s administrative arrest under Article 27.3 of the Code of Administrative Offences, stating, like the other report, that he had been arrested “in order to draw up the administrative material”. The applicant signed both reports, indicating his disagreement with their content. 18. Both X and Y produced identical duty reports stating, in so far as relevant, as follows: “... on 31 December 2010 at 18.30 Boris Yefimovich Nemtsov was apprehended [because] he had disobeyed a lawful order of the police in connection with [X and Y] performing [their] duty of maintaining public order and safeguarding the public. He (Nemtsov) stood at 31 Tverskaya Street and began to shout “Down with Putin!”, “Russia without Putin!” as well as insults to President Medvedev, catching people’s attention and calling them to come to the Mayakovskiy monument for a meeting. [X and Y] approached Nemtsov, introduced themselves and warned him that it was unacceptable to hold a meeting at Triumfalnaya Square. They invited him to proceed to the authorised event that was taking place between the First and the Second Brestskaya Streets, opposite the Pekin Hotel. Nemtsov did not react and continued to shout out slogans and call people to hold a meeting. Nemtsov deliberately refused to comply with the lawful orders to cease his actions breaching public order, and continued them ostentatiously. To prevent him from organising an unauthorised meeting at Triumfalnaya Square and to prevent the unlawful acts, he was invited to enter a police van. In response to [these] lawful orders to enter the police van, Nemtsov began to break loose. He pushed us away and shouted insults to us: “Down with the police state!”, “Free-for-all cops!”, attempting to cause mayhem among the citizens surrounding him. By doing so he demonstrated his refusal to carry out the lawful order of the police and prevented them from carrying out their duty, thus committing an offence under Article 19.3 of the Code of Administrative Offences”. 19. At 7.30 p.m. X and Y made witness statements, essentially copying the text of their duty reports. 20. At the same time the district police inspector drew up a report on the administrative offence, stating that the applicant had disobeyed a lawful order of the police in breach of Article 19.3 of the Code of Administrative Offences. The applicant signed that report with the remark “100% lies”. 21. On the same day the head of the same police station issued a decision to transfer the administrative case file to the Justice of the Peace. 22. On the same day at about 7.15 p.m. the NTV television channel reported on the series of arrests following the demonstration at Triumfalnaya Square. Police Colonel B. commented on the applicant’s arrest, stating that he had been arrested for instigating an unauthorised meeting. 23. The applicant remained in detention at the police station until 2 January 2011, pending the determination of the charges against him. 24. The applicant described the conditions of his detention at the police station as extremely poor. He was detained in a solitary cell measuring 1.5 by 3 metres, with a concrete floor, without windows and with very bleak artificial lighting, which was insufficient for reading. The cell was not equipped with ventilation or furniture, except for a narrow wooden bench without a mattress or any bedding. The walls in the cell had been coated with “shuba”, a sort of abrasive concrete lining. The cell was not equipped with a lavatory or wash basin. The applicant had been obliged to call the wardens to take him to the lavatory when they were available. He was not provided with food or drink; he received only the food and drinking water that was passed to him by his family. 25. The Government submitted that from 31 December 2010 to 10 a.m. on 2 January 2011 the applicant had been detained in an administrativedetention cell measuring 5.6 sq. m equipped with artificial lighting and mandatory ventilation. They claimed that the applicant had been provided with drinking water and food, as well as with a sleeping place and bedding, but had refused to take them because he had received everything necessary from his family and friends. 26. On 1 January 2011 two members of a public commission for the monitoring of detention facilities visited the police station to check the conditions of the applicant’s detention. Their report stated that the applicant had been detained in a cell without a window, which was poorly lit, lacked ventilation and had no sanitary facilities, sleeping place, mattress or bedding. They found that the cell was not adequate for a two-day confinement and noted that the applicant had not been receiving hot food. 27. On 2 January 2011, following his conviction for an administrative offence, the applicant was transferred to another detention facility until 15 January 2011. 28. The applicant claimed that the poor conditions of detention had had a negative impact on his health. He submitted a medical certificate indicating that between 3 and 12 January 2011 he had sought medical assistance every day. 29. On 2 January 2011 the Justice of the Peace of circuit no. 369 of Tverskoy District of Moscow scheduled the hearing of the applicant’s case to take place on the same day. 30. At 11.30 a.m. the applicant was brought before the Justice of the Peace, who examined the charges. 31. In the courtroom the applicant discovered that there was no seat for him and he remained standing during the hearing, which lasted for over five hours. The parties disagreed as to the reasons why the applicant had remained standing. According to the applicant, the Justice of the Peace had ordered him to stand. The Government contested that allegation and claimed that the Justice of the Peace had repeatedly asked if anyone in the audience could give their seat to the applicant, but the applicant and his counsel had objected and insisted that he remain standing. 32. The applicant claimed that standing throughout the trial had been humiliating and physically difficult, especially after having spent two days in detention in poor conditions. He also alleged that it had prevented him from participating effectively in the proceedings because he could only address the judge in writing and had been obliged to write his submissions while standing up. This had further aggravated his fatigue and hampered the conduct of his defence. 33. The applicant pleaded not guilty and claimed that he had been detained for no reason other than political oppression. He contested the content of the police reports, in particular the statement that the police had given him a warning or an order which he could have disobeyed. 34. At the hearing the applicant lodged a number of motions. He requested in particular that the court admit as evidence the video footage of his arrest broadcast by two media channels. He also requested that the recording made by Mr T., an independent photographer, be admitted as evidence (see paragraph 15 above). 35. The applicant also requested that the court obtain from the prosecution the video recording made by the Moscow police at the scene of the public demonstration. 36. The applicant further requested that the court call and cross-examine Police Colonel B. about the circumstances of the applicant’s arrest, which he had commented on in the media (see paragraph 22 above). 37. The Justice of the Peace dismissed the applicant’s request to admit the video recordings on the grounds that the provenance of the recordings was not supported by evidence. The court also refused to order that the video recording made by the police be admitted as evidence, stating that the applicant’s request was not “specific enough” and that the applicant had failed to prove the existence of any such recordings. Lastly, the court refused to call and examine Police Colonel B. as a witness, having considered that request irrelevant. 38. At the applicant’s request the court called and examined thirteen witnesses who had been at the scene of the authorised demonstration. They testified that they had heard the applicant addressing the meeting and that after his speech he had said farewell and left; he had not made any calls to go on to another meeting. Six of those witnesses testified that they had left the meeting at the same time as the applicant and had witnessed his arrest. They explained that the exit from the meeting had been blocked by the riot police and the crowd had begun to build up because those who wanted to leave Triumfalnaya Square could not do so. When the applicant arrived at the cordon the police surrounded him so as to separate him from others wanting to leave the meeting, and arrested him. Eight witnesses stated that the applicant had not been shouting any slogans and had not been acting against the police orders before being surrounded and arrested. One of those witnesses, M.T., stated that she had heard the applicant asking the riot police why the exit had been blocked. She had also heard him shouting that Article 31 of the Constitution guaranteed the freedom of assembly, but he had not shouted any calls or obscenities. The remaining witnesses had not seen the actual arrest. In particular, the applicant’s daughter and her friend testified that they had been walking back to the car with the applicant and talking about the plans for New Year’s eve, and when they had arrived at the police cordon they had lost sight of the applicant in the crowd; one or two minutes later they had called him on his mobile phone and had found out that he had been arrested. 39. The court called and examined two policemen, sergeant X and private Y, who had signed the reports stating that they had arrested the applicant because he had disobeyed their orders. They testified that on 31 December 2010 they had been on duty maintaining public order at Triumfalnaya Square. They had seen the applicant at 31 Tverskaya Street. He had been shouting anti-government slogans and calling people around him to hold an unauthorised meeting. They had approached the applicant and requested him to stop agitating outside the authorised meeting; they had asked him to return to the place allocated for the meeting and to speak there. The applicant had not reacted to their requests, so they had asked him to proceed to the police van. The applicant had disobeyed that order and had been arrested; he had put up resistance while being arrested. 40. On the same day the Justice of the Peace found that the applicant had disobeyed the police orders to stop chanting anti-government slogans and had resisted lawful arrest. The Justice of the Peace based her findings on the witness statements of X and Y, their written reports of 31 December 2010, their written statements of the same date, the report on the administrative arrest of the same date, the notice of the public demonstration of 16 December 2010 and the reply of 22 December 2010 indicating that it had not been authorised (it appears that this reference concerned the events described in paragraph 9 above). The Justice of the Peace dismissed the applicant’s testimony on the grounds that as a defendant, he would have sought to exonerate himself from administrative liability. She also dismissed the testimonies of seven eyewitnesses on the grounds that they had contradicted the policemen’s testimonies and because those witnesses had been acquainted with the applicant, had taken part in the same demonstration and therefore must have been biased towards the applicant. The testimonies of the remaining six witnesses were dismissed as irrelevant. 41. The applicant was found guilty of having disobeyed a lawful order of the police, in breach of Article 19.3 of the Code of Administrative Offences. He was sentenced to fifteen days’ administrative detention. 42. On 3 January 2011 the applicant wrote an appeal against the judgment and submitted it to the detention facility administration unit. It appears that despite his counsel’s numerous attempts to lodge the appeal directly with the court, it was not accepted before 9 January 2011. On 11 January 2011 his counsel submitted a supplement to the points of appeal. 43. In his appeal the applicant claimed that his arrest and conviction for the administrative offence had been in breach of the domestic law and in violation of the Convention. He alleged that his right to freedom of expression and freedom of assembly had been violated. He contested the findings of fact made by the first instance as regards his conduct after he had left the meeting. He challenged, in particular, the court’s refusal to admit the photographic and video materials as evidence or to obtain the footage of the demonstration shot by the police. In addition, he complained about the manner in which the first-instance hearing had been conducted. In particular, he alleged that the Justice of the Peace had ordered him to stand throughout the hearing, which had been humiliating and had made it difficult to participate in the proceedings. The applicant also complained about the conditions of his detention at the police station from 31 December 2010 to 2 January 2011. 44. On 12 January 2011 the Tverskoy District Court examined the appeal. At the applicant’s request the court kept the verbatim records of the hearing. 45. During the appeal hearing the applicant complained of the alleged unlawfulness of his arrest and the poor conditions of his detention at the police station. He asked the court to declare the acts of the police who had detained him for over forty hours before bringing him before a court unlawful. 46. As regards the merits of the administrative charges, the applicant reiterated before the appeal instance his requests that the court admit three video recordings of his arrest as evidence and that it obtain the video recording made by the Moscow police. He also requested that two photographs of his arrest be admitted as evidence. He asked the court to call and examine photographers T. and V. as witnesses and to cross-examine police officers X and Y again. The court granted the requests to admit one video recording and two photographs as evidence, and decided to call and examine photographer T. as a witness, but rejected all the other requests. 47. Photographer T. testified at the hearing that he had gone to the meeting to film it and had been waiting for the applicant at the exit from the meeting because he had wanted to interview him. When the applicant approached the exit a big group of policemen rushed over to block his way and there had been a minute’s pause when a crowd began to build up against the cordon, blocking the passage. Then one person was arrested, and about thirty seconds later someone else, and then the applicant. T. saw the applicant’s arrest as he was filming it from a distance of about five or six metres. He was separated from the applicant by several rows of people, of which two rows consisted of policemen. The recording began a few minutes before the arrest and continued without any interruption until the applicant had been put in the police van. He specified that the applicant had not put up any resistance to the officers arresting him. He identified on the photograph the officer wearing a fur hat, who had arrested the applicant, and explained that that person had taken the applicant out of the crowd and then passed him on to another policeman in order to put the applicant into the police van. He also stated that the applicant had not shouted any slogans or insults. The applicant had repeated “Easy, easy” to the policemen while being escorted to the van. T. also testified that the applicant had been standing throughout the first-instance hearing, while his counsel had been sitting on a chair. 48. The court watched the video recording made by T. However, it decided not to take cognisance of T.’s testimonies, his recording or the photograph, on the following grounds: “... the footage begins with the image of a large number of people gathered at 31 Tverskaya Street in Moscow, with Mr Nemtsov at the centre. A policeman addresses the citizens through a loudspeaker with a request to disperse and not to block the passage, but Mr Nemtsov remains standing in one place addressing the gathered citizens. The video operator is at such a distance from the applicant that he is separated from him by several rows of people, including the gathered citizens and the riot police, and it is impossible to understand what these citizens and the applicant are saying. Subsequently the recording of the applicant is interrupted as the camera points away onto the policemen putting the first arrested person, and then another one, into the police vans. Only afterwards does the video recording show the applicant being led to a police van by policemen, and he puts up no resistance at this moment of the footage. In this respect, and taking into account that the footage does not show Mr Nemtsov’s actions immediately before his placement in the police van, the video and the accompanying audio do not depict Mr Nemtsov addressing the citizens before he was detained. The court concludes that the submitted footage does not refute the testimonies of the policemen, and [T.’s] testimony cannot refute them either because he observed only those actions of Mr Nemtsov that appear on the footage. ... The photographs submitted during the appeal hearing that depict Mr Nemtsov surrounded by policemen, one of whom is supporting his arm, cannot be considered by the court as refuting the event of the offence or the evidence, including the testimonies of [X and Y], because of the absence of information on the exact time of its taking, or on its connection with the place ... ” 49. On the same day the court dismissed the applicant’s appeal and upheld the first-instance judgment. It found, in particular, on the basis of the testimonies and reports of X and Y, that the applicant had indeed been guilty of having disobeyed a lawful order of the police. It upheld the reasoning of the first-instance court whereby it rejected the testimonies of thirteen witnesses called at the applicant’s request. As regards the testimonies of X and Y, on the other hand, it found no reason to mistrust them because they had had no personal interest in the outcome of the applicant’s case. 50. In its appeal decision the court addressed the lawfulness of the applicant’s detention pending the first-instance trial and considered that there had been no breach: “... after the report on the administrative offence had been drawn up, the information necessary for establishing the circumstances of the committed offence was collected, including the explanations of [X and Y], the notice of the place of the public demonstration of 31 December 2010, the [mayor’s] reply to that notice, as well as the personal characteristics of the person in relation to whom the administrative offence report had been drawn up. A ruling was made by the Justice of the Peace of 2 September 2010 convicting the applicant of an offence under Article 19.3 of the Code of Administrative Offences. Therefore the applicant’s detention during less than 48 hours was not in breach of Article 27.5 § 2 of the Code of Administrative Offences.” 51. As regards the conditions of the applicant’s detention between 31 December 2010 and 2 January 2011, the court found that his complaints had been outside the scope of the current proceedings, holding that another type of legal action should have been brought by the applicant to challenge those acts. The court did not specify what procedure the applicant should have followed as an avenue for those complaints. 52. On 31 March 2011 the applicant lodged before the Tverskoy District Court a complaint under Chapter 25 of the Code of Civil Procedure. He challenged his initial arrest and complained of the poor conditions of detention for over forty hours. 53. On 4 April 2011 the court refused to accept the applicant’s action, holding that the questions concerning the lawfulness of the police acts had to be examined in the relevant administrative proceedings, but could not be dealt with in civil proceedings. 54. On 14 April 2011 the applicant appealed against the refusal to accept his complaint. The Moscow City Court dismissed his appeal on 22 July 2011. It relied, in particular, on Ruling no. 2 of 10 February 2009 by the Plenary Supreme Court of the Russian Federation and held, in so far as relevant, as follows: “... the courts may not examine complaints lodged under Chapter 25 of the Code of Civil Procedure against acts or inaction connected with the application of the Code of Administrative Offences, Chapter 30 of which provides for the procedure for challenging them; or acts or inaction for which the Code of Administrative Offences does not provide for a procedure by which they may be challenged. Acts or inaction that are inseparable from the administrative case may not be subject to a separate challenge (evidence in the case, [including] reports on the application of precautionary measures to secure the course of justice in the administrative case). In this case the arguments against the admissibility of a particular piece of evidence or the application of a precautionary measure to secure the course of justice may be put forward during the hearing of the administrative case or in points of appeal against the judgment or ruling on the administrative case. However, if the proceedings in the administrative case are terminated, the acts committed in the course of these proceedings, if they entailed a breach of an individual’s or a legal person’s rights or freedoms, or hindered the exercise of their rights and freedoms, or imposed an obligation after the proceedings had been terminated, [they] may be challenged under Chapter 25 of the Code of Civil Procedure. Under the same procedure one may challenge the acts of officials if no administrative file has been opened.” 55. The applicant also attempted to challenge the acts of the judiciary involved in his case before the Judiciary Qualification Board of Moscow. His attempts were, however, unsuccessful. | 1 |
