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test | 001-173800 | ENG | HUN | CHAMBER | 2,017 | CASE OF ÓNODI v. HUNGARY | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life) | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Vincent A. De Gaetano;Georges Ravarani | 5. The applicant was born in 1965 and lives in Szajol. 6. On 6 October 1990 he married Ms N.R. The couple had one daughter, R.Ó, born on 23 March 1994. 7. On 24 March 2006 the couple divorced and agreed on custody of the child and other parental rights. Their agreement, which was approved by the Szolnok District Court, placed the daughter with her mother and granted the applicant contact every other weekend, during the school holidays, Easter Sunday, Whit Monday, the first holiday following Christmas Eve and three weeks during the summer holidays. The applicant was also to pay child allowance, amounting to 20% of his salary, but at least 20,000 Hungarian forints (HUF approximately 66 euros (EUR)) per month. 8. Ms N.R. moved out of the former family home and took up residence in Budapest. 9. The applicant could exercise contact on 25 and 26 June and 24 July 2006. However, his daughter was reluctant to stay with him during the summer holidays and preferred to spend her holidays with her grandparents. 10. The applicant’s further attempts to exercise contact failed, seemingly because in the mother’s view it was up to the child to decide whether she wanted to see her father. The applicant applied to the Szolnok County Guardianship Authority to have the contact agreement enforced. In a decision of 11 September 2006 it ordered Ms N.R. to comply with the agreement, warning her that failure to do so could result in her being fined and ordered to reimburse the applicant’s travel costs. Given the strained relationship between the parents, a notary initiated child protection proceedings (védelembe vétel) on 27 December 2006. Subsequently, on a number of occasions Ms N.R. was fined for not complying with the agreement. It appears from the case file that the applicant could exercise contact between 10 July 2007 and 10 November 2008. 11. In 2007 Ms N.R. brought an action seeking to change the applicant’s contact rights and an increase in the amount of child allowance. In a counterclaim the applicant requested that the child be placed in his custody. 12. The applicant also filed a criminal complaint against Ms N.R. alleging child endangerment. The parties’ attempt to stabilise the relationship between the applicant and his daughter during the suspension of the custody proceedings were unsuccessful and the Szolnok District Court ordered that any meetings between them take place at a child protection centre. 13. In a judgment of 10 June 2008 the Szolnok District Court reduced the applicant’s contact with his daughter to every first and third Saturday of the month from 9 a.m. to 6 p.m. It held that the previously agreed form of contact was unlikely to be implemented and would only lead to further proceedings before the guardianship authority, which would be to the detriment of the child. The court based its judgment on an expert opinion finding that the child should have had an adaptation period to re-establish her relationship with her father. The court dismissed the applicant’s claim concerning custody, stating that the child’s wishes had to be taken into account, given that she was now fourteen years of age. 14. On 19 November 2008 the Jász-Nagykun-Szolnok County Regional Court upheld the first-instance judgment in essence but amended the applicant’s contact rights to every other Saturday between 9 a.m. and 4 p.m. until 31 May 2009, and all weekend-long visits every other weekend as of 1 June 2009. 15. In 2009 the applicant failed to turn up at numerous scheduled meetings for months, for which he was fined HUF 10,000 (approximately EUR 35). 16. In 2010 the applicant’s contact rights and the amount of child allowance were subject to further litigation. On 29 January 2010 the Szolnok District Court dismissed an action brought by him seeking to decrease the amount of child allowance, and a review of the way contact should be exercised. The court established that since the court decision of 19 November 2008, no contact had taken place between the applicant and his daughter and, despite a request by the applicant, the guardianship authority had taken no steps to implement the judgment on the grounds that he had made no efforts to resolve the conflict with his daughter. In particular, he had paid no heed to her request to travel by public transport instead of in his car. The court also found that in the absence of any significant change in circumstances, there was no reason to amend the arrangements for contact. 17. In a final judgment of 15 April 2010 the Jász-Nagykun-Szolnok County Regional Court reviewed the applicant’s parental rights, granting him contact every other weekend on the condition that the daughter, who was by now already 16 years old, be allowed to visit him by herself. The court dismissed the applicant’s request for a decrease in the child allowance. The applicant lodged a petition for review with the Supreme Court. It was dismissed on 8 February 2011. 18. It appears from the case file that meetings between the applicant and his daughter only took place sporadically in 2010 and did not happen at all in 2011, despite the applicant lodging numerous enforcement requests with the guardianship authority. 19. In 2011 the applicant requested that the Jász-Nagykun-Szolnok Guardianship Authority and all subordinate guardianship authorities be excluded from any further proceedings for bias. On 12 December 2011 the Budapest Regional Guardianship Authority appointed the Budapest XV District Guardianship Authority to deal with any further proceedings concerning the enforcement of the applicant’s contact rights, noting that at that point there were eight enforcement requests pending, the oldest dating back to January 2010. 20. The applicant lodged a number of requests seeking to end his obligation to pay child allowance, which were finally accepted by the Budapest IV and XV District Court on 10 October 2012 and on appeal by the Budapest High Court on 3 September 2013. Nonetheless, an additional request by him for the reimbursement of the child allowance he had already paid was dismissed at both levels of jurisdiction. | 1 |
test | 001-178103 | ENG | SVN | ADMISSIBILITY | 2,017 | KNEŽEVIĆ AND OTHERS v. SLOVENIA | 4 | Inadmissible | Carlo Ranzoni;Ganna Yudkivska;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani | 1. A list of the applicants is set out in the appendix. 2. The Slovenian Government (“the Government”) were represented by their Agent, Mrs A. Vran, State Attorney. The Croatian Government and the Government of Bosnia and Herzegovina, who had been notified by the Registrar of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 § 1 of the Rules of Court), did not indicate that they intended to do so. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 24 October 1994 the applicants each instituted separate civil proceedings with the Koper Labour Court against their employer, the company L.K., claiming the repayment of a loan which they had previously given it in the form of bonds. 5. On 27 October 1994 the court decided to join the proceedings. 6. On 29 March 2002 the Koper Local Court adjourned the case and ordered the applicants’ representative to submit within sixty days an original power of attorney for the second and third applicants and new addresses in respect of all three applicants. The time-limit for the submission of the documents was subsequently prolonged. 7. The applicants’ representative submitted a fresh power of attorney in respect of the first applicant and requested a further extension of the time-limit with respect to the second and third applicants, which was granted. However, he did not submit the requested documents. 8. On 10 December 2003 the Koper Local Court rejected the second and third applicants’ claims on procedural grounds for failure to present a valid power of attorney. The two applicants appealed. Their appeals were dismissed by the Koper Higher Court on 23 January 2007. 9. On 28 September 2007 the Koper Local Court held a hearing in respect of the first applicant’s claim and dismissed it. The first applicant appealed. 10. On 8 October 2008 the Koper Higher Court dismissed the first applicant’s appeal and he then lodged a constitutional complaint. 11. On 2 November 2009 the Constitutional Court rejected the constitutional complaint. 12. On 19 June 2009, after rejecting offers made by the State Attorney’s Office, the applicants, relying on the 2006 Act on the Protection of the Right to a Trial without Undue Delay (“the 2006 Act”), each separately brought claims in respect of non-pecuniary damage incurred due to alleged unreasonable length of proceedings. The cases were then dealt with jointly by the Kranj Local Court. 13. On 28 December 2010 the Kranj Local Court found that the applicants’ right to a trial within a reasonable time had been breached. It ordered the State to pay 2,925 euros (EUR) to the first applicant, EUR 1,620 to the second and the third applicant and ordered that each party had to bear their own costs. The court dismissed the remainder of the claims. The applicants appealed. 14. On 9 January 2013 the Ljubljana Higher Court dismissed the applicants’ appeal. 15. For relevant domestic law with respect to length of proceedings see Grzinčič v. Slovenia (no. 26867/02, §§ 35-48, 3 May 2007). In particular, section 20(6) of the 2006 Act states that the provisions of the Civil Procedure Act concerning small claims apply in proceedings concerning compensation for non-pecuniary damage, irrespective of the type or amount of claim. 16. The following provisions of the Constitutional Court Act (Official Gazette no. 15/94, with relevant amendments) are relevant to the present case: “(1) Where there has been a violation of human rights or fundamental freedoms, a constitutional complaint may, under the conditions determined by this Act, be lodged against individual acts by which State authorities, local authorities, or bearers of public authority have decided on the rights, obligations, or legal entitlements of individuals or legal entities ...” “(1) The Constitutional Court decides as a panel of three Constitutional Court judges (hereinafter referred to as a panel) at a closed session whether to initiate proceedings on the basis of a constitutional complaint.” “(1) A constitutional complaint is not admissible if the violation of human rights or fundamental freedoms [alleged] did not have serious consequences for the complainant. (2) It is deemed that there has been no violation of human rights or fundamental freedoms having significant consequences for a complainant with regard to individual decisions: – issued in small claims disputes in accordance with the act which regulates civil procedure, or in other disputes if the value in dispute for the complainant does not exceed the amount which is determined by the definition of small claims disputes in the act which regulates civil procedure; – concerning costs of proceedings, where such a decision alone has been challenged in the constitutional complaint; – issued in property trespass disputes; – issued in minor offence cases. (3) Irrespective of the preceding paragraph, the Constitutional Court may in particularly justified cases decide exceptionally on a constitutional complaint against the individual decisions referred to in the preceding paragraph, notably where the decision appealed against concerns an important constitutional question which goes beyond the importance of the actual case.” 17. The Government submitted a number of decisions taken in cases falling under section 55a(2) of the Constitutional Court Act in which the Constitutional Court had accepted constitutional complaints for consideration on their merits. 18. In particular, they submitted eleven decisions issued in minor offence proceedings (Up-3663/07 of 19 June 2009; Up-320/10 and Up-456/10 of 9 April 2010; Up-319/10 of 23 June 2010; Up-847/10 of 16 September 2010; Up-1293/10 of 10 October 2011; Up-1544/10 of 10 October 2011; Up-1220/11 of 3 April 2012; Up-965/11 of 3 April 2012; Up-187/13 of 5 September 2014; Up-375/13 of 5 September 2014; and Up-718/13 of 4 November 2014), and two decisions given in costs-only proceedings (Up-1547/08 and U-I-147/08 of 16 April 2009 and Up-1454/10 of 10 October 2011). 19. Furthermore, they submitted three Constitutional Court decisions in which the constitutional complaint had been lodged against lower court decisions issued in a small claims dispute or in which the value in dispute for the complainant did not exceed the amount determined by the definition of a small claim (EUR 2,000). In decision no. Up-109/12 of 23 January 2014 the Constitutional Court accepted a constitutional complaint for consideration which raised questions of discrimination against people with disabilities in a case concerning severance pay which was below EUR 2,000. Decision no. Up-584/12 of 2 April 2013 concerned a defamation claim amounting to EUR 2,000, whereas the constitutional complaint involved raised freedom of expression issues. In decision no. Up-234/14 of 4 November 2014 the Constitutional Court accepted a constitutional complaint for consideration in a case in which the disputed amount was lower than EUR 2,000 but which raised questions of equal protection of rights. 20. In all of the above cases the Constitutional Court concluded that the complainants had succeeded in arguing that their case represented an important constitutional question and had thus fulfilled the conditions for consideration of the constitutional complaint under section 55a(3) of the Constitutional Court Act. 21. The Government also referred to seven cases in which the Constitutional Court had rejected constitutional complaints lodged against decisions in small claims disputes (Up-308/11 of 6 March 2012; Up-441/13 of 10 September 2013; Up-1201/12 of 10 September 2013; Up-1131/12 of 30 September 2013; Up-132/13 of 30 September 2013; Up-925/12 of 15 April 2014; and Up-368/14 of 12 September 2014). In such cases the Constitutional Court examined in some detail whether the complainants had complied with the criterion of there being an important constitutional question at stake. | 0 |
test | 001-141939 | ENG | HUN | COMMITTEE | 2,014 | CASE OF WARE v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | András Sajó;Egidijus Kūris;Helen Keller | 4. The applicant was born in 1952 and lives in Hegyesd. 5. In a trespass dispute, on 15 April 2001 the applicant brought an action before the Tapolca District Court. After a second-instance decision by the Veszprém County Regional Court and a remittal, the final judgment in the case was adopted by the Supreme Court and served on the applicant’s lawyer on 12 August 2009. | 1 |
test | 001-152831 | ENG | MLT | ADMISSIBILITY | 2,015 | BORG AND VELLA v. MALTA | 4 | Inadmissible | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 1. The applicants, Mr Michael Borg, Mrs Olympia Borg, Mr Andrew Vella are Maltese nationals and Mrs Lorena Vella is a Canadian national. They all live in Gozo and they were born respectively in 1975, 1976, 1974, and 1973. They were represented by Dr T. Abela, a lawyer practising in Attard. 2. The Maltese Government (“the Government”) were represented by their Agent, Dr P. Grech, Attorney General. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Following a project launched by the Government in 1984 asking the public to identify features of the Maltese cultural and natural heritage which deserved to be included in the Conservation and Preservation Plan for the protection of the environment, a villager suggested protecting the picturesque view, across open sloping fields leading down to the sea, which was visible from north of Nadur, Gozo, in the area at issue in the present case. 5. Some time later – the Government having accepted the proposal –procedures for the execution of the project commenced. In June 1991 the Commissioner of Land (CoL) expropriated a plot of land in the above-mentioned area – it is not clear whether this land belonged exclusively to the applicants or in part also to Nadur Parish Church – in order to widen an existing road and develop an open panoramic view, known locally as a “belvedere”. In the development phase of the belvedere, the Government demolished a rubble wall on the boundary between expropriated land and the applicants’ property and installed iron railings to permit an unobstructed view. In due course the area became a designated belvedere, with an unobstructed view overlooking the fields sloping down to the sea. No dispute arose in relation to this (first) expropriation. The applicants’ property abuts immediately onto and is slightly below the site of the belvedere and is, in effect, part of the view from the said belvedere and part of the sloping fields. 6. On an unspecified date the applicants sought planning permission to develop the remaining part of the land owned by them, but the Malta Environment and Planning Authority refused the application on the grounds that the site, although within a development zone, was a protected green area. 7. Subsequently, on 1 April 2004, the applicants brought an action against the CoL, asking the court to declare that they had the right to erect a wall on the boundary between their land and the expropriated plot (see Relevant domestic law). The CoL did not submit any pleas countering the claim, although he was served with the claim on 23 April 2004. 8. Since the applicants did not own all the land expropriated in conjunction with the belvedere, the wall in question would not have been built along the entire length of the belvedere. It would only have been built on the two plots owned by the applicants, these being 12.8 metres and 7 metres wide respectively. Although not specified, from the photos and plans provided it would appear that the entire belvedere is approximately 50 metres long. 9. The case was set down for hearing for 25 June 2004. On that same day the Court of Magistrates (Gozo) in its superior jurisdiction gave judgment in default, upholding the applicants’ claim, finding that they had the right to build such a “boundary” wall and authorising them to build such a wall “up to the height required by law” under the supervision of a court-appointed architect. 10. Since no appeal was lodged, the judgment became final. 11. In the ensuing four years, numerous applications were made to the court by both parties to the suit in respect of technical issues connected with the execution of the above-mentioned judgment, that is, the erection of the proposed wall (these included the removal of items installed on the belvedere so that the wall could be constructed, the question of distances, given the sloping terrain, and the manner in which the boundary wall should be built – over which the CoL disagreed with the interpretation of the architect). A decision in the form of a decree of 21 August 2006, given pursuant to one of the applications, held that the wall had to be built along the boundaries of the land expropriated for the purposes of the belvedere (where a retaining wall already existed) and that it had to be one and half metres high measured “from the belvedere”. A request by the CoL to have the height of the wall measured from the boundaries (the level where the properties met) and not from the surface level of the belvedere was rejected on 22 September 2006. The court therefore rejected the CoL’s interpretation as to how the wall had to be built. 12. The execution of the judgment of 25 June 2004 was to take place on 5 April 2008. 13. On 2 April 2008 the President of Malta declared that as from 3 April 2008 the Minister for Gozo was to assume the additional duties of Prime Minister during the Prime Minister’s absence from Malta. By virtue of a declaration made by the acting President of Malta on 3 April 2008, a piece of land (112 square metres) owned by the applicants – which included part of the strip of land on which they were to build the boundary wall – was expropriated by the CoL for the price of 23,300 euros (EUR). 14. On 4 April 2008 the CoL asked the court to suspend execution of the judgment in the applicants’ favour in view of the above-mentioned expropriation, which included part of the applicants’ land adjacent to the existing retaining wall. According to the CoL there was a public interest in the expropriation for the purposes of safeguarding the environment and particularly the belvedere (and the view therefrom), built at the expense of the taxpayer, from the actions proposed by the applicants. 15. On 23 April 2008 the court rejected the request as it could not suspend the execution of a judgment which had become final and in respect of which there had been no appeal or retrial. 16. On 25 April 2008 the CoL lodged a further application asking the court to prohibit the applicants from undertaking any works on the aforementioned plot by reason of the expropriation of 3 April 2008. Given the circumstances, the applicants agreed not to proceed with the building of the wall until the competent court had decided on the validity of the second expropriation. That being so, the court did not consider it necessary to issue the relevant prohibitory injunction. 17. On 26 April 2008 the applicants lodged a judicial protest noting that they were not accepting the compensation offered and declaring their intention to institute constitutional redress proceedings in relation to the expropriation. 18. On 7 May 2008 the CoL instituted fresh ordinary civil proceedings, asking the court to declare that the land where the wall was to be built was Government land, to declare the decision of 23 April 2008 null and void – given that the land on which the wall was to be built had now been expropriated for a public purpose – and to revoke any other court decision issued after the 25 June 2004 intended to establish the boundaries between the property of the Government and that of the applicants. 19. The hearing of the case was suspended in view of the constitutional redress proceedings lodged by the applicants (see below). It does not transpire that they have been resumed. 20. On 23 July 2008 the applicants instituted constitutional redress proceedings claiming a violation of Article 6 of the Convention – in so far as they had been denied execution of a judgment in their favour – and Article 1 of Protocol No. 1 to the Convention in that the expropriation of 3 April 2008 had not been in the public interest. They further invoked Article 14 of the Convention. 21. By a judgment of 23 April 2010 the Civil Court (First Hall) in its constitutional competence rejected the applicants’ claims. It considered that under domestic law an owner had no right to be exempted from an expropriation of property which was carried out in the public interest and in exchange for adequate compensation. That being so, no fair-trial rights arose in relation to the expropriation itself, the right of the individual being limited to contesting the public interest and the compensation at issue in any given expropriation. It held that in the present case the expropriation in 2008 had been made in the public interest to ensure the effectiveness of the 1991 expropriation, the public interest of which (the creation of a belvedere) was not disputed. The fact that certain third parties (people living in the area of Nadur) had more to gain than others did not deprive the expropriation of its public interest, given that the entire Maltese and Gozitan population would benefit from the view. There was nothing wrong in the State ensuring that a plan it had embarked on years before was not frustrated. The court considered that, while the Government’s negligence in the proceedings before the Court of Magistrates in Gozo was grave, they had been entitled to take action to correct their mistakes. It further considered that there had not been any discriminatory treatment. The project in 1984 had been started by a socialist Government and then continued by a nationalist Government, and neither the initiation nor the continuation thereof appeared to have been politically motivated. Both administrations were taking action solely for the preservation of the environment. Moreover, while it was true that the 2008 expropriation had been made at a time when the Minister for Gozo was acting Prime Minister and that such an action probably brought most benefit to the residents of Nadur – who were, in the main, of the same political persuasion as the Minister for Gozo – it did not appear that the expropriation (which had been decided on 14 March 2008, that is to say prior to the Minister’s being assigned the duties of acting Prime Minister) was a result of any intervention on her part. Neither had it been proved that the applicants were treated differently from others in their position or that the expropriation had been politically motivated. 22. By a judgment of 30 September 2011 the Constitutional Court rejected an appeal lodged by the applicants. It confirmed in full the first-instance judgment in respect of the claim under Article 1 of Protocol No. 1, as the expropriation was indeed necessary to protect the view which was in the general interest and which would have been frustrated by the building of a wall. It further considered that the applicants had not been denied access to a court as they could still contest the merits of the expropriation in relation to the public interest and the amount of compensation. The fact that the applicants had a judicially recognised right over that land (in the instant case, the right to build a dividing wall when two properties belong to different owners) did not mean that that land could not be expropriated in accordance with the existing legal procedures, subject always to the judicial review of the administrative act of expropriation. Lastly, in relation to the complaint under Article 14 it considered that – even if the Minister had been involved in the expropriation – it had already been found that the expropriation was legitimate, and it was self-evident that a minister had to act, even if it happened that the beneficiaries shared the same political opinion. In the court’s view, the argument that – unlike the applicants – the neighbours had direct access to the Minister, enabling them to influence decision-making, did not mean that there had been discriminatory treatment. Similarly, the fact that other people’s property had not been expropriated did not mean that the expropriation was discriminatory, as not everyone’s property was relevant for the purpose sought to be achieved by the expropriation. Moreover, the applicants were entitled to compensation for the taking of their property. 23. Pending the proceedings before this Court and after the parties had submitted their observations, by means of a publication in the Government Gazette of 21 August 2014, the President of Malta revoked the President’s Declaration of 3 April 2008 which had expropriated the applicants’ land. 24. According to information submitted by the parties, the applicants became aware of the revocation on an unspecified day, weeks after it happened. Subsequently, the applicants informed the Government Agent, who according to the applicants was unaware that the measure had been lifted. The parties met and agreed that the Government agent would inform the Court about the matter. 25. The Court was eventually informed of the matter on 4 November 2014, both parties having claimed that the delay in informing the Court was due to an oversight and a lack of co-ordination, for which they apologised to the Court. 26. Article 434 of the Civil Code, Chapter 16 of the Laws of Malta reads: “Every person may construct any wall or building on the boundary-line of his tenement, saving the right of the neighbour to acquire co-ownership of the wall (...)” Article 408 of the Civil Code, in so far as relevant reads: “A party-wall between two courtyards, gardens or fields, may be built of loose stones, but must be - (c) one and one-half metres high, if it is between two fields.” | 0 |
test | 001-180316 | ENG | DEU | CHAMBER | 2,018 | CASE OF BIKAS v. GERMANY | 3 | No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence;Proved guilty according to law) | André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer | 6. The applicant was born in 1958 and lives in Leipzig. 7. On 30 October 2009 the Munich II Public Prosecution Office charged the applicant with coercion to engage in sexual activity in at least 300 cases and with sexual coercion in another eighteen cases. 8. On 20 July 2012 the Munich II Regional Court, after taking evidence at seventeen days of hearing, issued a decision limiting the prosecution to charges concerning four incidents which had taken place between 19 and 25 August 2007. The court provisionally discontinued the proceedings in respect of all the other offences the applicant had been charged with (see paragraph 7 above), in accordance with Article 154 § 2 of the Code of Criminal Procedure (see paragraph 17 below), in view of the penalty the applicant could expect for the four remaining incidents. The applicant was further informed that if he was convicted the court could take into account findings made in respect of the other incidents when setting his sentence. 9. In a judgment delivered on the same day, the Regional Court convicted the applicant of four counts of coercion to engage in sexual activity, committed between 19 and 25 August 2007, and sentenced him to six years’ imprisonment. 10. In its findings of fact, the Regional Court stated that between January 2001 and October 2007 the applicant had forced P., aged between 29 and 35 at the relevant time and suffering from a moderate mental disorder and an autistic and speech disorder, to satisfy him manually or orally on at least fifty further occasions (out of the at least 300 offences the applicant had initially been charged with, see paragraph 7 above). The court had regard to P.’s extensive description of different incidents, which happened either in the house the applicant and P. were both living in or in the applicant’s car. P. had notably explained how the applicant had regularly, when his wife and son were absent, brought her into his apartment or in the basement boiler room, had undressed himself and had instructed her how to satisfy him, partly while playing pornographic films. The applicant had systematically threatened P. that she would have to return to a home for the disabled if she did not comply with his requests. From 19 to 25 August 2007, when the applicant’s wife and son were on holiday, the applicant had forced P. to satisfy him orally at least twice and to satisfy him manually on two further occasions in their house or in the basement boiler room. The veracity of P.´s consistent statements was confirmed by further witnesses and three psychological expert opinions on P.´s credibility and ability to testify. 11. The Regional Court explained that it had restricted the conviction to the four events that had taken place between 19 and 25 August 2007. It had discontinued the proceedings in respect of the at least 300 further charges under Article 154 § 2 of the Code of Criminal Procedure but was convinced that in at least fifty cases there had been incidents comparable to the four of which the applicant was formally convicted. It had simply been impossible to determine their exact time and place due to the victim’s speech disorder. 12. In the impugned passages of the judgment, the Regional Court found as follows: “The chamber is convinced on the basis of the credible statement by the injured party that in addition to the four cases between January 2001 and October 2007 on which judgment was passed, at least 50 other comparable cases occurred. The injured party herself said that the applicant had coerced her to perform sexual acts from as early as 2001. From 2003, the frequency of these incidents had increased and the applicant had demanded sexual gratification from her approximately every 1½ weeks. Even if one were to disregard the years 2001 and 2002 and August and October 2007 in favour of the applicant and also to presume that from 2003 onwards, such incidents occurred only once a month there are 56 cases. Following the deduction of a further safety margin the chamber assumes that there were at least 50 more, comparable cases during the total period from January 2001 to October 2007. ... On the other hand, the chamber considers as an aggravating element that it is convinced that, in addition to the four incidents in August 2007 which the accused has been convicted of, there have been at least 50 comparable incidents since January 2001. A conviction for those events was only made impossible by the victim’s incapacity to substantiate them in terms of the time and the place where they happened in a manner making it possible to define them as procedural offences (offences in the procedural sense). As it could no longer be determined with certainty in which cases the accused, by his threats, made the victim satisfy him orally or manually, the chamber will proceed on the basis that there were 50 further cases of manual satisfaction.” (“Die Kammer ist aufgrund der glaubhaften Aussage der Geschädigten davon überzeugt, dass es neben den vier abgeurteilten Taten im Zeitraum Januar 2001 bis Oktober 2007 zu mindestens 50 weiteren, vergleichbaren Fällen kam. Die Geschädigte selbst gab an, der Angeklagte habe sie bereits ab dem Jahr 2001 zu sexuellen Handlungen genötigt. Ab dem Jahr 2003 sei die Frequenz dieser Vorfälle gestiegen und der Angeklagte habe ungefähr alle 1 ½ Wochen sexuelle Befriedigung von ihr verlangt. Selbst wenn man zugunsten des Angeklagten die Jahr 2001 und 2002 sowie den August und Oktober 2007 unberücksichtigt lässt und zudem davon ausgeht, dass es ab dem Jahr 2003 lediglich einmal im Monat zu derartigen Vorfällen kam, so ergeben sich 56 Fälle. Nach Abzug eines weiteren Sicherheitsabschlags geht die Kammer von mindestens 50 weiteren, vergleichbaren Fällen im gesamten Zeitraum von Januar 2001 bis Oktober 2007 aus. ... Andererseits wertet die Kammer zu Lasten des Angeklagten den Umstand, dass es nach Überzeugung der Kammer neben den verurteilten vier Vorfällen im August 2007 bereits ab Januar 2001 zu mindestens 50 vergleichbaren Vorfällen gekommen war. Eine Verurteilung dieser Vorfälle scheiterte lediglich an der mangelnden Fähigkeit der Geschädigten, die Vorfälle zeitlich und örtlich so zu konkretisieren, dass diese als prozessuale Taten abgrenzbar waren. Da sich nicht mehr mit Sicherheit aufklären ließ, in welchen Fällen der Angeklagte die Geschädigte durch seine Drohung zu einer oralen und in welchen zu einer manuellen Befriedigung brachte, geht die Kammer insoweit von 50 weiteren Fällen der manuellen Befriedigung aus.”) 13. In an appeal on points of law to the Federal Court of Justice, the applicant complained that the Regional Court had breached the presumption of innocence guaranteed by Article 6 § 2 of the Convention by taking fifty unproven incidents into account as an aggravating factor meriting a more severe sentence, despite the fact that the proceedings in relation to them had been discontinued under Article 154 of the Code of Criminal Procedure. 14. The Federal Public Prosecutor General argued that the Regional Court had been entitled to take account of the sexual offences committed previously by the applicant as an aggravating element as part of his previous history (Vorleben) and thus as one of the elements in setting his sentence under Article 46 § 2 of the Criminal Code (see paragraph 18 below). In accordance with the Federal Court of Justice’s case-law, the Regional Court had made sufficient findings of fact establishing a minimum level of guilt in respect to those offences. 15. On 6 February 2013 the Federal Court of Justice dismissed the applicant’s appeal as ill-founded, without giving specific reasons. 16. In a decision of 16 May 2013, which was served on the applicant’s lawyer on 28 May 2013, the Federal Constitutional Court, without giving reasons, declined to consider a constitutional complaint by the applicant, in which he had again complained of a breach of the presumption of innocence (file no. 2 BvR 575/13). | 0 |