test | 001-158235 | ENG | CHE | GRANDCHAMBER | 2,015 | CASE OF PERİNÇEK v. SWITZERLAND | 1 | Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Dean Spielmann;Egidijus Kūris;Guido Raimondi;Helen Keller;Helena Jäderblom;Ján Šikuta;Johannes Silvis;Josep Casadevall;Linos-Alexandre Sicilianos;Mark Villiger;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Paulo Pinto De Albuquerque;Peer Lorenzen;Stefan Trechsel;Vincent A. De Gaetano | 10. The applicant was born in 1942 and lives in Ankara. 11. He is a doctor of laws and chairman of the Turkish Workers’ Party. 12. In 2005 the applicant took part in three public events in Switzerland. 13. The first was a press conference held in front of the Château d’Ouchy in Lausanne (Canton of Vaud) on 7 May 2005. In the course of that press conference, he made the following statement in Turkish: “Let me say to European public opinion from Bern and Lausanne: the allegations of the ‘Armenian genocide’ are an international lie. Can an international lie exist? Yes, once Hitler was the master of such lies; now it’s the imperialists of the USA and EU! Documents from not only Turkish but also Russian archives refute these international liars. The documents show that imperialists from the West and from Tsarist Russia were responsible for the situation boiling over between Muslims and Armenians. The Great Powers, which wanted to divide the Ottoman Empire, provoked a section of the Armenians, with whom we had lived in peace for centuries, and incited them to violence. The Turks and Kurds defended their homeland from these attacks. It should not be forgotten that Hitler used the same methods – that is to say, exploiting ethnic groups and communities – to divide up countries for his own imperialistic designs, with peoples killing one another. The lie of the ‘Armenian genocide’ was first invented in 1915 by the imperialists of England, France and Tsarist Russia, who wanted to divide the Ottoman Empire during the First World War. As Chamberlain later admitted, this was war propaganda. ... The USA occupied and divided Iraq with the Gulf Wars between 1991 and 2003, creating a puppet State in the north. They then added the oilfields of Kirkuk to this State. Today, Turkey is required to act as the guardian of this puppet State. We are faced with imperialist encirclement. The lies about the ‘Armenian genocide’ and the pressure linked to the Aegean and Cyprus are interdependent and designed to divide us and take us hostage. ... The fact that successive decisions have been taken that even refer to our liberation war as a ‘crime of humanity’ shows that the USA and EU have included the Armenian question among their strategies for Asia and the Middle East ... For their campaign of lies about the ‘Armenian genocide’, the USA and EU have manipulated people with Turkish identity cards. In particular, certain historians have been bought and journalists hired by the American and German secret services to be transported from one conference to another. ... Don’t believe the Hitler-style lies such as that of the ‘Armenian genocide’. Seek the truth like Galileo, and stand up for it.” 14. The second event was a conference held in the Hilton hotel in Opfikon (Canton of Zürich) on 22 July 2005 to commemorate the 1923 Treaty of Lausanne (Treaty of Peace signed at Lausanne on 24 July 1923 between the British Empire, France, Italy, Japan, Greece, Romania and the Serb-Croat-Slovene State, on the one part, and Turkey, on the other part, 28 League of Nations Treaty Series 11). In the course of that conference, the applicant spoke first in Turkish and then in German, and said the following: “The Kurdish problem and the Armenian problem were therefore, above all, not a problem and, above all, did not even exist ...” 15. After that, the applicant handed out copies of a tract written by him, entitled “The Great Powers and the Armenian question”, in which he denied that the events of 1915 and the following years had constituted genocide. 16. The third event was a rally of the Turkish Workers’ Party held in Köniz (Canton of Bern) on 18 September 2005. In the course of that rally, the applicant made the following statement in German: “ ... even Lenin, Stalin and other leaders of the Soviet revolution wrote about the Armenian question. They said in their reports that no genocide of the Armenian people had been carried out by the Turkish authorities. This statement was not intended as propaganda at the time. In secret reports the Soviet leaders said – this is very important – and the Soviet archives confirm that at that time there were occurrences of ethnic conflict, slaughter and massacres between Armenians and Muslims. But Turkey was on the side of those defending their homeland and the Armenians were on the side of the imperialist powers and their instruments ... and we call on Bern, the Swiss National Council and all parties of Switzerland: Please take an interest in the truth and leave these prejudices behind. That is my observation, and I have read every article about the Armenian question and these are merely prejudices. Please leave these prejudices behind and join (??), what he said about these prejudices, and this is the truth, there was no genocide of the Armenians in 1915. It was a battle between peoples and we suffered many casualties ... the Russian officers at the time were very disappointed because the Armenian troops carried out massacres of the Turks and Muslims. These truths were told by a Russian commander ...” 17. On 15 July 2005 the Switzerland-Armenia Association lodged a criminal complaint against the applicant on account of the first of the above-mentioned statements. The investigation was then expanded to cover the other two oral statements as well. On 23 July 2005 the applicant was interviewed by the Winterthur public prosecutor in relation to the statement that he had made in the Hilton hotel in Opfikon. On 20 September 2005 he was interviewed by a cantonal investigating judge in the Canton of Vaud. 18. On 27 April 2006, considering that the three statements made by the applicant fell within the ambit of Article 261 bis § 4 of the Criminal Code (see paragraph 32 below), the competent cantonal investigating judge of the Canton of Vaud decided to commit the applicant for trial. 19. The trial took place before the Lausanne District Police Court on 6 and 8 March 2007. 20. On 6 March 2007 the court heard the applicant, the public prosecutor, and the Switzerland-Armenia Association, which had been constituted civil party. The court then went on to hear six professional historians – one American, three French, one German and one British – and one sociologist that the parties had called to give evidence. 21. On 8 March 2007 counsel for the applicant asked the court to gather further evidence in relation to the events of 1915 and the following years. The court rejected the request, holding that it was dilatory and would lead to an adjournment of the proceedings. More importantly, it was not necessary to take more evidence on this point, given that these events had been analysed by “hundreds of historians for decades” and had been the “object of innumerable publications”. The court had already heard such evidence by the historians called by the applicant and the civil party, which they regarded as the most competent in relation to this topic. It would therefore be superfluous to take further evidence in relation to it. 22. On 9 March 2007 the Lausanne District Police Court found the applicant guilty of the offence under Article 261 bis § 4 of the Criminal Code (see paragraph 32 below) and ordered him to pay ninety day-fines of 100 Swiss francs (CHF – 62 euros (EUR) at that time) each, suspended for two years, a fine of CHF 3,000 (EUR 1,859 at that time), which could be replaced by thirty days’ imprisonment, and the sum of CHF 1,000 (EUR 620 at that time) in compensation to the Switzerland-Armenia Association for non-pecuniary damage. The court held: “I. The defendant Dogu Perinçek was born in Gaziantep, Turkey on 17 June 1942. He is a Turkish politician resident in that country. After some ten months’ manual employment in Germany, between 1962 and 1963, he studied law at the University of Ankara and was awarded his doctorate in 1968. He is the founder of an extreme left-wing journal. In 1969, he founded the Revolutionary Worker-Peasant Party of Turkey. Dogu Perinçek can be defined as a left-wing extremist and a follower of Lenin or Mao. He spent several years in prison in the 1980s on account of his political views. He is currently the General Chairman of the Turkish Workers’ Party, which represents 0.5% of the Turkish electorate. Dogu Perinçek describes himself as a cultivated person with a very good knowledge of history. He speaks fluent German. In his personal life, the defendant is married and the father of four children, three of whom are adults. He states that he earns about CHF 3,000.00 per month. Part of his income comes from royalties and an old-age pension. He also benefits from his wife’s income. He states that his financial situation is healthy. He has never had a criminal conviction in Switzerland. No account will be taken of his criminal convictions in Turkey because, to the Court’s knowledge, they relate to political offences. It may also be noted that the European Court of Human Rights has found against Turkey on two occasions in cases concerning the defendant. He will therefore be treated as a person being prosecuted for the first time. II. The facts and the law This case does not, in itself, present any factual problems. To simplify matters, a copy of the committal order made by the cantonal investigating judge on 27 April 2006, which specifies that Dogu Perinçek was committed for trial in this court following an adversarial hearing, and not in absentia, as the indictment indicates, can be appended to this judgment. On 7 May 2005 in Lausanne, then on 18 September 2005 in Köniz, BE, Dogu Perinçek stated publicly that the Armenian genocide was an international lie. The defendant also acknowledges that on 22 July 2005 he stated in connection with the Armenian genocide that the problem of the Armenians, like that of the Kurds, had never been a problem and that it (the genocide) had never existed (paragraph 2 of the committal order). There is no dispute as to the facts since Dogu Perinçek admits to denying the Armenian genocide. He therefore comes within the scope of Article 261 bis of the Criminal Code, under which he is charged. Dogu Perinçek acknowledges that massacres took place but justifies them in the name of the laws of war and maintains that the massacres were perpetrated by the Armenian as well as by the Turkish side. He also acknowledges that the Turkish Ottoman Empire moved thousands of Armenians from the borders of Russia towards what are now Syria and Iraq, but denies totally the genocidal nature of these deportations. He maintains that at most these deportations reflected security needs. He has even claimed that the Ottoman troops were acting to protect the Armenians in the conflict between the Ottoman Empire and Russia. Moreover, he has often stated in public that the Armenians, or at least some of them, were traitors, as they were allied to the Russians against the troops of the Empire. The defendant has received varying degrees of support for his opinions from the historians whom he called to give evidence to the court. The historians called by the civil party have disagreed totally with him. In this context, it should be noted that in response to Dogu Perinçek’s comments, the Switzerland-Armenia Association filed a complaint against him on 15 July 2005. The association’s civil-party claims will be considered later. Like the parties, the Court recognises that denying the existence of a massacre as such, however large-scale, is not in itself covered by Article 261 bis of the Criminal Code. As the law clearly states, it has to concern a genocide as defined by, for example, the International Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide and Article 6 of the Rome Statute. In its submissions, the defence maintained that when it drew up Article 261 bis of the Criminal Code, Parliament only had in mind the genocide of the Jews in the Second World War. The defence also argued that to be entitled to the protection of Article 261 bis, a genocide must necessarily be recognised as such by an international court of justice. It stressed that the Armenian genocide had not been universally recognised, in particular not by Turkey, and that certain historians shared Dogu Perinçek’s opinions. It concluded, first, that as the situation was unclear and, second and above all, that as the genocide of the Armenians had not been recognised by an international court of justice, Dogu Perinçek’s denial of the Armenian genocide could not come within the scope of Article 261 bis of the Criminal Code. It told the Court that the latter could not act as historian and noted in that particular regard that it had made an interlocutory application during the hearing for the Court to establish a neutral committee of historians to investigate whether or not the 1915-17 massacres had constituted a genocide. The civil party and the prosecution contend that it is a sufficient and necessary condition that a genocide be widely recognised and that it is for the Court to take formal note of this international recognition. It does not have to transform itself into a self-taught historian. The courts rule on the facts and the law. The civil party and the prosecution consider that the Armenian genocide is a well-known fact, whether or not it has been recognised by an international court of justice. The opposing parties at least agree on one point, namely that it is not for the Court to write history. The Court is of the same opinion as all the parties. There will not therefore be any gaps in this judgment if it does not refer to the views of the historians who have given evidence to the Court or to the exhibits produced by the civil party or the defence. The first question that has to be asked is therefore whether the genocides acknowledged by Swiss criminal law are confined to those recognised by an international court of justice. The Court has several means at its disposal for answering this question. From the standpoint of a literal interpretation, Article 261 bis of the Criminal Code refers only to genocide. It does not, for example, refer to ‘a genocide recognised by an international court of justice’. Nor does it specify ‘the genocide of the Jews, to the exclusion of the genocide of the Armenians’. Is this an omission of Parliament? The historical interpretation that is also available to the Court provides the answer. According to the Official Gazette of the National Council, the legislators referred explicitly to the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948 and quoted, by way of example, the genocide of the Kurds and the Armenians (BO/CN [Official Gazette/National Council] 1993, p. 1076). From a historical standpoint, therefore, it can be inferred that Parliament took the Armenian genocide as an example when drafting Article 261 bis of the Criminal Code (Combi report). It must therefore be recognised that the legislators did not simply have the genocide of the Jews in mind when they drew up Article 261 bis. By referring explicitly to the genocide of the Armenians and the Kurds, Parliament also wished to show that it was not necessary for the genocide to be recognised by an international court of justice. As noted, there was an explicit reference to the Convention against Genocide of 9 December 1948. Legal theorists support this view. For example, according to Corboz (Bernard Corboz, Les infractions en droit Suisse, vol. II, p. 304), the genocide must be established. It can be inferred from this statement that it is necessary and sufficient for the genocide to be recognised, without necessarily having been granted recognition by an international court or any other supranational body likely to be binding on the courts (an example might be a commission of historians with internationally acknowledged expertise). According to Trechsel (Stefan Trechsel, Kurzkommentar, ad Article 261 bis no. 35), in the context of genocide denial, German legal theory openly acknowledges the ‘Auschwitz lie’, but the denial of another genocide is also covered by Article 261 bis of the Criminal Code. In his thesis, Alexandre Guyaz reaches the same conclusion (Alexandre Guyaz, L’incrimination de la discrimination raciale, thesis, Lausanne, 1996 p. 300). The following extract may be cited: ‘Criminal law embodies here a broader approach to revisionism, since Article 261 bis § 4 is not confined to denial of crimes against humanity committed by the National Socialist regime. This wide scope has been confirmed unequivocally by the National Council, which, at second reading, amended the French text by replacing the term ‘the genocide’ with ‘a genocide’, thereby alluding to all genocides that might unfortunately take place’. It is therefore both necessary and sufficient for a genocide to have taken place. But this genocide must be known and recognised: Corboz refers to an established genocide (Corboz, op. cit.). What then of the situation in our country? With regard to Switzerland, the Court notes that the National Council has approved a non-binding parliamentary motion (postulat) recognising the genocide (the Buman motion). The motion was approved on 16 December 2003. As noted earlier, the Armenian genocide served as a basis for the drafting of Article 261 bis of the Criminal Code (Combi report). The parliamentary motion was approved against the advice of the Federal Council, which apparently considered that the matter should be the preserve of historians. Yet it was this same Federal Council that expressly cited the Armenian genocide in its dispatch of 31 March 1999 on the Convention on the Prevention and Punishment of the Crime of Genocide, which was to serve as the basis of the current Article 264 of the Criminal Code criminalising genocide (Feuille fédérale [“FF” – Federal Gazette], 1999, pp. 4911 et seq.). The University of Lausanne has used the Armenian genocide as an example in a published work on humanitarian law. School history textbooks deal with the genocide of the Armenians. It may also be pointed out that the governments of Vaud and Geneva have recognised the Armenian genocide: on 5 July 2005 for the Canton of Vaud and on 25 June 1998 for the Republic and Canton of Geneva, whose President was Micheline Calmy-Rey, our current Minister for Foreign Affairs. This rapid overview enables the Court to conclude that the Armenian genocide is an established historical fact according to Swiss public opinion. The current position of the Federal Council, characterised by extreme caution when it is not inconsistent, changes absolutely nothing. It is easy to understand why a government prefers not to become involved in particularly sensitive issues. The international repercussions which this case has had are noteworthy. Looking beyond our frontiers, several countries, including France, have recognised the Armenian genocide. To take just the example of France, according to Yves Ternon, the Act of 29 January 2001 was based on the opinion of a group of some hundred historians. In item 15 of the defence’s list no. 1, Jean-Baptiste Racine, in his book on the Armenian genocide, says that States’ recognition has often been in response to initiatives taken by the academic community. These decisions are not, therefore, taken lightly, particularly since recognition of the Armenian genocide can adversely affect an individual country’s relations with Turkey. The Armenian genocide has also been recognised by international bodies. Admittedly, it has received very little prominence in the United Nations. The only really significant reference to the event is in the Whitaker report (Jean-Baptiste Racine, op cit., p. 73 item 96). The European Parliament, on the other hand, first started to consider the Armenian issue in 1981. The relevant committee rapporteur, whose report, according to Jean-Baptiste Racine, was meticulously argued and documented, said that: ‘The events of which the Armenians of Turkey were victims during the war years of 1915-17 must be considered a genocide according to the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.’ On 18 June 1987, the European Parliament finally adopted a resolution recognising the Armenian genocide. This genocide has also been recognised by the Council of Europe. For information, the Council of Europe has some fifty member States. It is dedicated to defending the values of democracy and human rights. Its headquarters in Strasbourg is also the seat of the European Court of Human Rights, which is responsible for applying the 1950 Convention of the same name (on all these matters, see Jean-Baptiste Racine, op. cit. pp. 66 et seq.). It must therefore be acknowledged that the Armenian genocide is an established historical fact. It then has to be asked whether Dogu Perinçek acted intentionally. This amounts to asking whether he could have believed, in good faith, that he was not acting wrongfully, in other words that he was not denying the obvious when stating, on no fewer than three occasions, that the Armenian genocide had not existed, and that it was an ‘international lie’. Dogu Perinçek has acknowledged during the investigation and at the trial that he knew that Switzerland, like many other countries, recognised the Armenian genocide. Moreover, he would never have described it as an ‘international lie’ if he had not known that the international community did indeed consider these events to be a genocide. He even stated that he considered the Swiss law to be unconstitutional. The defendant is a doctor of laws. He is a politician. He describes himself as a writer and historian. He is aware of the arguments of those who disagree with him. He has quite simply chosen to ignore them and proclaim that the Armenian genocide never took place. Dogu Perinçek cannot therefore claim, or believe, that the genocide did not exist. Moreover, as the Public Prosecutor stated in his address, Dogu Perinçek has formally stated that he would never change his position, even if a neutral panel should one day conclude that the Armenian genocide did indeed take place stance. It can be concluded, without question, that for the defendant genocide denial is, if not an article of faith, at least a political slogan with distinct nationalist overtones. Legal theory is unanimous in considering that there has to be a racist motive. It is clear that Dogu Perinçek’s motives appear to be racist and nationalistic. This is a very long way from historical debate. As noted by the prosecution, Dogu Perinçek speaks of an imperialist plot to undermine Turkey’s greatness. To justify the massacres, he resorts to the laws of war. He has described the Armenians as being the aggressors of the Turkish people. He is a follower of Talaat Pasha – the defendant is a member of the eponymous committee – who, together with his two brothers, was historically the initiator, instigator and driving force of the Armenian genocide. Dogu Perinçek meets all the subjective and objective conditions required by Article 261 bis of the Criminal Code. He must be found guilty of racial discrimination. III. The penalty Dogu Perinçek appears to be an intelligent and cultivated person, which makes his stubbornness all the less understandable. He is a provocateur. He has displayed a certain arrogance towards the Court in particular, and towards Swiss laws in general. He is unable to adduce any attenuating circumstances. There are multiple offences because the defendant has discriminated against the Armenian people, by denying their tragic history, on three occasions in three different places. His mode of action amounts to that of an agitator. The terms used, such as international lie, are particularly virulent. Under these circumstances, the Court agrees with the prosecution that a sentence of ninety days is an appropriate penalty for the conduct of the defendant. In his address, the Public Prosecutor proposed that the day-fine be set at CHF 100.00. It was noted in the section on personal information that Dogu Perinçek’s financial situation was healthy. CHF 3,000.00 is undoubtedly a good salary in Turkey. The defendant was able to entrust his defence to counsel of his choice. He travelled from Turkey to Switzerland and during the several days of the trial stayed in the Beau-Rivage Palace (p. 61). All this reveals a certain measure of affluence and the proposed sum of CHF 100.00 is far from excessive. Under the law as it formerly stood, the Court would have been unable to make a favourable assessment of Dogu Perinçek’s future conduct. Nowadays, suspended terms of imprisonment are the norm, in the absence of any particularly unfavourable circumstances, which is not the case here. Dogu Perinçek is a foreigner in our country. He will return to his own land. He was formally warned by the Court that if he persisted in denying the Armenian genocide he could be liable to another criminal investigation and risk a further conviction with the possibility, crucially, of the suspension of his sentence being revoked. It considers that this threat should alone be sufficient to deter the defendant from reoffending, so the fine that it orders to be paid will be accompanied by a suspended term of imprisonment. He will be given a substitute fine of CHF 3,000.00 as a significant immediate penalty, the equivalent of 30 days’ imprisonment. IV. Civil law claims and costs The Switzerland-Armenia Association, through its counsel, seeks CHF 10,000.00 in compensation for non-pecuniary damage and the same sum for costs incurred in the criminal proceedings. In accordance with its articles of association and the law (Article 49 of the Code of Obligations) the Switzerland-Armenia Association is entitled to claim compensation for non-pecuniary damage. It is difficult to award an association compensation of this sort because, by definition, legal entities are devoid of feelings. The Court will therefore confine itself to awarding a token sum of CHF 1,000.00 as compensation. The case was sufficiently complex to justify the involvement of counsel. In view of the amount of work performed by this professional officer, the Court will award a sum of CHF 10,000.00 to the civil party as a contribution to its counsel’s fees. It is not appropriate to award these sums personally to Sarkis Shahinian, who is the association’s representative. Dogu Perinçek will meet all the costs of the case.” 23. The applicant appealed against that judgment, seeking to have it set aside and additional investigative measures taken to establish the state of research and the position of historians on the events of 1915 and the following years. The Switzerland-Armenia association also appealed, but later withdrew its appeal. 24. On 13 June 2007 the Criminal Cassation Division of the Vaud Cantonal Court dismissed the appeal in the following terms: “... C. Dogu Perinçek has duly appealed against the original judgment. As his main submission, he has appealed on grounds of nullity and applied to have additional investigative measures taken with a view to establishing the current state of research and the position of historians on the Armenian question. In the alternative, he has lodged an ordinary appeal, seeking to have the judgment varied so as to clear him of the charge of racial discrimination under Article 261 bis § 4, second sentence, of the Criminal Code, exempt him from paying costs and discharge him of any obligation to pay the complainant and the civil party compensation or criminal costs. The Switzerland-Armenia Association, which had also appealed, has withdrawn its appeal and has now filed a memorial. The law 1. Since the appellant’s submissions include both an appeal on grounds of nullity and an ordinary appeal, the Court of Cassation must determine the order in which the grounds relied on should be examined, according to their particular nature and the issues raised (Bersier, Le recours à la Cour de cassation pénale du Tribunal cantonal en procédure vaudoise, in JT 1996 III 66 et seq., esp. pp. 106 et seq. and the references cited; Besse-Matile and Abravanel, Aperçu de jurisprudence sur les voies de recours à la Cour de cassation pénale du Tribunal cantonal vaudois, in JT 1989 III 98 et seq., esp. p. 99 and the references cited). In support of his grounds of nullity, the appellant alleges a violation of Article 411, letters (f), (g), (h) and (i) of the Code of Criminal Procedure. These provisions concern grounds of nullity that justify setting the decision aside only if the irregularity found has influenced or could influence the judgment (Bersier, op. cit., p. 78). Normal practice is for the ordinary grounds of appeal to be examined before the related grounds of nullity (Bovay, Dupuis, Moreillon, Piguet, Procédure pénale vaudoise, Code annoté, Lausanne 2004, no. 1.4. ad Article 411). The grounds of nullity raised by the appellant mainly concern factual matters that must only be considered if they are relevant to the legal outcome. In this particular case, the Court should first consider the ordinary grounds of appeal, namely the meaning and scope of Article 261 bis of the Criminal Code, and determine whether, in this particular context, the lower court may, exceptionally, make a historical judgment (see Chaix and Bertossa, La répression de la discrimination raciale: Loi d’exception? in SJ 2002 p. 177, esp. p. 184). I Ordinary appeal 2. (a) The appellant objects to the first-instance court’s application of Article 261 bis of the Criminal Code. He submits, firstly, that it is for the courts to perform the task of a historian and as such to determine whether an Armenian genocide took place before applying Article 261 bis. In his view such a genocide has not been established. He therefore considers that the Court has misinterpreted the notion of genocide and the scope of Article 261 bis in this regard. (b) According to Article 261 bis of the Criminal Code, an offence is committed by any person who publicly denigrates or discriminates against a person or group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether through words, written material, images, gestures, acts of aggression or other means, or any person who on the same grounds denies, grossly trivialises or seeks to justify a genocide or other crimes against humanity. Article 261 bis of the Criminal Code enshrines in domestic law the undertakings entered into by Switzerland when it signed the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (‘the CERD’), which came into force on 29 December 1994 (RS [Recueil systématique – Compendium of Federal Law] 0.104; Favre, Pellet, Stoudmann, Code pénal annoté, 2nd edition, Lausanne 2004, no. 1.1. ad Article 261 bis of the Criminal Code). The fact that Article 261 bis of the Criminal Code is based on a convention reflects the current trend to incorporate the provisions of international treaties into domestic law. However, what sets the anti-racist legislation apart is the fact that the national parliament decided that, in the case of genocide and other crimes against humanity, the law should go beyond the minimum standards set by the CERD (Chaix and Bertossa, op. cit., esp. p. 179). (c) The notion of genocide is now defined by Article 264 of the Criminal Code. Courts responsible for applying Article 261 bis of the Criminal Code must be guided by this definition, derived from the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948. However, their task is to punish not the genocide in question but persons who deny its existence (Chaix et Bertossa, op. cit., esp. p. 183). In connection with the scope of the notion of genocide, several writers note that the Federal Council’s memorandum only refers to the genocide of the Jews during the Second World War (FF 1992 III 308; Chaix and Bertossa, op. cit., esp. p. 183). However, Parliament has clearly incorporated a broader concept of revisionism into Article 261 bis of the Criminal Code that is not confined to the denial of crimes against humanity committed by the National-Socialist regime. This extended scope was unequivocally confirmed by the National Council, which, on second reading, corrected the French text by replacing the words ‘the genocide’ with ‘a genocide’ (Guyaz, L’incrimination de la discrimination raciale, thesis 1996, p. 300). Parliament justified this change by arguing that the legislation must apply to all cases of genocide that might unfortunately take place, and citing as an example the massacre of the Armenians (BO/CN 1993, p. 1076). Historically, therefore, Parliament did not intend to restrict the application of Article 261 bis of the Criminal Code to the genocide of the Jews. By accepting the change to the wording, it indicated that it should apply to all genocides, in particular that of the Armenians. In the case of the Armenian genocide, therefore, the courts are not required to rely on the work of historians to acknowledge its existence, since this particular case is specifically covered by the legislation and the intentions of those who enacted it, on the same basis as the genocide of the Jews in the Second World War. It must therefore be recognised that the Armenian genocide is deemed to be an established fact. (d) In this case, the lower court stated explicitly that it did not intend to act as a historian, even though it did wander into this territory by attempting to assess the general opinion of institutions in Switzerland and abroad on this subject. It was unnecessary for it to do so since all that counts is the will of Parliament, which stated clearly in the preparatory debates that the wording of Article 261 bis of the Criminal Code covered the Armenian genocide. It is therefore wrong for the appellant to state, with reference to the Federal Council’s memorandum (FF 1992 III 308), that it is not established that the wording of Article 261 bis of the Criminal Code was such as to include the Armenian genocide. Nor is the case-law of the Federal Court decisive since every case so far where the subject has arisen has concerned the Jews of the Second World War and associated revisionism. In the final analysis, since the Armenian genocide is acknowledged by Parliament itself to be an established fact, there is nothing exceptional about this case that would call for additional investigative measures and a historical approach to assess whether a genocide had taken place. The ground of appeal based on the meaning and scope of the notion of genocide must be dismissed as ill-founded. 3. (a) To be an offence, the conduct criminalised in Article 261 bis of the Criminal Code must be intentional and motivated by hatred or racial discrimination; it is sufficient to have behaved recklessly (ATF 124 IV 125 point 2b, 123 IV 210 point 4c). According to Corboz, the discrimination requirement has to be interpreted strictly: the act must mainly reflect the state of mind of the perpetrator, who hates or despises the members of another race, ethnic group or religion. Article 261 bis must not be applied in the case of objective academic research or serious political debates that are devoid of animosity or racial prejudice (Corboz, Les infractions de droit suisse, Volume II, Bern 2002, note 37 on Article 261 bis of the Criminal Code). (b) In this case, the appellant tries to explain the positions he holds in terms of the debate between historians, which necessitates respect for freedom of expression. He also maintains that he has simply denied that the events in question constituted genocide, without ever disputing the existence of massacres and deportations of Armenians, which he justifies by the laws of war. This argument relates to the subjective aspect of the offence, but is vitiated by the fact that he coupled the term genocide with that of ‘international lie’, which the lower court described as particularly virulent. It should be noted in this regard that the statements in question were made at public meetings with strong nationalist overtones that bore little relation to serious historical debates devoid of racist prejudices. On these occasions, the accused, who describes himself as a writer and historian, quite simply dismissed his opponents’ arguments and announced that the Armenian genocide had never existed. The appellant, who is aware of the widespread acceptance of this proposition, was merely seeking to make a political rather than a historical point, as he claimed, and it was not by chance that these statements were made at meetings to commemorate the 1923 Treaty of Lausanne. This Court must therefore agree with the lower court’s finding that the motives of the accused were racist and nationalistic. In the final analysis, the objection is not just to his rejection of the use of the term genocide but also to the way it was expressed and the associated texts cited, all of which mean that Dogu Perinçek explicitly and intentionally denied a historical fact regarded as established, namely the Armenian genocide, and did so on several occasions without displaying any inclination to alter his point of view. This ground must be dismissed as ill-founded. 4. (a) The appellant asks to be exempted from any obligations to pay compensation for non-pecuniary damage. (b) Under Article 49 § 1 of the Code of Obligations, any person whose personality rights have been illegally violated can claim financial compensation for non-pecuniary damage, if this is justified by the severity of the violation and the perpetrator has not provided an alternative form of satisfaction. Pursuant to this Article, the violation must be in excess of what a person should normally bear, from the standpoint of the length or the intensity of the suffering caused (Bücher, Personnes physiques et protection de la personnalité, 4th edition, Basel, Geneva, Munich 1999, no. 603, p. 141; Tercier. op. cit., nos. 2047 et seq., pp. 270 et seq.; Deschenaux and Tercier, op. cit., no. 24 et seq., p. 93). The amount of the compensation depends mainly on the severity of the violation – or, more specifically, on the severity of the physical or psychological suffering caused by the violation – and the likelihood that the payment of a sum of money will significantly reduce the resulting non-pecuniary damage (ATF 125 III 269, point 2a: ATF 118 II 410, point 2a). The courts have discretion to determine the level of compensation. By its very nature, compensation for non-pecuniary injury, to which a simple monetary value can only be ascribed with great difficulty, cannot be determined by reference to mathematical criteria, to ensure that the assessed amount does not exceed a certain level; however, the compensation awarded must be equitable. The relevant court will therefore ensure that the amount reflects the severity of the damage suffered and that the sum awarded does not appear derisory to the victim (ATF 125 III 269, previously cited; ATF [118] II 410, previously cited). The level of compensation for non-pecuniary damage is a matter for federal law, and one which this Court is therefore free to examine (Article 415 §§ 1 and 3 and Article 447 § 1 of the Code of Criminal Procedure). Since the outcome is to a large extent dependent on an assessment of the circumstances, the appeal court must only intervene with restraint, in particular when the lower court has misused its discretion by basing its decision on considerations that are unrelated to the applicable provision, by failing to take account of relevant information or by setting a level of compensation that is inequitable because it is manifestly too low or too high (ATF 126 III 269, cited above; ATF 118 II [410], cited above). However, since this is a question of equity – and not one of exercise of discretion in the strict sense of the term, which would limit its power of review to abuse or excess of discretion – the appeal court is free to decide whether the sum awarded takes sufficient account of the severity of the violation or whether it is disproportionate to the intensity of the non-pecuniary damage suffered by the victim (ATF 125 III 269, cited above; ATF 123 III 10, point 4c/aa; ATF 118 II [410], cited above). (c) In this case, the appellant was found guilty of racial discrimination, for which he therefore incurs civil liability. The lower court considered that it was difficult to award an association compensation of the order of CHF 10,000 for non-pecuniary damage because, by definition, legal entities are devoid of feelings. It therefore reduced the complainant’s claim and awarded it a symbolic sum of CHF 1,000 in compensation. This assessment is not arbitrary and the sum awarded is appropriate. This ground, and the entire ordinary appeal, must be dismissed as ill-founded. 5. (a) The appellant seeks to be exempted from any obligations to pay criminal costs. (b) The complainant is a civil party as a matter of law (Article 94 of the Code of Criminal Procedure). The costs which civil parties may claim under Article 97 of the Code of Criminal Procedure are awarded according to the principle laid down in Article 163 § 2 of the [Code], which provides that the rules relating to expenses are applicable by analogy. The right to costs is enshrined in the cantonal procedural legislation. According to the case-law, civil parties are, in principle, only eligible for costs if the accused has received a sentence or been ordered to pay damages (JT 1961 III 9). The lower court has discretion to set the level of the costs payable to the civil party, and the Court of Cassation only intervenes in this decision in the event of a manifestly incorrect application of the law or a misuse of discretion, particularly regarding the level of the costs awarded (JT 1965 III 81). (c) In this particular case, an examination of the case file shows that all the necessary conditions were met for the award of costs for criminal expenses incurred. The lower court noted that the case was sufficiently complex to justify the presence of a lawyer and awarded the Switzerland-Armenia Association CHF 10,000 towards its criminal costs. In view of the amount of work performed by the lawyer, the court did not exceed its discretion. This ground, and the entire appeal on points of law, must be dismissed as ill-founded. II. Appeal on grounds of nullity 1. Alleging a violation of Article 411, letters (f), (g), (h) and (i) of the Code of Criminal Procedure, the appellant submits that the judgment has an inadequate factual basis because the court failed to take account of the documents produced and the evidence of certain historians. He also maintains that there were doubts about the facts of the case, or indeed an arbitrary assessment of the evidence in connection with the citing of certain historical works on the massacre of the Armenians. Finally, he bases his appeal on grounds of nullity on the fact that the court dismissed an interlocutory application for additional investigative measures to obtain documents and information aimed at clarifying the Armenian situation in 1915 and determining whether or not the term genocide could be used. These grounds must be dismissed since they are solely concerned with questions of fact whose resolution would not be likely to influence the judgment (Bersier, op. cit., p. 78), It is not necessary for the courts to act as a historian on the question of the Armenian genocide, since the parliamentary debates show that its existence is considered to be established (see point 2 (c) above). The appeal on grounds of nullity must be dismissed as ill-founded. 