test | 001-144135 | ENG | POL | COMMITTEE | 2,014 | CASE OF HOSZOWSKI v. POLAND | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | George Nicolaou;Ledi Bianku;Nona Tsotsoria | 4. The applicant was born in 1966 and lives in Kraków. 5. On an unspecified date the applicant became a party to proceedings for division of joint property. 6. On 18 December 1995 the Kraków–Śródmieście District Court (Sąd Rejonowy) gave a severance order and decided to examine the applicant’s motion in separate proceedings. 7. From that date the proceedings have been pending before the firstinstance court. 8. The applicant lodged three complaints under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”). 9. In his complaint of 26 November 2008 he sought a finding that the length of the proceedings had been excessive and claimed 10,000 Polish zlotys (PLN) in compensation. 10. On 2 February 2009 the Kraków Regional Court (Sąd Okręgowy) examined the complaint. It found that the length of the proceedings had been partly attributable to the parties who had requested adjournment of three hearings. One hearing was adjourned due to the absence of one of the parties’ lawyers. The court also considered that the impugned proceedings had been complex. At the same time, however, it found some periods of inactivity on the part of the Kraków District Court, acknowledged that the proceedings had indeed been lengthy and granted the applicant PLN 1,000 which it considered “adequate in view of the periods of inactivity found.” 11. On 7 July 2010 the Kraków Regional Court allowed another applicant’s complaint under the 2004 Act. The court held that the length of the proceedings had been excessive and awarded the applicant PLN 2,000 in compensation. 12. In 2012 the applicant again lodged a complaint under the 2004 Act. He sought a finding that the length of the proceedings had been excessive and claimed PLN 20,000 in compensation. 13. On 14 August 2012 the Kraków Regional Court held that the length of the proceedings had been excessive and awarded the applicant PLN 2,000 in compensation. In the Regional Court’s view the trial court had failed to act in an effective and diligent manner, in particular in the light of the overall length of the proceedings in issue. | 1 |
test | 001-173091 | ENG | DEU | CHAMBER | 2,017 | CASE OF SOMMER v. GERMANY | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary | 6. The applicant was born in 1952 and lives in Cologne. He works as a criminal defence lawyer. 7. In 2009 the applicant defended a client in criminal proceedings. After the proceedings had concluded, and when the client had already been imprisoned, the client’s fiancée transferred the applicant’s legal fees (1,500 euros (EUR)) from her private bank account to the applicant’s professional account. The subject of the bank transfer read: “Prof Dr Sommer fees (client’s last name)”. 8. In 2010 and 2011 the Bochum public prosecution office conducted investigations into several individuals suspected of having committed fraud on a commercial basis as members of a gang. One of the suspects was the aforementioned applicant’s former client, who again retained the applicant as his defence lawyer. During these investigations, the bank accounts of several people, including the applicant’s client and the client’s fiancée, were inspected. The inspection revealed that the client’s fiancée had received money (EUR 7,400) which was suspected to have stemmed from illegal activities, and had transferred EUR 1,500 for legal fees to the applicant’s bank account. 9. On the basis of the bank transfer of fees from the fiancée to the applicant in relation to the first set of criminal proceedings, the Bochum public prosecution office also contacted the applicant’s bank. On 1 March 2011 the public prosecutor asked for a list of all transactions concerning the applicant’s bank account from 1 January 2009 until that day. He asked the bank not to reveal the request to the applicant. He based his request for information on Articles 161a, 51 and 70 of the Code of Criminal Procedure (hereinafter “the CCP”), in conjunction with Article 95 of that Code (see paragraphs 2325 below). 10. On 1 April 2011 the public prosecutor requested further information and asked the following questions: “(a) Which other bank accounts, investment accounts or safe deposit boxes at your bank belong to the person in question? (b) What rights of disposal (Verfügungsberechtigungen) does the person in question have? (c) Who else has a right of disposal? (d) Do other accounts exist of which the person in question is the beneficiary? (e) If so, what are the current balances on these accounts? (f) If bank accounts have been closed by the person in question, please submit information about the date of closure and the balance at the time of closure, and where the money was transferred after closure. (g) Which addresses of the person in question are known to you? (h) Are you aware of any money transfers to or other transactions with foreign countries? If so, please specify the bank, account and amount of each transfer or transaction. (i) Please submit a list of all transactions for all existing or closed accounts from 1 January 2009 onwards. (j) Are there any credit cards connected to any of the accounts?” 11. The bank complied with both requests for information and submitted the information to the public prosecution office. In both instances, the public prosecutor did not order the bank to submit the information, but pointed to the obligations of witnesses set out in the CCP and the possible consequences of noncompliance (see paragraph 23 below). 12. The information received was analysed by the police and the public prosecutor, and a list of fifty-three transactions deemed to be relevant was included in the investigation file as evidence. Therefore, everyone who had access to the case file, such as the lawyers of the coaccused, also had access to the applicant’s banking information, including the names of his clients who had transferred fees. 13. On 31 January 2012, after several unsuccessful requests, the applicant, as the lawyer of the accused, was granted access to the investigation file. From the case file he learned, for the first time, of the investigative measures concerning his own bank account. 14. On 24 April 2012 the applicant asked the Chief Public Prosecutor to hand over to him all data received from the bank and destroy all related data at the public prosecution office. In his request the applicant emphasised his role as a criminal defence lawyer, which was known to the acting public prosecutor, and the consequences for his clients, whose names were accessible through the banking information. He further argued that the investigative measures lacked a legal basis. 15. On 2 May 2012 the Bochum Chief Public Prosecutor refused the applicant’s request. He stated that there was a suspicion that the money transferred from the client’s fiancée stemmed from illegal activities. Consequently, it was legitimate for the public prosecutor to investigate whether further money transfers had taken place between the applicant and his client or the client’s fiancée. Therefore, since the investigative measures were legitimate, the information received had to be kept in the investigation file. The Chief Public Prosecutor further pointed out that there was no legal basis for returning the data or taking the documents out of the investigation file. The Chief Public Prosecutor cited Article 161 of the CCP (see paragraph 22 below) as a legal basis for the information requests, since the bank in question was a bank under public law and therefore considered to be an authority. 16. Subsequently, the file was transferred to the Bochum Regional Court (“the Regional Court”), because the criminal proceedings against the applicant’s client had started. The applicant therefore asked the Regional Court to return the data. 17. On 19 July 2012 the Regional Court refused the applicant’s application. The court found that the investigation was lawful, that the bank had provided the information voluntarily, that the documents could therefore only be returned to the bank and not to the applicant, and that the prohibition of seizure under Article 97 of the CCP (see paragraph 28 below) was not applicable, since the information had not been in the applicant’s possession. Nonetheless, in order to safeguard the clientlawyer privilege, it also decided to separate the documents in question from the general court file and only grant access to them if reasons proving sufficient interest were provided. 18. The applicant appealed against the decision. He challenged in particular the findings that the bank had acted voluntarily and that there had been sufficient suspicion for such an extensive analysis of his banking transactions. He further reiterated that, owing to his position as a lawyer, there were several safeguards in place concerning the seizure of documents (see paragraphs 26-29 below), and these should not have been circumvented because his and his clients’ personal information was stored at and by the bank, and not at his office. 19. On 13 September 2012 the Hamm Court of Appeal confirmed the decision of the Regional Court. It found that the decision was proportionate and that the safeguards were not applicable, in particular since the bank could not be considered a person assisting the applicant or a person involved in the professional activities of the applicant under Article 53a of the CCP (see paragraph 27 below). 20. On 19 September 2013 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint, without providing reasons (case no. 2 BvR 2268/12). | 1 |
test | 001-170193 | ENG | ROU | COMMITTEE | 2,017 | CASE OF PIU AND CÎRSTENOIU v. ROMANIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Iulia Motoc;Marko Bošnjak;Nona Tsotsoria | 5. The first applicant was born in 1980 and the second applicant was born in 1981. They live in Jdioara and Darova respectively. 6. On 16 November 2012 the first applicant’s husband, Mr Ciprian Ionel Piu, went to the forest near Jdioara, accompanied by I.M.R. and L.D. The latter was the son of I.D.D., a local police officer 7. According to the applicants, they all took part in an illegal logging operation. The person who organised the aforementioned operation was L.D. He regularly recruited young men from the village to do this. He bought them alcohol and took them to the forest without providing them with the necessary protective equipment or with any essential safety information. His practices, known by the locals, had created two other victims previously. One of the victims had died and the other had suffered serious injuries. The investigations opened into the aforementioned two incidents had failed to identify and punish those responsible, because of the alleged involvement of local police officers. 8. According to the first applicant her husband’s death happened in suspicious circumstances and the perpetrators of the offence were police officers and others protected by them. She further stated that on the day her husband went to the forest she and her family were informed by a third party that her husband had met with an accident. They went looking for him and found him dead in the forest. 9. On 16 November 2012 the Gavojdia Police Department was informed about the incident by a third party. 10. On the same date, the aforementioned police department, in particular police officers C.S. and M.S., carried out an investigation at the scene of the accident (cercetare la fața locului) in the presence of two assistant witnesses, namely I.M. and V.A. 11. On the same date the Gavojdia Police Department, namely police officer C.S., opened of its own motion a preliminary investigation against I.M.R. for involuntary manslaughter (ucidere din culpă). 12. On the same date police officer C.S. asked the Timişoara Forensic Institute to produce a forensic necropsy report. He asked the aforementioned institute to establish the victim’s cause of death, whether the victim’s body had signs of violence, and if so what had caused them, as well as the alcohol level in the victim’s blood. 13. On 17 November 2012 and 3 October 2013 police officer C.S. took a statement from I.M.R. with regard to the circumstances of the accident. 14. On the same date the Timiş Forensic Department produced a medical certificate confirming the first applicant’s husband’s death. According to the aforementioned report, his death had been violent and had been caused, inter alia, by a closed angle cranium-cerebral trauma and by the resulting haemorrhage. 15. On 15 January 2013 the Timişoara Forensic Institute produced the forensic necropsy report (see paragraph 12 above). It concluded that the victim’s death had been violent and had been caused by an acute cardiorespiratory insufficiency following a cranial cerebral trauma and a resulting haemorrhage. Moreover, the signs of violence discovered on the victim’s body could have been caused by being hit with or striking against a hard object in the context of the impugned forest accident. Furthermore, the alcohol level in the victim’s blood was 1.05 grams for every thousand millilitres. 16. On 6 February, 26 February and 13 May 2013 police officer C.S. took statements from members of the victim’s family, including the victim’s mother and the first applicant, who had asked the authorities, inter alia, to punish those responsible for the death of their relative. 17. On 8 February 2013 police officer C.S. took a statement from L.D. with regard to the circumstances of the accident. 18. By a report (referat) of 19 March 2013 police officer C.S. noted that LDIACR and the victim’s family had made repeated requests for the investigated offence to be requalified from involuntary manslaughter to murder. Consequently, he proposed that the case be referred to the Timiş Prosecutor’s Office, which had the competence to investigate such allegations. 19. In March 2013 the victim’s mother also asked the Lugoj Prosecutor’s Office to open a criminal investigation against L.D., I.M.R. and I.D.D. for murder (omor). 20. On 26 March 2013 the Lugoj Prosecutor’s Office noted the victim’s family’s requests for a murder investigation and decided to refer the case to the Timiş Prosecutor’s Office, which had the competence to investigate the allegations. 21. On 8 April 2013 a prosecutor attached to the Timiş Prosecutor’s Office decided not to open a criminal investigation (neȋceperea urmăririi penale) against L.D., I.M.R. and I.D.D. for murder. Moreover, he referred part of the case back to the Lugoj Prosecutor’s Office for the investigation against I.M.R. for involuntary manslaughter to be continued. The prosecutor held that according to the available evidence and the statements of I.M.R. and L.D., the victim’s death had been the result of an accident and had not been caused intentionally by any of the suspects. That decision was communicated to the victim’s mother. 22. On 22 and 23 May 2013 both the victim’s mother and the first applicant joined the criminal proceedings as civil parties and claimed pecuniary and non-pecuniary damages. 23. On 17 October 2013 police officer C.S. took the testimony of I.H., one of those familiar with the events which had resulted in the first applicant’s husband’s death. 24. By a report of 14 November 2013 police officer C.S. proposed not to open a criminal investigation (neȋceperea urmăririi penale) against L.D. and I.M.R. It established that on the day of the incident the first applicant’s husband had gone to the forest by tractor together with L.D. and I.M.R., the owner and operator of the tractor, to collect dried wood. While they had been using the tractor to tow a tree the aforementioned tree had started rolling uncontrollably and had hit the first applicant’s husband on the head, killing him. Because the victim had not been an employee of a company at the time of the accident, what happened could not have been considered a work accident. The witness I.H. had testified that he did not know how many people had gone to the forest that day or any other details concerning the accident. Also, the witness R.S., another person familiar with the events which had resulted in the first applicant’s husband’s death, was unavailable for questioning because he had left the country. 25. The report held that the first applicant’s husband’s accident was caused by a flawed logging operation, which had not foreseen solutions that could have reduced or eliminated the risks of him suffering an accident. He had not kept a safe distance from the tree which was being towed with a flexible steel cable, so that the directions of its movement could not have been controlled. Also he did not have the appropriate equipment for working in the forest. 26. The report further held that L.D. had not been close to the area where the accident had happened, and therefore he could not have been responsible for an act of involuntary manslaughter. Furthermore, the impugned act had lacked one of the elements of an offence, namely guilt. An act which had occurred as a result of unforeseeable circumstances (caz fortuit) could not amount to an offence. The suspects had been unable to foresee that event, notably the fact that the tree had changed direction while it was moving, thus killing the victim. 27. On 26 November 2013 a prosecutor attached to the Lugoj Prosecutor’s Office examined the aforementioned proposal and decided not to open a criminal investigation against L.D. and I.M.R. The decision was communicated to the first applicant’s mother-in-law. 28. The first applicant’s mother-in-law challenged the decision before a superior prosecutor. 29. On 27 January 2014 a superior prosecutor attached to the Timiş Prosecutor’s Office allowed the victim’s mother’s challenge, quashed the decision of 26 November 2013 (see paragraph 27 above), and referred the case back to the Lugoj Prosecutor’ 30. In March 2014 the Lugoj Prosecutor’s Office ordered the Lugoj Police Department to reopen the investigation into the circumstances of the first applicant’s husband’s death. 31. On 11 March 2014 the Lugoj Police Department decided to open a criminal investigation against L.D. and I.M.R. for involuntary manslaughter. 32. On 19 March 2014 the victim’s mother lodged a challenge (cerere de recuzare) against the investigators of the case and asked for the investigation to be carried out by investigators outside Timiş County. She alleged that the inquiry had been delayed by the investigators and that they had been trying to unlawfully protect those responsible. 33. On an unspecified date the victim’s mother informed the Lugoj Prosecutor’s Office that her challenge had not concerned police officer C.A., who was investigating the case after the reopening of the proceedings, or the prosecutor who was supervising the aforementioned police officer. 34. On 7 April 2014 a prosecutor attached to the Lugoj Prosecutor’s Office dismissed as inadmissible the victim’s mother’s challenge (cerere de recuzare) against the investigators of the case and her request for the investigation to be carried out by investigators outside Timiş County. It held, inter alia, that the victim’s mother had failed to indicate any of the reasons provided by law for a challenge in order to support her application. Furthermore, there had been no evidence that police officer C.A., had lacked impartiality. The decision was communicated to the victim’s mother. 35. On 19 May, 23 and 24 June 2014 the Lugoj Police Department questioned I.M.R. and L.D. and took R.S.’ 36. On 20 May 2014 the Lugoj Police Department asked an appointed expert to produce a technical expert report by 10 June 2014 in order to clarify the circumstances of the victim’s death and to identify those responsible for the accident. 37. On 10 June 2014 the aforementioned expert produced his report. 38. On 24 June 2014 the Lugoj Police Department took the victim’s mother’s statement. In her statement she had acknowledged that she had been given a copy of the technical expert report produced in the case and that she had no objections in respect of the appointed expert or the content of the report. 39. By a report of 25 June 2014 the Lugoj Police Department proposed to close the criminal investigation against L.D. and I.M.R. It held, inter alia, that once L.D., I.M.R. and the first applicant’s husband were in the forest they had started moving trees from a difficult area to a more easily accessible one, using the tractor being operated by I.M.R. Before they had started moving a fourth tree, L.D. had been sent to collect some of their belongings which had been left in a different location. Meanwhile, the first applicant’s husband had attached the tree to the tractor and had signalled I.M.R. to start moving the tree. During the moving operation, the tree had started rolling uncontrollably and had hit the first applicant’s husband on the head, killing him. 40. The report also held that according to I.M.R.’s statement the time which had elapsed between the moment he had checked (s-a asigurat) that the first applicant’s husband was at a safe distance from the tree and the moment the victim was hit by the said tree was very short. Once he had realised what had happened he had stopped the tractor immediately and rushed to help the victim. When L.D. had returned with their belongings, I.M.R. had asked him to call the emergency services. As L.D. had not been able to make a phone call in the forest because of poor cellular network, he had decided to rush towards the village in search of a better location for a phone call. Eventually L.D. had reached the village of Jdioara and had managed to call the emergency services. At the same time he had met the victim’s brother and had informed him of the accident. Subsequently, L.D. had gone home in order to wait for the police and the ambulance in order to lead them to the location of the accident. Once L.D. had returned to the location of the accident accompanied by the police, he had been advised to leave again in order to avoid a potential conflict with the victim’s family. 41. The report further held that R.S., the witness proposed by the victim’s mother, had stated that he had been at work at the time of the accident and had been informed about the victim’s death by telephone. 42. The report noted that according to the technical expert report the main cause of the accident was the victim’s failure to position himself at a safe distance from the tree and to maintain permanent visual contact with I.M.R. in order to determine whether the moving tree had stopped or had become stuck. Therefore, he had breached the relevant safety and security norms for working in the forest and had not been wearing protective equipment, in particular a helmet. If the victim had been positioned correctly, the accident would not have happened even if the tree had started rolling. Another important cause of the accident was the fact that according to the toxicology report the victim had been working under the influence of alcohol. 43. Relying on the aforementioned considerations and the conclusions of the technical expert, the report concluded that the individuals responsible for causing the accident could not be identified. However, it was clear that the two suspects had not been at fault. Moreover, the relevant legislation concerning work safety had not been applicable because those involved in the incident were not employees. 44. On 30 June 2014 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close (clasat) the criminal investigation opened against L.D. and I.M.R. The prosecutor held on the basis of the available evidence that none of the suspects had been responsible for the victim’s death. The incident had been the result of unforeseeable circumstances given that the tree had been towed with a flexible steel cable whose direction of movement would have been impossible to control, and there was no appropriate equipment for working in the forest. It would have been impossible for the suspects to foresee the event, as the tree had changed direction while it was moving and thus had killed the victim. Moreover, L.D. was not near the location of the accident at the time. Consequently, there was no connection between his conduct and the act of involuntary manslaughter. 45. On 3 July 2014 the aforementioned decision was communicated to the victim’s mother at her home address in Lugoj. 46. The second applicant is the first applicant’s brother. 47. On 2 July 2013 the second applicant and two of his brothers lodged a criminal complaint with civil claims against L.D. and R.S. for assault, insult, slander and attempted murder. They also lodged a criminal complaint with civil claims against an unidentified gendarme for assault, abuse of office, and misconduct. The second applicant argued that on 30 June 2013 he had visited the first applicant in Jdioara and had taken part in a ceremony commemorating his brother-in-law. After the ceremony had ended he had been followed by L.D. and R.S.; the former had hit him, rendering him unconscious. Subsequently, both L.D. and R.S. had punched and kicked him. After a police officer and two unidentified gendarmes had arrived at the scene of the incident, he had been threatened, caught by the nose, slapped and cursed by one of the two unidentified gendarmes. 48. On 4 July 2013 the Timişoara Forensic Institute produced a forensic report concluding that the second applicant had suffered traumatic lesions which could have been sustained on 30 June 2013 and could have been the result of being hit by or against hard objects. Moreover, the lesions had required seven days of medical care, in the absence of complications. 49. The forensic report noted that the forensic examination had established that the second applicant had suffered a bruised left eye and injuries to the lower and upper lip and to his forehead. Moreover, it noted that according to the medical documents produced by the Lugoj Town Hospital on 1 July 2013 the second applicant had been taken to hospital by ambulance and had suffered, inter alia, an acute closed cranium cerebral trauma and contusions on the nasal pyramid, lower jaw and thorax. 50. On 27 June 2014 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close the criminal investigation in the case on the grounds that there was no evidence that the suspects had committed the alleged offence. 51. The second applicant challenged the decision before a superior prosecutor. 52. On 6 October 2014 a superior prosecutor attached to the Lugoj Prosecutor’s Office dismissed the second applicant’s challenge and upheld the decision of the lower prosecutor. 53. The applicant appealed against the Lugoj Prosecutor Office’s decisions before the domestic courts. 54. On 20 January 2015 the Lugoj District Court allowed the second applicant’s appeal, quashed the Lugoj Prosecutor’s Office’s decisions, and referred the case back to the aforementioned prosecutor’s office in order for a criminal investigation to be opened against L.D. It held that the prosecutor’ 55. On 23 June 2015 a prosecutor attached to the Lugoj Prosecutor’s Office decided to close the criminal investigation in the case in respect of L.D. At the same time it disjoined part of the case and referred it back to the Gavojdia Police Department in order to continue the investigation and identify the perpetrators of the alleged offences. The prosecutor noted that even though the victims of the incident had been heard again and they had repeated their earlier statements as well as their request for those against whom they had complained to be punished, they had not asked for additional evidence to be adduced to the case file. Also, seven witnesses had been heard again in the case, but none of them had provided new information about the events of 30 June 2013. None of the said witnesses could have confirmed that L.D. or another person had hurt or threatened the second applicant. Only one of the witnesses had testified that he had seen the second applicant on the ground at the site of the incident and that the latter had told him that L.D. had hit him. However, the aforementioned witness had also stated that at the moment of his conversation with the second applicant he had not seen L.D. in the area and therefore he could not have confirmed the second applicant’s statement. 56. The prosecutor also noted that even though the victims of the incident had later declared that they knew the identity of the perpetrators, at the time of the incident and after the police had arrived they had been unable to identify the perpetrators and had stated that they did not know their identity. 57. The prosecutor further noted that one of the witnesses proposed by one of the second applicant’s brothers had not been heard because he had left the country and no substitute had been suggested. Also the applicant’s other brother, who had also been involved in the incident, was not interviewed after he had lodged his complaint against the alleged perpetrators, and there was no evidence that he had been threatened or coerced to remain silent. 58. The prosecutor held that even though the occurrence of the incident of 30 June 2013 had not been contested and had been proven by the available forensic report, it was not possible to establish clearly that L.D. or R.S. had committed the alleged offences, as they had not been seen at the site of the incident or in the company of the victim. Given the absence of direct and clear evidence which could have proven L.D.’s or R.S.’s guilt, there is doubt that they committed the alleged offences, which works to their advantage. 59. The second applicant challenged the decision before a hierarchical prosecutor. 60. On 21 July 2015 a superior prosecutor attached to the Lugoj Prosecutor’s Office dismissed the second applicant’s challenge and upheld the decision of 23 June 2015. 61. The applicant appealed against the Lugoj Prosecutor Office’s decisions before the domestic courts. He argued, inter alia, that the decisions of the prosecutor’s office had been unfair and unlawful and had both protected and failed to investigate the State agents involved in the incident. 62. By a final judgment of 6 October 2015 the Lugoj District Court dismissed the second applicant’s appeal and upheld the decisions of the prosecutor’s office. It held that the investigating authorities had heard evidence from the victims, the suspects and the witnesses in the case and had correctly established the facts of the case. 63. To the knowledge of the Court the investigation against other possible perpetrators of the incident of 30 June 2013 is still open. 64. On 14 January, 8 March, 2 July, and 10 December 2013 the applicants or their family informed LDIACR about the abuses that had allegedly been committed against them and against their family by L.D., R.S. and certain local police officers on 16 November 2012 and after that date. Moreover, they voiced their concern that the investigations initiated into the first applicant’s husband’s death and into the incident of 30 June 2013 had been suppressed and delayed because of the family relationships between one of the suspects and several local police officers. Consequently, they asked LDIACR for help in punishing those responsible. 65. On 8 and 13 February 2013 LDIACR informed the Romanian Ministry of the Interior and the Timiş County Police Department about the applicants’ and their family’s allegations, including the alleged family relationships between one of the suspects and several local police officers, and asked them for an investigation. 66. On 17 April 2013 the Internal Affairs Department of the Timiş County Police Department informed LDIACR, inter alia, that the issues raised by the non-governmental organisation in its notifications could not be established as fact. 67. On 17 October 2013 the Internal Affairs Department of the Romanian Police notified LDIACR that its allegations did not refer to acts or circumstances which had clearly attested that certain police officers had willfully (cu vinovăție) breached the relevant ethical and deontological standards and/or those concerning the fulfilment of their professional duties. 68. On 8 February 2013 LDIACR initiated proceedings before the Timiş Prosecutor’s Office denouncing an abuse of office (abuz în serviciu) allegedly committed by the local police officers involved in the investigation of the first applicant’s husband’s death. It argued, inter alia, that police officer I.D.D., together with two other police officers who were his brother-in-law and son-in-law, had manipulated the investigation, had tried to protect their own interests, and had attempted to distort the truth about what had happened on the day the first applicant’s husband died. 69. On 2 October 2013 a prosecutor attached to the Timiş Prosecutor’s Office decided not to open a criminal investigation against the aforementioned police officers. It held, inter alia, that the three police officers who were the object of the denunciation were identified as I.D.D., G.B. and C.S. Moreover, given the statements taken from the police officers and from the first applicant, there was no indication that I.D.D. and G.B. had committed any act of abuse of office, as they had not been involved in the investigation into the first applicant’s husband’s death. Also, the first applicant’s husband had been asked to take part in the logging operation by L.D., and therefore there had been no indication that I.D.D. had incited the victim to commit an offence. Furthermore, there was no sufficiently strong indication that police officer C.S. had knowingly failed to fulfil or had insufficiently fulfilled his lawful duties during the investigation into the first applicant’s husband’s death, or that he had affected the legal interest of the victim’s family. 70. The decision was communicated both to LDIACR and to the first applicant. 71. LDIACR challenged the decision before a superior prosecutor attached to the Timiş Prosecutor’s Office. It argued, inter alia, that its action had been based on statements made by the victim’s family and by villagers. Moreover, the investigators had ignored I.D.D.’s threats and aggressive behaviour towards the family of the victim, as well as the fact that two other similar incidents had happened in the area before 16 November 2012. 72. On 9 October 2013 a superior prosecutor attached to the Timiş Prosecutor’s Office dismissed LDIACR’s challenge and upheld the decision of the lower prosecutor. The decision was communicated to LDIACR. | 1 |