2. In the final analysis, the appeal is ill-founded, both on grounds of nullity and as an ordinary appeal. It must therefore be dismissed in its entirety. Given the outcome of the appeal, the appellant shall pay the costs at second instance.” 25. The applicant appealed against that judgment to the Swiss Federal Court, seeking to have the judgment set aside so that he would be cleared of all criminal charges and civil liability. In substance, he argued that, for the purposes of applying Article 261 bis § 4 of the Swiss Criminal Code and examining the alleged violation of his fundamental rights, the cantonal courts had not carried out a sufficient examination of whether the factual circumstances had been such as to warrant classifying the events of 1915 and the following years as genocide. 26. In a judgment of 12 December 2007 (6B_398/2007), the Swiss Federal Court dismissed the appeal in the following terms: “3.1. Article 261 bis § 4 of the Criminal Code punishes conduct on the part of anyone who publicly denigrates or discriminates against a person or group of persons on the grounds of their race, ethnic origin or religion in a manner that violates human dignity, whether through words, written material, images, gestures, acts of aggression or any other means, or who on the same grounds denies, grossly trivialises or seeks to justify a genocide or other crimes against humanity. An initial literal and grammatical approach shows that the wording of the law (through the use of the indefinite article ‘a genocide’ [‘un génocide’]) makes no explicit reference to any specific historical event. The law therefore does not preclude punishment of denial of genocides other than that perpetrated by the Nazi regime; nor does it explicitly classify denial of the Armenian genocide as an act of racial discrimination under criminal law. 3.2. Article 261 bis § 4 of the Criminal Code was enacted when Switzerland acceded to the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965 (RS [Recueil systématique – Compendium of Federal Law] 0.104). The wording initially proposed in the Bill tabled by the Federal Council did not refer specifically to genocide denial (see FF 1992 III 326). The offence of revisionism, or Holocaust denial, was intended to be included within the constituent element of dishonouring the memory of a deceased person, appearing in the fourth paragraph of the draft Article 261 bis of the Criminal Code (Memorandum by the Federal Council of 2 March 1992 concerning Switzerland’s accession to the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and the corresponding revision of criminal law; FF 1992 III 265 et seq., specifically 308 et seq.). The memorandum does not contain any specific reference to the events of 1915. During the parliamentary debates, the National Council’s Legal Affairs Committee proposed inserting the following wording in Article 261 bis § 4 of the Criminal Code: ‘... or who on the same grounds grossly trivialises or seeks to excuse genocide or other crimes against humanity’ ... The Committee’s French-language rapporteur, National Councillor Comby, explained that there was a discrepancy between the German and French versions, pointing out that the wording was obviously referring to any genocide and not only the Holocaust (BO/CN 1992 II 2675 et seq.). The National Council nevertheless adopted the Committee’s proposal as it stood (BO/CN 1992 II 2676). Before the Council of States, the proposal by the latter’s Legal Affairs Committee to maintain the wording of Article 261 bis § 4 of the Criminal Code approved by the National Council was set against a proposal by Mr Küchler, which did not, however, call into question the phrase ‘or who on the same grounds denies, grossly trivialises or seeks to justify genocide or other crimes against humanity’ (BO/CE [Official Gazette/Council of States] 1993 96; as to the scope of this proposal, see ATF [Judgments of the Swiss Federal Court] 123 IV 202, point 3c, p. 208, and Poncet, ibid.). That proposal was adopted without any more detailed reference being made to denial of the Armenian genocide during the debate. During the elimination of divergences, the National Council’s Legal Affairs Committee proposed, through Mr Comby, that the amendments inserted by the Council of States be adopted, with the exception of the fourth paragraph, where the Committee proposed the wording ‘a genocide’, by way of reference to any that might occur. The French-language rapporteur observed that some people had mentioned massacres of Kurds or other populations, for example Armenians, and that all these genocides should be covered (BO/CN 1993 I 1075 et seq.). Further brief comments were made in relation to the definition of genocide and how a Turkish citizen might refer to the Armenian tragedy, and it was also observed that the Committee did not intend the provision to apply to one particular genocide alone but to all genocides, for example in Bosnia and Herzegovina (BO/CN 1993 I 1077; statement by Ms Grendelmeier). The National Council ultimately adopted the following wording of paragraph 4: ‘... or any other means, violates the human dignity of a person or group of persons on the grounds of their race, ethnic origin or religion, or who on the same grounds denies, grossly trivialises or seeks to justify a genocide...’ (BO/CN 1993 I 1080). In the subsequent parliamentary proceedings, the Council of States maintained its position, adopting the wording ‘a genocide’ (‘un génocide’) as a simple editorial amendment in the French version, and the National Council eventually endorsed the Council of States’ decision, without any further reference being made to denial of the Armenian genocide (BO/CN 1993 I 1300, 1451; BO/CE 1993 452, 579). It is therefore clear from the above-mentioned parliamentary proceedings that Article 261 bis § 4 of the Criminal Code does not apply exclusively to denial of Nazi crimes but also to other genocides. ... 3.4. However, these parliamentary proceedings cannot be interpreted as meaning that the criminal-law provision in question applies to certain specific genocides which the legislature had in mind at the time of enacting it, as is suggested by the judgment appealed against. 3.4.1. The desire to combat negationist and revisionist opinions in relation to the Holocaust was, admittedly, a central factor in the drafting of Article 261 bis § 4 of the Criminal Code. In its case-law, however, the Federal Court has held that Holocaust denial objectively constitutes the factual element of the offence provided for in Article 261 bis § 4 of the Criminal Code since it concerns a historical fact that is generally acknowledged as established (ATF 129 IV 95, point 3.4.4, pp. 104 et seq.), although the judgment in question makes no reference to the historical intention of the legislature. Similarly, many authors have viewed the Holocaust as a matter of common knowledge for the criminal courts (Vest, Delikte gegen den öffentlichen Frieden, note 93, p. 157), as an indisputable historical fact (Rom, op. cit., p. 140), or as a classification (‘genocide’) that is beyond doubt (Niggli, Discrimination raciale, note 972, p. 259, who simply notes that this genocide was what prompted the introduction of the provision in question; to similar effect, see Guyaz, op. cit., p. 305). Only a few voices have referred to the intention of the legislature to recognise it as a historical fact (see, for example, Ulrich Weder, Schweizerisches Strafgesetzbuch, Kommentar (ed. Andreas Donatsch), Zürich 2006, Article 261 bis § 4, p. 327; Chaix/Bertossa, op. cit., p. 184). 3.4.2. The process of ascertaining what genocides the legislature had in mind when formulating the provision is, moreover, thwarted by a literal interpretation (see point 3.1 above), which clearly shows the legislature’s intention to favour an open-ended wording of the law in this regard, as opposed to the technique of ‘memorial’ laws such as those passed in France (Law no. 90-615 of 13 July 1990, known as the ‘Gayssot Act’; Law no. 2001-434 of 21 May 2001 on recognition of trafficking and slavery as a crime against humanity, known as the ‘Taubira Act’; Law no. 2001-70 of 29 January 2001 on recognition of the 1915 Armenian genocide). The fact that Holocaust denial constitutes a criminal offence under Article 261 bis § 4 of the Criminal Code therefore stems less from the legislature’s specific intention to outlaw negationism and revisionism when it formulated this rule of criminal law than from the observation that there is a very general consensus on this matter, to which the legislature undoubtedly had regard. Nor is there, accordingly, any reason to determine whether the legislature was guided by any such intention regarding the Armenian genocide (contrast Niggli, Rassendiskriminierung, 2nd ed., Zürich 2007, note 1445 et seq., pp. 447 et seq.). Indeed, it should be noted in this connection that while certain aspects of the wording prompted fierce discussion among the members of Parliament, the categorisation of the events of 1915 did not give rise to any debate in this context, and was ultimately mentioned by only two speakers in justifying the adoption of a French version of Article 261 bis § 4 of the Criminal Code that did not allow an excessively restrictive interpretation of the text, which did not follow from the German version. 3.4.3. Legal writers and the courts have, moreover, inferred from the well-known, undeniable or indisputable character of the Holocaust that proof of it is no longer required in criminal proceedings (Vest, ibid.; Schleiminger, op. cit., Article 261 bis § 4 of the Criminal Code, note 60). Hence there is no need for the courts to have recourse to the work of historians on this matter (Chaix/Bertossa, ibid.; unreported judgment 6S.698/2001, point 2.1). As a further consequence, the basis thus determined for the criminalisation of Holocaust denial dictates the method which the courts must adopt in considering the denial of other genocides. The first question arising is therefore whether there is a comparable consensus regarding the events denied by the appellant. 4. The question thus raised relates to findings of fact. It is less directly concerned with the assessment of whether the massacres and deportations attributed to the Ottoman Empire are to be characterised as genocide than with the general assessment of this characterisation, both among the public and within the community of historians. This is how we are to understand the approach adopted by the Police Court, which emphasised that its task was not to write history but to determine whether the genocide in question was ‘known and acknowledged’ or indeed ‘proven’ (see the judgment, point II, p. 14) before forming its opinion on this latter factual issue (judgment, point II, p. 17), which forms an integral part of the Cantonal Court’s judgment (Cantonal Court judgment, point B, p. 2). 4.1. A factual finding of this nature is binding on the Federal Court ... 4.2. As regards the decisive factual issue, the Police Court not only based its opinion on the existence of political declarations of recognition, but it also pointed out that the opinion of the authorities issuing such declarations had been formed on the basis of expert opinion (for example, a panel of approximately one hundred historians in the case of the French National Assembly when it passed the Law of 29 January 2001) or reports described as cogently argued and substantiated (European Parliament). Thus, as well as relying on the existence of political recognition, this line of argument notes the existence in practice of a broad consensus within the community, which is reflected in the political declarations and is itself based on a wide academic consensus as to the classification of the events of 1915 as genocide. It may also be noted, in the same vein, that during the debate leading to the official recognition of the Armenian genocide by the National Council, reference was made to the international research published under the title Der Völkermord an den Armeniern und die Shoah (BO/CN 2003 2017; statement by Mr Lang). Lastly, the Armenian genocide is portrayed as one of the ‘classic’ examples in general literature on international criminal law, or on genocide research (see Marcel Alexander Niggli, Rassendiskriminierung, note 1418 et seq., p. 440, and the numerous references cited therein; see also note 1441, p. 446, and references). 4.3. To the extent that the appellant’s submissions seek to deny the existence of a genocide or the legal characterisation of the events of 1915 as genocide – in particular by pointing to the lack of a judgment from an international court or specialist commission, or the lack of irrefutable evidence proving that the facts correspond to the objective and subjective requirements laid down in Article 264 of the Criminal Code or in the 1948 UN Convention, and by arguing that to date, there have been only three internationally recognised genocides – they are irrelevant to the determination of the case, seeing that it is necessary in the first place to establish whether there is enough of a general consensus, especially among historians, to exclude the underlying historical debate as to the classification of the events of 1915 as genocide from the criminal proceedings concerning the application of Article 261 bis § 4 of the Criminal Code. The same applies in so far as the appellant is accusing the Cantonal Court of having acted arbitrarily by not examining the pleas of nullity raised in the cantonal appeal in relation to the same facts and the investigative measures he had sought. It is therefore unnecessary to examine his submissions except to the extent that they relate specifically to the establishment of such a consensus. 4.4. The appellant observes that he has sought further investigative measures to ascertain the current state of research and the current position of historians worldwide on the Armenian question. His submissions also appear at times to suggest that he believes there to be no unanimity or consensus among either States or historians as to the classification of the events of 1915 as genocide. However, his arguments are limited to setting his own opinion against that of the cantonal authority. In particular, he does not cite any specific evidence showing that the consensus found by the Police Court does not exist, let alone that that court’s finding is arbitrary. Admittedly, the appellant does mention that a number of States have refused to recognise the existence of an Armenian genocide. It should be pointed out in this connection, however, that even the UN’s Resolution 61/L.53 condemning Holocaust denial, adopted in January 2007, received only 103 votes from among the 192 member States. The mere observation that certain States refuse to declare in the international arena that they condemn Holocaust denial is manifestly insufficient to cast doubt on the existence of a very general consensus that the acts in question amount to genocide. Consensus does not mean unanimity. The choice of certain States to refrain from publicly condemning the existence of a genocide or from voting for a resolution condemning the denial of a genocide may be dictated by political considerations that are not directly linked to those States’ actual evaluation of the way in which historical events should be categorised, and in particular cannot cast doubt on the existence of a consensus on this matter, especially within the academic community. 4.5. The appellant also argues that it would be contradictory for Switzerland to acknowledge the existence of the Armenian genocide while supporting the establishment of a panel of historians in the context of its relations with Turkey. This, in his submission, shows that the existence of genocide is not established. However, it cannot be inferred either from the Federal Council’s repeated refusal to acknowledge the existence of an Armenian genocide by means of an official declaration or from the approach chosen – namely recommending to the Turkish authorities that an international panel of experts be set up – that the conclusion that there is a general consensus as to the characterisation of the events in question as genocide is arbitrary. In accordance with the clearly expressed wish of the Federal Council, its approach is guided by the concern to prompt Turkey to engage in collective remembrance of its past (BO/CN 2001 168: response by Federal Councillor Deiss to the non-binding motion by Mr Zisyadis; BO/CN 2003 2021 et seq.: response by Federal Councillor Calmy-Rey to the non-binding motion by Mr Vaudroz on recognition of the 1915 Armenian genocide). This attitude of openness to dialogue cannot be construed as denial of the existence of a genocide and there is nothing to suggest that the support expressed by the Federal Council in 2001 for the setting up of an international commission of inquiry did not stem from the same approach. It cannot be inferred in general that there is sufficient doubt within the community, particularly among academics, as to the classification of the events of 1915 as genocide to render the finding of such a consensus arbitrary. 4.6. That being so, the appellant has not shown how the Police Court acted arbitrarily in finding that there was a general consensus, particularly among academics, as to the classification of the events of 1915 as genocide. It follows that the cantonal authorities were correct in refusing to allow the appellant’s attempt to open a historical and legal debate on this issue. 5. As to the subjective element, the offence provided for in Article 261 bis §§ 1 and 4 of the Criminal Code requires intentional conduct. In judgments ATF 123 IV 202, point 4c, p. 210, and 124 IV 121, point 2b, p. 125, the Federal Court held that such intentional conduct had to be guided by motives of racial discrimination. This question, which has prompted debate among legal writers, was subsequently left open in judgments ATF 126 IV 20, point 1d, in particular p. 26, and 127 IV 203, point 3, p. 206. It can likewise be left open in the instant case, as will be shown below. 5.1. With regard to intent, the Criminal Court found that [the applicant], a doctor of laws, politician and self-styled writer and historian, had acted in full knowledge of the consequences, stating that he would never change his position, even if a neutral panel should one day conclude that the Armenian genocide did indeed take place. These findings as to the appellant’s internal volition to deny a genocide relate to matters of fact (see ATF 110 IV 22, point 2, 77, point 1c, 109 IV 47, point 1, 104 IV 36, point 1 and citations), with the result that the Federal Court is bound by them (section 105(1) of the Federal Court Act). Moreover, the appellant has not submitted any complaints on that issue. He has not sought to demonstrate that these findings of fact are arbitrary or the result of a violation of his rights under the Constitution or the Convention, so there is no need to consider this question (section 106(2) of the Federal Court Act). It is unclear in any event how the cantonal authorities, which inferred the appellant’s intention from external considerations (cf. ATF 130 IV 58, point 8.4, p. 62), could have disregarded the very concept of intention under federal law in relation to this issue. 5.2. As to the appellant’s motives, the Criminal Court found that they appeared to be of a racist and nationalistic nature and did not contribute to the historical debate, noting in particular that he had described the Armenians as aggressors of the Turkish people and that he claimed to be a follower of [Talaat] Pasha, who together with his two brothers was historically the initiator, the instigator and the driving force of the Armenian genocide (Criminal Court judgment, point II, pp. 17 et seq.). It has not been disputed in the instant case that the Armenian community constitutes a people, or at the very least an ethnic group (as to this concept, see Niggli, Rassendiskriminierung, 2nd ed., note 653, p. 208), which identifies itself in particular through its history, marked by the events of 1915. It follows that denial of the Armenian genocide – or the representation of the Armenian people as the aggressor, as put forward by the appellant – in itself constitutes a threat to the identity of the members of this community (Schleiminger, op. cit., Article 261 bis of the Criminal Code, note 65 and reference to Niggli). The Criminal Court, which found that there had been motives linked to racism, likewise ruled out that the approach pursued by the appellant pertained to historical debate. These findings of fact, about which the appellant raised no complaint (section 106(2) of the Federal Court Act), are binding on the Federal Court (section 105(1) of the Federal Court Act). They provide sufficient evidence of the existence of motives which, above and beyond nationalism, can only be viewed as racial, or ethnic, discrimination. It is consequently unnecessary in the present case to settle the debate among legal writers mentioned in point 6 above. In any event, the appellant has not raised any complaints concerning the application of federal law in relation to this matter. 6. The appellant further relies on the freedom of expression enshrined in Article 10 of the ECHR, in connection with the cantonal authorities’ interpretation of Article 261 bis § 4 of the Criminal Code. However, it appears from the records of the questioning of the appellant by the Winterthur/Unterland public prosecutor’s office (23 July 2005) that in making public statements, particularly in Glattbrugg, the appellant was intending to ‘help the Swiss people and the National Council to rectify the error’ (that is to say, recognition of the Armenian genocide). Furthermore, he was aware that genocide denial was a criminal offence and stated that he would never change his position, even if a neutral panel should one day conclude that the Armenian genocide did indeed take place (Criminal Court judgment, point II, p. 17). It can be inferred from these aspects that the appellant was not unaware that by describing the Armenian genocide as an ‘international lie’ and by explicitly denying that the events of 1915 amounted to genocide, he was liable to face a criminal penalty in Switzerland. The appellant cannot therefore draw any favourable inferences from the lack of foreseeability of the law he cites. These considerations, moreover, support the conclusion that the appellant is in essence seeking, by means of provocation, to have his assertions confirmed by the Swiss judicial authorities, to the detriment of the members of the Armenian community, for whom this question plays a central role in their identity. The applicant’s conviction is thus intended to protect the human dignity of members of the Armenian community, who identify themselves through the memory of the 1915 genocide. Criminalisation of genocide denial is, lastly, a means of preventing genocides for the purposes of Article I of the Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature in New York on 9 December 1948 and approved by the Federal Assembly on 9 March 2000 (RS [Recueil systématique – Compendium of Federal Law] 0.311.11). 7. It should be noted, moreover, that the appellant has not denied the existence either of massacres or of deportations (see point A above), which cannot be categorised, even if one exercises restraint, as anything other than crimes against humanity (Niggli, Discrimination raciale, note 976, p. 262). Justification of such crimes, even with reference to the law of war or alleged security considerations, will in itself fall foul of Article 261 bis § 4 of the Criminal Code, so that even from this perspective, regardless of whether these same acts are characterised as genocide, the appellant’s conviction on the basis of Article 261 bis § 4 of the Criminal Code does not appear arbitrary in its outcome, any more than it breaches federal law.” 27. In 2008 the applicant was arrested and charged in the context of the so-called Ergenekon proceedings (of which short descriptions may be found in Nedim Şener v. Turkey, no. 38270/11, § 6, 8 July 2014; Şık v. Turkey, no. 53413/11, § 10, 8 July 2014; Tekin v. Turkey (dec.), no. 3501/09, §§ 3-16, 18 November 2014; and Karadağ v. Turkey (dec.), no. 36588/09, §§ 3-16, 18 November 2014). On 5 August 2013 the Istanbul Assize Court convicted him, alongside many others, and sentenced him to life imprisonment. That judgment was appealed against, and the proceedings are now pending before the Turkish Court of Cassation (see Tekin, § 17, and Karadağ, § 17, both cited above, as well as Yıldırım v. Turkey (dec.), no. 50693/10, § 14, 17 March 2015). He was released from pre-trial detention in March 2014. 28. The third party the Turkish Human Rights Association, the Truth Justice Memory Centre and the International Institute for Genocide and Human Rights Studies referred to the web-versions of two articles in Turkish newspapers. The first, published in the daily Vatan on 26 July 2007, said that after the assassination of Hrant Dink the applicant had sent an open letter to the Armenian Patriarch of Istanbul. In that letter he had denounced the assassination as a provocation by the United States of America against Turkey, and had invited the Patriarch openly to say that it had been instigated by the United States of America and thus, as a leader of the Armenians in Turkey, set an example to those defending the unity of the Turkish nation. The second article, published in the daily Milliyet on 19 May 2007, did not mention the applicant. It described anonymous threats sent to Armenian schools in Istanbul in connection with the Armenian position in relation to the events of 1915 and the following years. It added that in reaction to those threats, the provincial director of education had sought to reassure the Armenians and asked the authorities to take precautionary measures. | 1 |
test | 001-178860 | ENG | RUS | COMMITTEE | 2,017 | CASE OF KOVALEV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants alleged that they did not receive adequate medical care in detention and that there was no effective remedy in that regard. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-158739 | ENG | TUR | CHAMBER | 2,015 | CASE OF SEYFETTİN GÜNEŞ v. TURKEY | 4 | Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Fair hearing) | Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 4. The applicant was born in 1970 and is serving a sentence in Batman prison. 5. In April 2000 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. He claimed to have been arrested on 4 April 2000, whereas according to the arrest report he was taken into custody on 7 April 2000. His first medical examination upon his arrest was, however, carried out on 6 April 2000. 6. The examination was carried out by a doctor at the request of the police. According to the medical report issued in respect of the applicant, it was conducted prior to his detention in police custody. The report stated that there was old scar tissue measuring 3 cm on his upper right wrist. The doctor also noted that there were no signs of violence on the applicant’s body. 7. On 9 April 2000 a second medical report was drafted, according to which the scar tissue mentioned in the medical report of 6 April 2000 was 2.5 cm long. 8. On 10 April 2000 the applicant was questioned by the police without a lawyer being present. According to the document containing his statements to the police, he acknowledged being a member of Hizbullah. 9. On 11 April 2000, at the end of his detention in police custody, the applicant was once again examined by a doctor. According to the report, there were no signs of violence on his body. 10. On the same date the applicant was brought before the public prosecutor and, subsequently, a judge, who questioned him and recorded his statements. On both occasions he denied the veracity of his statements to the police, claiming that he had signed them under duress. The judge remanded him in custody. 11. On 3 May 2000 the public prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant and a number of other individuals. They were charged with being members of Hizbullah under Article 168 of the former Criminal Code. 12. On 27 June 2000 the Diyarbakır State Security Court held the first hearing on the merits of the case, at which the applicant gave evidence. He maintained, inter alia, that while in police custody, he had been beaten and given electric shocks to his genitals. He also told the court that he had been taken into police custody on 6 April 2000. 13. On 2 July 2001 the applicant once again maintained before the firstinstance court that his statements to the police had been obtained under torture. 14. In 2004 State Security Courts were abolished. The case against the applicant was transferred to the Diyarbakır Assize Court. 15. On 11 October 2004 the applicant was released pending trial. 16. On 25 October 2005 the case against the applicant and his coaccused was joined with another case brought against a number of other people charged with being members of Hizbullah. 17. Between 11 October 2004 and 13 February 2008 the applicant did not attend court, although during this period his lawyers attended some hearings on his behalf. 18. On 13 February 2008, during the final hearing in the case, the applicant’s lawyer contended that the court should not base its judgment on the applicant’s statements to the police, as they had been made under duress. 19. On the same day the Diyarbakır Assize Court convicted the applicant of being a member of an illegal organisation and sentenced him to ten years’ imprisonment. The court noted that he had alleged that he had been tortured in police custody. It nevertheless based its judgment on the statements the applicant and a number of the other accused had made to the police, and documents found in the applicant’s house at the time of his arrest. 20. On 24 June 2009 the applicant’s lawyer lodged an appeal against the judgment of 13 February 2008, which did not refer to any of the applicant’s allegations of ill-treatment while in police custody. 21. On 30 September 2009 the Court of Cassation upheld the judgment. 22. On 1 December 2009 the applicant began serving his sentence. 23. On 25 October 2010 he filed a petition with the Batman public prosecutor’s office, requesting that an investigation be initiated into his illtreatment while in police custody in April 2000. 24. On 1 December 2010 the applicant gave statements to the Batman public prosecutor. He maintained that he had not been taken into police custody on 6 April but on 4 April 2000, and that he had been subjected to torture while detained. He requested that both the police officers on duty at the relevant time and the doctors who had issued the medical reports be prosecuted. 25. On an unspecified date the Batman public prosecutor requested the Diyarbakır branch of the Forensic Medical Institute to examine the applicant and provide an opinion as to whether his allegations of torture were wellfounded. 26. On 2 December 2010 a doctor from the Diyarbakır branch of the Forensic Medical Institute conducted the examination. The applicant told the medical expert that he had been hung by his wrists in police custody, and that they had been bruised at the material time. The doctor drafted a detailed report comparing the results of the three medical reports issued in April 2000 and containing his opinion. He considered that the term “old scar tissue” should not have been used in the reports issued in 2000, since such scars did not fade for a long time. In this connection, the doctor noted that he could not see any such scar when he examined the applicant in 2010. In sum, the doctor considered that had the scar observed during the medical examinations in 2000 been an “old scar”, it would still have been observed during the examination of 2010. He also noted that the reports issued in April 2000 had not described the type, colour or any other features of the scar. Lastly, he recommended that the applicant undergo an examination at the Forensic Medical Institute in Istanbul with a view to establishing whether he had been suffering any psychiatric problems as a result of the alleged torture. 27. On 28 November 2011 the Batman public prosecutor decided not to prosecute the officers on duty at the Batman police station at the relevant time or the three doctors who had issued the medical reports on 6, 9 and 11 April 2000. The public prosecutor noted that the statutory time-limit provided in Article 102 of the former Criminal Code (which had been in force in 2000 for prosecutions for torture) was ten years, and that the applicant had lodged his complaint after this time-limit had expired. It was accordingly concluded that the investigation was timebarred. 28. On 19 December 2011 the applicant objected to that decision. 29. On 23 January 2012 the Midyat Assize Court dismissed his objection and the decision was upheld. 30. On 8 January 2001, while the applicant was in custody, his hip was broken while he was playing volleyball. He had surgery twice. 31. In medical reports dated 16 April, 24 May and 26 September 2002, doctors from the Dicle University Faculty of Medicine concluded that for him to make a full recovery, he would need to have a hip replacement. 32. On 23 December 2002 and 13 January 2003 the applicant filed petitions with the Batman public prosecutor, requesting immediate surgery and complaining of a delay in treatment. 33. On 6 February 2003 the applicant’s father submitted another petition to the Ministry of Justice requesting immediate intervention. 34. A prosthetic hip was implanted after four consecutive operations carried out on unspecified dates in 2003 or 2004. On 22 October 2004 the applicant was declared unfit for military service because of the prosthesis. | 1 |
test | 001-178415 | ENG | TUR | ADMISSIBILITY | 2,017 | LOIZOU v. TURKEY | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano | 1. The applicant, Mr Pavlos Loizou, is a Cypriot national, who was born in 1961 and lives in Nicosia. He was represented before the Court by M. Sağiroğlu and F. Hansel, lawyers practising in Nicosia. 2. The Turkish Government (“the Government”) were represented by their Agent. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The complaints raised in this application arise out of the Turkish military intervention in northern Cyprus. The general context of the property issues arising in this context is set out in the cases of Cyprus v. Turkey ([GC], no. 25781/94, §§ 13-16 and 28-33, ECHR 2001 IV), and Demopoulos and Others v. Turkey (dec.) ([GC], nos. 46113/99 and 7 others, §§ 4-16, ECHR 2010). 5. Before the military intervention in northern Cyprus in 1974 the applicant’s family lived in Kyrenia and owned property there. This included the family’s home (“plot 146”), which was registered in the name of the applicant’s mother, and two commercial properties, which were registered in the name of a limited company, Neocles Loizou Successors (“NLS”). The applicant’s parents were the sole shareholders in NLS. According to NLS’s articles of association, the two commercial properties were to be distributed between the applicant and his two brothers if their parents, the shareholders, so wished. 6. The first of the two commercial properties, plot 213, was a groundfloor dwelling which the applicant’s father planned to turn into a supermarket. The second, plot 233, was a supermarket which was in operation until the military intervention began. 7. When his mother died in 1990, the applicant’s father decided to transfer all three properties (that is to say, the dwelling house and the two commercial properties) to the applicant and his brothers. 8. On 6 August 1999 the NLS company, which had in the meantime ceased to be operational, was struck off the relevant register of companies. 9. On 28 January 2003 the applicant, his father and his two brothers lodged an application with the Court, alleging violations of Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 arising from their inability to access their three properties (application no. 4758/03). On 14 December 2010 a Single Judge of the Court declared their application inadmissible because it had been lodged before the domestic remedy available via the IPC had been exhausted and therefore had to be rejected for nonexhaustion of domestic remedies. 10. On 3 December 2010 the applicant’s brothers transferred their shares in the properties to the applicant, making him the sole owner of all of them. 11. The transfer of the ownership of the properties in question is substantiated by certificates showing the history of ownership issued by the Department of Lands and Surveys of the Republic of Cyprus. 12. On 23 September 2011 the applicant filed an application, supported by an affidavit, with the IPC under Law no. 67/2005 (see paragraphs 32-33 below) claiming compensation for all three properties in the amount of 4,700,000 pounds sterling (GBP) and GBP 7,100,000 for the loss of their use. In support of his claim the applicant provided certificates issued by the Land Registry and Surveys Department of the Republic of Cyprus attesting that he was the owner of the properties in question. In the affidavit, the applicant stated that his father had owned the properties in 1974 and that there was no mortgage, restriction or other liability on the properties. 13. The applicant’s claim was communicated to the “TRNC” Attorney General as provided under Law no. 67/2005 and the relevant IPC Rules (see paragraphs 32-35 below). 14. In a letter dated 22 December 2011 the applicant contended that the “TRNC” Attorney General had failed to provide an opinion concerning his claim within the thirty-day time-limit set out in the relevant provisions on the functioning of the IPC. He argued that the IPC should adopt a default decision on the basis of his claim. 15. At a meeting before the IPC on 10 April 2012 the “TRNC” Attorney General’s representative stated that he had still not received a report concerning the properties that were being claimed by the applicant and he was therefore not in a position to provide an opinion. 16. Further meetings before the IPC scheduled for 12 June and 16 October 2012 were adjourned for the same reason. 17. Meanwhile, the applicant instructed a law firm to represent him in the proceedings before the IPC. 18. On 7 October 2013 the “TRNC” Attorney General submitted his opinion concerning the applicant’s claim. The opinion relied on an affidavit by the “TRNC” Director of the Land Registry and Surveys Department which stated that − according to their information − plots 213 and 233 had been owned by the NLS company in 1974, and plot 146 by Elli Kika Loizou (the applicant’s mother). In the opinion the view was also expressed that the applicant’s claim was excessive. 19. At a directions hearing on 6 November 2013 the applicant’s representative undertook to provide photographs of the properties and asked the “TRNC” Attorney General to provide the relevant land registry search documents for the properties in question. The “TRNC” Attorney General’s representative asked the applicant to provide birth certificates for him and his parents, certificates from the head of the local community (mukhtar) attesting that the persons who owned the properties in 1974 were the applicant’s parents, and documents concerning the history of ownership of the properties after 1974 and attesting that there were no liabilities attaching to them. 20. The applicant’s representative produced the requested documents on 24 December 2013. 21. At a preliminary hearing before the IPC on 20 November 2014, the “TRNC” Attorney General’s representative and the Housing Undersecretary informed the applicant and the IPC that no offer would be made in respect of the family house (plot 146) unless the claims made in respect of the two commercial properties (plots 213 and 233) were withdrawn. The applicant’s representatives stated that they were trying to find a solution with the “TRNC” authorities concerning issues relating to companies and mortgages. They therefore asked for a month’s adjournment in order to monitor developments on the matter and stated that if a solution was not reached they would withdraw the request relating to the two commercial properties. 22. At a meeting before the IPC on 8 January 2015 the applicant’s representative explained that they were working on the amendments of the relevant law with the “TRNC” authorities and asked for a further adjournment of the examination of the case. 23. A further meeting before the IPC was held on 19 February 2015 at which the applicant was also present. His representative asked for an adjournment, explaining that some additional documents needed to be provided and that there was no progress with the amendment of the relevant law. He also stated that the applicant would withdraw the claim with regard to the commercial properties. 24. On 20 February 2015 the applicant’s representatives forwarded further necessary documents to the IPC. 25. On 23 February 2015 the applicant’s representatives submitted a letter to the IPC stating that, without prejudice, they were withdrawing the applicant’s claim in respect of the two commercial properties (plots nos. 213 and 233). They explained that before 1974 the two properties had been registered as the property of a company whose shareholders were the applicant’s parents. Thereafter, the company had terminated its activities and its properties had been transferred to the shareholders’ children (the applicant and his brothers). Later, the company had been liquidated and now no longer existed as a legal entity. The applicant’s representatives also submitted that as the transfer of properties had occurred after 1974 and as the relationship between the applicant and the company was not defined as one of legal succession within the meaning of Law no. 67/2005, the legislation did not provide the applicant with the possibility of submitting a claim for compensation for that property before the IPC. They considered that this was the reason why the “TRNC’s” representative had refused to make an offer for the compensation claim unless the two commercial properties were withdrawn. Lastly, they argued that their decision to withdraw the claim was in line with the “TRNC” High Administrative Court’s practice in similar cases (see paragraphs 37-38 below), which showed that the IPC could not be considered as a remedy in relation to a claim concerning the two commercial properties. 26. At a meeting before the IPC on 16 April 2015, at which the applicant was also present, his representatives asked for an adjournment of the proceedings in order to consider a settlement offer in the amount of GBP 190,000 made by the “TRNC” authorities. 27. On 17 April 2015 the applicant’s representatives informed the IPC that he would accept the offer. 