test | 001-183559 | ENG | RUS | COMMITTEE | 2,018 | CASE OF DZHANARALIYEV 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) | Alena Poláčková;Dmitry Dedov | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention, which were incompatible with their disabilities, and of the lack of an effective remedy in that regard. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-172466 | ENG | HRV | CHAMBER | 2,017 | CASE OF MATANOVIĆ v. CROATIA | 3 | Remainder inadmissible (Article 35-3-a - Manifestly ill-founded);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Freedom from attachment;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1949 and is currently serving a prison sentence in Lepoglava. 6. The applicant was a vice-president of the Croatian Privatisation Fund (Hrvatski fond za privatizaciju – hereinafter “the Fund”), a legal entity established by the State and tasked with carrying out the privatisation of publicly owned property. 7. In August and October 2006 M.M., a businessman from Russia, approached 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 Office”) alleging that he had been trying to make various business investments in Croatia and that he had been introduced to a certain A.P., allegedly an official of the Fund, who had offered his assistance in pursuing the project in the State. In return, A.P. had asked M.M. to deposit 2,250,000 euros (EUR) in various bank accounts. 8. In March 2007 an investigating judge of the Zagreb County Court (Županijski sud u Zagrebu) authorised the secret surveillance of a number of individuals, including A.P., in connection with suspicions of bribe-taking and abuse of power and authority. M.M. was granted informant status. 9. In the course of further investigation using secret surveillance, several meetings were recorded in which M.M., assisted by a consultant, J.K., discussed with a lawyer, A.Pi., the measures that needed to be taken in order to carry out a business project in the Zadar region. On that occasion A.Pi. mentioned the applicant as her contact in the Fund. She also stated that everybody should make out well in this business undertaking. J.K. also explained that he knew the applicant from before and that very soon they would have a meeting concerning the investment at issue. 10. On 3 April 2007 J.K. approached the State Attorney’s Office claiming that he was the representative of M.M. and that he had already had a number of contacts with various officials concerning M.M.’s investment in Croatia. In this connection, the day before he had also contacted the applicant, in his capacity as vice-president of the Fund, who had allegedly requested a provision of 5% of the total investment value, which was approximately between EUR 23,000,000 and 25,000,000, to help with the realisation of the project. The applicant had explained to J.K. that that amount would have to be distributed to the bank accounts of three (out of five) vice-presidents of the Fund who would take part in the decision-making process. J.K. consented to act as an informant under the further guidance of the prosecuting authorities. 11. On 3 April 2007 the State Attorney’s Office asked an investigating judge of the Zagreb County Court to authorise the use of special investigative measures in respect of the applicant, specifically the tapping of his telephone, covert surveillance of him, the use of J.K. as an informant, and conducting a simulated purchase operation. 12. On the same day the application was allowed and the investigating judge ordered the use of special investigative measures in respect of the applicant. The relevant part of the order reads: “The application is accompanied by the submission of the Ministry of the Interior’s Criminal Police Department, and the relevant official notes, statements and other material. The application is well-founded since the case at issue concerns the offences under Article 181 § 3 of the Code of Criminal Procedure, and the investigation into these offences by other means would either not be possible or would be extremely difficult. Therefore, all the necessary requirements under Articles 180 and 181 of the Code of Criminal Procedure have been met and the order should be issued with a view to securing the information and evidence necessary for the criminal case.” 13. In the course of the investigation, the investigating judge issued several further orders to the same effect. Various meetings between the applicant and J.K. took place. At a meeting on 11 April 2007 J.K. gave to the applicant EUR 50,000 in connection with his investment project. 14. On 16 June 2007, on the basis of an application by the State Attorney’s Office, the investigating judge ordered the termination of the special investigative measures, indicating that their use had produced the results sought. 15. On 16 June 2007 the applicant was arrested and detained in connection with a suspicion that he had taken bribes and abused his power and authority in several privatisation cases. 16. On 18 June 2007 the State Attorney’s Office forwarded to the investigating judge 288 CD recordings of the secret surveillance operation, and on 19 June 2007 it forwarded a further thirty-six CD and twenty DVD recordings. 17. On 19 June 2007 the State Attorney’s Office asked an investigating judge of the Zagreb County Court to open an investigation in respect of the applicant and seven other individuals in connection with a suspicion of bribe-taking and offering bribes related to several investment projects in Croatia, including the one in the Zadar region (see paragraphs 9 and 10 above). 18. In its request for investigation the State Attorney’s Office relied on the results of the special investigative measures suggesting that the applicant, in his capacity as vice-president of the Fund, had requested bribes in order to support M.M.’s investment project in the Zadar region. In particular, it was alleged that he had requested bribes amounting to EUR 220,000 and 5% of the total investment, which amounted to EUR 1,700,000. The secret recordings showed that the sealing of this agreement had taken place first on 11 April 2007 when J.K., acting as M.M.’s representative, had paid the applicant EUR 50,000, and then on 24 April 2007 when J.K. had deposited a further EUR 150,000 in a notary public’s safe in the applicant’s favour. The State Attorney’s Office also alleged that the applicant had organised the bribery of the President of the Fund in respect of the investment in the Zadar region, and had agreed to further bribe-taking with J.K. concerning another investment project related to the privatisation of the hotels Ž. and P. 19. When questioned with regard to the charges against him, the applicant decided to remain silent and not to give evidence. On the basis of the available evidence, the investigating judge accepted the request of the State Attorney’s Office and opened an investigation. 20. Meanwhile, on 20 June 2007 the State Attorney’s Office forwarded 191 CD recordings to the investigating judge. It also forwarded an additional ninety-eight CD recordings to the investigating judge containing secret surveillance of individuals in respect of whom an investigation had not been opened at that time. 21. On 21 June 2007 the investigating judge in charge of the supervision of the special investigative measures forwarded to the investigating judge conducting the investigation 191 CD recordings and the relevant reports concerning the secret surveillance of the suspects and the informants M.M. and J.K. 22. On 26 July 2007 the applicant asked to have access to and to have copies of the secret surveillance CD and DVD recordings. 23. The investigating judge conducting the investigation commissioned a telecommunications expert report including transcripts of the relevant secret surveillance recordings. These were produced by M.Đ., a telecommunications expert. By a letter of 30 November 2007 M.Đ. returned ninety-eight secret surveillance CD recordings in the case at issue that did not contain the communications of the suspects in respect of whom the investigation had been opened. 24. In the course of the investigation the investigating judge authorised numerous search and seizure operations and questioned a number of witnesses in connection with the offences for which the applicant and the other suspects had been charged. 25. When questioned as a witness by the investigating judge, M.M. explained that J.K. had offered him the services of his company to help with a business investment in Croatia. In particular, J.K. had explained that he knew how to contact the competent State institutions and how these things could be done in a legal way. Soon afterwards they had sent a letter of intent to the Fund concerning M.M.’s investment but they had not received a reply. J.K. had then contacted the applicant, who had been his colleague at university, and arranged a meeting with him at the Fund. M.M. also explained that it was J.K. who had been in contact again with the applicant concerning the investment in the Zadar region. 26. The investigating judge also questioned J.K. but he was unable to give evidence owing to his medical condition and hospitalisation. 27. On the basis of the results of the investigation, the investigating judge twice extended the scope of the investigation to other alleged instances of bribe-taking and abuse of power and authority by the applicant. 28. Following the completion of the investigation, the investigating judge forwarded the case file to the State Attorney’s Office for further assessment and a decision. 29. On 12 February 2008 the State Attorney’s Office indicted the applicant and nine other individuals and brought them before the Zagreb County Court on charges of bribe-taking, offering bribes and abuse of power and authority. The applicant was indicted in his capacity as a public official on two counts of bribe-taking and bribery of the President of the Fund related to M.M.’s investment project in the Zadar region, two counts of bribe-taking related to the privatisation of the hotels Ž. and P. and the company P.O., and one count of abuse of power and authority related to the privatisation of the company B. 30. The indictment was based on voluminous evidence obtained during the investigation and the recordings of the applicant’s telephone communications and secret surveillance of him obtained by the use of special investigative measures. In particular, the State Attorney’s Office indicated the particular sequence of the relevant recordings which it intended to submit as evidence at the trial. The State Attorney’s Office also asked that the case file concerning the special investigative measures be examined. 31. On 6 March 2008 the applicant lodged an objection against the indictment, arguing that it was confusing and incomplete. He pointed out that his position in the Fund did not fall within the scope of the definition of “public official” under Article 89(3) of the Criminal Code. He further stressed that J.K., a central figure in the case, had not been questioned during the investigation. The applicant also contended that his defence rights had been breached since the defence had “neither seen nor heard” the audio and video recordings on which the indictment had been based. 32. On 30 April 2008 a three-judge panel of the Zagreb County Court returned the indictment to the State Attorney’s Office on the grounds that one count of the indictment, concerning the applicant’s alleged participation in the bribery of the President of the Fund, had been confusing. It accordingly instructed the State Attorney’s Office to submit an amended indictment consonant with that finding. The State Attorney’s Office complied with the order and submitted an amended indictment on 9 May 2008, following which the Zagreb County Court confirmed it. 33. On 15 October 2008 the president of the trial panel examined the case file of the special investigative operation. On the same day she commissioned a further expert report from the telecommunications expert M.Đ. ordering him to produce transcripts of the relevant recordings relating to two meetings between the applicant and J.K. 34. An order for further transcription of the recordings was made on 24 October 2008. This concerned the recordings of three meetings between the applicant, J.K. and several other individuals, and the sequences of the telephone conversations and text messages concerned. 35. On 7 November 2008 M.Đ. produced transcripts of the recordings indicated in the Zagreb County Court’s order of 15 October 2008 (see paragraph 33 above). 36. On 10 November 2008 the first hearing was held before the Zagreb County Court. At the hearing the trial bench forwarded the expert report of 7 November 2008 (see paragraph 35 above) to the defence. The applicant pleaded not guilty to the charges against him, contending that he had been entrapped by J.K., who was an agent provocateur. The defence lawyer of one of the co-accused contended that the defence had not been provided with the surveillance recordings and that those measures had been ordered contrary to the requirements of the relevant domestic law. The trial bench dismissed these arguments as unfounded and scheduled the examination of evidence. 37. On 17 November 2008 M.Đ. produced further transcripts of the secret surveillance recordings related to the Zagreb County Court’s order of 24 October 2008 (see paragraph 34 above). 38. At the hearings on 27 and 28 November 2008 the Zagreb County Court heard evidence from J.K., who explained that he had represented Russian investors in Croatia regarding their interest in the construction of luxury villas on the site of a former brick factory in the Zadar region. He had therefore contacted the Fund and the local authorities in Zadar in order to complete all the relevant administrative matters for the investment. J.K. stated that he had had several meetings with the applicant and that at one point the applicant had requested a bribe in order to ensure the realisation of the project. J.K. had reported that to the State Attorney’s Office and then he had consented to act as an informant. He further explained that he had given EUR 50,000 in cash to the applicant and that, at the applicant’s request, he had deposited a further EUR 150,000 in a notary public’s safe. It had been also agreed that J.K. would pay EUR 1,500,000 on completion of the project. 39. On 2 December 2008 the Zagreb County Court commissioned another expert report from M.Đ. concerning several particular sequences of the secret surveillance recordings. 40. On 9 December 2008 M.Đ. produced further transcripts of the secret surveillance recordings related to the Zagreb County Court’s order of 2 December 2008 (see paragraph 39 above). 41. The expert report was served on the defence at a hearing on 10 December 2008. At the same hearing the trial bench heard evidence from M.M. He explained that the relevant contacts with the applicant had been arranged and directed by J.K., and that he had not personally participated in any illegal transactions in the applicant’s favour. 42. At the same hearing the defence counsel reiterated their application for access to the secret surveillance recordings (see paragraphs 31 and 36 above). They argued that according to the available information there were in total 515 CD and 160 DVD recordings which had never been provided to the defence. In these circumstances, the defence counsel contended that they had not had an effective opportunity to prepare for the case. They also asked for access to all the recordings since it was possible that some of them contained exonerating information, which the defence could then submit as evidence. 43. The trial bench dismissed the application by the defence on the grounds that the recordings which were to be examined at the trial as evidence had been duly transcribed by an expert and that the relevant transcripts had been served on the defence. In the trial bench’s view, this allowed the defence sufficient time and facilities to prepare for the case as they would be able to raise all objections concerning the recordings after their examination at the trial. Moreover, the trial bench stressed that the sole purpose of the recordings was to examine them during the trial and that Article 155 § 1 of the Code of Criminal Procedure, although providing for the possibility of access to and copying of the case file, did not envisage the copying of CD and DVD material. The trial bench also stressed that the defence could have examined the relevant material in the court-house in the same manner as they had generally examined the case files. 44. On 10 December 2008 the defence counsel sent a joint statement to the Croatian Bar Association (Hrvatska odvjetnička komora) complaining that they had been unable to effectively carry out their tasks as defence lawyers since they had been denied access to the secret surveillance recordings. They also contended that the evidence had been hidden from the defence and that it had been impossible for them to identify whether certain recordings could exonerate their clients or whether there had been suggestions of unlawfulness in some of them. 45. At a hearing on 11 December 2008 the trial bench found that there were in total 212 CD and twenty-seven DVD recordings which had been provided to the court with the indictment of the accused. There were also ninety-eight CD recordings from the same secret surveillance operation but which concerned different persons and not the accused. 46. On 12 December 2008 another hearing was held before the Zagreb County Court at which the defence asked for an adjournment in order to examine the case file concerning the secret surveillance operation. The defence argued that they wanted to examine all the circumstances in which the secret surveillance had been ordered and conducted. The trial bench dismissed the request by the defence on the grounds that the case file concerning the secret surveillance order had been incorporated into the case file concerning the criminal proceedings at issue and could therefore have been consulted by the defence. The trial bench also reiterated its previous arguments concerning the reason for the dismissal of the application by the defence to obtain the copies of the CD and DVD material. 47. On 12 December 2008 the defence counsel sent a letter to the Zagreb County Court asking for access to and the possibility to examine the secret surveillance recordings. They stressed that the CD and DVD material had never been made available to the defence and that there were no technical means available in the court-house which would allow for the examination of the recordings by the defence. They also pointed out that because of the technical impossibility of examining the recordings in the court-house, the practice of the Zagreb County Court in several other cases had been to make copies of the CD and DVD recordings and to send them to the defence. In these circumstances, the defence argued that the Convention rights of the accused to effectively prepare their defence had been breached. 48. On 12 December 2008 the president of the trial panel commissioned another expert report from M.Đ. concerning several further secret surveillance recordings. 49. On 14 December 2008 defence counsel for one of the co-accused sent a letter to the President of the Zagreb County Court indicating that it had been impossible for the defence to obtain access to and to examine the secret surveillance recordings by any means whatsoever. 50. Further hearings before the Zagreb County Court were held on 15 and between 17 and 19 December 2008 at which the secret surveillance recordings were played back. The applicant argued that the recordings were incomplete and confusing and that there were discrepancies between the transcripts and the recordings. He contended that it was impossible for his counsel to work thoroughly since they had not had access to the recordings. The lead prosecutor also indicated that there were certain discrepancies between the transcripts and the recordings, which she then tried to clarify at the hearing. The trial court ordered the State Attorney’s Office to provide the relevant clarifications and it also commissioned a report from the expert M.Đ. in order to provide explanations concerning his particular findings. 51. Meanwhile, on 18 December 2008 M.Đ. produced further transcripts of the secret surveillance recordings related to the Zagreb County Court’s order of 12 December 2008 (see paragraph 48 above). 52. On 22 December 2008 the president of the trial panel commissioned another expert report from M.Đ. concerning several other secret surveillance recordings. The expert produced his additional report on 2 January 2009. 53. At the hearings between 12 and 14 January 2009 additional secret surveillance recordings were examined. The applicant argued that he had been entrapped and that the recordings were unlawful evidence. 54. Further hearings before the Zagreb County Court were held between 26 and 29 January; 11-13 and 16-17 February; 4-6 and 9-10 March 2009 at which the trial court heard witnesses and examined further secret surveillance recordings. 55. On 9 March 2009 the applicant asked the Zagreb County Court to again question the informant J.K. and to take further evidence concerning his activities in the Fund. 56. A hearing was held on 12 March 2009 where the trial bench heard further witnesses. 57. At a hearing on 16 March 2009 the State Attorney’s Office asked that further secret surveillance recordings be admitted into evidence and examined. The applicant contended that the recordings had been unlawfully obtained as the use of secret surveillance measures had been ordered contrary to the requirements of the relevant domestic law. The trial bench accepted the request of the State Attorney’s Office and commissioned an expert report from M.Đ., instructing him to provide transcripts of the recordings. 58. Further hearings were held on 17, 23-26 and 30 March 2009 at which the trial bench heard evidence from several witnesses. 59. On 30 March 2009 M.Đ. produced transcripts of the secret surveillance recordings related to the Zagreb County Court’s order of 16 March 2009 (see paragraph 57 above). 60. Further hearings were held on 15-17 and 20 April 2009 at which the trial bench heard further witnesses. The applicant contended that the initial contacts of J.K. and M.M. with the State Attorney’s Office showed that they had been prepared to act as agents provocateurs and that he had been entrapped into engaging in illegal activities. He therefore asked that the evidence obtained by the use of informants be excluded as unlawfully obtained. The trial bench dismissed the applicant’s arguments on the grounds that nothing suggested that he had been entrapped. 61. At the hearings between 22-24 and 27-28 April 2009 the trial bench questioned the accused. The applicant stated that he had been incited to engage in illegal activities by J.K. but he refused to answer any further questions on the matter. 62. On 29 April 2009 the State Attorney’s Office submitted an amended indictment specifying the charges against the accused on the basis of the evidence adduced at the trial. At a hearing on 5 May 2009 the applicant pleaded not guilty to the amended indictment. He reiterated his arguments that he had been entrapped by J.K. and that he had not taken any actions which he had not been entitled to take as vice-president of the Fund. 63. Further hearings were held between 8 and 12 May 2009 at which the trial bench heard the parties’ closing arguments. 64. On 15 May 2009 the Zagreb County Court delivered a judgment finding that the applicant, in his capacity as a public official as defined under Article 89(3) of the Criminal Code, had taken bribes (Article 347 § 1 of the Criminal Code), facilitated bribe-taking (Article 348 § 1 of the Criminal Code) and abused his power and authority (Article 337 §§ 1, 3 and 4 of the Criminal Code) in connection with M.M.’s investment project in the Zadar region, the privatisation of the hotels Ž. and P. and the privatisation of the company B. The court sentenced him to eleven years’ imprisonment. At the same time, it acquitted the applicant on charges of bribe-taking related to the privatisation of the company P.O. (see paragraph 29 above). 65. The Zagreb County Court explained that all the relevant facts concerning the circumstances of the case had been duly established and that therefore there was no reason for the examination of further evidence requested by the applicant. 66. As regards the application by the defence to obtain the secret surveillance recordings and a complaint of non-disclosure of certain recordings, the Zagreb County Court noted: “With regard to the recordings which [the State Attorney’s Office] asked to be examined at the trial, an expert report was commissioned, that is to say, transcripts were prepared which were served on all the parties, the accused and their lawyers, who were thereby fully informed of the substance of the recordings submitted into evidence. In addition, this panel finds, that, with regard to the recordings which were to be examined at the trial, there was no obstacle to the defence lawyers examining [those recordings] in the court-house before the commencement of the trial. With regard to the other conversations of the accused, these [recordings] were not submitted into evidence but the defence could have examined their substance by the examination of the written reports filed in the [special investigation case file] after the submission of the indictment. This panel also considers that the recordings at issue were made solely for their examination at the trial and had they been provided to the parties, the court would not have had any legal basis at its disposal to prevent and prohibit the parties from reproducing [them] outside of the court[-house] before their examination at trial, and [the court would not have had any legal means] to prevent possible misuse of the recorded material. This in particular concerns the recordings which were not submitted into evidence; that is to say [the recordings] which concern other individuals and not the accused. Since these recordings were not submitted into evidence, the application by the defence to obtain them is completely unfounded. Furthermore, this panel has found that ... 212 CD and twenty-seven DVD recordings were given [to the court] whereas the remaining ninety-eight CD recordings concern individuals who had been under secret surveillance ... but were not [subsequently indicted]. ... Moreover, as was noted above, the defence had knowledge of the substance of the material submitted into evidence and they had no right to examine material which does not concern these proceedings; that is to say [material which concerns] individuals who were not indicted in these criminal proceedings ... This is because section 42(7) of the Office for the Suppression of Corruption and Organised Crime Act provides that if within six months following the termination of a secret surveillance operation criminal proceedings have not been instituted against the [individual under surveillance], all the material collected [during the operation] must be destroyed. It is clear that, since criminal proceedings were not instituted against these individuals, the recordings at issue are still confidential and should have been destroyed; they could not be and were not evidence in these criminal proceedings ... If these recordings were put at the disposal of the defence, that would amount to a breach of the above-cited provisions of law, particularly because [the recordings constitute] confidential material concerning individuals who are not under indictment. Moreover, Article 35 of the Constitution guarantees respect for the private life of every individual, and the court is obliged to act under the Constitution ..., so if it provided the defence with the recordings concerning other individuals ... that would amount to breach of the above-cited provision of the Constitution ...” 67. As to the applicant’s plea of entrapment, the Zagreb County Court noted: “... This panel finds that [the evidence obtained by the use of informants] is not unlawful evidence because it was obtained on the basis of an investigating judge’s orders. The substance of the adduced evidence and the examined recordings do not show that there was incitement by the informant ... as was further demonstrated.” 68. With regard to the charges against the applicant and the evidence obtained by the use of informants, the Zagreb County Court extensively examined the secret surveillance recordings. It in particular analysed the recordings concerning a meeting on 3 April 2007 where the applicant had indicated to J.K. that a deposit should be made with regard to the investment and where he had also assured J.K. that the project would pass the procedure. During the conversation the applicant had explained to J.K. that it was usual to remunerate for lobbying and he had further stated the following: “However, for [the investor], these [things], this information, this access and the [action] which will be taken while the project is [in the pipeline] – for this lobbying ... that is worth ... what I told you the last time. And he can do it, that is fifty thousand euros ... for them that is for a drink, for this company ... That is three or four [glasses of] wine compared to [our other possibilities]. So that’s that and then, then we can make a deposit as you said. After that, if the decision goes through something ... is to be given to me, that is, for him... let’s say one hundred thousand euros more or less when the whole thing goes through. Because on an investment of twenty-two million euros to give one hundred thousand ... for him that would not be even 2% ... I would be overly modest if that would be so, you understand [sic].” 69. The applicant challenged the first-instance judgment by lodging an appeal with the Supreme Court (Vrhovni sud Republike Hrvatske). He contended that he had been entrapped and unlawfully and unjustifiably placed under secret surveillance. He pointed out in particular that the secret surveillance orders had not been properly reasoned and had been issued under the Code of Criminal Procedure and not the Office for the Suppression of Corruption and Organised Crime Act (hereinafter “the OSCOC Act”). He also complained that the relevant evidence had not been disclosed to the defence, and that the first-instance court had erred in the legal qualification of his position as falling under the term “public official” under Article 89 § 3 of the Criminal Code. 70. On 17 February 2010 the Supreme Court quashed the first-instance judgment in respect of the charges of bribery of the President of the Fund related to M.M.’s investment project in the Zadar region and ordered a retrial. At the same time, it upheld the applicant’s conviction on charges of bribe-taking under Article 347 § 1 of the Criminal Code and abuse of power and authority under Article 337 § 4 of the Criminal Code. 71. As to the applicant’s complaint concerning the unlawfulness of the secret surveillance measures, the Supreme Court noted: “The first complaint to the effect that the results of the special investigative measures are unlawfully obtained evidence because the investigating judge’s orders were made under the Code of Criminal Procedure and not the [OSCOC Act] is ill-founded. It is true that the [OSCOC Act] is lex specialis, but the appellants failed to observe that section 41(1) of that Act provides that the investigating judge may order, ‘save for the measures under Article 180 of the Code of Criminal Procedure’, two additional measures which are not provided under the Code of Criminal Procedure, namely the use of simulated business services and simulated business contracts. The special investigative measures ... applied in the case at issue are not provided for under the [OSCOC Act] and therefore the [investigating judge’s] orders could have been based only on the Code of Criminal Procedure. Had the investigating judge authorised any of the measures provided for in section 41(1) of the [OSCOC Act], he would have been obliged to rely on that Act. ... The further arguments that the results of the special investigative measures are unlawfully obtained evidence because the investigating judge, when making the orders, around thirty of them, failed to comply with the requirements set out in the case-law of the Constitutional Court [no. U-III-857/2008] to the effect that the orders must be sufficiently reasoned, are also ill-founded ... ... This court considers that mere flaws in the reasoning of the secret surveillance orders do not make the results of such measures unlawfully obtained evidence. This is because Article 9 § 2 of the Code of Criminal Procedure provides that unlawfully obtained evidence is evidence which has been obtained in breach of the Code of Criminal Procedure, and is expressly provided for by the [Code of Criminal Procedure]. Article 182 § 6 of the Code of Criminal Procedure provides that evidence obtained by the use of secret surveillance, under Article 180 of the Code of Criminal Procedure, cannot be used as evidence in criminal proceedings only [in a case where] it is unlawful. That is to say, evidence which is obtained without a warrant issued by the investigating judge, or if the [police] acted contrary to Articles 180 and 182 § 2 of the Code of Criminal Procedure, but [this does not concern] the evidence obtained contrary to Article 182 § 1 of the Code of Criminal Procedure, which provides that the order [authorising special investigative measures] should, inter alia, refer to the facts which warrant the application of such measures, specifically that there is a reasonable suspicion that an individual has committed a criminal offence and that the investigation could not have been carried out by other means or that [to do so] would have been extremely difficult. Article 182 § 6 of the Code of Criminal Procedure is compatible with the legal nature of [special investigation] orders. Such orders [made by the investigating judge] are transmitted to the State Attorney, who is authorised to request them, and they are executed by the police. There is no legal avenue [to challenge] such orders since the [State Attorney] has no legal interest in challenging them. The police were therefore, moreover, not allowed to challenge the orders. If the argument of the appellants that secret surveillance orders would be unlawful when they are not sufficiently reasoned were to be accepted, it would call into doubt the [use of] secret surveillance measures, particularly in situations where all other legal conditions had been met but the order was merely not sufficiently reasoned, which would be absolutely unacceptable.” 72. As to the applicant’s plea of entrapment, the Supreme Court held: “The complaints ... that the informants J.K. and M.M. had incited the accused were raised by all the accused during the first-instance proceedings, and the [first-instance] court correctly found that [this claim] was not clear from the reviewed material. The same complaints are now raised by the accused, Matanović, P. and Pa., and this court considers that their complaints are ill-founded. The witnesses M.M. and J.K. testified that they had become informants after certain accused asked them for bribes [for carrying out the investment]. [M.]M. consented to act as an informant on 2 March and J.K. on 3 April 2007. After that the activity of gathering evidence commenced. ... The offence of bribe-taking, which is the subject matter of these proceedings, is committed [just] by making a request for a gift or benefit, and since the witnesses contacted the State Attorney after they had been asked to make a payment to the accused ... the plea of incitement cannot be accepted.” 73. With respect to the complaint about the non-disclosure of evidence, the Supreme Court noted: “The argument that the rights of the defence were violated by the non-disclosure of 515 CD and 177 DVD recordings, which were the result of the secret surveillance operation, cannot be accepted ... ... It is undisputed that at the hearing held on 11 December 2008 the trial court established the exact number of recordings and found that 212 CD and twenty-seven DVD recordings had been submitted with the indictment, while it was found that the [special investigation] case file contained a further ninety-eight CD recordings concerning the secret surveillance of other persons who are not accused in the proceedings at issue. It is also not disputed that the State Attorney asked that eighteen CD and twenty-three DVD recordings be examined as evidence, and that the telecommunications expert made transcripts of these recordings, which were then forwarded to the parties. It is further undisputed that the recordings were reviewed at a hearing, that the accused and their lawyers were present, and that they made their objections concerning the transcripts and not concerning the recordings. It is to be noted that the transcripts are not evidence on which a conviction can be based but are only of auxiliary technical assistance. The only evidence on which a conviction can be based is the recordings, in respect of which no objections were made. Therefore, the defence had access to all the evidence from the secret surveillance, and the trial court allowed them to comment on the evidence adduced and they exercised that right. The trial court rightly held that, given that the defence had been informed of the substance of the evidence adduced, they had no right to have the other material which did not concern the accused in the proceedings at issue disclosed. The trial court also rightly pointed to the provision of section 42(7) of the OSCOC Act, which provides that the material obtained by the use of secret surveillance shall be destroyed if, within the six-month time-limit, criminal proceedings have not been instituted against the persons under surveillance ... Whether the State Attorney, when he was making his selection of the secret surveillance material [to be submitted to the court], excluded certain evidence in favour of the accused ... is of no relevance to the lawfulness of the proceedings at issue. Under the relevant provisions of the Code of Criminal Procedure the State Attorney adduces only relevant evidence concerning the substance of the charges, and therefore he is in a position to make a selection of the evidence.” 74. As regards the applicant’s complaint of the erroneous legal qualification of his position, the Supreme Court noted that the applicant’s position in the Fund had not been one of a “public official” but rather of a “responsible person” under Article 89 §§ 6 and 7 of the Criminal Code. However, in the Supreme Court’s view, this did not render the conviction unlawful. In this connection the Supreme Court explained: “... [T]he omission at issue had no bearing on the legal qualification of the offence because the criminal offence under Articles 347 § 1 and 337 § 4 of the Criminal Code can be committed by public officials and responsible persons when they take the actions for which the court found ... Matanović guilty ...” 75. On 20 April 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating his arguments of entrapment, the unlawfulness of the secret surveillance orders, the lack of access to evidence and the erroneous legal qualification of his conviction. He relied, inter alia, on Articles 29 § 1, 31, 35 and 36 of the Constitution and Articles 6 §§ 1 and 3 (b) and 8 of the Convention. The applicant also complained that the statements of various public officials breached of his right to the presumption of innocence. 76. On 30 June 2011 the Constitutional Court, relying on the Court’s case-law in Peša v. Croatia (no. 40523/08, 8 April 2010) found a violation of the applicant’s right to the presumption of innocence but dismissed his other complaints, endorsing the findings and reasoning of the Supreme Court. 77. Meanwhile, on 19 September 2011, following a retrial in respect of the charges of bribery of the President of the Fund related to M.M.’s investment project in the Zadar region (see paragraph 70 above), the Zagreb County Court acquitted the applicant, and this judgment was confirmed by the Supreme Court on 18 January 2012. 78. On 1 June 2012 the applicant, represented by I.F., a lawyer, lodged an application for the reopening of the proceedings before the Zagreb County Court. He relied, in particular, on a document allegedly issued by the Ministry of the Interior (Ministarstvo unutarnjih poslova Republike Hrvatske) on 3 March 1993 indicating that J.K. had worked as a police officer in the period between 1974 and 1993. Together with the document in question the applicant submitted a written statement by A.P., a lawyer, indicating that the document had been “accidently” left in her office by M.M. some time in May 2007. The applicant contended that this shed light on the actions of J.K., who had acted as an agent provocateur in his case. 79. On 24 January 2014 the Zagreb County Court dismissed the applicant’s application for the reopening of the proceedings on the grounds that, even if the document submitted by the applicant suggested that J.K. had worked as a police officer, there was no doubt that he had not been a police officer at the moment when he had acted as an informant in the applicant’s case. The Zagreb County Court also considered that there were no new relevant facts warranting the reopening of the proceedings. 80. The applicant appealed against the above decision to the Supreme Court on 13 February 2014; it appears that the proceedings are still pending. | 1 |
test | 001-172070 | ENG | RUS | CHAMBER | 2,017 | CASE OF ORLOV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman punishment) (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);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicants are: The applicants live in Moscow. The facts of the case, as submitted by the parties, may be summarised as follows. 6. At the material time the first applicant was the Chairman of Memorial, a Russian non-governmental human rights organisation. The second applicant was a reporter for REN TV, a Russian television company. The third applicant was a camera operator and the fourth applicant an assistant camera operator with REN TV. 7. Following the death of a six-year-old boy, Rakhim Amriev, in the course of a counter-terrorist operation in the Chemulga settlement in Ingushetia on 9 November 2007, a protest meeting against abuse of authority by the security forces was planned in Nazran, the capital of Ingushetia, for 24 November 2007. On 22 November 2007 REN TV dispatched a team consisting of the second, third and fourth applicants in order to cover the protest planned for 24 November 2007. The first applicant was on a business trip in Nazran at that time. All four applicants were staying in the Hotel Assa in Nazran (“the hotel”). 8. On 23 November 2007 at about 9 p.m. the first applicant returned to the hotel from Memorial’s office in Nazran. Two and a half hours later (at about 11.30 p.m.), three men in balaclava masks and camouflage uniforms, armed with automatic weapons, burst into his room. The men neither introduced themselves nor produced any documents. They pointed their guns at the first applicant, ordered him to lie face down on the floor and asked him the reason for his trip to Ingushetia. The applicant explained that he worked for the NGO and had arrived in Nazran to monitor the human rights situation in Ingushetia. The men collected all of the applicant’s belongings and put them into a bag. He attempted to protest but was kicked in the ribs by one of the intruders. They then pulled a black plastic bag over his head, took him out of the hotel and forced him into a minibus. 9. On the same evening, the three other applicants returned to the hotel from Vladikavkaz, where they had been working on a news story. At about 11 p.m. they gathered in the second applicant’s room. At about 11.30 p.m. five men in balaclavas and camouflage uniforms, armed with automatic weapons, burst into the room. Without any explanation, they forced the third and fourth applicants to the floor, kicked them, and put black plastic bags over their heads. These two applicants were then taken down to the lobby and put into the minibus with the first applicant. Despite the bag over his head, the third applicant was able to see other figures dressed in camouflage uniforms in the lobby. 10. When the intruders broke into the second applicant’s room, they struck him on the shoulder with a rifle butt so that he fell onto the floor. They then ordered him to look away. In reply to his question as to their identities, the men kicked him and hit him with their rifle butts. One of the intruders told him in unaccented Russian that they were from the Ministry of the Interior. They collected his personal belongings and his professional equipment and put it into bags. They then pulled a black plastic bag over his head and, continuing to beat him, took him out of the room and down to the minibus. 11. At the time of their abduction, the applicants were wearing jeans or tracksuit trousers, shirts, T-shirts and slippers and were taken out as they were. The abductors did not allow them to put on shoes or warm clothing. 12. In the minibus one of the abductors asked the second, third and fourth applicants who they were. They introduced themselves. The first applicant also started to explain who he was but was silenced with a number of blows. One of the abductors told the driver that the hotel had been “mopped-up” and ordered him to drive off. The applicants were ordered to be silent and to keep their heads bowed; the abductors threatened them with beatings and promised they would shoot them if they did not obey. All of the abductors spoke unaccented Russian. 13. The minibus drove for about an hour. Initially it went through the streets of Nazran. The windows were not obscured and through the bags on their heads the applicants could see the streetlights and the headlights of passing cars. According to the third applicant, the bag on his head was loose enough to enable him to see that their abductors did not put aside their weapons during the drive. He concluded they must be State agents. 14. Some time later the minibus drove along a country road and stopped in a snow-covered field. The applicants were taken out of the minibus one by one and beaten up with kicks and blows from rifle butts. One of the abductors told the applicants that they would be shot and ordered his colleagues to fetch silencers from the bus. The applicants thought that they were going to be executed on the spot. One of the abductors checked the minibus, but could not find the silencers. The abductors ordered the applicants to remain on the ground until they had left, threatened to kill them if they returned to Ingushetia in future, and drove off. The applicants took the bags off their heads and saw a white Gazel minibus driving away. 15. The applicants ran off in the opposite direction, fearing that their abductors would return to execute them. Walking in the snow, they suffered from the cold as they had neither overcoats nor proper shoes. After about an hour they reached the Nesterovskaya settlement, where they knocked on local residents’ doors asking for help. After some time one of the residents let them in and called the police. The police arrived and took the applicants to the local police station, where they were provided with medical assistance. 16. Early in the morning of 24 November 2007 the applicants were taken by the police to the Nazran District Department of the Interior (Отдел внутренних дел Назрановского района (РОВД)) (the Nazran ROVD) and made statements concerning their abduction and illtreatment. The second applicant asked a police officer whether he knew who was responsible for the incident. In reply the officer did not say anything but typed on his mobile phone three letters “FSB” (ФСБ), (the Russian Federal Security Service (Федеральная Служба Безопасности)). 17. On 24 November 2007 the Ingushetia Investigative Committee (“the investigative committee”) opened an investigation into the incident under Articles 139, 144 and 161 of the Russian Criminal Code (violation of privacy, obstruction of the lawful professional activity of journalists, and robbery) and opened criminal case no. 07560126. In the decision it was stated that the crime in respect of the applicants had been committed by unidentified perpetrators who had used violence. 18. On 24 November 2007 the investigators questioned the second applicant, who stated that at about 11 p.m. on 23 November 2007 he and the third and fourth applicants had been in the second applicant’s room at the hotel when a group of five or six armed men in balaclava masks and camouflage uniforms had forced their way into the room. The men had been armed with automatic rifles. The applicants thought that they must be from a law-enforcement agency. The intruders had searched the room and collected the applicants’ personal belongings and their professional equipment. They had then blindfolded the applicants, taken them down to the minibus and driven somewhere. They had stopped in a field and had subjected the applicants to severe beatings with rifle butts and kicks, as a result of which the second applicant had twice lost consciousness. Thereafter the abductors had driven off and the three applicants had spoken to the first applicant, who introduced himself as Mr Orlov. They had then made their way to the nearest village, where they had gone to the local police station, and from there they had been taken back to Nazran. 19. On the same date, 24 November 2007, the investigators questioned the third and fourth applicants, whose statements were similar to that of the second applicant. In particular, both applicants also stated that the abductors, who had also beaten them unconscious, must have been from a law-enforcement agency. 20. On the same date, 24 November 2007, the investigators questioned the first applicant’s colleague, Ms E.S., who stated that she had been called to come to the police station, where she had found the first applicant covered in bruises and hematomas, without an overcoat, and wearing slippers and dirty clothing. 21. On 24 November 2007 the investigators questioned the hotel duty manager, Ms M.K., who stated that their hotel was usually guarded by police security officers, but they had been called off duty at about 9 p.m. on 23 November 2007 when a Deputy Minister of the Interior of Ingushetia had telephoned the hotel and ordered them to leave the premises. At least one other Deputy Minister of the Interior of Ingushetia had been staying at the hotel at the material time and his security officers had also been called off. The witness had asked the second Deputy Minister whether he had been aware that his security had been called off, and he had confirmed that he had been aware of it. At about 11.30 p.m. on 23 November 2007 a group of about fifteen armed men in balaclavas and camouflage uniforms had arrived at the hotel in a white Gazel minibus without registration plates. The men had told her that they had been conducting an identity check within the framework of counter-terrorist operation and ordered her to provide the registration log of the hotel’s guests. Having checked the names, some of the men had gone upstairs whilst others had stayed in the lobby and held the staff at gunpoint. The intruders, who had communicated among themselves by gestures, had taken her and the other staff members’ mobile telephones and removed the sim-cards and the batteries. About twenty minutes later the intruders who had gone upstairs had returned with four blindfolded men with sacks over their heads and had put the four men into the white minibus and driven off. The witness had not gone into the rooms raided by the intruders, but had been able to see from the corridor that everything inside the rooms had been turned upside-down. 22. On 24 November 2007 the investigators twice questioned the hotel’s managing director, Mr R.M., who stated that he had not been at the hotel during the events in question, but had been informed by his staff about the abduction of four of the hotel’s guests. 23. On 24 November 2007 the investigators questioned the first applicant, whose statement was similar to the account of the events submitted to the Court. In addition, he stated that at about 11.30 p.m. on 23 November 2007 someone had knocked at the door of his room and a female voice asked him to open. After that, the intruders had rushed in and subjected him to questioning about the purpose of his visit to Ingushetia. They had thrown him to the floor, collected his mobile telephone, documents and other belongings, blindfolded him with a black sack and taken him out to the minibus, where he had seen the other applicants. The abductors had then driven for about an hour, stopped and taken the four men out and assaulted them with kicks and rifle butts. The abductors had threatened to kill the first applicant; during the beating, the sack over his head had been displaced and he had seen the abductors and their vehicle. The abductors had left the applicants lying in the field in the cold, with no warm clothing, and had driven off having told them not to return to their region. 24. On 24 November 2007 the investigators again questioned the second applicant, whose statement was similar to the one given previously and to the account before the Court. He additionally stated that he was sure that the abductors, who had acted as a well-organised professional group, must have been agents of a police special task unit. During their search of his room, one of the abductors had told him that they were from the police and that they would take him to the police station. The applicant also provided the investigators with a list of items stolen by the abductors, including his personal belongings, cash, passport, professional equipment, and credit cards and stated that the overall monetary value of his stolen items amounted to 46,500 Russian rubles (RUB) (about 1,300 euros (EUR)) and that of the stolen company’s equipment to 580,000 RUB (about 16,200 EUR). 25. On 24 November 2007 the investigators again questioned the third applicant, whose statement was similar to the account before the Court. He also stated that the abductors, who had acted as a well-organised professional group, had beaten him and the other applicants severely, and that he had lost consciousness at least once. He also provided the investigators with a list of items stolen by the abductors, including his personal belongings, cash, documents and professional equipment. 26. On 24 November 2007 the investigators again questioned the fourth applicant, whose statement was similar to the account before the Court. He also stated that the abductors, who had acted as a well-organised professional group, had beaten him and the other applicants severely, and that when he had been taken out to the abductors’ minibus, the first applicant had already been there. He also provided the investigators with a list of items stolen by the abductors, including his personal belongings, cash, documents and professional equipment. 27. On 26 November 2007 the investigators questioned police sergeant I.S., who stated that on the evening of 23 November 2007 he and three other police officers, G.O., A.M. and Kh.T., were on their regular duty at the hotel, where they had been assigned to ensure the safety of the hotel guests in addition to the hotel’s own security service. The police at the hotel worked in groups of four officers, in twenty-four hour shifts, starting at 9 a.m. each day. In addition to the police presence at the hotel, the administrator also had a special button to call the police in case of emergency. At about 9 p.m. on 23 November 2007 the administrator had told them that Deputy Minister of the Interior A.Kh. had telephoned. Officer G.O had spoken to the Deputy Minister, who had ordered the officers to leave the hotel and go to the building of the Ministry of the Interior. The witness and his colleagues had gone to the Ministry of the Interior, where Colonel Gu. had told them to remain, without giving any explanation. At 9 a.m. on the following morning, the four officers had been dismissed from their shift and gone home. According to the witness, he had learnt of the applicants’ abduction from hotel staff two days after the event. Prior to 23 November 2007 their security team had never been called off duty from the hotel. 28. On 26 November 2007 the investigators also questioned the hotel security guard, Mr S. Dz., who stated that on the evening of 23 November 2007 he had been on duty at the hotel with his colleague Mr Z. Ko. The hotel’s security service worked in teams of two guards in twenty-four-hour shifts. A team of four police officers had also guarded the hotel. At least two deputy Ministers of the Interior of Ingushetia had been staying at the hotel. The hotel’s lobby was equipped with CCTV cameras. At about 9.50 p.m. the police officers had left the hotel, which they had never done before. At about 11.30 p.m., as he was locking the back door, he had seen a group of five armed men in balaclavas and camouflage uniforms who had ordered him and his partner to stand up against the wall. The witness had thought that the men must have been a police special forces unit conducting a special operation. The men had searched them and taken them into the hotel lobby, where there were five more armed men in balaclavas and camouflage uniforms holding at gunpoint the duty manager, Ms M.K., and restaurant employees Ms O.A. and Mr T.Ga. The men had behaved like a special forces unit during a special operation; in unaccented Russian they had ordered everyone to lie down on the floor, be quiet and not to move. They had not beaten anyone. At about 12.30 a.m. they had left. The witness had not seen whether the intruders had taken anyone with them. He stressed that he had been certain that the intruders must have been law-enforcement agents. It was only on the following day that he had learnt that the intruders had abducted the applicants. 29. On 26 November 2007 the investigators questioned the other security guard who had been on duty at the hotel on the evening of 23 November 2007, Mr Z. Ko. His statement was similar to that of his colleague Mr S. Dz. and he also provided a detailed description of the intruders’ firearms and stated that they had acted under a chain of command. The intruders had guarded all the exits and entrances to the hotel, the stairs and the elevator. Then they had taken his and the others’ mobile telephones, removed the batteries and sim-cards and thrown them onto the floor. While they had been held at gunpoint in the lobby, some of the women had started crying and panicking. One of the intruders, who had acted like the one in charge, had told them in unaccented Russian that they just needed to check something and would then leave. The witness emphasised that the intruders had acted as a well-organised group and that they must have been a highly-trained special police unit. The intruders had spent about half an hour at the hotel. After their departure, he had learnt that they had taken away the applicants. 30. On 27 November 2007 the investigators questioned the managing director of the hotel’s restaurant, Mr T.Ga., who stated that at about 11.10 p.m. on 23 November 2007 he had just gone down from the restaurant into the lobby with his colleagues Ms O.A. and Ms L.Dz. when three men armed with machine guns, wearing balaclavas and camouflage uniforms, had run up to them and ordered them by gesturing to lie down on the floor and not to move. About ten to fifteen more intruders had already been in the lobby; they had not spoken among themselves and had communicated by gesturing. Both of the hotel security guards were already lying on the floor. The intruders had taken his mobile telephone and removed its sim-card and battery. 31. On 27 November 2007 the investigators questioned police officer G.O., who made a statement about the events similar to that given by his colleague, sergeant I.S. (see paragraph 27 above). In addition he stated that he and his colleagues had been providing security for the hotel’s residents, including the Deputy Ministers of the Interior Selivanov and Seliverstov, who were in residence there at the time. At about 8 p.m. on 23 November 2007 a duty officer from the Ministry of the Interior had arrived at the hotel and told them that a Deputy Minister of the Interior had ordered the security team to leave the hotel and go to the Ministry of the Interior building. The witness had refused to do so, as there had been no orders from his superior officers to this effect. Then, about two hours later, the Deputy Minister of the Interior in charge of the borders, Mr A. Kh., had phoned the hotel and ordered the police security group to go to the Ministry of the Interior to secure its premises. The witness and his colleagues had spent the night there and it was not until the next morning that he had learnt about the applicants’ abduction from the hotel. 32. On the same date, 27 November 2007, the investigators also questioned the police officers Kh.T. and A.M., whose statements were similar to those of their colleagues I.S. and G.O (see paragraphs 27 and 31 above). 33. On 27 November 2007 the investigators also questioned the hotel’s cook and a waitress, Ms L.Dz. and Ms O.A., whose statements were similar to that of Mr S. Dz. (see paragraph 28 above). In addition, both women stated that they had seen the applicants being taken away by the intruders and that the applicants, who had had black sacks over their heads, had not been wearing outdoor shoes or warm clothing. In addition, Ms O.A. had seen the abductors’ white Gazel minibus without official registration plates. 34. On 27 November 2007 the investigators again questioned the hotel’s administrator, Ms M.K., who reiterated her earlier statement (see paragraph 21 above) and added that the intruders had told her that they had come to conduct an identity check and were from the anti-terrorist unit of the police. They refused to let her see their service documents. Some of the intruders had stayed in the lobby while others had ordered her to go to the first applicant’s room to ask him to open the door, which she had done. Later, she had seen the men take the applicant outside and had seen their white minibus. She also stated that she was now not sure whether the intruders had in fact been from a law-enforcement agency and that she did not remember whether anyone had called off the four police officers who had been on duty at the hotel on 23 November 2007. 35. On various dates in November and December 2007 the investigators questioned two police officers from the Nesterovskaya police station and four officers from the Sunzhenskiy district police station whose statements concerning the circumstances of the applicants’ arrival at the police station in the early hours of 24 November 2007 were similar to the applicants’ account before the Court. 36. On 9 December 2007 the investigators questioned Ingushetia Deputy Minister of the Interior A. Kh., who stated that he was in charge of the security of the administrative border of Ingushetia. To his knowledge, the hotel’s police security service had consisted of officers from the Special Task Unit, in view of the fact that high-ranking law-enforcement officials were staying at the hotel, including two Deputy Ministers of the Interior, Mr Seliverstov and Mr Selivanov. He had called the police officers off duty from the hotel on the evening of 23 November 2007 as there had been a threat of attacks on the building of the Ministry of the Interior and the officers had therefore been needed elsewhere. He had not known that on that date the applicants had been staying at the hotel and learnt of their abduction and beating only the following morning when he read the police service incidents report. 37. On 17 December 2007 the investigators questioned Deputy Minister of the Interior of Ingushetia Mr V. Selivanov, who stated that he had been resident in the hotel since mid-October 2007. On the evening of 23 November 2007 he had been in his room, had not heard anything and had not seen the police security guards that evening. He had been unaware of the reasons for the guards’ recall from the hotel and learnt of the applicants’ abduction and ill-treatment only the next day. 38. On 18 January 2008 the investigators questioned First Deputy Minister of the Interior of Ingushetia Mr S. Seliverstov, whose statement was similar to that given by Mr V. Selivanov (see the paragraph above). 39. On various dates in January and March 2008 the investigators questioned eleven police officers, who stated that on 23 November 2007 they had manned various checkpoints on the motorway between Ingushetia and Chechnya, on the roads between Nazran and the Ordzhenikidzevskaya settlement, and in the vicinity of the local airport. They did not recall the white Gazel minibus with abductors passing through their checkpoint due to the large number of similar vehicles going through daily, but said that any vehicle of that type passing through in the evening or at night should have been stopped and registered in the log. 40. On 20 February 2008 the investigators questioned Mr Sh.A. and Mr A.Ge., both of whom stated that they had been present during the crimescene examination on 24 November 2007 at the hotel and that during the examination they had not seen any CCTV cameras on its premises. 41. On 23 February 2008 the investigators questioned the hotel manager Ms L.T, who stated that she had not been at the hotel on 23 November 2007. 