28. On the same day a meeting was held before the IPC at which the “TRNC” representatives noted that the applicant had withdrawn the claim in respect of the two commercial properties (plots nos. 213 and 233) and reiterated their offer to pay GBP 190,000 in respect of the applicant’s claim concerning the family house (plot 146), which the applicant’s representatives accepted. On the basis of the parties’ settlement, the IPC adopted a decision ordering the “TRNC” authorities to pay the aforementioned amount to the applicant in respect of his claim concerning the family house. 29. On 24 March 2016 compensation in the amount of GBP 190,000 was paid to the applicant. 30. Article 159 § 1 (b) and (c), in so far as relevant, provide as follows: “(b) All immovable properties, buildings and installations which were found abandoned on 13 February 1975 when the Turkish Federated State of Cyprus was proclaimed or which were considered by law as abandoned or ownerless after the above-mentioned date, or which should have been in the possession or control of the public even though their ownership had not yet been determined ... and (c) ... shall be the property of the TRNC notwithstanding the fact that they are not so registered in the books of the Land Registry Office; and the Land Registry Office shall be amended accordingly.” 31. Article 159 § 4 reads as follows: “In the event of any person coming forward and claiming legitimate rights in connection with the immovable properties included in sub-paragraphs (b) and (c) of § 1 above [concerning, inter alia, all immovable properties, buildings and installations which were found abandoned on 13 February 1975], the necessary procedure and conditions to be complied with by such persons for proving their rights and the basis on which compensation shall be paid to them, shall be regulated by law.” 32. The relevant provisions of Law no. 67/2005 (the English version available at http://www.tamk.gov.ct.tr), which came into effect on 22 December 2005, read as follows: “2. In this Law, unless the context otherwise requires, ... “Applicant” means the person applying to the Commission with a claim of right in respect of immovable properties which are within the scope of sub-paragraph (b) of paragraph 1 of Article 159 of the Constitution, and in respect to movable property which is claimed to be owned by such person, such property having been abandoned in the North prior to 13 February 1975, being the date of the proclamation of the Turkish Federated State of Cyprus. ... “Immovable property” means immovable property within the scope of subparagraph (b) of paragraph 1 of Article 159 of the Constitution.” “3. The purpose of this Law is to regulate the necessary procedure and conditions to be complied with by persons in order to prove their rights regarding claims in respect to movable and immovable properties within the scope of this Law, as well as, the principles relating to restitution, exchange of properties and compensation payable in respect thereof, having regard to the principle of and the provisions regarding protection of bizonality, which is the main principle of 1977-1979 High level Agreements and of all the plans prepared by the United Nations on solving the Cyprus Problem and without prejudice to any property rights or the right to use property under the Turkish Republic of Northern Cyprus legislation or to any right of the Turkish Cypriot People which shall be provided by the comprehensive settlement of the Cyprus Problem.” “4. (1) All natural or legal persons claiming right to movable and immovable properties that are within the scope of this Law may bring a claim until December 21, 2017 by way of an application in person or through a representative, to the Immovable Property Commission constituted under section 11 of this Law, requesting restitution, exchange or compensation for such property. Applications made to the Commission shall be subject to the Rules made under the Civil Procedure Law and the Rules made under this Law, notwithstanding any other provision to the contrary in any law or legislative instrument, only a fee of 100 TL (one hundred Turkish Liras) shall be paid for each application.” “6. In proceedings before the Commission the burden of proof shall rest with the applicant who must satisfy the Commission beyond any reasonable doubt as to the following in order for a decision to be taken in his favour: (1) That, the movable or immovable property in respect of which rights are claimed is the one claimed in the application. (2) That, in case of immovable property in respect of which the applicant claims rights, the property was registered in his name before 20 July 1974 and/or he is the legal heir of the individual in whose name the immovable property was registered. ...” “8. The Commission, after having heard the arguments of the parties and witnesses, and having examined the documents submitted, shall, within the scope of the purposes of this Law, taking into consideration the below-mentioned matters, decide as to restitution of the immovable property to the person whose right in respect to the property has been established, or to offer exchange of the property to the said person, or decide as to payment of compensation. In cases where the applicant claims compensation for loss of use and/or non-pecuniary damages in addition to restitution, exchange or compensation in return for immovable property, the Commission shall also decide on these issues. ...” “9. Parties have the right to apply to the High Administrative Court against the decisions of the Commission. If the applicant is not satisfied with the judgment of the High Administrative Court, he may apply to the European Court of Human Rights.” “11. (1) For the implementation of this Law, an Immovable Property Commission composed of a President, a Vice-President, and minimum 5, maximum 7 Members, whose qualifications are specified below, shall be established. At least 2 members of the Commission to be appointed shall not be nationals of the Turkish Republic of Northern Cyprus, United Kingdom, Greece, Greek Cypriot Administration or Republic of Turkey. The decisions regarding the appointment of the members shall be published in the Official Gazette. (A) The President, Vice-President and the Members of the Commission shall be appointed by the Supreme Council of Judicature from among persons nominated by the President of the Republic. The President of the Republic shall nominate a number of candidates twice the number of members to be appointed. (B) The President, Vice-President and Members of the Commission may be appointed from among lawyers or from among persons with experience in public administration and evaluation of property. Any persons directly or indirectly deriving any benefit from immovable properties on which rights are claimed by those who had to move from the north of Cyprus in 1974, abandoning their properties, cannot be appointed as members of the Commission. ... (2) The Commission shall convene by minimum two-third majority of the total number of members and shall take decisions by absolute majority of the members attending the meeting, including the President. (3) The term of office of a member not participating in the Commission meetings without a valid reason (illness, official duty abroad, and the like) for three times, may be terminated by the Supreme Council of Judicature upon the request of the President of the Commission. The term of office of the President of the Commission not participating in the Commission meetings without a valid reason (illness, official duty abroad, and the like) for three times, may be terminated by the Supreme Council of Judicature upon the request of the President of the Republic. In other cases, the conditions for the termination of the term of office of a member of the Commission shall be the same as those applied to a Supreme Court Judge. (4) A secretariat shall be established in order to carry out the clerical and administrative work of the Commission. ... (5) All employees of the Commission, including the President, Vice-President and Members, shall be employed as long as their services are required and subject to conditions determined by the Council of Ministers, notwithstanding any provision to the contrary in any other law relating to employment of service, duration of service, age limit, duration of contract, renewal of contract and condition of non-retirement. (6) The President, Vice-President and Members of the Commission shall not hold any other office during their term of office. ...” “12. The President, Vice-President and Members of the Commission established in accordance with the provisions of this Law shall be appointed for a period of 5 years. At the end of this period the President, Vice-President and Members may be re-appointed in the same manner. The President, Vice-President and Members of the Commission shall carry out their duties objectively and independently during their term of office which may only be terminated before the end of term subject to the provisions of section 11, above. No person or authority can give any order or instruction to the President, Vice-President and Members of the Commission. If the function of the Commission is completed before the period envisaged in the Law the terms of office of the Commission members shall be automatically terminated.” “13. The Commission shall have the following duties and powers: (1) To examine and reach a decision on applications made under this Law. (2) To determine the amount and method of payment of compensation. (3) To take necessary measures and decisions in order to conclude the proceedings concerning the amount of compensation to be paid to the applicants following the application of this Law. (4) The Commission, in carrying out its duties and exercising its powers mentioned above, may, if it deems necessary, collect written or oral testimony or hear witnesses. (5) The Commission may require written and oral testimony of any witness for the purpose of resolving any problems that may arise in the application of this Law, either under oath or by way of a declaration. Such evidence under oath, or by declaration shall be identical to that required for testimony before a Court of law. (6) To summon any person residing in the Turkish Republic of Northern Cyprus to attend any meeting of the Commission in order to give testimony or produce any document in his possession and to be questioned as a witness. (7) To compel any person to give evidence or to produce a document, when such person refuses to do so, following a request by the Commission, whether under oath or by way of declaration, if the person concerned does not offer any satisfactory excuse to the Commission for such refusal. However, witnesses may not be compelled to answer any incriminating question and no legal proceedings may be commenced for refusal to do so. (8) The Commission may decide that expenses shall be paid to any persons summoned to give evidence in virtue of the application of this Law.” “14. The decisions of the Commission have binding effect and are of an executory nature similar to judgments of the judiciary. Such decisions shall be implemented without delay upon service on the authorities concerned.” “16. The processes to be carried out in accordance with the provisions of this Law, summons to be issued to witnesses, the procedure for attendance before the Commission and that relating to the hearing shall be subject to the provisions of the Civil Procedure Law.” 33. Further relevant provisions of Law no. 67/2005 are provided in Demopoulos and Others v. Turkey (cited above, §§ 35-37). 34. Section 22 of Law no. 67/2005 provides that Rules for the better implementation of the provisions of that Law may be prepared by the IPC, approved by the “TRNC” Council of Ministers and published in the Official Gazette. 35. In 2006 the IPC adopted its Rules (the English version available at http://www.tamk.gov.ct.tr) regulating details of the procedure before it. 36. The relevant case-law of the “TRNC” Constitutional Court is summarised in Demopoulos and Others (cited above, §§ 38-39). 37. According to the available English translation of the judgment of the “TRNC” High Administrative Court in Eleni Meleagrou v. the Immovable Property Commission (C.13/2011, HAC 124/2009) of 27 June 2011, that court was called upon to examine the complaint of a plaintiff whose restitution claim had been rejected by the IPC on the grounds that her status as shareholder in a company that owned certain property in 1974, was not covered by section 6(2) of Law no. 67/2005. The plaintiff argued that, since she owned the immovable property as a company shareholder, the IPC should have ruled in her favour. 38. The relevant part of the “TRNC” High Administrative Court’s judgment reads: “... [T]he person who could apply to the IPC under Law no. 67/2005 is defined under sections 2 and 6(2) of the Law. The relevant part of section 2, which was drawn out as an interpretation section, is as follows: ‘‘Applicant’ means the person applying to the Commission with a claim of right in respect of immovable properties which are within the scope of sub-paragraph (b) of paragraph 1 of Article 159 of the Constitution, and in respect to movable property which is claimed to be owned by such person, such property having been abandoned in the North prior to 13 February 1975, being the date of the proclamation of the Turkish Federated State of Cyprus.’ Section 6(2) of the Law is as follows: ‘6(2) That, in case of immovable property in respect of which the applicant claims rights, that the property was registered in his name before 20 July 1974 and/or he is the legal heir of the individual in whose name the immovable property was registered.’ As it can be seen from the definitions cited above, a person who could apply to the IPC for the remedies that are foreseen in the law is an individual in whose name the subject matter property was registered and/or the legal heir of the property owner in whose name the property was registered on the date of 20/7/1974. Viewing the undisputed facts and evidence before us, it can be seen that the owner of the immovable subject matter made up of 14 plots is AkinitaMeleagrous Ltd. The plaintiff has put forward that AkinitaMeleagrous is a family business, she is a shareholder of this company, the aforementioned properties were registered in her name due to this capacity, and these matters should have been taken into account by giving a ruling in favour of restitution. The registered owner of the aforementioned properties on 20/7/1974, AkinitaMeleagrous Ltd., is a company with a legal personality. The aforementioned company continues its legal entity despite having stopped its activities because it has not been struck off the register. The fact that the company transferred the properties it owned to other persons, even if these persons were its shareholders, does not affect the legal status in sections 2 and 6(2) of the law. For this reason it is not possible to give a legal value to the claims of the plaintiff that are outlined above. When considering section 6(2) of Law no 67/2005 as cited above, the finding and ruling of the IPC that the plaintiff does not have a right to apply is not flawed. As a result, the case is dismissed and cancelled. ...” | 0 |
test | 001-154249 | ENG | FIN | ADMISSIBILITY | 2,015 | F.Y. v. FINLAND | 4 | Inadmissible | George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicant, Mr F.Y., is an Iranian national, who was born in 1984. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Mr Pirkka Lappalainen, a lawyer practising in Tampere. 2. The Finnish Government (“the Government”) were represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant is ethnically a Kurd originating from Gangachin city in Iran, close to Urmia (Orumieh). The applicant had difficulties as a Kurd to enter university in Iran and he was disappointed by the position of Kurds in Iran in general. For that reason he joined The Free Life Party of Kurdistan (PJAK) late in 2004, soon after it was founded. He described himself as a regular but active member of the party. His activism included distributing material and information about the party, recruiting new members and accommodating visiting party members at his house, but not taking part in any armed activities. His family members have also been supporters of the Kurdish cause. 5. In September 2007 the applicant’s neighbour apparently pretended to want to join the PJAK and managed to obtain important information about the party’s recruitment. Subsequently, he informed the Basij-militia about the applicant’s activities. Since then the Basij has allegedly been looking for the applicant and three other party members. Two of the other party activists were caught and arrested and the other one fled to the mountains to join the PJAK armed group. The applicant managed to escape, with a smuggler’s help, to Turkey and from there through Germany and Sweden to Finland, where his sister is residing permanently. 6. The applicant claims that if he returns to Iran, he will never be free again since it is possible that the authorities arrest him and he might be killed. He also stated that the Iranian police have taken his father twice for questioning since he left the country but his father has never told him why. The applicant was arrested once during the religious feast of the Shiite Muslims years ago, but has never been formally punished or ill-treated by the Iranian authorities. 7. The applicant has submitted three documents which were translated from Kurdish or Persian to Finnish in October 2009 by an official translator. The first is entitled “Warning Announcement” in which the applicant is apparently called to appear before the Iranian Islamic Republic’s Court for reasons of his cooperation with the PJAK, causing insecurity in the area and encouraging youngsters in the area to join the Kurdish political parties. 8. The second document is a certificate from the PJAK representative in Scandinavia, Mr S.B., who confirms that the applicant joined the party in 2004 and that he has been politically active, which puts his health and life at risk. Persecution caused the applicant’s flight from Iran and, if he is returned there, his life will be in danger. 9. The third document is entitled “Local Certificate”, and it is signed by 15 persons who certify that the applicant has been politically active in Kurdistan by encouraging people to join the party and by distributing PJAK leaflets and material to people. The signatories wish to confirm that the activism of the applicant is known to everyone in the area and also that the security police are after him. 10. On 24 August 2011 the applicant was married to a Dutch citizen residing in Finland. 11. The applicant first sought asylum in Finland on 20 December 2007 and claimed to have arrived in the country on the same day. He had also previously sought in Iran a visa to Finland for the period from September 2007 to December 2007 to attend his nephew’s wedding but he had received a negative decision. 12. On 25 August 2008 the Finnish Immigration Service (Maahan-muuttovirasto, Migrationsverket) rejected the applicant’s asylum application and decided to expel him to Iran. It noted in its decision that the applicant’s story about his journey from Iran to Finland was unclear and contradictory and that this weakened the credibility of his asylum story as a whole. For example, the applicant had stated in the asylum interview that he had left for Turkey directly after having heard about the arrests of two members of his group, while in a subsequent hearing he had claimed to have been in Turkey already when he had heard about the arrests. Also the applicant’s report about the whereabouts of his passport was contradictory and vague. He had stated that he had joined the party in late 2004 and had immediately started to work actively in it but at the same time he had said that he was in the army from December 2004 to July 2006. The Immigration Service considered that the applicant’s account of his alleged party activities was unclear and contradictory as he had spoken about the PJAK’s activities only in a very general way, giving information which could be found on the PJAK’s website, before its closure. The Immigration Service therefore concluded that there were no reasoned grounds to believe that the Iranian authorities would be interested in the applicant. 13. The applicant appealed to the Administrative Court (hallinto-oikeus, förvaltningsdomstolen), also requesting an oral hearing to be held. 14. On 29 May 2009 the Administrative Court rejected the applicant’s appeal as well as the request for an oral hearing. The court noted that the applicant’s activism had not been very significant but rather low-level. Nor had the applicant ever been arrested in relation to his activities in the PJAK or ill-treated by the Iranian authorities. Furthermore, the court considered that the applicant merely suspected that an arrest warrant for him had been issued but that there was no certainty about it. The court did not find it likely that the Iranian authorities would be interested in the applicant in particular and therefore it considered that the applicant had failed to demonstrate a real risk of ill-treatment if returned to Iran. 15. On an unspecified date the applicant appealed to the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltnings-domstolen). 16. On 23 November 2009 the applicant lodged a new asylum application, submitting the above-mentioned documents, two of which he claimed to have received from his family members in Iran, as written evidence supporting his application. As his appeal was already pending before the Supreme Administrative Court, the new application was sent directly there as an addendum to his appeal. 