42. On 24 February 2008 the investigators questioned Mr Akh.D., who stated that on the night of 23 November 2007 he had been at home in the Sunzhenskiy district of Nesterovskaya when at about 1 a.m. four men had knocked at his door. The men, who were not wearing warm clothing, had traces of beatings and were suffering from the cold; they had told him that they had been abducted from Nazran, beaten and left in the fields near the village. He had let the men in and then had gone to the Nesterovskaya police station to report the incident. 43. On various dates in February 2008 the investigators also questioned several witnesses in Nesterovskaya whom the applicants had asked for help on the night of 24 November 2007 and who had refused to open the door. 44. On various dates between December 2007 and April 2008 the investigators questioned more than forty employees of the school situated near the hotel. The persons questioned were primarily teachers or administrators. All of them gave similar statements to the effect that they worked at the school during the day, that they had therefore not witnessed the events late at night on 23 November 2007 and had learnt about them some time later. None of the school’s security guards or night watchmen was questioned. 45. On 24 November 2007 the investigators granted each of the applicants victim status in the criminal case. In the decision they listed the items of their professional equipment and personal belongings taken by the perpetrators, including cash, credit cards, mobile phones, clothes, a laptop, tape recorder, service identity cards and a digital camera. 46. On the same date, 24 November 2007, the investigators ordered a forensic expert examination of each of the applicants. On 29 November 2007 the medical forensic examiner issued report no. 735, which described the numerous bruises and hematomas received by the third applicant as being ones of a “light degree of gravity”. The same report described the injuries of the second applicant as unsuitable for forensic categorisation due to the absence of a chest X-ray and conclusions of other medical specialists. As for the injuries of the first and fourth applicants, they did not qualify for a degree of gravity, there being a “lack of lasting impact on his health”. 47. On 24 November 2007 the investigators examined the crime scene at the hotel, collected some fingerprints and ordered an expert forensic examination thereof. No other evidence was found. On 12 December 2007 the experts concluded that the fingerprints were not suitable for examination. 48. On 25 November the applicants left for Moscow, where on 26 November 2007 the second applicant was admitted to hospital and received medical treatment in connection with his injuries, which included cerebral concussion. He was discharged from hospital on 4 December 2007. 49. On 26 November 2007 the investigators seized and examined the registration log of the hotel guests. 50. On 26 November 2007 the head of the Ingushetia investigative committee issued instructions for the investigators, ordering them to take these steps, amongst others: “ [...] 4) to identify and question the Deputy Minister of the Interior who, according to the statement of Ms M.K., telephoned the hotel at about 9 p.m. and recalled the police security officers; [...] 9) to identify the police officers who had manned the checkpoints on motorway “Kavkaz” on 23 November 2007 and question them about the passage of the Gazel minibus and examine the passing vehicles’ registration logs; [...] 15) to identify persons who had been staying at the hotel at the material time and question them about the events; [...] 17) to establish whether there were CCTV cameras inside and outside the hotel and examine their contents; [...]” 51. On 27 November 2007 the investigators took fingerprints from six employees of the hotel for comparative forensic examination of the fingerprints collected at the crime scene. 52. On 5 December 2007 the investigators examined the registration log of vehicles passing the Volga-20 checkpoint during November 2007. No passage of a Gazel minibus on 23 November 2007 was recorded. 53. On 7 December 2007 the Nazran town police department replied to the investigators that there had been no CCTV cameras in the vicinity of the crime scene. 54. On 8 December 2007 the Ingushetia Minister of the Interior, Colonel Medov, wrote to the investigators, stating that on 23 November 2007 his Deputies Mr Seliverstov and Mr Selivanov, as well as a number of other police officers from other regions of Russia had been staying at the hotel. They had all “been resting in their rooms” at the time of the abduction and had no pertinent information to offer the investigation. 55. On 10 December 2007 the first applicant asked the investigators to change the legal classification of the crimes committed against him and the other applicants to that of “exceeding official powers”, a crime that is committed by State agents and punishable under Article 286 of the Russian Criminal Code. In particular, he stated that within the scope of their official powers, the perpetrators had been able to unlawfully break into the applicants’ rooms, search them, take away their property, deprive them of liberty and subject them to ill-treatment. 56. On 13 December 2007 the investigators rejected the request as unsubstantiated, referring to the lack of evidence of the involvement of State agents in the incident. 57. On 4 February 2008 the investigators asked the hotel to inform them whether any CCTV cameras capable of recording had been in use on 2324 November 2007. On 8 February 2008 the hotel replied that there had been “no working CCTV cameras” on their premises on the dates in question. 58. On 22 February 2008 the investigators again examined the crime scene at the hotel. No evidence was collected. 59. On 22 May 2008 the investigators requested the permission of the Nazran District Court to obtain a list of the mobile telephone calls made between 11 p.m. on 23 November and 12 a.m. on 24 November 2007 in the vicinity of the hotel. Permission was granted on 30 May 2008. 60. On 26 May 2008 the preliminary investigation was suspended for failure to identity the perpetrators. 61. On 27 May 2008 the head of the Ingushetia Investigative Committee overruled the decision to suspend proceedings as premature and unsubstantiated and ordered that the investigators take such additional steps as were possible even in the absence of identified perpetrators. 62. On 29 May 2008 the first applicant complained to the head of the Nazran Branch of the Investigative Committee, alleging that the crime against him and the other applicants had been perpetrated by State agents but that the investigation was not taking any steps to examine this theory. He requested that the theory of State agents’ involvement be examined. In particular, he pointed out the following facts: - due to the security threats in the region at the material time, the hotel was usually guarded by several police officers. However, about two hours prior to the abduction, the police officers had been recalled by their superior and a vehicle had been despatched to pick them up and take them to another location. The police officers had therefore been removed from the hotel in order not to create obstacles for the applicants’ abduction; The applicant asked that his request be included in the investigation file, but received no reply. 63. On 28 January 2009 the first applicant requested permission to have access to the investigation file. 64. On 30 January 2009 the investigators granted the request in part, namely in respect of the records of investigative actions which had been carried out with the applicants’ participation and the investigator’s decisions to order forensic examinations and expert reports. Access to the rest of the file’s contents was refused. 65. On 7 April 2009 the first applicant appealed against the above refusal. On 24 April 2009 the Magas District Court in Ingushetia dismissed the complaint, stating that victims in criminal proceedings could familiarise themselves with the entire contents of the investigation file only after completion of the investigation. On 9 June 2009 the Ingushetia Supreme Court upheld that decision on appeal. 66. On 28 April 2008 the first applicant asked the investigators to inform him of the progress in the criminal proceedings. On 3 June 2008 they replied that the investigation had been suspended on 26 May 2008. 67. On 10 June 2008 the investigators familiarised the first applicant with the conclusions of the forensic medical examination. He pointed out that in addition to the bruises and hematomas received as the result of the beating by the abductors, he had been subjected for about an hour to extremely cold temperatures while wearing only the very light clothing in which he had been taken from the hotel. 68. On 26 June 2008 the investigation was again suspended. 69. On 28 January 2009 the first applicant’s lawyer requested access to the entire contents of the investigation file. On 30 January 2009 he was allowed to familiarise himself only with documents concerning the investigative steps taken with his participation. 70. On 11 April 2011 the Interim Deputy Head of the Ingushetia Investigative Committee overruled the decision to suspend the investigation as premature and unsubstantiated and ordered that it be resumed and the investigators take additional steps. 71. On 16 March 2011 the investigators requested that the Interim Deputy Prosecutor of Ingushetia order the police to take steps to examine the theory of the involvement of State agents in the applicants’ abduction and ill-treatment. 72. On 3 April 2011 the investigators issued an official statement addressed to the Minister of the Interior criticising the failure of the police to take the steps necessary to identify the perpetrators of the applicants’ abduction. The document stated: “... from the very beginning of the investigation no operational search information of relevance and importance has been provided [to the investigators] regarding the identities of the possible culprits. Such violations of the procedure committed by the operational officers of the police create obstacles for the full, thorough and objective investigation....the facts stated demonstrate the Ingushetia police’s complete ignorance in respect of the requirements of criminal procedure, their lack of discipline and the absence of any control over their work by the senior officers. There can be no change in this unhealthy situation as regards the operational units of the Ingushetia Ministry of the Interior [the police] when it comes to the execution of the investigators’ lawful requests without your personal intervention. Your intervention could change the basis of the operational search officers’ attitude to the execution of their tasks...” 73. On 30 May 2011 the Head of the Criminal Police Department of the Ministry of the Interior replied to the investigators, stating that as the result of their criticism they had conducted an internal inquiry and implemented various disciplinary measures against the officers responsible for their failure to take the necessary steps. 74. On 4 May 2011 the hotel’s administration replied to the investigators’ request of 29 April 2011, stating that on 23 November 2007 there had been no CCTV cameras on their premises. 75. On 11 May 2011 the investigation was suspended again. The proceedings are still pending. 76. The Government did not contest the factual circumstances of the events as presented by the applicants. They added only that at the material time four Deputy Ministers of the Interior had been residing at the hotel. In addition to Mr Seliverstov and Mr Selivanov, Mr Seriy and Mr Magera were also staying there. 77. In their submission before the Court on 1 February 2013 the Government stated that “it has been positively confirmed that on 23 November 2007 [the applicants] were subjected to ill-treatment by unidentified perpetrators. There is no information showing that the crime was committed by representatives of the law-enforcement agencies or other State agents”. 78. In reply to the Court’s request for a copy of the investigation file, the Government furnished its contents, amounting to 1182 pages. According to the applicants, the documents submitted did not contain copies of the transcripts of the questioning of the first applicant, in which he had stressed the involvement of State agents in the abduction and ill-treatment. | 1 |
test | 001-172701 | ENG | GRC | CHAMBER | 2,017 | CASE OF CHOWDURY AND OTHERS v. GREECE | 1 | Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 4 - Prohibition of slavery and forced labour (Article 4 - Positive obligations;Article 4-1 - Trafficking in human beings;Article 4-2 - Forced labour);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Robert Spano | 5. The applicants, Bangladeshi migrants living in Greece without a work permit, were recruited on different dates between October 2012 and February 2013 in Athens and other places, to work on the region’s biggest strawberry farm, at Manolada, a village of two thousand inhabitants in the regional district of Elis, in the western part of the Peloponnese peninsula. In that area there are a number of production units, of various sizes, specialising in the intensive cultivation of strawberries. Exports account for 70% of the local production, which covers 90% of the Greek market. Most of the workers are irregular migrants from Pakistan and Bangladesh. Some are employed on the farms permanently and others only on a seasonal basis. 6. The production unit in question was run by T.A. and N.V., the applicants’ employers. The applicants were among a total of 150 workers divided into three teams, each one headed by a Bangladeshi national who reported to T.A. 7. The workers had been promised a wage of 22 euros (EUR) for seven hours’ work and three euros for each hour of overtime, with three euros per day deducted for food. They worked in greenhouses every day from 7 a.m. to 7 p.m. picking strawberries under the supervision of armed guards employed by T.A. They lived in makeshift shacks made of cardboard, nylon and bamboo, without toilets or running water. According to them, their employers had warned them that they would only receive their wages if they continued to work for them. 8. On three occasions – in late February 2013, mid-March 2013 and on 15 April 2013 – the workers went on strike demanding payment of their unpaid wages, but without success. On 17 April 2013 the employers recruited other Bangladeshi migrants to work in the fields. Fearing that they would not be paid, between one hundred and one hundred and fifty workers from the 2012-2013 season who worked in the fields started moving towards the two employers, who were on the spot, in order to demand their wages. One of the armed guards then opened fire against the workers, seriously injuring thirty of them, including twenty-one of the applicants (listed under numbers 4, 6, 7, 8, 9, 14, 15, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 33, 38, 39 and 42). The wounded were taken to hospital and were subsequently questioned by police. 9. On 18 and 19 April 2013 the police arrested N.V. and T.A., together with the guard who had fired the shots and another armed overseer. During the preliminary investigation by the local police, a number of other Bangladeshis, including some who had worked with the suspects, were used as interpreters. 10. On 19 April 2013 the Amaliada public prosecutor charged the four suspects with attempted murder and other offences, and also, in response to a request from the prosecutor at the Court of Cassation, with human trafficking under Article 323A of the Criminal Code. The charge of attempted murder was subsequently reclassified as grievous bodily harm. 11. On 22 April 2013 the Amaliada public prosecutor acknowledged that thirty-five workers – including four team-leaders –, who had all been injured during the incident, were victims of human trafficking, thus making them lawful residents under section 12 of Law no. 3064/2002 (on the repression of human trafficking, crimes against sexual freedom, child pornography, and more generally sexual exploitation). 12. On 8 May 2013 one hundred and twenty other workers, including the twenty-one applicants who had not been injured (listed under numbers 1, 2, 3, 5, 10, 11, 12, 13, 16, 17, 18, 27, 30, 31, 32, 34, 35, 36, 37, 40 and 41), applied to the Amaliada public prosecutor for charges of human trafficking, attempted murder and assault, in respect of them also, to be brought against the four defendants. They stated that they had been employed on the farm run by T.A. and N.V. in conditions of human trafficking and forced labour and that they were part of the group which had come under fire. Relying on the Additional Protocol to the United Nations Convention against Transnational Organised Crime, known as the “Palermo Protocol”, of December 2000 (“to Prevent, Suppress and Punish Trafficking in Persons”), they asked the public prosecutor to bring charges under Article 323A of the Criminal Code against their employers, accusing them of exploiting them in a work-related context. They further alleged that, on 17 April 2013, they had also been present at the scene of the incident and that they had gone there to demand their unpaid wages, with the result that they were also victims of the offences committed against the other thirty-five complainants. 13. The police questioned each of the above-mentioned twenty-one applicants, who signed a record containing their statements, which had been given under oath and were accompanied by their photos, and they forwarded the statements to the public prosecutor. 14. In decision 26/2014 of 4 August 2014, the Amaliada public prosecutor rejected the application of the one hundred and twenty workers. He emphasised that those workers had been sought in order to give testimony during the preliminary investigation and that only one hundred and two of them had been traced and interviewed (including the twenty-one applicants mentioned in paragraph 12 above). He noted that it transpired from their statements and other material in the file that their allegations did not correspond to the reality. He explained that if they had really been the victims of the offences complained of, they would have gone to the police immediately on 17 April 2013, like the thirty-five other workers had done, and would not have waited until 8 May 2013. In his view, the claim that the complainants had been afraid and had left their huts was not credible because they had been close to the scene of the incident and, when the police arrived, they could have returned to make their complaints known. He further noted that only four out of the hundred and two complainants interviewed had stated they had been injured and that, unlike the thirty-five workers mentioned above, none of those four workers had gone to hospital. Lastly, he observed that all the complainants had stated that they had made statements to the police after learning that they would receive residence permits as victims of human trafficking. 15. On 28 January 2015 the public prosecutor at Patras Court of Appeal dismissed the appeals of the one hundred and twenty workers against decision no. 26/2014 on the grounds that the material in the case file did not substantiate their allegations and that they had sought to present themselves as victims of human trafficking in order to obtain residence permits (decision no. 3/2015). 16. The accused were committed to stand trial in Patras Assize Court. Only N.V. was charged with committing the offence of human trafficking. The three other defendants, namely T.A. and the two armed overseers, were charged with aiding and abetting that offence. The hearings began on 6 June 2014 and ended on 30 July 2014. The thirty-five workers mentioned above joined the proceedings as civil parties and were represented by their lawyers V. Kerasiotis and M. Karabeïdis, whose fees were paid by the Greek Council for Refugees and the Hellenic League for Human Rights. 17. In his oral submissions the public prosecutor pointed out that the applicants who had been injured in the incident had been living and working in Greece without any permit, at the mercy of networks which exploited human beings and in conditions which enabled them to be characterised as victims of human trafficking. In his view both the material element and the mental element of this offence were made out in the present case. 18. The public prosecutor further emphasised that exploitation in a labour context was part of the notion of exploitation provided for in European and other international law instruments as a means of committing the offence of human trafficking. He indicated that Article 4 of the Convention and Article 22 of the Greek Constitution prohibited forced or compulsory labour. He explained that the notion of exploitation through work included all acts which constituted a breach of employment law, such as the provisions concerning working hours, working conditions and workers’ insurance. In his view, that form of exploitation also obtained through the performance of work for the benefit of the offender himself. 19. Referring to the facts of the case, the public prosecutor explained that the employer, N.V., had not paid the workers for six months, that he had only paid them a very small sum for food, deducted from their wages, and had promised to pay the rest later. He observed as follows: that the defendants were unscrupulous and imposed themselves by making threats and carrying weapons; the workers laboured in extreme physical conditions, had to work long hours and were constantly humiliated; on 17 April 2013, N.V. had informed the workers that he would not pay them and would kill them, with the help of his co-accused, if they did not carry on working for him; as the workers had not given in to the threats, he had told them to leave and said that he would take on another team in their place and that he would burn down their huts if they refused to leave. He lastly noted that, when he recruited them, N.V. had promised the complainants makeshift shelters and a daily wage of EUR 22 – which in his view was the only solution for the victims to be sure of a means of subsistence – and that N.V. had thus succeeded, at that point, in obtaining their consent in order to be able to exploit them subsequently. 20. The public prosecutor asserted that the incident of 17 April 2013 was illustrative of a situation of over-exploitation and barbaric treatment to which the major landowners in the region had subjected the migrant workers. He took the view that the incident had been a barbaric and armed aggression by Greek employers against the migrants, conjuring up images of a “southern slave-trade” which had no place in Greece. 21. At the hearing, one of the witnesses, an officer from the police station of Amaliada, stated that one or two days before the incident of 17 April 2013 some workers had gone to the police station to complain that their employers had refused to pay them their wages and that one of his colleagues had subsequently had a telephone conversation with N.V. on this subject. 22. In a judgment of 30 July 2014, the Assize Court acquitted the four defendants on the charge of trafficking in human beings, on the ground that the material element of the offence was not made out in the present case. It convicted one of the armed guards and T.A. of grievous bodily harm and unlawful use of firearms, sentencing them to prison for terms of fourteen years and seven months and eight years and seven months, respectively. As regards the overseer who had been responsible for the shots, it took the view that he had not intended to kill those who were attacked in the incident and that he had been trying to make them move away so that the newly recruited workers would not be approached by them. As to N.V., it acquitted him on the ground that it had not been established that he was one of the workers’ employers (and therefore that he was obliged to pay them their wages) or that he had been involved as an instigator of the armed attack against them. The Assize Court commuted their prison sentences to a financial penalty of 5 euros per day of detention. It also ordered the two convicted men to pay the sum of EUR 1,500 to the thirty-five workers who were recognised as victims (about EUR 43 per person). 23. The Assize Court noted that the workers’ conditions of employment had provided that they would receive: EUR 22 for seven hours of work and EUR 3 for each additional hour; food, of which the cost would be deducted from their wages; and materials for the construction of electrified huts next to their plantations, at their employers’ expense, to satisfy their basic accommodation needs – while allowing them the option of living elsewhere in the region. It noted that these conditions had been brought to the knowledge of the workers by their fellow countrymen who were team-leaders. 24. The Assize Court thus observed that the workers had been informed of their conditions of employment and that they had accepted them after finding them satisfactory. As to the amount of the wages, it found that this was the usual amount paid by the other producers in the region and the workers had not been obliged to accept it. In the court’s view, the information provided to the workers by their team-leaders and their compatriots working for other employers about the reliable payment of wages constituted a major factor in the choice of T.A. as employer. The Assize Court further noted that, until the end of February 2013, the workers had not made any complaint about their employer, whether concerning his conduct or the payment of wages, and they had only started to complain at the end of February or the beginning of March 2013 about a delay in payment. 25. Moreover, the Assize Court rejected the workers’ allegations that they had not received any wages and had been subjected to a threatening and intimidating attitude, on the part of the defendants, throughout the duration of their work, on the following grounds: those allegations had been expressed for the first time at the hearing, and not at the stage of the preliminary enquiries or investigation; certain intimidating acts had led the complainants to leave their place of work; and the description of these acts was particularly imprecise and vague. The Assize Court also noted that it transpired from the testimony of the workers that, during their free time, they were able to move freely around the region, do their shopping in shops which operated by agreement with the defendants, play cricket and take part in an association set up by their compatriots. It added that it had not been shown that T.A. had, under false pretences and by means of promises, coerced the workers into agreeing to work for him by taking advantage of their situation of vulnerability, especially as it found that they were not in such a situation. 26. The Assize Court took the view that it had also been shown that the relations between the workers and their employers had been governed by a binding employment relationship and its conditions were not intended to trap the workers or to lead to their domination by the employers. On that point, it explained that the conditions had not led the complainants to live in a state of exclusion from the outside world, without any possibility for them to abandon this relationship and look for another job. It further noted that the workers had been in a position to negotiate their conditions of employment at the time of their recruitment and that their unlawful presence in Greece had not been used by their employers as a means of coercion to force them to continue working. 27. The Assize Court indicated that, for the notion of vulnerability to be constituted, the victim had to be in a state of impoverishment such that his refusal to submit to the offender would appear absurd; in other words the victim had to be in a state of absolute weakness preventing him from protecting himself. It added that the victim would be exploited, as a result of his vulnerability, if he unconditionally submitted himself to the offender and was cut off from the outside world, which in the court’s view was not the case here since: (a) the relations between the workers and their employers had been governed by a binding employment relationship, and (b) its conditions were not intended to trap the workers or to lead to their domination by the employers, such that the workers might be cut off from the outside world and find it impossible to withdraw from the employment relationship and find another job. The Assize Court further observed that most of the workers had stated that they would have continued to work for their employers had they been paid their wages. 28. Lastly, as to the workers’ allegation that they had received death threats from the defendants – an allegation that it did not accept –, the Assize Court took the view that, if that statement had been true the workers would have left their place of work without hesitation. The fact of fearing for their lives would have prevailed over any other consideration (such as: their unpaid wage demands; their need to earn a living, which allegedly could not have been satisfied in view of the objective inability to find another job; and all the other arguments that the workers had put forward to justify the fact that they had continued to work). 29. On 30 July 2014 the convicted defendants appealed against the judgment of the Assize Court. The appeal, which is still pending before that same court, has suspensive effect. 30. On 21 October 2014 the workers’ lawyers lodged an application with the public prosecutor at the Court of Cassation asking him to appeal against the Assize Court judgment. In their application they submitted that the Assize Court had not adequately examined the charge of human trafficking. They took the view that, in order to determine whether that court had properly applied Article 323A of the Criminal Code, it was necessary to examine whether the accused had taken advantage of any vulnerability of the foreign nationals in order to exploit them. 31. On 27 October 2014 the prosecutor refused to lodge an appeal. He gave reasons for his decision, indicating only that the statutory conditions for an appeal on points of law were not met. As a result of this decision, the part of the 30 July 2014 judgment concerning human trafficking became “irrevocable” (αμετάκλητη). | 1 |
test | 001-145574 | ENG | ALB | CHAMBER | 2,014 | CASE OF MARKU v. ALBANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1931 and lives in Laç. A. Proceedings concerning the recognition of the applicant’s status as a war veteran 6. On an unspecified date in 2002 the applicant lodged an application to have his status as a (national liberation) war veteran recognised. On 15 January 2003 the Central Commission on War Veterans (“the Central Commission”), which was the body responsible for the examination of such applications, informed the applicant that it had stopped receiving applications in September 2001. 7. On an unspecified date in 2003 the applicant lodged an application for leave to appeal out of time. On 13 May 2003 the Lezha District Court allowed his application for leave to submit an application to the Central Commission out of time. 8. On 19 June 2003, following the Lezha District Court’s decision, the applicant requested the Central Commission to have his status as a (national liberation) war veteran recognised. 9. On 14 July 2003 the Central Commission informed him, by way of a letter, that, in spite of the Lezha District Court’s decision, it had ceased to operate on 30 July 2002 and could not examine his application. The applicant did not institute any judicial proceedings in response to the Central Commission’s communication. 10. On 9 December 2004 the applicant was informed by the Directorate of Information at the Council of Ministers (Drejtoria e Informacionit, Këshilli i Ministrave) that the end date for the Central Commission’s operations had been extended to 31 December 2006 (paragraph 26 below). 11. On 7 December 2005 the applicant lodged a civil action with the Tirana District Court (“the District Court”) for the legal recognition of his time and status as a (national liberation) war veteran (vërtetimin e faktit juridik të njohjes së kohës së veteranit të LANC-it...si dhe njohjen e statusit të veteranit). He relied on Article 388 of the Code of Civil Procedure (“CCP”) (paragraph 27 below), the Status of War Veterans Act (paragraph 21 below) and the Council of Ministers’ decisions no. 190 of 3 May 1995 and no. 748 of 11 November 2004 (paragraph 26 below). 12. On 1 February 2006 the District Court allowed the action. It found that from 1 March 1943 to the liberation of the country, the applicant had been a messenger for a partisan unit (korrier ... në shërbim të çetës partizane). The Tirana District Court considered just the applicant’s reliance on CMD no. 748 of 11 November 2004. It recognised the applicant’s war veteran status (vendosi...njohjen e statusit të veteranit). 13. On 14 February 2006 the Central Commission, which had intervened as a third party in the proceedings, appealed against the District Court’s decision arguing that the decision had been taken contrary to the law. 14. On 1 February 2007, the Tirana Court of Appeal upheld that decision. It found that, in so far as the Central Commission did not challenge the accuracy of the evidence examined by the District Court, its decision was considered just and given in accordance with the law (...meqenëse për provat e paraqitura personi i tretë nuk ka pretendime, Gjykata e Apelit çmon se vendimi i Gjykatës së Rrethit Tiranë është i drejtë dhe i bazuar dhe si i tillë duhet të lihet në fuqi). On 12 March 2007, following a request by the applicant, an enforcement writ was issued. 15. On 13 April 2007 a bailiff requested the Central Commission to voluntary comply with the court’s decision. 16. On 26 September 2007 the bailiff’s office decided to conclude the enforcement proceedings (pushimin e ekzekutimit) on the grounds that the judgment was of a declaratory nature, was not directed against a debtor and that no rights or obligations had arisen therefrom. The court decision had been transmitted to the Central Commission for further action. 17. Following requests by the applicant to the authorities, on 2 and 13 July 2007 and 4 March 2008 the Ministry of Defence informed him that the Central Commission had ceased to exist on 31 December 2006. Despite efforts to extend its operations into 2007, no legislation had been subsequently adopted to enable it to continue. B. Proceedings concerning the payment of financial entitlements on account of the applicant’s war veteran status 18. On 5 March 2008 the applicant lodged a civil claim requesting the Central Commission to pay him the financial entitlements he was eligible to under domestic law on account of his status as a war veteran. 19. On 23 October 2008 the Tirana District Court dismissed the claim. It held that the decision of 14 February 2006, as upheld on appeal on 1 February 2007, recognised the existence of a legal fact on the basis of Article 388 of the CCP and was of a declaratory nature. An interested party could institute proceedings for the recognition of the existence of a legal fact; however, the authority competent for recognising a person’s war veteran status was the Central Commission. That entity had never examined an application made by the applicant, who had never been recognised as having war veteran status. When a decision by the Central Commission was taken, it was amenable to appeal before the national courts. The Central Commission’s powers had not been transferred to any other authority. 20. Appeals lodged by the applicant with the Tirana Court of Appeal, Supreme Court and Constitutional Court were dismissed on 8 December 2009, and 10 February and 18 May 2012 respectively. | 1 |
test | 001-152382 | ENG | BGR | CHAMBER | 2,015 | CASE OF KARAAHMED v. BULGARIA | 3 | Preliminary objection dismissed (Article 34 - Victim);Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 9 - Freedom of thought conscience and religion (Article 9 - Positive obligations;Article 9-1 - Freedom of religion;Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva | 4. The case concerns an incident which took place on Friday, 20 May 2011, in front of the Banya Bashi Mosque in the centre of Sofia, in which leaders, members and supporters of the Bulgarian political party Ataka clashed with Muslim worshippers who had gathered around the mosque for the regular Friday prayer. The case also concerns the ensuing official investigations into that incident. 5. The Banya Bashi Mosque was built in 1576 and is currently the only operating mosque in Sofia. It can hold up to 700 worshippers. According to information provided by the Chief Mufti’s Office, there are about 30,000 Muslims in Sofia; some of them are Bulgarian nationals, and others immigrants from Turkey, the Middle East and Africa. The mosque is fitted with loudspeakers which were installed soon after the fall of the communist regime in 1989. Those loudspeakers are turned on during the call for prayer, which lasts about five minutes five times a day, and during the whole of the Friday prayer. They are turned off between 10 p.m. and 6 a.m. to comply with the regulations concerning the level of urban noise. 6. The mosque itself is surrounded by railings approximately 1.5 metres high. Two sides of the mosque face onto a park, behind which is the Sofia Central Mineral Baths (“Софийска централна минерална баня”). One side faces onto a side street, Triaditsa Street. The final side faces onto the Princess Marie Louise Boulevard. There, the pavement of the boulevard is approximately 15 metres wide. Owing to a lack of space inside the mosque, worshippers often pray around the building during the Friday prayer, placing their prayer rugs on the boulevard pavement. On the boulevard side of the mosque, there is also a single storey extension, which is not protected by railings, the top of which is just over 1.5 metres high. It is therefore possible to gain access to the mosque compound from the boulevard by climbing onto the roof of the single storey extension. 7. Ataka is a Bulgarian political party. It was founded in April 2005 and, since then, in parliamentary elections has gained around 7-9% of the popular vote and 21-23 seats in Parliament. The party’s leader, Volen Siderov, has been a Member of Parliament for Ataka since June 2005. 8. In 2006 Ataka and Mr Siderov began a campaign against the noise emanating from the loudspeakers installed on Banya Bashi Mosque. That year, they gathered about 35,000 signatures for a petition, presented to the Sofia Municipal Council on 18 July 2006, which called for the removal of the loudspeakers. On the evening of 18 July 2006 Ataka organised a rally against the “howling” emanating from the loudspeakers during the call to prayer. 9. In 2007 Ataka’s mayoral candidate for Sofia, Mr S. Binev, declared that, if elected, he would ban the calls for prayer broadcast from those loudspeakers because he believed that they disturbed persons who had other religious beliefs. 10. On Friday, 29 April 2011, supporters of Ataka mounted loudspeakers on a car and circled close to mosque, playing recordings of church bells and Christian chants during the regular Friday prayer that was taking place at the time. This was repeated during the week that preceded the incident of 20 May 2011. In the words of one of Ataka’s Members of Parliament, this was done to counter the “noise terror” emanating from the mosque. 11. At about 12 noon on Friday, 20 May 2011, worshippers began to gather in and around the mosque for the regular Friday prayer. The applicant was one of them. He, along with thirty or forty other worshippers, remained outside the mosque, either in the surrounding park or on the pavement on Princess Marie Louise Boulevard. Prayer rugs were spread out on the pavement boulevard, in keeping with the worshippers’ normal practice. 12. At the same time, between one hundred and one hundred and fifty members and supporters of Ataka gathered in front of the mosque on the boulevard to protest against what they called the “howling” emanating from the loudspeakers installed on the mosque. The group included Mr Siderov, Mr D. Chukolov, the party’s deputy leader, Ms D. Gadzheva, a Member of Parliament for the party, and Mr D. Stoyanov, a Member of the European Parliament for the party. 13. According to information provided by the Government in the course of proceeding before the Court, on 19 May 2011 Ataka had notified the municipality that, pursuant to Article 8(1) of the Assemblies, Meetings and Demonstrations Act 1990 (see paragraph 46 below), it intended to hold an assembly in the park behind the mosque (i.e. between the mosque and the Central Mineral Baths). This was scheduled for 1-5 p.m. on 20 May with 300 participants. This notification was received by the municipality at 9.54 a.m. on 19 May 2011. 14. The Government also provided copies of three letters which they had received from various authorities in the course of the proceedings. The first, from the municipality, stated that the Sofia Directorate of the Ministry of Internal Affairs was notified of the planned demonstration on 19 May 2011 at 10.50 a.m. The second, from Ministry of Internal Affairs, stated that the Sofia Directorate only learned of the demonstration at 11.40 a.m. on 20 May 2011 when they received information that supporters of Ataka had started to gather in the park beside the mosque. Until that moment, the Sofia Directorate had received no information about the demonstration. At this point, specialist police officers were dispatched to scene. A request for cooperation from the municipality was then received by the directorate by fax at 12.13 p.m. The third, from Directorate of Religious Denominations (“Дирекция по вероизповеданията”), a governmental agency attached to the Council of Ministers, stated that, around 11 a.m. on 20 May 2011, they were informed by the Deputy Chief Mufti that the Ataka demonstration was going to be held in proximity to the mosque and that they immediately contacted the Ministry of Internal Affairs, after which the specialist police officers were dispatched to the mosque. They also contacted the municipality, which confirmed that permission had been given for the assembly to take place in the park between the mosque and the Sofia Central Mineral Baths. 15. Video recordings of the event made by the media and broadcast on Bulgarian television have been provided to the Court by the parties. On the basis of those recordings, the following events can be established. 16. The demonstrators congregated, not on the Central Mineral Baths side of the mosque, but on Princess Marie Louise Boulevard in front of the mosque, where the worshippers had already began to gather for Friday prayers. Most of the demonstrators were wearing black t-shirts featuring the inscriptions “Erdogan, you owe us 10 billion” and “Ataka says: No to Turkey in the EU”. Many carried large Bulgarian flags and Ataka flags, which were green and featured the inscriptions “Ataka” and “Let’s get Bulgaria back”. In the course of the demonstration, the participants played Bulgarian patriotic songs from loudspeakers mounted on cars. 17. The recordings also show the demonstrators shouting invective at the worshippers, calling them “Turkish stooges”, “filthy terrorists”, “scum”, “janissaries”, “cut-offs” and “Islamists”. They also depict the protestors shouting “Off to Ankara!”, “Do not soil our land!”, and “Your feet stink! That is why you wash them!” One of the participants in the rally can be seen slowly cutting a Turkish fez with a pocket knife, saying “Can you hear me? We shall now show you what will happen to each one of you!” 18. While this was happening, the mosque’s imam, using the loudspeaker system, repeatedly appealed to the worshippers not to respond to the demonstrators’ provocation. 19. When the Friday prayer started, one demonstrator climbed onto the roof of the single storey extension and played two loudspeakers on the roof in order to suppress the sound of the prayer. Five or six worshippers then interrupted their prayers, climbed onto the roof and tried to move the loudspeakers. 20. In response, several more demonstrators entered the mosque compound by climbing onto the roof of the single storey extension. A scuffle ensued, in which members and supporters of Ataka, some of whom were carrying wooden flagpoles and metal pipes, moved against the worshippers and started hitting them. Some of the worshippers hit back in response. Some can be seen holding and waving plastic tubing which appears to have been torn from the side of the mosque. Approximately ten police officers also climbed onto the roof of the single storey extension to separate the fighting parties; three people were then arrested. While this was happening two or three other police officers can be seen attempting to keep the demonstrators in the park beside the mosque and back from the side of the single storey extension: at this point, there were over a hundred demonstrators in the park. Some of them can be seen throwing eggs at the worshippers. 21. Another few police officers can be seen attempting to maintain a human cordon between the remaining demonstrators (another fifty or so) who were standing on the boulevard 3-4 metres back from the area where the worshippers’ prayer mats are spread out, though several members of Ataka, including its leaders, can be seen standing in that latter area, just in front of the mosque railings. 22. The demonstrators then continued to pelt the worshippers with eggs and stones and insult them. One of the demonstrators can be seen on the video recording wielding rolled up banner and shouting “We have been putting up with you for so many years. Where else would permit this [praying outside a mosque]? To whom are you praying?” 23. The parties accept that five police officers, five worshippers and Ms D. Gadzheva, who was hit on the chin by a flying stone, were injured in the course of the incident. It is not possible from the video recordings to determine who was responsible for her injury. One of the Muslim worshippers had to be hospitalised because he had concussion. Two police vehicles also sustained damage. 24. In apparent response to the police arresting two demonstrators on the roof of the single storey extension, Mr Siderov, surrounded by members of Ataka and journalists, then spoke into a microphone and addressed the police officers who were present at the scene. He asked them why they had not arrested any of “the real criminals who threw the stones” and accused them of bothering “Bulgarian patriots” rather than Islamists who “promoted violence against Christianity”. He then turned to the senior police officer at the scene, asking him if he was a janissary and suggesting that he put on a fez. Finally, he stated that, in Bulgaria, there was no Bulgarian police only a Turkish one and that those police officers present were a disgrace to their uniforms. 25. The incident ended at around 1.55 p.m. when, led by Mr Siderov and others, the demonstrators left the scene, Mr Siderov stating that he was going to Parliament to ask for the resignation of the Minister of Internal Affairs. As Mr Siderov was about to leave, at least four demonstrators wearing black t-shirts can be seen on the video recording piling some of the worshippers’ prayer rugs and setting fire to them. No action was taken against those responsible, though it appears the police did call the fire brigade. 26. A number of politicians, including the then President of the Republic, Georgi Parvanov, condemned Ataka’s involvement in the incident. 27. On 27 May 2011 the Parliament adopted a declaration also condemning the incident. It read as follows: “Members of Parliament categorically condemn the aggression of the political party ‘Ataka’ of 20 May 2011 against worshippers in the centre of the capital. It is particularly scandalous that this was done on a Friday, a holy day for Muslims, at the time of their obligatory prayer. With those actions, that party isolated itself from democratic society in Bulgaria. The conduct of that party is deeply alien to the Bulgarian people, to its religious and ethnic tolerance. We express our profound disquiet at the attempts to undermine the ethnic peace and to stir up religious tensions between Bulgarian citizens. Following its attempted aggression against ethnic peace, which gives rise to a threat to the national security of the Republic of Bulgaria, the political party ‘Ataka’ has become dangerous for the government of the country. The Bulgarian Constitution says that it is impermissible to use religious communities and institutions, or religious beliefs, for political ends. We, Members of Parliament, insist that all competent State authorities, including the prosecuting authorities and the courts, take the necessary measures to ensure compliance with the Constitution and the laws of the Republic of Bulgaria. We call on the mass media to behave responsibly, which in this tense time full of provocations means not to provide a platform to the voice of hatred.” 28. There have been two separate series of investigations into the events at the mosque that day: one by the police, the other by the National Investigation Service. 29. In a letter dated 18 March 2014, the Ministry of Internal Affairs set out the progress made in the police investigations. Three investigations had been opened: one into the injury sustained by Ms Gadzheva; a second into injuries sustained by two police officers and a cameraman, and criminal damage to the mosque and a police car; and a third into the violence directed towards the worshippers. The first two investigations have been suspended without anyone being charged. 30. The letter also stated that, in the course of the third investigation, thirty people had been interviewed as witnesses, and video recordings and other evidence had been obtained. In the course of that investigation, seven people had been charged (“привлечени като обвиняеми”) with aggravated hooliganism contrary to Article 325 § 2 of the Criminal Code (see paragraph 49 below). No information has been provided about whether those people were then prosecuted and, if so, whether any convictions were obtained. 31. An investigation was also opened by the Sofia City Prosecutor’s Office on 25 May 2011. The focus of that investigation was whether there had been any offences committed under Article 164 § 1 of the Criminal Code (the prohibition on hate speech motivated by religion: see paragraph 55 below). 32. On 6 December 2011 the applicant asked to be allowed to take part in that investigation as a victim within the meaning of Article 74 § 1 of the Code of Criminal Procedure 2005 (see paragraph 58 below). On 13 December 2011 the Sofia City Prosecutor’s Office refused the applicant’s request. It said that the offence under Article 164 § 1 of the Criminal Code 1968 was a “conduct” (“формално”) one (see paragraphs 55 and 57 below) and could therefore not have a victim. 33. On 16 March 2012 the applicant appealed against that decision to the Sofia Appellate Prosecutor’s Office. On 2 April 2012 the Sofia Appellate Prosecutor’s Office referred the case back to the Sofia City Prosecutor’s Office, instructing it to rule on the applicant’s request by means of a formal decision. On 5 April 2012 the Sofia City Prosecutor’s Office did so, repeating the reasons that it had given on 13 December 2011. 34. On 17 April 2012 the applicant appealed against that decision. On 28 May 2012 the Sofia Appellate Prosecutor’s Office found that the question whether an offence was a “conduct” (“формално”) or a “result” (“резултатно”) one was irrelevant as to whether a person could be a victim of that offence. However, there was no evidence that the applicant had been present when the alleged offence had been committed or that the offence had directly affected him. It was therefore necessary to interview the applicant. 35. Accordingly, on 7 June 2012 the applicant was interviewed by the investigator in charge of the case. He stated that he had arrived at the mosque at 11.30 a.m. and had sat in the park between the mosque and the Central Mineral Baths until prayers began. He described the demonstrations’ behaviour in the course of their demonstration, including the insults he had heard. He said that the police had done their job well in keeping the groups apart. According to the applicant, in the course of the interview the investigator was hostile to him and his religion, asking him whether he knew whether he was entitled to pray in front of the mosque and whether he had obtained permission to do so by an appropriate authority. 36. On 16 August 2012 the applicant requested that the supervising prosecutor assign the case to another investigator on the basis that the original investigator was ethnically and religiously biased. He also requested access to the case file. 37. On 5 September 2012 the applicant once again asked to be allowed to take part in the investigation as a victim of the alleged offence. 38. On 19 November 2012 the Sofia City Prosecutor’s Office refused the applicant’s request, again finding that the offence under Article 164 § 1 of the Criminal Code 1968 was indeed a “conduct” offence (“формално престъпление”) (see paragraphs 55 and 57 below) and could therefore not have a victim. It went on to reject the applicant’s request to have the case reassigned to another investigator, reasoning that, not being party to the proceedings, the applicant had no standing to make such a request. For the same reason, the applicant had no right to inspect the case file. 39. On 31 October 2013, after unsuccessful appeals by the applicant to Sofia Appellate Prosecutor’s Office and the Supreme Cassation Prosecutor’s Office, the deputy Chief Prosecutor decided that “conduct” offences (“формални престъпления”) could in principle have a victim. It was therefore necessary to check whether the applicant had himself been prevented from carrying out his religious observances, and if so, in what way. That point had not been fully elucidated in his first interview, which made it necessary to interview him again, before deciding whether he could be allowed to take part in the proceedings in his capacity as a victim. 40. It appears that the National Investigation Service’s investigation is still ongoing. Although a number of witnesses have been interviewed and expert reports obtained, no charges have been brought against any person in the framework of that investigation. However, the Government have submitted part of the investigation file. This includes two statements given by a Mr M. In the second of those two statements he admitted to being the person responsible for cutting up the fez during the demonstration. He stated that he was instructed to do so by Mr Siderov and that Mr Siderov told him to do it before Mr Siderov arrived at the scene. He said he could not refuse because he was working for Ataka at the time. Mr M. also stated that it would have been possible to avoid any collisions between the demonstrators and worshippers if Mr Siderov had wanted. This could have been done by returning to the allocated place for the demonstration or by withdrawing after the scuffle on the single storey extension. Mr M. also stated that young, far-right supporters of Ataka had been drafted in from the town Gabrovo specifically for the demonstration and that they had been placed in the front line of the demonstration. In Mr M.’s view, Mr Siderov could have also avoided a confrontation with the worshippers had he not placed the Gabrovo group at the front of the demonstration. 41. From the investigation file as submitted to the Court, various efforts were made to summon the Ataka party leaders who were at the demonstration in order to interview them. With the exception of Mr Chukolov, the party’s deputy leader, who has been interviewed, those efforts have failed. | 1 |
test | 001-170863 | ENG | ROU | CHAMBER | 2,017 | CASE OF DINU v. ROMANIA | 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;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano | 5. The applicant was born in 1972 and lives in Șopârlița. 6. On 30 June 2013 the applicant’s sister called the emergency services and reported that the applicant was causing a disturbance in respect of his family (a făcut scandal ȋn familie). Two police officers from the Bobiceşti police, C.B. and M.D.B., were dispatched to the applicant’s home. 7. Once they arrived at the applicant’s home, the police officers proceeded to handcuff him in order to take him to the police station, because they claimed that he was aggressive towards them. The officers immobilised him and pushed him to the ground with his face down, even though he was not resisting arrest. They handcuffed him with his hands behind his back, dragged him towards a police car, and banged his head against a metal gate owned by a neighbour, M.V. 8. The Government acknowledged that the police officers had put the applicant to the ground and had forcibly handcuffed him. They stated, however, that the applicant’s allegations of ill-treatment and of being thrown against a metal gate by the police officers were contradicted by the available evidence. The evidence proved that his injuries were not caused deliberately by the police officers. 9. On 30 June 2013 one of the police officers who had been dispatched to the applicant’s home produced a contravention report, and fined the applicant 1,000 Romanian lei (RON – approximately 230 euros (EUR)). According to the report, the applicant had offended his father, had been inebriated, and had admitted his actions. The report was signed by the applicant. 10. From 1 to 3 July 2013 the applicant was in BagdasarArseni Emergency Hospital in Bucharest. According to a medical report produced upon his discharge from hospital, he was diagnosed with a cervical spine injury and a minor cranial cerebral trauma. 11. On 3 July 2013 the applicant’s father lodged a criminal complaint against police officers C.B. and M.D.B., on the grounds that they had physically abused his son. On 12 September 2013 the applicant took up (şia ȋnsuşit) the criminal complaint lodged by his father against the police officers. 12. On 14 August 2013 the Olt prosecutor’s office interviewed the applicant’s father with regard toHe stated, inter alia, that his son had not been suffering from a psychological illness. On the day of the incident the applicant had been inebriated and had made a scene, but he had not hurt either of his parents. Neither parent had called the police, and the applicant’s father was unaware of who could have done so. The police officers had produced a contravention report in the applicant’s name and had asked him to sign the report without informing him why. The applicant had complied and had signed the contravention report. Subsequently, he had agreed to accompany the police officers to the hospital, but had informed them that he needed to go inside the house to get dressed. The police officers had stopped him from entering the house, pushed him to the ground with his face down, and handcuffed him. Afterwards, they had dragged him away and banged his head against a metal gate owned by M.V. When they had put the applicant in the ambulance he had had blood on his face, and they had left him in the ambulance face down and wearing handcuffs. The following day, Dr B. from the psychiatric unit of Slatina Emergency Hospital had informed him (the applicant’s father) that his son had been seriously beaten, and that he had been transferred to a different hospital because he had suffered a cervical spine injury. 13. On 12 September 2013 the Olt prosecutor’s office interviewed the applicant. In his statement, inter alia, he asked the investigating authorities to also interview his mother and N.B. with regard to the incident. He also stated that he had signed the contravention report produced by the two police officers, even though he had not been informed by them about its content. One of the police officers had travelled with him in the ambulance. That officer had refused to remove his handcuffs and had punched him in the face. 14. On the same date the Olt prosecutor’s office interviewed both the applicant’s mother and N.B. His mother stated, inter alia, that the police officers had not allowed her son to get dressed, had chased him through the courtyard, and had tripped him. After he had fallen to the ground they had twisted his hands behind his back and handcuffed him. Because the applicant had been agitated after he had been handcuffed, and had refused to accompany the police officers, they had repeatedly banged his head against the gate owned by M.V. One of the police officers had travelled with the applicant in the ambulance and had continued to beat him until he had been asked by the medical staff in the ambulance to stop the violence. 15. N.B. stated, inter alia, that he had been on the street on the day of the incident and had seen two police officers handcuff the applicant. Afterwards, they had grabbed him by his hands and had banged his head repeatedly on the gate owned by M.V. N.B. further stated that he had worked with the applicant, and he had not been suffering from any psychological condition or drinking alcohol. 16. On an unspecified date in 2013 the Olt prosecutor’s office asked the Olt County Forensic Medical Service to examine the available medical documents and produce a forensic expert report in the case. The prosecutor’s office asked the forensic service to determine: the applicant’s injuries and their cause; the number of days of medical care needed for healing; if there was a direct link between the applicant’s injuries and their cause; and if the injuries could also have been caused by something other than intentional force. 17. On 31 October 2013 the Olt County Forensic Medical Service examined the applicant and the available medical documents. 18. On 18 November 2013 the Olt County Forensic Medical Service produced a forensic expert report. It noted that on the day of the incident the applicant had been transferred by ambulance to Slatina Emergency Hospital because he had been extremely agitated and his breath had smelled of alcohol. Subsequently, he had been transferred to the hospital’s psychiatric unit and had been sedated. The following day he had started complaining of pain in his cervical spine area, and of paralysis of his right hand. He had been examined and had been diagnosed with a cervical spine injury. The interdisciplinary medical examination carried out by, inter alia, a neurologist, a surgeon and an orthopaedist had not identified any signs of trauma. Eventually, the applicant had been admitted to a specialist hospital and had been operated on in relation to the cervical spine injury. 19. The forensic report concluded that the applicant’s injury could have been caused on 30 June 2013. Most probably, the injury had been caused by a forced rotation movement of the neck when the applicant had been immobilised and handcuffed. No signs of trauma specific to intentional force had been identified on the applicant’s head, body or limbs during the interdisciplinary examinations carried out after his admissions to Slatina Emergency Hospital and Bagdasar-Arseni Emergency Hospital. The applicant had needed seventy to eighty days of medical care from the moment of his injury. 20. On 10 January 2014 a prosecutor attached to the Olt prosecutor’s office decided not to open a criminal investigation against the two police officers for abusive behaviour, on the grounds that their actions had lacked the elements of an offence. The prosecutor held that a third party had called the emergency services at the applicant’s sister’s request, because the applicant, who had a history of psychological problems and who had been drunk, had been aggressive and had endangered his own life and safety and that of his family. Once police officers C.B. and M.D.B. had arrived at the scene of the incident, they had asked the applicant to calm down and accompany them to the police station. The applicant had refused the police officers’ demand, and had become aggressive and had verbally abused them. 21. The prosecutor further held that the applicant’s father had confirmed the fact that the applicant had been drunk at the time of the incident. However, his statements that his son had not been aggressive and that he had been unaware of the identity of the person who had called the emergency services had not been confirmed by the rest of the evidence adduced in the file. Moreover, in such a case, it would have been highly unlikely that an individual would call the emergency services for no reason. According to the prosecutor, those arguments were also supported by the fact that, in the medical report produced by the psychiatric unit of Slatina Emergency Hospital, where the applicant had been taken after the incident, it was stated that the applicant was suffering from a polymorphic personality disorder, which was aggravated by alcohol consumption. Also, his father had acknowledged that the applicant would generally act normally when he was sober, but transformed into a verbally and physically aggressive person once he drank alcohol. 22. The prosecutor also held that the applicant was known in his village as a violent and aggressive person with psychological problems. He had been investigated in relation to several other criminal files concerning alleged violent acts committed against the members of his family, and for theft, but the investigations had been discontinued after his parents had withdrawn their complaints. 23. The prosecutor noted that, according to the reports describing the police officers’ intervention and the use of force and handcuffs, once the officers had arrived at the applicant’s home they had realised that he was drunk, and they had been forced to immobilise him and take him to Slatina Emergency Hospital. Also, according to the available medical documents, the applicant had been transferred to the hospital by ambulance, he had been extremely agitated, and his breath had smelled of alcohol. Subsequently, he had been transferred to the hospital’s psychiatric unit and had been sedated. The following day he had started complaining of a cervical spine injury, which had eventually required surgical treatment. In addition, according to the information provided by the psychiatric unit of Slatina Emergency Hospital, since 1998 the applicant had repeatedly been admitted to the unit for similar reasons. 24. The prosecutor held that the conclusions of the forensic expert report produced on 18 November 2013 contradicted N.B.’s and the applicant’s parents’ testimonies that the applicant’s head had repeatedly been banged against M.V.’s gate by the police officers. 25. By referring to Article 34 §§ 1 and 2 of Law no. 218/2002, but expressly citing the relevant provisions of Article 33 §§ 1 and 2 of the same aforementioned Law, the prosecutor further held that, given the available evidence, the police officers had not injured the applicant deliberately. His injuries could have been the result of a forced rotation of his neck, which could have happened at the moment when he had been immobilised by the officers. Also, the police officers had stated that they had not hurt the applicant, and had confirmed that he had been drunk, and that he had been transported and admitted to hospital. 26. The applicant challenged the decision of 10 January 2014 before a more senior prosecutor. 27. On 29 January 2014 a more senior prosecutor attached to the Olt prosecutor’s office dismissed the applicant’s challenge as ill-founded, and upheld the decision of 10 January 2014. 