17. On 20 May 2011 the Supreme Administrative Court refused the applicant leave to appeal. 18. Apparently the order to deport the applicant to Iran was never executed and thus on 14 October 2011 the applicant lodged his third asylum application, citing the same grounds as before. He argued that his relatives in Iran had informed him that there was a court order against him for causing insecurity in the area and for being a member of the PJAK. He claimed that he would receive a death sentence if returned to Iran. He also relied on his marriage as grounds for a residence permit in Finland. 19. On 21 February 2012 the Immigration Service rejected his application. It considered that the application was substantially the same as before, containing the same information as had already been submitted to the Supreme Administrative Court in the context of the applicant’s previous asylum applications. The Service therefore dealt with the application in the fast-track procedure. No residence permit could be given to the applicant on the basis of his marriage either, as neither spouse had a job or had provided information about having sufficient means for living. The Service therefore ordered the applicant to be expelled to Iran. 20. By letter dated 16 March 2012 the applicant appealed to the Administrative Court, requesting that an oral hearing be held. He also requested that an interim order be imposed to stay the expulsion, which was not granted. He argued, in particular, that the Immigration Service had not taken into account the written evidence provided by him as no reasoning to that effect had been given in the decision. 21. On 29 June 2012 the Administrative Court rejected the applicant’s appeal and his request for an oral hearing. It considered that the Immigration Service had examined the documents submitted by the applicant and that the documents were mentioned in its decision. The Administrative Court considered that the new evidence did not provide grounds to accept the applicant’s appeal. 22. On an unspecified date the applicant appealed to the Supreme Administrative Court. 23. On 25 February 2013 the Supreme Administrative Court refused the applicant leave to appeal. 24. According to Article 9, paragraph 4, of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; Act no. 731/1999), the right of foreigners to enter Finland and to remain in the country is regulated by an Act. A foreigner shall not be deported, extradited or returned to another country, if in consequence he or she is in danger of a death sentence, torture or other treatment violating human dignity. 25. According to section 87, subsection 1, of the Aliens Act (ulkomaalaislaki, utlänningslagen; Act no. 301/2004), aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well-founded fear of being persecuted for reasons of ethnic origin, religion, nationality, membership of a particular social group or political opinion and if they, because of this fear, are unwilling to avail themselves of the protection of that country. 26. Section 88, subsection 1, of the Act (as amended by Act no. 323/2009) provides that an alien residing in Finland is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under section 87 are not met, but substantial grounds have been shown for believing that the person, if returned to his or her country of origin or country of former habitual residence, would face a real risk of being subjected to serious harm, and he or she is unable, or owing to such risk, unwilling to avail himself or herself of the protection of that country. Serious harm means: 1) the death penalty or execution; 2) torture or other inhuman or degrading treatment or punishment; or 3) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts. 27. Under section 88a of the Act (as amended by Act no. 323/2009), an alien residing in Finland is issued with a residence permit on the basis of humanitarian protection, if there are no grounds under section 87 or 88 for granting asylum or providing subsidiary protection, but he or she cannot return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation. 28. According to section 88b of the Act (as amended by Act no. 323/2009), the well-founded fear of being persecuted referred to in section 87b or the real risk of being subjected to serious harm referred to in section 88 may be based on incidents after the applicant’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in since his or her departure. 29. Section 98, subsection 2, of the Act (as amended by Act no. 432/2009) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant’s statements on his or her circumstances in the State in question and of real time information on the circumstances in that State obtained from various sources. After obtaining the statement, the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible, and if the authorities are convinced of the veracity of the application with regard to the applicant’s need for international protection. 30. According to section 147 of the Act, no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty, torture, persecution or other treatment violating human dignity or from where he or she could be sent to such an area. 31. Section 147b of the Aliens Act (as amended by Act no. 1214/2013) incorporates into the Finnish legal system the Council Decision 2004/573/EC of 29 April 2004 on the organisation of joint flights for removals from the territory of two or more member States, of third-country nationals who are subjects of individual removal orders. The annex to the Decision contains common guidelines on security provisions for joint removals by air including, inter alia, an obligation for the member States to ensure that the returnees for whom they are responsible are in an appropriate state of health, which allows legally and factually for safe removal by air. 32. According to the Home Office’s Operational Guidance Note on Iran, of October 2012: “There is no evidence to suggest that an applicant of Kurdish ethnic origin, in the absence of any other risk factor, would on return face a real risk of ill-treatment or persecution to Article 3 level purely on account of his or her ethnic origin. However the government disproportionately targeted minority groups, including Kurds, for arbitrary arrest, prolonged detention and physical abuse. Applicants who are able to demonstrate that they are known, or suspected, by the government to be members or supporters of the KDPI, Komala, or PJAK, will be at real risk of persecution and a grant of asylum will generally be appropriate.” | 0 |
test | 001-152383 | ENG | HUN | COMMITTEE | 2,015 | CASE OF ILONA KOVÁCS v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | András Sajó;Helen Keller;Robert Spano | 4. The applicant was born in 1960 and lives in Budapest. 5. On 1 September 2006 the applicant brought an action against the Budapest XIV District Mayor’s Office challenging an administrative decision whereby the registration document of her car had been revoked. 6. On 10 September 2010 the Budapest Regional Court adopted a final judgment quashing the administrative decision in question. 7. It appears that the ensuing administrative proceedings to have the registration document reissued have been pending ever since. | 1 |
test | 001-172462 | ENG | RUS | CHAMBER | 2,017 | CASE OF V.K. v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant was born in 1946 and lives in St Petersburg. 7. According to the applicant’s medical history he has suffered from various mental conditions since 1979 and has been admitted to hospital and treated in various psychiatric facilities several times. The applicant’s records contain information on alcohol abuse, suicide attempts, threats of violence against neighbours and medical professionals, and about a number of organic, psychiatric and personality disorders, including psychosis and paranoia. 8. Between 1998 and 2007 the applicant was taken to hospital at least six times following suicide attempts, alcohol-induced paranoia, claims of unspecified murder threats, claims about explosives planted in various public places and threats to neighbours that he would blow up a petrol canister. 9. According to a report issued on 29 March 2007 by the local ambulance service the applicant called for emergency assistance at his home twelve times in March 2007 (five times on 28 March 2007 alone). On each occasion there was no apparent reason for the call. The applicant behaved aggressively towards medical personnel, made sexual advances to female doctors and consumed alcohol in their presence. The service requested a police escort for further visits to his address. They stated that visits to the applicant meant there were delays in providing assistance to people who were in genuinely life-threatening situations and presented a danger to ambulance staff. 10. According to a police report of 2 April 2007 the applicant contacted the police three times in two days alleging that nomadic tribes had attacked him, that he had found an unexploded Second World War shell, and that explosives had been placed at an industrial facility. The applicant’s alerts were acted upon and found to be groundless. 11. On 3 April 2007 the applicant was admitted without his consent to St Petersburg Psychiatric Hospital no. 3 (Психиатрическая больница № 3 г. Санкт-Петербурга) (“the hospital”). The grounds for his admission were repeated, groundless telephone calls to the police about the presence of explosives at an industrial facility, a series of calls to the emergency medical services with offers of sexual services to female doctors, as well as threats of violence against ambulance staff. The applicant refused to be treated or admitted to hospital voluntarily. 12. On the same day a panel composed of the hospital’s resident psychiatrists examined the applicant and his medical history and diagnosed him with an organic mental disorder coupled with a psychiatric and paranoid personality disorder. The panel also found that the applicant was a danger to himself and others and that there was a risk of significant damage to his health due to the likely deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. The relevant parts of the panel’s report read as follows: “The patient had a habit of intoxicating himself heavily with alcohol, and suffered from a cranial trauma. Psychiatric disorders since 1979. Clinical history [shows] behavioural problems including affective instability, querulous ideas about his own relevance and persecution amounting to delusions. [He] has been frequently treated in psychiatric facilities owing to aggressive and auto-aggressive habits in the context of acute morbid emotional experiences. Admissions to hospital were, as a rule, ‘involuntary’. In the course of clinical development the organic defects have become predominant manifesting themselves through circumstantiality, a coarsening of emotions, and the exacerbation of his querulous tendencies. The current admission is due to inappropriate behaviour: informed the police that explosives had been planted somewhere, conflicts with [nomadic tribes], called for emergency medical services and when they arrived threatened the personnel, behaved improperly towards women. During examination – fully aware of his surroundings, answers questions in detail. ‘Ingratiating’. Believes that he is being persecuted by police because he is ‘a person of the Stalinist era, and they do not want to work’, shows an uncritical attitude towards [his] own behaviour, does not correct ideas of own relevance and persecution. Denies perceptual illusions. Having regard to the lack of a critical attitude towards his improper behaviour, the presence of ideas about his own relevance and persecution, [it] can be concluded that he falls under section 29 (a) and (c) of the Law of the Russian Federation on Psychiatric Assistance and Guarantees of Citizens’ Rights Related to Its Administration of 1992 (“the Psychiatric Assistance Act 1992”).” 13. On 4 April 2007 the hospital applied for a court order for the involuntary placement of the applicant in a hospital under section 29 (a) and (c) of the Psychiatric Assistance Act 1992 as the applicant was a danger to himself and others and risked significant damage to his health from a likely deterioration or aggravation of his condition if there was no psychiatric treatment. 14. On 9 April 2007 the Primorskiy District Court of St Petersburg (Приморский районный суд г. Санкт-Петербурга) granted the application to admit the applicant to hospital without his consent. The hearing was attended by the applicant, a court-appointed lawyer, Mrs L., the psychiatrists, and the prosecutor. During the hearing the District Court examined the applicant’s medical history and heard the testimony of the psychiatrists, who referred to severe alcohol abuse, erratic behaviour, frivolous calls to the police, and threatening conduct towards medical personnel. The trial record indicates that during the hearing the applicant claimed that informing the police about the alleged presence of explosives at a factory was his civic duty, complained about hospital regime and facilities and referred to his friendship with certain media personas in Russia. The relevant parts of the court order authorising the applicant’s treatment read as follows: “... The recommendation for admission to hospital was issued ... due to the presence of a severe psychiatric disorder, which can cause significant damage to [his] health due to a deterioration or aggravation of the psychiatric condition in the absence of psychiatric help. Mr V.K. did not consent to his admission to hospital since he refused treatment. On 3 April 2007 he was examined by a panel of psychiatrists, who established that [he is] aware of his surroundings, answers questions in detail, believes that he is being persecuted by the police because he is ‘a person of the Stalinist era, and they do not want to work’, shows an uncritical attitude towards [his] behaviour, does not correct his ideas of his own relevance and persecution, denies perceptual illusions. On the basis of their observations the panel concluded that the treatment of Mr V.K. as an inpatient is necessary. The court has no grounds to doubt the conclusions of the panel’s report. There is no evidence to the contrary. Having considered the evidence in the case, having heard the opinion of the doctors, of the lawyer, Mrs L., who considered inpatient treatment to be reasonable, and the opinion of the prosecutor ... the court concludes that the application of the Hospital’s chief physician is well-founded because Mr V.K. suffers from a severe disorder which indicates a risk of significant damage to [his] health due to a deterioration or aggravation of his psychiatric condition in the absence of psychiatric help.” 15. On 20 April 2007 the applicant was formally discharged from hospital after an improvement in his mental health. 16. On 25 April 2007 the applicant, represented by Mr D. Bartenev, a lawyer practising in St Petersburg, lodged an appeal against the order of 9 April 2007, stating, inter alia, that the legal aid lawyer Mrs L. had failed perform her functions properly. On the same day the applicant left hospital. 17. On 2 August 2007 the applicant’s appeal was summarily dismissed in a short decision by the St Petersburg City Court (Санкт-Петербургский городской суд). The relevant parts read as follows: “ ... In granting the application the [lower] court concluded that there were good reasons to place Mr V.K. in hospital against his will. The court’s conclusion relied on the evidence that had been submitted to it ... [It is] proven by the report of the panel of the Hospital’s resident psychiatrists, which describes Mr V.K.’s condition and confirms the existence of a severe psychiatric disorder indicating a risk of significant damage to [his] health due to a deterioration or aggravation of his psychiatric condition in the absence of psychiatric assistance. The arguments in the statement of appeal that legal aid lawyer Mrs L. did not duly discharge her professional functions may not serve as a ground for annulment of the order, which is lawful on the merits ... ” 18. Nothing in the materials available to the Court suggests that the applicant had ever been restricted in his legal capacity or appointed a legal guardian. | 1 |
test | 001-161822 | ENG | RUS | GRANDCHAMBER | 2,016 | CASE OF BLOKHIN v. RUSSIA | 1 | Preliminary objections dismissed (Article 35-1 - Exhaustion of domestic remedies;Six month period);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 - Deprivation of liberty;Article 5-1-d - Educational supervision;Minors);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing) (Article 6-3-d - Obtain attendance of witnesses;Article 6 - Right to a fair trial);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;András Sajó;Dean Spielmann;Dmitry Dedov;Erik Møse;George Nicolaou;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Ján Šikuta;Josep Casadevall;Julia Laffranque;Khanlar Hajiyev;Ledi Bianku;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Robert Spano;Ksenija Turković | 9. The applicant was born in 1992 and lives in Novosibirsk. 10. At some point before September 2004, the applicant’s parents were deprived of their parental responsibility and the applicant was placed in a local orphanage until his grandfather was assigned as his guardian in October 2004 and the applicant was placed with him. On 28 February 2005 the grandfather’s guardianship was revoked but he was reinstated as guardian at the beginning of 2006. 11. From 2002 to 2005, the applicant allegedly committed offences prohibited by the Criminal Code of the Russian Federation, including disorderly acts, aggravated robbery and extortion, alone or in a group of minors. Since he was under the age of criminal responsibility, no criminal proceedings were instituted against him but he was the subject of five pre-investigation inquiries and placed under the supervision of the Juveniles Inspectorate within the Department of the Interior of the Sovetskiy District of Novosibirsk (hereafter “the Juveniles Inspectorate”). Moreover, following the fourth inquiry, he was placed in a temporary detention centre for juvenile offenders on 21 September 2004 for thirty days. 12. According to the applicant’s medical records, he suffered from an attention deficit hyperactivity disorder (a mental and neurobehavioural disorder characterised by either substantial attention difficulties, or hyperactivity and impulsiveness, or a combination of the two; hereafter “ADHD”) and a neurogenic bladder causing enuresis (a disorder involving urinary incontinence). 13. On 27 December 2004 and 19 January 2005 he was examined by a neurologist and a psychiatrist. He was prescribed medication, regular supervision by a neurologist and a psychiatrist and regular psychological counselling. 14. On 3 January 2005 the applicant, who at that time was twelve years old, was at the home of his nine-year old neighbour S. when his mother, Ms S., called the police, who came and took the applicant to the police station of the Sovetskiy District of Novosibirsk. He was not informed of the reasons for his arrest. 15. According to the applicant, he was put in a cell that had no windows and the lights in the cell were turned off. After he had spent about an hour in the dark, he was questioned by a police officer. The police officer told him that S. had accused him of extortion. He urged the applicant to confess, saying that if he did so he would be immediately released, whereas if he refused he would be placed in custody. The applicant signed a confession statement. The police officer then immediately telephoned the applicant’s grandfather to tell him that the applicant was at the police station and could be taken home. When his grandfather arrived at the police station, the applicant retracted his confession and protested his innocence. 16. The Government disputed the applicant’s account of the events at the police station. They submitted that the applicant had been asked to give an “explanation” rather than being formally questioned, that he had been interviewed by a police officer who had pedagogical training, and that he had been apprised of his right to remain silent. He had not been subjected to any pressure or intimidation. His grandfather had been present during the interview. 17. On the same day the applicant’s grandfather signed a written statement describing the applicant’s character and way of life. He stated that two days earlier he had seen the applicant in possession of some money. When asked where the money had come from, the applicant had said that he had got it from his father. 18. S. and his mother were also heard by the police about the incident and they claimed that on two occasions, on 27 December 2004 and 3 January 2005, the applicant had extorted 1,000 roubles (RUB) from S., threatening him with violence if he did not hand over the money. 19. On 12 January 2005 the Juveniles Inspectorate refused to institute criminal proceedings against the applicant. Relying on the applicant’s confession and the statements of S. and S.’s mother, it found it to be established that on 27 December 2004 and 3 January 2005 the applicant had extorted money from S. His actions therefore contained elements of the criminal offence of extortion, punishable under Article 163 of the Criminal Code. However, given that the applicant was below the statutory age of criminal responsibility he could not be prosecuted for his actions. 20. On 3 February 2005 the applicant’s grandfather complained to the Prosecutor’s Office of the Sovetskiy District of Novosibirsk that the applicant, a minor suffering from a psychological disorder, had been intimidated and then questioned in the absence of his guardian and that his confession had been obtained under duress. The grandfather requested that the confession statement be declared inadmissible as evidence and that the pre-investigation inquiry be closed on account of lack of evidence of an offence, rather than the applicant’s age. 21. On 8 June 2005 the Prosecutor’s Office of the Sovetskiy District of Novosibirsk quashed the decision of 12 January 2005, finding that the preinvestigation inquiry had been incomplete. It ordered a further pre-investigation inquiry. 22. On 6 July 2005 the Juveniles Inspectorate again refused to institute criminal proceedings against the applicant, for the same reasons as before. 23. During the following months the applicant’s grandfather lodged several complaints with prosecutors’ offices of various levels, asking for a fresh examination of the case against the applicant. He complained that the applicant’s confession had been obtained as a result of intimidation by the police; in particular, he had been placed in a dark cell for an hour and he had then been questioned by a police officer in the absence of a guardian, psychologist or teacher. The police officer had coerced the applicant into signing the confession statement without the benefit of legal advice. He had then issued a decision refusing to institute criminal proceedings on the ground that the applicant had not reached the statutory age of criminal responsibility, while stating at the same time that the applicant’s involvement in extortion had been established. 24. By letters of 4 August, 9 November and 16 December 2005 the Prosecutor’s Office of the Sovetskiy District of Novosibirsk and the Prosecutor’s Office of the Novosibirsk Region replied that no criminal proceedings had been instituted against the applicant on grounds of his age. He therefore did not have the status of a suspect or a defendant. On 3 January 2005 he had been asked to give an “explanation” rather than questioned by the police. In those circumstances the participation of a lawyer, psychologist or teacher had not been mandatory. There was no evidence that the applicant had been held in a dark cell before the interview and he had had to wait no more than ten minutes for an officer from the Juveniles Inspectorate to arrive and interview him. That the applicant had committed extortion had been established on the basis of the statements of S. and S.’s mother and the applicant’s admission of guilt during the interview of 3 January 2005. 25. On 10 February 2005 the Head of the Sovetskiy District Police Department of Novosibirsk asked the Sovetskiy District Court of Novosibirsk to order the applicant’s placement in a temporary detention centre for juvenile offenders. 26. On 21 February 2005 the Sovetskiy District Court held a hearing at which the applicant and his grandfather attended and submitted medical certificates confirming that the applicant suffered from a psychological disorder and enuresis. 27. On the same day the court delivered its judgment in which it ordered the applicant’s placement in the temporary detention centre for juvenile offenders for thirty days. It held as follows: “The Head of the Sovetskiy District Police Department of Novosibirsk has applied to the court with a request to place [the applicant], who has been registered with the [Juveniles] Inspectorate as a delinquent minor since 4 January 2002, in the temporary detention centre for juvenile offenders for thirty days. On 14 May 2003 [the applicant] committed an offence proscribed by Article 161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. On 24 July 2003 [the applicant] again committed an offence proscribed by Article 213 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. On 27 August 2004 [the applicant] again committed a criminal offence under Article 161 of the Criminal Code of the Russian Federation. A criminal case was not opened because he had not reached the age of criminal responsibility. [The applicant] was placed in the temporary detention centre for juvenile offenders for thirty days. The minor lives in unfavourable family conditions in which his grandfather is responsible for his upbringing in so far as possible; [the applicant’s] parents are alcoholics and have a negative influence on their son. Before [the grandfather] was given guardianship status, [the applicant] had lived in an orphanage and studied in school no. 61. At the material time he studied in school no. 163, often played truant from school, and stopped attending school entirely from December onwards. Given that the requisite control over him is absent, the minor spends the major part of his day on the streets, committing socially dangerous offences. On 27 December 2004 [the applicant] committed another offence proscribed by Article 163 of the Criminal Code of the Russian Federation; a criminal case was not opened because he had not reached the age of criminal responsibility. Taking the above-mentioned circumstances into account, [the Head of the Police Department] considers it necessary to place [the applicant] in the temporary detention centre for juvenile offenders for a period of thirty days to prevent his further unlawful actions. The representative of the Juveniles Inspectorate supported the request made by the Head of the Police Department and explained that [the applicant’s] guardian had requested in writing that his guardianship rights be lifted and the [Inspectorate] had accepted that request. [The applicant] refused to provide any explanations. The [applicant’s] representative [the grandfather] objected to [the applicant’s] placement in the temporary detention centre, having noted that [the applicant] had not committed a criminal offence on 27 December 2004 as he had been with [the grandfather] at a doctor’s surgery for an examination at that time. The lawyer, Ms [R.], asked the court to dismiss the request of the Head of the Police Department. The prosecutor asked the court to accept the request and to place [the applicant] in the temporary detention centre for juvenile offenders, taking into account that the documents presented by [the applicant’s] guardian did not confirm that [the applicant] had been at a doctor’s surgery on 27 December 2004 at 1 p.m. or that he had been unable to commit the criminal offence, particularly taking into account the [applicant’s] personality and the fact that he had already committed a number of offences. Having heard the parties to the proceedings and having examined the materials submitted by them, the court considers that the request must be allowed for the following reasons: [the applicant] is registered in the database of [the Juvenile Department of the police]; he was previously placed in the [temporary detention centre for juvenile offenders] for behaviour correction but did not draw the proper conclusions and committed further delinquent acts; the preventive measures put in place by the [Juveniles] Inspectorate and by the guardian have not produced results, which shows that [the applicant] has not learnt his lesson. [The applicant] must be placed in the [temporary detention centre for juvenile offenders] for thirty days for behaviour correction. The case-file materials examined by the court confirm that [the applicant] committed a socially dangerous offence: a complaint by Ms [S.] shows that on 27 December 2004, at approximately 1 p.m., [the applicant] extorted 1,000 roubles from her son [S.] in a yard; he accompanied those actions with threats of violence. On 3 January 2005 [the applicant] again came to their house and again extorted 1,000 roubles from her son, having again threatened the son with violence. Explanations by [S.] indicate that on 27 December 2004, at approximately 1 p.m., [the applicant] told [S.] to give him 1,000 roubles in a yard; he accompanied those actions with threats of violence and [S.] gave him the money. On 3 January 2005 [the applicant] again came to their house and requested 1,000 roubles from [S.], having again threatened him with violence. [S.] complained to his mother, who called the police. The court takes into account that those circumstances are corroborated by the statement made by [the applicant], who did not deny that he had received money from [S.] on 27 December 2004 as the latter had been afraid of the applicant. [The applicant] also did not deny that he had come to [S.’s] house on 3 January 2005. A criminal case in respect of the events on 27 December 2004 and 3 January 2005 was not opened as the applicant had not reached the age of criminal responsibility. Having taken these circumstances into account, the court finds unsubstantiated and far-fetched the explanations by the applicant’s guardian that [the applicant] did not commit the offences on 27 December 2004 and 3 January 2005. Having regard to the above-mentioned facts and ruling under section 22(2)(4) of the Minors Act, the court grants the request of the Head of the Police Department and decides to place the applicant in the temporary detention centre for juvenile offenders for thirty days.” 28. On 21 February 2005 the applicant was placed in the Novosibirsk temporary detention centre for juvenile offenders, where he remained until 23 March 2005. 29. According to the applicant, he had shared his bedroom in the centre with seven other inmates. The lights were kept on all night. 30. During the day inmates were forbidden to lie on their beds or to enter the bedroom. They had to spend the whole day in a large empty room which had no furniture or sports equipment. On a few occasions they were given a chess set and other board games. They were allowed to go out into the yard only twice during the applicant’s thirty-day stay in the centre. 31. Inmates had classes twice a week for about three hours. They had mathematics and Russian grammar classes only. They were not taught any other courses from the officially approved secondary school curriculum. About twenty children of different ages and school levels were taught together in one class. 32. The supervisors applied collective punishment to the inmates. If one of them committed a breach of the centre’s strict regime, all inmates were forced to stand in line against the wall without moving, talking or being allowed to sit down. Given that many inmates were psychologically unstable and unruly, because of their socially disadvantaged background, such punishment was applied every day and often lasted for hours. 33. Inmates were not allowed to leave the room where they were assembled. They had to ask for the supervisor’s permission to go to the toilet and were accompanied there in groups of three. They therefore had to wait until such a group was formed before being able to go to the toilet. Given that the applicant suffered from enuresis, the fact that he could not go to the toilet as often as he needed caused him bladder pain and psychological suffering. If his requests for permission to go to the toilet became too frequent, the supervisors punished him by making him do particularly arduous cleaning work. 34. Although the applicant’s grandfather had informed the staff of the centre about the applicant’s enuresis and his attention deficit hyperactivity disorder, the applicant did not receive any treatment. 35. According to the Government, each bedroom in the temporary detention centre for juvenile offenders measured seventeen square metres and was equipped with four beds. Access to the bathrooms and toilets situated on each floor was not limited. 36. The centre had a dining room where meals were served five times a day. There was also a games room and a sports room. Audio and video equipment, educational games and fictional works were available. 37. The supervisors carried out “preventive work” with each inmate of the centre and could apply incentive measures or punitive measures in the form of oral reprimands. Corporal punishment was not used; nor were juvenile inmates ever required to do hard or dirty work. 38. The centre’s medical unit had all the necessary equipment and medicine. It could be seen from the staff list of the centre submitted by the Government that the medical unit was staffed by a paediatrician, two nurses and a psychologist. According to the Government, each child was examined by the paediatrician on his admission and every day thereafter. Treatment was prescribed when necessary. It could be seen from the temporary detention centre’s “accounting and statistical record” concerning the applicant that he had not informed the doctor about his enuresis. 39. The applicant’s personal file, containing, in particular, the information about his medical condition on admission, the preventive work carried out and the punishment applied to him, had been destroyed on 17 January 2008 after the expiry of the statutory time-limit on storage, in accordance with Order no. 215 of the Ministry of the Interior of 2 April 2004 (see paragraph 73 below). However, the Government stated that the applicant’s “accounting and statistical record”, referred to above, had been retained since its storage period was unlimited in accordance with Order no. 215 (see paragraph 74 below). 40. According to the Government, the applicant’s other medical records and logbooks at the temporary detention centre had been destroyed as soon as they had become unnecessary, without any records being compiled in this respect. This had been possible because there had been no regulations on storing such documents until Order no. 340 of the Ministry of the Interior had entered into force on 12 May 2006 (which provided that medical records were to be stored for three years). 41. However, the Government submitted a written statement by a supervisor at the detention centre dated 23 December 2010. She confirmed the Government’s description of the conditions of detention in the centre. She also stated that one of the supervisors was always present in the room where the inmates were gathered, which ensured continuity of the educational process. Teachers from the neighbouring school regularly came to the centre so that the inmates could follow the secondary-school curriculum. After their release from the centre, they received an education progress record. She stated that she did not remember the applicant but asserted that she had not received any requests or complaints from him or from any other inmate. 42. The Government also submitted a copy of an agreement of 1 September 2004 between the detention centre and secondary school no. 15 according to which the school undertook to organise secondary-school courses in the centre in accordance with a curriculum developed by the centre. A copy of an undated two-week curriculum was produced by the Government. It included four classes per day on Tuesdays, Thursdays and Fridays. 43. On 23 March 2005 the applicant was released from the detention centre. On the following day he was taken to hospital, where he received treatment for neurosis and attention deficit hyperactivity disorder. He remained at the hospital until at least 21 April 2005. 44. On 31 August 2005 the applicant was placed in an orphanage and, according to an extract from the applicant’s medical record drawn up at the orphanage, he was on the run between 14 September and 11 October 2005 and again between 13 and 23 October 2005. 45. On 1 November 2005 he was transferred to a children’s psychiatric hospital, where he remained until 27 December 2005. At some point after this, he was returned to his grandfather who had been reinstated as his guardian. 46. On 4 October 2005 the applicant’s grandfather complained to the Prosecutor General’s Office that the applicant, who suffered from a mental disorder, had not received any medical treatment in the temporary detention centre for juvenile offenders, which had caused a deterioration in his condition; nor had he been provided with any educational courses. He reiterated his complaints to the prosecution authorities in a letter dated 30 November 2005. While the Prosecutor’s Office of the Sovetskiy District of Novosibirsk sent a reply to the applicant’s grandfather on 9 November 2005 and the Prosecutor’s Office of the Novosibirsk Region sent a reply on 16 December 2005, both of these dealt exclusively with the procedural issues related to the applicant’s case (see paragraph 24 above) and did not contain any answer to the grandfather’s complaints in so far as they related to the applicant’s health and the conditions of detention. 47. Meanwhile, on 2 March 2005, the applicant’s grandfather appealed against the detention order of 21 February 2005. He submitted, firstly, that the detention was unlawful because the Minors Act did not permit detention for “behaviour correction”. Secondly, he complained that he had not been informed of the decision of 12 January 2005 refusing to institute criminal proceedings against the applicant and had therefore been deprived of an opportunity to appeal against it. He further submitted that the court’s finding that the applicant had committed an offence had been based on the statements of S. and his mother and the applicant’s confession statement. However, the applicant had made his confession statement in the absence of his guardian. Nor had a teacher been present. No teacher had been present during the questioning of S. either. Their statements were therefore inadmissible as evidence. Moreover, S. and his mother had not attended the court hearing and had not been heard by the court. Nor had the court verified the applicant’s alibi. Lastly, the applicant’s grandfather complained that the court had not taken into account the applicant’s frail health and had not verified whether his medical condition was compatible with detention. 48. On 21 March 2005 the Novosibirsk Regional Court quashed the detention order of 21 February 2005 on appeal. It found that behaviour correction was not among the grounds listed in section 22(2)(4) of the Minors Act for placing a minor in a temporary detention centre for juvenile offenders. Detention for behaviour correction therefore had no basis in domestic law. Moreover, the District Court had not stated reasons why it considered it necessary to detain the applicant. The mere fact that the applicant had committed an offence for which he was not liable to prosecution because of his age could not justify his detention. Such detention would be permissible only if one of the additional conditions listed in section 22(2)(4) of the Minors Act (see paragraph 66 below) was met. The Regional Court remitted the case to the District Court for fresh examination. 49. On 11 April 2005 the Sovetskiy District Court discontinued the proceedings because the Head of the Sovetskiy District Police Department of Novosibirsk had withdrawn his request for the placement of the applicant in the temporary detention centre for juvenile offenders. The applicant and his grandfather were not informed of the date of the hearing. 50. On 22 March 2006 the applicant’s grandfather lodged an application for supervisory review of the decision of 11 April 2005. He complained that as a result of the discontinuation of the proceedings the applicant had been deprived of an opportunity to prove his innocence in respect of the offence for which he had already unlawfully served a term of detention in the temporary detention centre for juvenile offenders. 51. On 3 April 2006 the President of the Novosibirsk Regional Court quashed the decision of 11 April 2005. He found, firstly, that, in accordance with section 31.2(3) of the Minors Act, a judge examining a request for the placement of a minor in a temporary detention centre for juvenile offenders had the power either to grant or to reject the request. He had no power to discontinue the proceedings. Secondly, the applicant and his guardian had not been informed of the date of the hearing and had therefore been deprived of an opportunity to make submissions on the issue of the discontinuation of the proceedings. 52. On 17 April 2006 the Prosecutor of the Novosibirsk Region lodged an application for supervisory review of the Regional Court’s decision of 21 March 2005. 53. On 12 May 2006 the Presidium of the Novosibirsk Regional Court quashed the decision of 21 March 2005, finding that it had been adopted by an unlawful composition of judges. It remitted the case for a fresh examination on appeal. 54. On 29 May 2006 the President of the Novosibirsk Regional Court held a fresh appeal hearing and upheld the decision of 21 February 2005 ordering the applicant’s placement in the temporary detention centre for juvenile offenders. He found that the applicant had committed a delinquent act punishable under Article 163 of the Criminal Code but that no criminal proceedings had been instituted against him because he had not reached the statutory age of criminal responsibility. He belonged to a “problem family”; his parents had been deprived of parental responsibility and he was cared for by his grandfather. He played truant from school and spent most of the time on the streets or in a computer club. In those circumstances, it had been necessary, in accordance with section 22(2)(4) of the Minors Act, to place him in the temporary detention centre for juvenile offenders for thirty days to prevent him from committing further delinquent acts. The fact that the District Court had referred to “behaviour correction” as a ground for detention had not made the detention order of 21 February 2005 unlawful. The applicant’s detention had been justified by other grounds. Nor could the detention order of 21 February 2005 be quashed on account of the applicant’s frail health, given that it had already been enforced in March 2005. | 1 |
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