28. The applicant appealed against the decision of 29 January 2014 before the Slatina District Court. In his written submissions he argued that the forensic expert report produced in the case was incomplete and superficial. The report had failed to determine if his injury would have been possible considering the physical characteristics of the parties involved in the incident and the standard procedure which had to be followed in cases of handcuffing. Also, the report had not explained how the forced rotation of his neck had happened, as he would not have made such a painful movement instinctively. In addition, the prosecutor’s office had wrongfully dismissed his parents’ and N.B.’s testimonies, as those witnesses had confirmed the police violence, and the forensic report had acknowledged that his injury had most probably been caused as a result of the forced rotation of his neck. Consequently, the applicant argued that the available forensic expert report had to be complemented by another report (completat), and that the second report had to be submitted for the approval of a higher review commission. 29. The applicant further argued that none of the circumstances set out in sections 1 and 2 of Article 34 of Law no. 218/2002 had applied in his case. Also, even assuming that he had resisted immobilisation, as claimed by the authorities, the handcuffing measure could only have been taken against him if there had been a reasonable suspicion that his behaviour could endanger the police officers’ physical integrity or lives. Even assuming that such a situation had existed, the police officers had still had a lawful duty to use their handcuffs without seriously injuring him. 30. Lastly, the applicant contended that the prosecuting authorities’ conclusion that the police officers had not hurt him intentionally had been illfounded, given that the officers had indirectly acted with intent. In particular, they had foreseen the result of their actions, and even if they had not intended that result, they had accepted that it was a possibility. 31. On 12 March 2014 the Slatina District Court referred the case to the Balş District Court for examination. 32. By a final judgment of 9 April 2014 the Balş District Court, sitting in private as a pre-trial chamber judge, and without the parties being present, dismissed the applicant’s appeal against the more senior prosecutor’s decision and upheld that decision. It noted that it had notified the parties about the date of the hearing, but they had failed to submit written observations. The court held that the Olt prosecutor’s office had correctly established that officers C.B. and M.D.B. had not committed the offence of abusive behaviour. Also, the available forensic report did not need to be complemented by an additional report or submitted for approval. The forensic report had examined extensively the available medical evidence, and had concluded that no evidence of trauma as a result of deliberate force had been identified on the applicant’s head, body or limbs during the multidisciplinary examinations. 33. The court further held that, according to the available medical evidence, the applicant had been in an extreme state of psychomotor agitation, and the cranial X-ray had not shown any post-traumatic injury of the skull. Consequently, the court considered that the existence of a minor cranial cerebral trauma had not contradicted the conclusions of the forensic medical report, which had taken that trauma’s presence into account. 34. The court also considered that it had been unnecessary for the forensic expert report to explain how the forced rotation of the applicant’s neck had happened, given that the victim would not have made such movements instinctively, because he had been drunk and extremely agitated at the time of the incident, and his behaviour could not have been compared with the normal behaviour of another person. 35. The court further considered that the prosecutor had correctly dismissed the testimonies in the case, given that, according to the forensic expert report, no trauma as a result of deliberate force had been identified, and the forensic pathologist had had the opportunity to consider the possibility of the applicant’s head being banged repeatedly against a metal gate. 36. The court held that it was true that the police officers had had a duty to use their handcuffs without seriously injuring the applicant. However, the applicant’s injuries had not been the direct result of the police officers’ actions. They had occurred in circumstances where he had been drunk, violent and extremely agitated, and therefore the police officers could not have controlled their actions towards him. 37. The court also held that the violent actions towards the applicant had been carried out by the police officers within the framework of their work duties. In addition, the actions had been lawfully justified in order to alleviate the danger the applicant had represented to society and himself, given that he had been drunk, agitated and aggressive, and had been suffering from an organic personality disorder as a result of drinking alcohol. The police officers had not acted with the intent of hitting or hurting the applicant. His injuries had been the result of his immobilisation and handcuffing measures to stop his aggressive actions and transport him to the hospital. Therefore, the police officers’ actions had been justified. 38. On 22 October 2014 the applicant underwent a medical examination at a private medical establishment, the Medical Civil Association for the Brain. According to a medical report produced by that establishment, the applicant had an organic personality disorder with “polymorphic decompensation” (decompensare polimorfă). The report noted that the applicant’s symptoms included a moderate intrapsychological tension, concentration difficulties, mixed insomnia and a low resilience to frustration and annoyances. It further noted, inter alia, that the applicant had repeatedly been admitted to psychiatric hospitals, had poor social and family support, and persistent symptoms for which he was receiving treatment. 39. On 6 January 2015 the applicant underwent a medical examination at Schitu-Greci Psychiatric Hospital, because he was suffering from psychomotor agitation, a conflicted personality disorder, headaches, dizziness and mixed insomnia. According to a medical report produced by the hospital, he was diagnosed with an organic personality disorder and received treatment for his condition. The report also noted that alcohol and coffee consumption, as well as conflict, amounted to risk factors in relation to the applicant’s medical condition. 40. On 26 May 2015 a neurologist attached to BagdasarArseni Emergency Hospital in Bucharest produced a medical report in respect of the applicant’s medical condition, following his operation for his cervical spine injury. According to the report, inter alia, the applicant continued to experience movement difficulties. Consequently, the report considered it appropriate that the applicant’s ability to work be assessed by a local expert commission, with a view to his potential retirement. 41. On 8 June 2015 the Caracal branch of an office specialising in expert medical assessment of a person’s ability to work, which was attached to the Olt Retirement Agency, acknowledged that the applicant was suffering from a serious functional deficiency and had completely lost his ability to work. | 1 |
test | 001-160095 | ENG | BGR | CHAMBER | 2,016 | CASE OF KIRIL ANDREEV v. BULGARIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev | 5. The applicant was born in 1980 and lives in Pleven. 6. On 25 April 2012 he was arrested in Sofia and subsequently charged with the unlawful possession of firearms and ammunition. He remained in detention on remand throughout the pre-trial proceedings. Eventually he entered into a plea agreement with the prosecution, acknowledging that he had committed the offence he had been charged with and accepting a suspended sentence of two years’ imprisonment. 7. The plea agreement was approved at a court hearing before the Sofia District Court on 7 June 2012. The court’s decision was final. At the end of the hearing, at 5.16 p.m., the court ordered the discontinuation of the applicant’s pre-trial detention. 8. After the hearing the applicant was brought to the Sofia Investigative Service, where his pre-trial detention was formally discontinued at about 7 p.m. However, he was not released but was instead taken to a police station, where he remained throughout the night and the next day. On the morning of 9 June 2012 he was transferred to the city of Pleven where, by an order issued at 12.10 p.m., he was once again formally placed in police custody. That measure was taken in the context of another set of criminal proceedings against the applicant which had been instigated in April 2012. On 10 June 2012 the investigator in charge of that case brought charges against the applicant in connection with another count of unlawful possession of firearms. 9. In the proceedings before the Court, the Government submitted an order dated 8 June 2012, issued by the investigator in charge of the case in Pleven and requiring that the applicant be taken by the police to appear before her in order to have charges brought against him. The order referred, in particular, to Article 71 §§ 1, 2 and 3 of the Code of Criminal Procedure (see paragraph 12 below) and, by way of justifying the need to bring the applicant by force, stated that there was a risk of his absconding. The Government explained that by the time that order had been received by the police in Sofia, it had become impossible to organise the applicant’s transfer to Pleven the same day. That is why the applicant had been kept in the police station overnight and was only transported to Pleven the next day, 9 June 2012. | 1 |
test | 001-184479 | ENG | POL | COMMITTEE | 2,018 | CASE OF OLEKSA v. POLAND | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Aleš Pejchal;Krzysztof Wojtyczek | 5. The applicant was born in 1979 and is detained in Strzelce Opolskie Prison. 6. The facts of the case may be summarised as follows. 7. The applicant was detained in Mysłowice Remand Centre from 20 April 2010 to 12 January 2011 and in Wojkowice Prison from 12 January 2011 to 9 March 2012 (1 year, 10 months and 20 days). 8. The parties’ statements relating to the conditions of the applicant’s detention from 20 April 2010 to 9 March 2012 are to a large extent contradictory. 9. The applicant submitted that throughout his detention in Mysłowice Remand Centre and Wojkowice Prison, he had been held in overcrowded cells in which the space per person had been below the Polish statutory minimum standard of 3 m². 10. In their observations, the Government submitted that the applicant had been detained in overcrowded cells only on 20 April, 18 and 19 May 2009. 11. In the course of civil proceedings instituted by the applicant (see paragraphs 14-16 below), the domestic courts established, without giving any further details, that the applicant had been detained in overcrowded cells from 20 April 2010 to 9 March 2012 (1 year, 10 months and 20 days). 12. Regarding the conditions of detention in Mysłowice Remand Centre, the domestic court established that the overall conditions in cells were adequate. The applicant had one hot shower per week and one hour of outdoor exercise per day. 13. Regarding the conditions of detention in Wojkowice Prison, as established by the domestic courts, the toilets were separated from the cell’s living area, every prisoner had his own bed, a stool and access to cold running water. The prisoners had basic hygiene products at their disposal. The ceiling was infested with humidity. The applicant had one hot shower per week and one hour of outdoor exercise per day. 14. On 24 February 2012 the applicant brought a civil action for the infringement of his personal rights on account of inadequate living conditions in Wojkowice Prison from November 2005 to July 2006 and from January to March 2007, in Mysłowice Remand Centre from 20 April 2010 to 12 January 2011 and, subsequently, again in Wojkowice Prison from 12 January 2011 to 9 March 2012. The applicant argued that he had been detained in overcrowded cells, where the space per person had been below the statutory minimum of 3 m². He claimed 80,000 Polish zlotys (PLN) (approximately 20,000 euros (EUR)) in compensation. 15. On 18 December 2012 the Katowice Regional Court dismissed the applicant’s action, finding that from 20 April 2010 to 9 March 2012 the applicant had been detained in cells above the minimum statutory standard. As regards the remainder of the period, the claim was time-barred as lodged outside the three-year period of statutory limitation. 16. On 27 June 2013 the Katowice Court of Appeal overruled the lower court’s judgment and allowed the applicant’s action, finding that from 20 April 2010 to 9 March 2012 he had been detained in overcrowded cells. The court relied in this respect on the applicant’s submissions, holding that the State Treasury had in fact acknowledged these by its multiple refusals to provide the first and the second instance courts with an official register of cells in which the applicant had been detained. It also granted the applicant PLN 1,000 (EUR 250) in compensation, holding that the breach of the statutory minimum standard had not been significant. | 1 |
test | 001-182446 | ENG | TUR | CHAMBER | 2,018 | CASE OF FATİH TAŞ v. TURKEY (No. 4) | 4 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) | Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens;Robert Spano;Stéphanie Mourou-Vikström | 6. The applicant was born in 1979 and lives in Istanbul. He was the owner and the editor-in-chief of a publishing house, namely Aram Basım ve Yayıncılık, at the time of the events giving rise to the present application. 7. In June 2001 and March 2003 the applicant’s company published two books entitled Dağlarda Yaşamın Dili (“The Language of Life in the Mountains”) and Tufanda 33 Gün (“33 Days in the Deluge”), respectively. 8. On 29 August 2001 the public prosecutor attached to the Istanbul State Security Court filed an indictment with the Istanbul State Security Court charging the applicant with aiding and abetting the PKK, an illegal armed organisation, under Article 169 of the former Criminal Code, on account of the publication of the book entitled The Language of Life in the Mountains. 9. On 24 July 2002 the Istanbul State Security Court convicted the applicant as charged. 10. On 1 May 2003 the Court of Cassation, on appeal, upheld the judgment of 24 July 2002. 11. On 23 September 2003 the public prosecutor attached to the Istanbul State Security Court requested that the court revise its judgment of 24 July 2002 since Article 169 of the former Criminal Code had been amended on 7 August 2003. The Istanbul State Security Court accepted that request. 12. By Law no. 5190 of 16 June 2004, state security courts were abolished. The case against the applicant concerning the book entitled The Language of Life in the Mountains was transferred to the Istanbul Assize Court. 13. On 16 August 2003 the public prosecutor attached to the Istanbul State Security Court filed an indictment with the Istanbul State Security Court charging the applicant with aiding and abetting the PKK under Article 169 of the former Criminal Code on account of the publication of the book entitled 33 Days in the Deluge. According to the indictment, on pages 129, 130 and 135 the struggle of the PKK and its leader, Abdullah Öcalan, was praised and the applicant had therefore aided the PKK through the medium of the press. 14. On 30 April 2007 the Istanbul Assize Court decided to join the proceedings concerning The Language of Life in the Mountains and 33 Days in the Deluge. 15. On 7 December 2007 the Istanbul Assize Court convicted the applicant under section 7(2) of the Prevention of Terrorism Act (Law no. 3713) for disseminating propaganda in favour of the PKK twice, because he had published two books, and sentenced him to a total of twenty months’ imprisonment. With regard to the publication of 33 Days in the Deluge, the assize court considered that on pages 129, 130 and 135 the PKK and its leader, Abdullah Öcalan, were praised and the offence of dissemination of propaganda in favour of a terrorist organisation had therefore been committed. The assize court furthermore found that the book allowed for the transmission of the opinions of the PKK to the public and was aimed at bringing more sympathisers into that organisation. 16. On 25 June 2009 the Court of Cassation quashed the judgment of 7 December 2007, holding that the first-instance court should not have joined the two cases, since the case concerning The Language of Life in the Mountains was a re-qualification of the applicant’s previous final conviction (uyarlama yargılaması). 17. On 7 December 2009 the Istanbul Assize Court convicted the applicant once again under section 7(2) of Law no. 3713 on account of the publication of The Language of Life in the Mountains and sentenced him to a fine. 18. On 3 June 2013 the Court of Cassation quashed the first-instance judgment. 19. On 13 November 2013 the Istanbul Assize Court decided to suspend the execution of the sentence pronounced in its judgment of 7 December 2009. 20. In the meantime, the Istanbul Assize Court resumed the trial concerning the publication of 33 Days in the Deluge following the Court of Cassation’s decision of 25 June 2009. 21. On 21 October 2009 the Istanbul Assize Court convicted the applicant under section 7(2) of Law no. 3713 for disseminating propaganda in favour of the PKK on account of the publication of 33 Days in the Deluge and sentenced him to ten months’ imprisonment. In its judgment, the assize court reiterated that on pages 129, 130 and 135 the PKK and its leader, Abdullah Öcalan, were praised and the offence of dissemination of propaganda in favour of a terrorist organisation had therefore been committed. The court held that the turns of phrase used on those pages were not protected by Article 10 of the Convention and constituted an abuse of the right to freedom of expression. The assize court further found that the book permitted the opinions of the PKK to be transmitted to the public and was aimed at bringing more sympathisers into that organisation and thus at destroying the unitary nature of the State of the Republic of Turkey. 22. The applicant appealed. 23. On 15 February 2012 the Court of Cassation decided to discontinue the proceedings concerning the publication of 33 Days in the Deluge, holding that the prosecution was time-barred. | 1 |
test | 001-172809 | ENG | HRV | ADMISSIBILITY | 2,017 | ĐUROVIĆ v. CROATIA | 4 | Inadmissible | Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 1. The applicant, Mr Slobodan Đurović, is a Montenegrin national who was born in 1954 and is currently serving a prison sentence in Zagreb Prison. He was represented before the Court by Mr R. Mlinarić and Mr K. Vilajtovic, lawyers practising in Zagreb. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. On 12 February 2015 the Government of Montenegro were informed of the case and invited to exercise their right to intervene if they wished to do so. On 27 July 2015 the Government of Montenegro informed the Court that they did not wish to exercise their right to intervene in the present case. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. 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 to the surrounding buildings and nearby parked cars. 6. The police immediately started enquiries into the above events and soon learned that a certain R.M., L.M. and A.M. were implicated and that an unknown person was supposedly aiding them in fleeing the country. It was therefore decided to arrest these individuals. The Police Chief (Glavni Ravnatelj Policije) issued an oral order that the arrests be carried out by an anti-terrorist team of the Special Police Force (Specijalna policija, Antiteroristička jedinica Lučko – hereinafter “the ATJ”). 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 individuals, including the applicant, before the Zagreb County Court (Županijski sud u Zagrebu) on charges of conspiracy to kill I.P. and of carrying out the plan. 8. On 3 November 2010 the Zagreb County Court (Županijski sud u Zagrebu) found the applicant guilty on the charge of incitement to conspiracy to commit aggravated murder and sentenced him to ten years’ imprisonment. On 15 January 2013 the Supreme Court (Vrhovni sud Republike Hrvatske) upheld the applicant’s conviction, increasing his sentence to twenty-three years’ imprisonment. 9. On 29 October 2008, at 5.35 p.m., the ATJ arrested the applicant together with R.M. and L.M. at the Spačva petrol station off the motorway near the town of Županja. 10. According to the Government the three individuals concerned resisted arrest and force had to be used against them. Two members of the ATJ sustained injuries. The applicant also sustained injuries while a standard restraint technique was applied against him during the arrest. 11. According to the applicant, even though he was not resisting arrest, he was severely beaten by several police officers all over his head and body. 12. After being arrested the applicant was brought to the premises of the Criminal Police in Zagreb. There he received medical assistance at 5.20 a.m. on 30 October 2008 from an emergency medical team. 13. On 31 October 2008 the applicant was questioned by an investigating judge of the Zagreb County Court in the presence of two defence lawyers. He did not make any complaints about the conduct of the police. 14. On 1 November 2008, upon his admission to detention, the applicant was examined by a prison doctor who found that he had haematomas around both eyes and an abrasion on his face. 15. According to the applicant, in the further course of the proceedings he complained to the Zagreb County Court, the investigating judge, the State Attorney’s Office, the police and other authorities of the violence used against him during his arrest. However, he did not submit any documents supporting those allegations. 16. The documents submitted by the parties show that in a letter of 27 July 2011, addressed to the Office of the President of the Republic (Ured Predsjednika Republike Hrvatske) the applicant complained, inter alia, of alleged ill-treatment by the police during his arrest. 17. No investigation was ever opened in connection with the applicant’s allegations of ill-treatment. 18. On 21 September 2012 the applicant instituted civil proceedings against the State before the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu), claiming damages for his alleged ill-treatment by the police. It appears that these proceedings are still pending before the first-instance court. 19. In a constitutional complaint of 7 March 2013, lodged against the Supreme Court’s judgment of 15 January 2013 given in the criminal proceedings against him, the applicant alleged that the police officers had used force against him during his arrest and had caused him numerous bodily injuries. On 25 February 2015 the Constitutional Court found that these allegations, in so far as they were admissible and susceptible to be addressed within the Constitutional Court’s proceedings, did not reveal any violation of the applicant’s human rights and fundamental freedoms guaranteed by the Constitution. | 0 |
test | 001-170191 | ENG | SWE | ADMISSIBILITY | 2,016 | KAZIĆ AND OTHERS v. SWEDEN | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra;Pere Pastor Vilanova | 1. The first applicant is Mr Teufik Kazić, the second applicant is his wife, Mrs Nafa Kazić, and the third applicant is their son, Mr Admir Kazić. They are nationals of Bosnia and Herzegovina and were born in 1968, 1970 and 1997 respectively. They are currently in Sweden. They were represented before the Court by Mr M. Eklöf, a lawyer practising in Växjö. 3. In December 2012 the applicants applied for asylum in Sweden. They submitted essentially that the third applicant could not receive the necessary neuropediatric care in their home town, Bihać, in Bosnia and Herzegovina. They submitted that he suffered from epilepsy and had issues with his head and legs. Up until six to seven years earlier there had been a specialist physician in Bihać but after that time he had had to go to Republika Srpska for health care. No physician in the country had been willing to prescribe medicine as there was no specialist in their home town to issue a certificate. There was also no physiotherapy available in Bosnia and Herzegovina. Moreover, the third applicant had been bullied and humiliated because of his handicap and, on one occasion, the second applicant had been threatened when she had wanted to stay with the third applicant at a hospital. The first applicant also alleged that on one occasion in Republika Srpska he had been assaulted and the windshield of his car had been smashed because he was a Muslim. The applicants submitted their passports and a medical certificate concerning the third applicant. 4. On 24 April 2013 the Migration Agency (Migrationsverket) rejected their applications. Firstly, it found that the applicants could turn to the domestic authorities for protection if they were subjected to threats or ill-treatment by private individuals in the future. The Agency further noted that according to the medical certificate the third applicant had difficulties with his daily routines and that, according to his mother, he had been having epileptic attacks since he was two and a half years old. He received medication and the health-care authorities were examining whether he suffered from a developmental disorder. The Agency concluded that the third applicant’s health conditions were not serious enough to grant him a residence permit. He had received health care and medication in Republika Srpska, which was part of Bosnia and Herzegovina, and there was no indication that it would not be possible for him to receive health care in his home country in the future. The applicants’ applications were therefore rejected and their expulsion to Bosnia and Herzegovina was ordered. 5. The applicants appealed against the decision to the Migration Court (Migrationsdomstolen), maintaining their claims and adding that the third applicant suffered from several disabilities for which he required regular care to manage his daily life. The measures which had been put in place in Sweden were beneficial to him. 6. On 6 May 2014 the Migration Court rejected the appeal, upholding the reasoning of the Migration Agency. It noted that according to the available country information, the family could rely on the protection of the authorities in their home country. The court further observed that the third applicant suffered from epilepsy, kyphosis, discreet scoliosis, cerebral palsy and a moderately difficult mental development disorder for which he was in need of medical treatment and constant supervision and care. However, his condition was not life-threatening and he had lived with his condition for sixteen years in his home country where he had received specialist medical treatment and care. 7. Upon further appeal by the applicants, the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal on 8 July 2014. 8. Subsequently, the applicants requested that the Migration Agency stay the enforcement of the expulsion order as there were impediments due to the third applicant’s health problems, the lack of special schools in Bosnia and Herzegovina and the fact that his sister lived in Sweden. Several medical certificates were submitted which, inter alia, stated that in March 2014 the third applicant had undergone orthopaedic surgery which required several months of rehabilitation. If the rehabilitation were to be interrupted, he would run the risk of not regaining the ability to walk, which he had been able to do prior to the surgery. 9. On 26 November 2014 the Migration Agency granted the applicants temporary residence permits for one year. It held that there were temporary impediments to the applicants’ expulsion due to the third applicant’s age, his need for rehabilitation after the surgery and the consequences for his health if the rehabilitation were to be interrupted. It further noted that if the third applicant needed additional rehabilitation after a year, he could submit a new application for a further stay of enforcement of the expulsion order. 10. In November 2015 the applicants submitted a new request to the Migration Agency to stay the enforcement of the expulsion order. They stated that the third applicant was in need of further surgery and extensive and long-lasting rehabilitation owing to his kyphosis. They relied on additional medical certificates which, inter alia, indicated that the third applicant’s kyphosis had worsened and that he was deemed to be in need of surgery in the coming years. 11. On 7 April 2016 the Migration Agency rejected the request. It found that it had not been shown that the third applicant’s health condition was of such a nature that it would not be possible to enforce the expulsion order. The Agency noted that the third applicant had become an adult and consequently the more generous rule applicable to children, which had previously been applied to him, was no longer applicable. Moreover, it observed that the medical certificates did not support the conclusion that the third applicant’s condition was acute, that he was in immediate need of additional surgery or that the medical care in question could be expected to lead to a substantial and permanent improvement in his condition or be of a life-saving nature. Furthermore, the previous rehabilitation, after the surgery in March 2014, was deemed to have been completed. The Agency therefore concluded that the third applicant’s health condition could not be considered as being so extremely serious that it would be unreasonable to enforce the expulsion order against him. 12. Subsequently, the applicants again renewed their request for a stay of the enforcement of the expulsion order. They submitted more medical documents, including one from a physician in Bosnia and Herzegovina stating that the third applicant’s case was complicated and that it would not be possible to perform all the surgery he needed there owing to his health complications. 13. On 27 May 2016 the Migration Agency rejected the request, with essentially the same reasoning as in its previous decision. It noted that the medical document from the physician in Bosnia and Herzegovina did not show that the third applicant had no possibility to receive the necessary health care in his home country. 14. Another request by the applicants for a stay of enforcement of the expulsion order was rejected by the Migration Agency on 5 July 2016, with essentially the same reasoning as in its previous decisions. 15. On 14 July 2016 the applicants lodged their application with the Court and requested that it apply Rule 39 of the Rules of Court. On 4 August 2016 the duty judge rejected the request for interim measures. 16. The basic provisions applicable in the present case, concerning the right of aliens to enter and to remain in Sweden, are laid down in the Aliens Act (Utlänningslagen, 2005:716). It defines the conditions under which an alien can be deported or expelled from the country, as well as the procedures relating to the enforcement of such decisions. 17. Chapter 5, section 1, of the Aliens Act sets out that an alien who is considered to be a refugee or otherwise in need of protection is, with certain exceptions, entitled to a residence permit in Sweden. According to Chapter 4, section 1, the term “refugee” refers to an alien who is outside the country of his or her nationality owing to a well-founded fear of being persecuted on the grounds of race, nationality, religious or political beliefs, or on the grounds of gender, sexual orientation or other membership of a particular social group and who is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country. This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities cannot be expected to offer protection against persecution by private individuals. By “an alien otherwise in need of protection” is meant, inter alia, a person who has left the country of his or her nationality because of a well-founded fear of being sentenced to death or receiving corporal punishment, or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 4, section 2). 18. Moreover, if a residence permit cannot be granted on the above grounds, a permit may nevertheless be issued to an alien if, after an overall assessment of his or her situation, there are such particularly distressing circumstances (synnerligen ömmande omständigheter) as to allow him or her to remain in Sweden (Chapter 5, section 6). During this assessment, special consideration should be given to, inter alia, the alien’s state of health. According to the preparatory works (Government Bill 2004/05:170, pp. 190 and 280), life-threatening physical or mental illness may be a reason to grant a residence permit in Sweden. However, regard must be had to whether it is reasonable that the required care is provided in Sweden or whether adequate care can be provided in the alien’s country of origin. Moreover, the care provided in Sweden must be expected to lead to an evident and enduring improvement in the alien’s health or be necessary for his or her survival. 19. According to a special provision on impediments to enforcement, an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment (Chapter 12, section 1). In addition, an alien must not, in principle, be sent to a country where he or she risks persecution (Chapter 12, section 2). 20. Under certain conditions, an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force. This is the case where new circumstances have emerged which indicate that there are reasonable grounds for believing, inter alia, that an enforcement would put the alien in danger of being subjected to capital or corporal punishment, torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced (Chapter 12, section 18). If a residence permit cannot be granted under this criterion, the Migration Board may instead decide to re-examine the matter. Such a re-examination shall be carried out where it may be assumed, on the basis of new circumstances invoked by the alien, that there are lasting impediments to enforcement of the nature referred to in Chapter 12, sections 1 and 2, and these circumstances could not have been invoked previously or the alien shows that he or she has a valid excuse for not having done so. Should the applicable conditions not have been met, the Migration Board shall decide not to grant a re-examination (Chapter 12, section 19). 21. Domestic laws on health care (published in the Official Gazette of FBiH, no. 46/10, and in the Official Gazette of RS, no. 106/09, 44/15) provide for a right to health care, on an equal basis, to persons with disabilities, and provide for specific forms of health care for such persons. 22. As concerns social protection, domestic laws provide for the preferential employment of persons with disabilities, professional rehabilitation, as well as training and the employment of individuals with disabilities and a lowered work capacity. Moreover, it enables persons with disabilities to obtain financial and material support for the purpose of equal opportunities, including the right to the care and assistance of others for persons with the most serious forms of disability, or persons who need assistance with undertaking their basic life needs (see the Law on professional rehabilitation and employment of individuals with a disability, published in the Official Gazette of FBiH, no. 9/10 and in Official Gazette of RS, no. 37/12, 82/15; the Law on mediation in employment and the social security of unemployed individuals, published in the Official Gazette of FBiH, no. 55/00, 41/01, 22/05 and 9/08; the Law on mediation in employment and on rights during unemployment, published in the Official Gazette of RS, no. 30/10, 102/12; the Law on the foundations of social protection, the protection of civilian victims of war and the protection of families with children, published in the Official Gazette FBiH, no. 36/99, 54/04, 39/06, 14/09; and the Law on social protection, published in the Official Gazette of RS, no. 37/12). 23. Legislation relating to education contains principles on the prohibition of discrimination of persons with disabilities and on the provision of equal opportunities for education through inclusive education or the establishment of special institutions (see, for example, the Framework Law on pre-school upbringing and education in Bosnia and Herzegovina, published in the Official Gazette of BiH, no. 88/07; the Framework Law on elementary and high school education in Bosnia and Herzegovina, published in the Official Gazette of BiH, no. 18/03, 88/07; and the Framework Law on higher education in Bosnia and Herzegovina, published in the Official Gazette of BiH, no. 59/07 and 59/09). | 0 |
test | 001-184502 | ENG | TUR | COMMITTEE | 2,018 | CASE OF DÜNDAR AND AYDINKAYA v. TURKEY | 4 | Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) | Paul Lemmens;Stéphanie Mourou-Vikström | 5. The applicants, Mr İrfan Dündar and Mr Fırat Aydınkaya, were born in 1972 and 1979 respectively and live in Istanbul. At the material time, the applicants were the legal representatives of Abdullah Öcalan, the leader of the PKK, an illegal armed organisation. 6. On 29 and 30 April 2004 the newspaper Ülkede Özgür Gündem published two interviews with the applicants. The interviews contained the applicants’ statements following meetings with their client, Abdullah Öcalan, in prison. The first interview was included in two articles in the issue of 29 April 2004 entitled “Lawyers convey Abdullah Öcalan’s opinions concerning developments within the KONGRA-GEL” and “The pain of change”. The second interview published on 30 April 2004 was entitled “Abdullah Öcalan is an opportunity for Turkey” and “Abdullah Öcalan’s opinions are important for an enduring peace”. 7. In their interviews published on 29 April 2004 in the two articles cited above, the applicants commented on the following issues: the difficulties they encountered in getting to İmralı island, where Abdullah Öcalan was detained, their need to have a meeting with their client prior to the hearing to be held before the European Court of Human Rights on 9 June 2004, their client’s state of health , the alleged fake news published in some newspapers regarding the applicants’ meetings with their client, their client’s opinions regarding the current state of politics in Turkey, in particular his view that democrats in Turkey should form a coalition with a view to establishing social peace and enabling Turkey’s access in European Union, Abdullah Öcalan’s views on the conflicts occurring within the KONGRAGEL, and in particular, his views that democratisation of the “Kurdish organisations” would allow the State of Turkey to be more democratic, his opinions on the pro-Kurdish legal political parties, and his view that individuals should liberate themselves before trying to liberate others. 8. In the interview published the following day, 30 April 2004, the applicants made statements on the following issues: Abdullah Öcalan’s criticism of the failure of the pro-Kurdish political groups during the municipal elections held on 28 March 2004, the view of Abdullah Öcalan and his lawyers that “the Kurdish movement” had failed to take into account Abdullah Öcalan’s opinions and projects, the criminal and disciplinary investigations and the criminal proceedings instituted against the applicants for disseminating their client’s views, Abdullah Öcalan’s criticism of “Kurdish organisations”, problems between Abdullah Öcalan and the leaders of the “Kurdish movement”, the applicants’ role both as legal and political representatives of Abdullah Öcalan and their meetings with individuals close to the State of Turkey as well as representatives of foreign States on behalf of their client, and the applicants’ view that Abdullah Öcalan’s opinions offered an opportunity for resolving the Kurdish issue in a democratic/political manner and that his opinions had transformed the State of Turkey. 9. On 30 April 2004 the public prosecutor at the now defunct Istanbul State Security Court filed a bill of indictment under section 7(2) of the Prevention of Terrorism Act (Law no. 3713), charging the applicants with disseminating propaganda in favour of the PKK/KONGRA-GEL on account of the interview published on 29 April 2004. In the indictment, the applicants were accused of acting on Öcalan’s instructions and conveying messages from him about the PKK’s strategy. Subsequently, criminal proceedings were launched against the applicants before the Istanbul Assize Court. 10. On 7 May 2004 the Istanbul public prosecutor filed a second bill of indictment against the applicants, again charging them with disseminating propaganda in favour of the PKK under section 7(2) of Law no. 3713 on account of the interview published in the 30 April 2004 issue of the newspaper. 11. On 24 August 2004 the Istanbul Assize Court decided to join the two sets of criminal proceedings against the applicants owing to the factual and legal similarities between them. 12. During the proceedings the applicants maintained that they had made the statements with a view to providing information to the press, since the case against Abdullah Öcalan had attracted media interest, but that they had been misquoted to a certain extent in the newspaper. They stressed that they had not acted with the intention of disseminating propaganda in favour of any illegal organisation. 13. On 18 February 2010 the Istanbul Assize Court convicted the applicants of disseminating propaganda in favour of the PKK/KONGRAGEL under section 7(2) of Law no. 3713. It sentenced them to ten months’ imprisonment each, but decided to suspend pronouncement of their convictions on condition that they did not commit another intentional offence for a period of five years, in accordance with Article 231 of the Code of Criminal Procedure. 14. In its judgment, the Istanbul court held that the applicants had overstepped the limits of the lawyer-client relationship and made statements in a manner that induced and promoted the adoption, dissemination and enrootment of Abdullah Öcalan’s opinions in society. The first-instance court considered that in the light of the applicants’ role, the readers they targeted, the aim of the publication, and the manner in which their applicants’ interviews were perceived by the readership, the interviews could not be deemed to be protected by the right to freedom of expression or the privilege of the lawyer-client relationship. The court further considered that the right to freedom of expression carried with it duties and responsibilities and could be restricted for the purpose of protecting national security and territorial integrity in a democratic society. The Istanbul Assize Court concluded that the reported interviews were aimed at disseminating propaganda in favour of the PKK/KONGRA-GEL and found the applicants guilty. 15. On 20 September 2010 the applicants’ objection to the assize court’s judgment was dismissed by the same court. | 1 |
test | 001-158821 | ENG | LTU | CHAMBER | 2,015 | CASE OF PALIUTIS v. LITHUANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano | 5. The applicant was born in 1957 and lives in Vilnius. 6. The applicant owned a 0.53 hectare plot of land in the village of Tarailiai (Tauragė region). In 2005 he submitted a request to the local authorities to change the classification of the land from agricultural to residential use. In accordance with the domestic law, such a request had first to be granted by the municipal council and then approved by the county administration. 7. Tauragė District Municipal Council granted the applicant’s request and prepared a detailed area plan (detalusis planas) (hereinafter “the plan”). The plan was subsequently submitted for approval to the Tauragė County Administration (hereinafter “the TCA”). However, on 25 November 2005 the TCA refused to approve the plan on the ground that it had not been prepared in accordance with the domestic laws governing the planning process. 8. The applicant submitted a complaint to the State Inspectorate for Planning and Construction (hereinafter “the Inspectorate”), which was the competent institution for out-of-court settlement of disputes arising from the planning process. On 10 August 2006 the Inspectorate held that the TCA’s refusal to approve the plan had been unfounded. 9. After the Inspectorate’s decision, Tauragė District Municipal Council re-submitted the plan to the TCA. However, on 13 November 2006 the TCA informed the council and the applicant that it would not review its previous decision to refuse approval. 10. On 22 December 2006 the Inspectorate notified the TCA that its refusal to approve the plan had been unfounded and urged it to review that decision. It appears that the TCA did not take any action in that respect. 11. In January 2007 the applicant lodged a claim with the Klaipėda Regional Administrative Court. He asked the court to order the TCA to approve the plan. Following the court’s suggestion, in April 2007 the applicant added a request to annul the TCA’s decision of 25 November 2005. 12. On 4 May 2007 the Klaipėda Regional Administrative Court dismissed the applicant’s claims. The court held that county administration’s decisions on approval of detailed area plans were valid for one year after their adoption. If the plan had not been adopted within that time, the decision became invalid and the plan had to be re-submitted for approval. Therefore, the court found that the TCA’s decision of 25 November 2005 was no longer valid and could not have any effect on the applicant’s situation. The court stated that it had no competence to examine the lawfulness of an invalid act and dismissed the claim. It also held that, as a result, there was no need to examine the applicant’s remaining claims. 13. The applicant appealed against that judgment. He complained, inter alia, that the first instance court had not examined his original request – to order the TCA to approve the plan. 14. On 15 February 2008 the Supreme Administrative Court upheld the applicant’s appeal and returned the case for re-examination by the firstinstance court. The Supreme Administrative Court noted that when a county administration refused to approve a detailed area plan, that plan could be re-submitted only after the errors indicated in the refusal had been corrected. However, if the author of the plan disagreed with the indicated errors, he or she would effectively be denied access to court if the proceedings lasted longer than a year. The court also noted that the applicant’s original request had been to order the TCA to approve the plan and that the first-instance court had not made any findings in that respect. 15. On 16 October 2008 the Klaipėda Regional Administrative Court, after re-examining the case, again decided to dismiss the applicant’s claims. The court held that decisions of the Inspectorate, taken during the out-of-court settlement procedure, were mandatory for county administrations (see paragraph 20 below). Accordingly, the Inspectorate’s decisions of 10 August 2006 and 22 December 2006 had repealed the TCA’s decision of 25 November 2005. As a result, the TCA’s refusal to approve the plan was no longer valid and the court had no competence to examine its lawfulness. The court also held that, as a result, there was no need to examine the applicant’s remaining claims. 16. The applicant appealed against that judgment, again complaining that the first-instance court had not examined his request to order the TCA to approve the plan, and that it had not followed the Supreme Administrative Court’s judgment of 15 February 2008 (see paragraph 14 above). 17. On 12 December 2008 the Supreme Administrative Court dismissed the applicant’s appeal. It upheld the lower court’s findings that the TCA’s decision had been repealed by the Inspectorate and that courts had no competence to examine invalid acts. The Supreme Administrative Court then held that the applicant’s request to order the TCA to approve the plan was “derived” (išvestinis) from the request to annul the TCA’s decision; having dismissed the latter, there was therefore no need to examine the former request either. Lastly the court noted that the applicant had not requested that the court order the TCA to comply with the Inspectorate’s decisions, so it would make no findings in that respect. 18. In 2010, following a national administrative reform, all county administrations were abolished and their planning powers were transferred to the Inspectorate. The applicant then submitted a new request to change the classification of his land and it was approved by all the relevant authorities. The classification of the land was changed to residential use in February 2012. | 1 |
test | 001-142448 | ENG | HRV | ADMISSIBILITY | 2,014 | BOGDANOVIĆ v. CROATIA | 4 | Inadmissible | Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković | 1. The applicants, Mr Savo Bogdanović, Ms Rosa Bogdanović and Mr Milan Bogdanović are Croatian citizens of Serbian ethnic origin. They were born in 1954, 1952 and 1950 respectively and live in Bosanski Brod, Bosnia and Herzegovina. They were 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. On 11 May 1992 the applicants’ father B.B. was killed in his house in Slavonski Brod in Croatia. 5. On 14 May 1992 the police carried out an on-site inspection of the crime scene and interviewed several persons. An autopsy was carried out on 15 May 1992. 6. Firearms were confiscated from three persons, J.G., J.M. and V.P. A ballistics report was drawn up on 22 May 1992, showing that the cartridges found at the crime scene had not been shot from the confiscated firearms. 7. The police lodged a criminal complaint against an unknown perpetrator on 22 May 1992 with the Požega County State Attorney’s Office on charges of murder. 8. On 26 August 2004 the third applicant asked the Slavonski Brod police for a certificate confirming that his father had died on 11 May 1992, which was issued the following day. 9. On 3 May 2012 the applicants’ lawyer asked the Slavonski Brod County State Attorney’s Office for a copy of the case file concerning the investigation into B.B.’s death, for the purposes of having brought their application with the Court. He was informed that the criminal prosecution for the criminal offence of murder had become statutory barred on 11 April 2007. 10. On 30 December 2004 the applicants brought a civil action against the State in the Zagreb Municipal Court, seeking compensation in connection with the death of their father. They based their claim on the 2003 Liability Act. 11. The claim was dismissed on 24 March 2006. This judgment was upheld on appeal by the Zagreb County Court and the Supreme Court on 13 May 2008 and 9 June 2010 respectively. The national courts found that the claim for compensation had been submitted after the statutory limitation period prescribed by the laws related to the compensation of damages in civil proceedings had expired. 12. A subsequent constitutional complaint lodged by the applicants was dismissed on 4 May 2011. 13. The relevant provisions of the Civil Obligations Act (Zakon o obveznim odnosima, Official Gazette nos. 53/1991, 73/1991, 3/1994, 7/1996, 112/1999), as then in force, read as follows: “(1) The right to claim fulfilment of an obligation shall cease when the statutory limitation period has expired. (2) The statute of limitations [bars a right to claim] when the statutory prescribed period in which a creditor could have claimed fulfilment of an obligation has expired. ...” “(1) A claim for damages shall become statute-barred three years after the injured party learned about the damage and the identity of the person who caused it. (2) In any event that claim shall become statute-barred five years after the damage occurred. ...” 14. Article 34 of the Criminal Code (Krivični zakon, Official Gazette nos. 25/1977, 50/1978, 25/1984, 52/1987, 43/1989, 8/1990, 8/1991, and 53/1991) prescribes imprisonment of at least five years for murder. Qualified murder was punishable by up to twenty years’ imprisonment. 15. The relevant part of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/00, 51/2001, 111/2003, 190/2003, 105/2004, 84/2005, 71/2006, 110/2007, 152/2008, 57/2011 and 143/2012) reads: “(1) On account of the statute of limitations, the criminal legislation of the Republic of Croatia may not be applied after the period determined by this Code has elapsed. The period is calculated from the time the offence was committed, sentence was pronounced or another criminal sanction was ordered. (2) The previous rule does not apply in respect of the criminal offences of genocide ..., aggressive war ..., crimes against humanity ..., war crimes ... and other criminal offences which are not subject to statutory limitation according to the Constitution or international law” “(1) Criminal prosecutions may not be instituted, save for the criminal offences referred to in Article 18 of this Code, after expiry of the following periods from the time the offence was committed: - twenty-five years for the offence punishable by long-term imprisonment; - fifteen years for the offence punishable by more than ten years’ imprisonment; - ten years for the offence punishable by more than five years’ imprisonment ...” “(1) The limitation period shall start to run from the date on which the offence was committed. ... (3) The statutory limitation period shall be interrupted each time a procedural step is taken concerning the prosecution of the offence. ... (5) The statutory limitation period shall start to run again after each interruption. (6) Criminal prosecutions shall in all cases become time-barred after expiry of the double statutory limitation period.” 16. The relevant provisions of the Code of Criminal Procedure (Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002) provide: “(1) A claim for compensation for damage caused by a criminal offence shall be examined in the criminal proceedings where so requested by authorised persons, provided that this does not cause significant delays in the proceedings. ...” “A claim for compensation in criminal proceedings may be lodged by persons entitled to lodge such a claim in civil proceedings.” “Persons entitled to lodge a claim for compensation (Article 128) may, until the end of the trial, withdraw their claim in the criminal proceedings and pursue it in the civil proceedings. ...“ 17. The relevant provisions of the Civil Procedure Act (Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia nos. 4/1977, 36/1977 (corrigendum), 36/1980, 69/1982, 58/1984, 74/1987, 57/1989, 20/1990, 27/1990 and 35/1991, and the Official Gazette of the Republic of Croatia nos. 53/1991, 91/1992, 58/1993, 112/1999, 88/2001, 117/2003, 88/2005) read as follows: “If it is necessary for a court, in order to make its decision, to first settle an issue of the existence of a right or legal relationship, and no decision on this issue has yet been adopted by a court or other competent body (preliminary issue), the court may settle the issue itself, unless otherwise provided for under special rules. The court’s decision on a preliminary issue shall have legal effect only in the proceedings in which the issue in question was settled. In civil proceedings, where an issue arises in relation to a criminal offence and the perpetrator’s criminal liability, the court shall be bound by the final judgment of the criminal court by which the accused was found guilty.” 18. 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 the damage referred to in section 1 of this Act ....” “The obligation to compensate damage under this Act exists irrespective of the fact 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.” “(1) Where the statutory limitation period began before 3 February 1996, it shall continue after the entry into force of this Act, and the period which had expired before the statutory limitation period was interrupted shall be counted into the overall statutory limitation period. (2) Where the damage occurred after 3 February 1996 the statutory limitation period begins from the entry into force of this Act.” 19. The domestic courts of appeal, on the subject of the possibility for a civil court to apply a longer statutory limitation period under section 377 of the Civil Obligations Act, held that this could be applied only if it had been established by a final judgment of the criminal court that the damage had been caused as the result of a criminal offence. 20. This view was confirmed by the practice of the Supreme Court. For example, in its decision no. Rev- 217/05-2 of 20 October 2005 it held as follows: “The lower court correctly established that section 377 of the Civil Obligations Act was not applicable in this case. ... The longer statutory limitation period [under section 377 of the Civil Obligations Act] applies only when it has been established by a judgment in the criminal proceedings that the damage was caused by a criminal offence ...” 21. The Supreme Court, in its decision no. Rev-2563/1992-2 of 6 April 1993, examined the possibility for a court in civil proceedings to assess the statutory limitation period under section 377 of the Civil Obligations Act if criminal liability had not been established by a final criminal court judgment. The relevant part of the decision reads as follows: “The conclusion of the lower courts that section 377 of the Civil Obligations Act is applicable only if the criminal offence has been established by a final judgment of the criminal court is incorrect. This is because, according to the well-established case-law, if damage has been caused by a criminal offence but no criminal proceedings have been instituted or concluded against the perpetrator because of his death or mental illness, or the offence at issue has been exempted from prosecution by a pardon or amnesty, or if there exist some other circumstances preventing criminal responsibility from being established or barring the criminal prosecution, the fact that the damage was caused by a criminal offence may, if the defendant has invoked the statute of limitations, be established (as a preliminary issue) in the civil proceedings. It is also to be noted that the longer statutory limitation period under section 377 of the Civil Obligations Act is applicable not only in respect of the perpetrator of the criminal offence but also in respect of the person responsible for the damage.” | 0 |
test | 001-152504 | ENG | RUS | ADMISSIBILITY | 2,015 | TUKHTAMURODOV v. RUSSIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 1. The applicant, Mr Bobirzhon Baratovich Tukhtamurodov, is an Uzbek national. He was represented before the Court by Ms E. Davidyan, a lawyer practising in Moscow. 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 was born in 1975 and lives in Novosibirsk. He is not currently in detention. 5. On 20 April 2010 the Uzbek authorities charged the applicant with participating in an extremist organisation of a religious nature (Nurchilar) and distributing material containing religious extremist ideas. On 22 April 2010 the Bukharskiy Town Court in Uzbekistan ordered the applicant’s arrest. The Uzbek authorities put the applicant’s name on the international list of wanted individuals. On an unspecified date in January 2010 the applicant fled to Russia, fearing both prosecution and persecution on religious grounds by the Uzbek authorities. 6. On 18 August 2010 the applicant was arrested in Novosibirsk, Russia in connection with criminal proceedings pending against him in Uzbekistan. He was placed in a temporary detention facility in Novosibirsk. 7. On 24 September 2010 the applicant requested refugee status in the Russian Federation. 8. On 25 November 2010 the Deputy Prosecutor General of Russia ordered the applicant’s extradition to Uzbekistan. 9. On 9 March 2011 the Federal Migration Service (“FMS”) in Novosibirsk denied the applicant’s request for refugee status. 10. On 23 March 2011 the Novosibirsk Regional Court overturned the Prosecutor General’s decision to extradite the applicant, terminated the extradition proceedings against him and ordered his immediate release from detention. 11. On 26 May 2011 the Supreme Court of the Russian Federation upheld the judgment of the Novosibirsk Regional Court on appeal. The appeal court held, inter alia, that the Russian Federation may refuse the extradition of an individual if there are serious grounds for believing that the individual would be subjected to torture or other cruel, inhuman and degrading treatment in the country that is requesting extradition. The court also held that the Prosecutor General’s decision to extradite the applicant had lacked sufficient guarantees regarding the applicant’s safety in the event of his extradition to Uzbekistan. 12. On 2 June 2011 the FMS in Novosibirsk examined a request from the applicant for temporary asylum. It studied in detail the applicant’s allegations concerning torture and ill-treatment whilst in police custody in Uzbekistan, which had been applied in order to force a confession from him. Moreover, the FMS in Novosibirsk also reviewed the applicant’s submissions concerning similar criminal prosecutions of his relatives and neighbours and the ensuing persecution of him after his release from detention. In particular, the applicant contended that two of his relatives and five of his neighbours had been convicted of being members of the extremist religious organisation. In addition, the applicant submitted that the authorities had pressured him to make a written denial ‒ on a weekly basis ‒ of his allegiance to the extremist religious organisation. They also questioned him on the activities of the organisation. When he found out that his brother had been forced to testify against him, he decided to flee to Russia, fearing further repercussions. The FMS in Novosibirsk found the applicant’s allegations substantiated and granted the applicant’s request for temporary asylum. Afterwards, the applicant withdrew his appeal against the earlier decision by the FMS in Novosibirsk not to grant him refugee status. 13. On 31 May 2012 the FMS in Novosibirsk granted the applicant’s request to have his temporary asylum status renewed for one more year, until 2 June 2013. 14. In the meantime, the applicant applied for temporary residence status in Russia. However, on 30 April 2013 the FMS in Novosibirsk denied the applicant’s request. Two months later the FMS Russia upheld this decision, citing unspecified security reasons as justification. 15. On 21 May 2013 the FMS in Novosibirsk refused the applicant’s request for renewal of his temporary asylum status relying ‒ inter alia ‒ on information received from Russia’s Federal Security Service (FSB) stating that the applicant’s presence in Russia had been deemed undesirable. The exact nature of the information remained undisclosed. The applicant appealed to Russia’s FMS concerning the refusal. In his appeal complaint, the applicant reiterated that the reasons behind the staying of his expulsion had not ceased to exist. He also submitted that the information obtained from the FSB had not been made known to him and, in any event, it would not have justified the termination of his temporary asylum status or his expulsion because the law contained no corresponding provision. 16. On 10 December 2013 the FMS of Russia upheld the decision of the FMS in Novosibirsk. It cited the procedural steps taken in the applicant’s case but did not evaluate his situation and arguments in detail. It also relied mainly on undisclosed information obtained from the FSB and found that no humanitarian grounds existed that would permit renewal of the applicant’s temporary asylum status. 17. On 24 February 2014 the FMS in Novosibirsk sent a letter to the applicant informing him that he would be deported should he fail to leave the territory of Russia of his own volition. 18. On 18 March 2014 the Basmanny District Court of Moscow refused the applicant’s request to have his temporary asylum status renewed and upheld the FMS decision issued on 10 December 2013. 19. On 1 July 2014, following the application of interim measures under Rule 39 by the Court, the Prosecutor of the Novosibirsk Region sought a court order to compel the FMS in Novosibirsk to renew the applicant’s temporary asylum status. No information is available regarding the outcome of these proceedings. 20. On 28 July 2014 the Moscow City Court heard the applicant’s case on appeal. The outcome of these proceedings remains unclear. 21. On 9 October 2014 the Government informed the Court that on 4 September 2014 the FMS in Novosibirsk had granted the applicant temporary asylum in Russia until 4 September 2015 on humanitarian grounds. 22. According to the text of the decision of the FMS in Novosibirsk, the applicant sought temporary asylum in Russia after the European Court of Human Rights had applied interim measures staying his removal in the light of the risk of ill-treatment in Uzbekistan. The FMS in Novosibirsk then noted that dynamic political and social reforms had been taking place in Uzbekistan since 2003. However, it also mentioned the incidents of human rights violations in the country. In particular, it referred to current authoritative human rights reports on ill-treatment of suspects in custody in Uzbekistan. Noting that the applicant remained on the wanted persons list, the FMS in Novosibirsk found that as a suspect, he might indeed be subjected to torture or other cruel, inhuman and degrading treatment in Uzbekistan and therefore granted his request for temporary asylum in Russia. 23. For a summary of the relevant general provisions of the Refugees Act of Russia (Law no. 4258-I of 19 February 1993), see Kasymakhunov v. Russia, no. 29604/12, §§ 83-86, 14 November 2013. 24. The Refugees Act (the Act) provides that a person who has been granted temporary asylum status cannot be returned against his will to the country of his nationality or to the country of his former habitual residence (section 12 § 4 of the Act). 25. The temporary asylum status may be terminated if (i) the circumstances generating eligibility for such temporary asylum cease to exist; (ii) the temporary asylum holder obtains permanent resident status in Russia or becomes a citizen of Russia or of another state; (iii) the temporary asylum holder resettles outside Russia (section 12 § 5 of the Act). 26. The temporary asylum status may be revoked as a result of (i) the conviction of the temporary asylum holder of a crime committed by him or her in Russia; (ii) the submission by the temporary asylum holder of false information on his or her application for temporary asylum; (iii) the imposition of an administrative sanction on the temporary asylum holder for a drug-related offence (section 12 § 6 of the Act). 27. The Rules on Temporary Asylum Status (the Rules) enacted by the Government of the Russian Federation in accordance with the Refugees Act (decree No. 274 of 9 April 2004) provide that temporary asylum may be granted for a period of up to one year and may be renewed annually at the request of a person seeking temporary asylum who can also provide reasons for such renewal (section 12 § 1 of the Rules). The request for renewal should be submitted no later than one month prior to the expiry of the person’s current temporary asylum status (section 12 § 2 of the Rules). 28. Under Article 254 § 1 and Article 255 of the Russian Code of Civil Procedure a person can bring civil judicial proceedings against an official decision which, in his or her opinion, has an adverse effect on his rights and freedoms. | 0 |
test | 001-142672 | ENG | GEO | CHAMBER | 2,014 | CASE OF NATSVLISHVILI AND TOGONIDZE v. GEORGIA | 1 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Higher tribunal;Review of conviction;Review of sentence);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition) | Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria | 8. The first and second applicants were born in 1950 and 1953 and currently live in Moscow, the Russian Federation, and Kutaisi, Georgia, respectively. They are husband and wife. 9. The first applicant was the deputy mayor of Kutaisi, the second largest city in Georgia, from 1993 to 1995 and the managing director of the company operating the Kutaisi Automotive Plant (“the factory”), one of the most important public companies in the country, from 1995 to 2000. On 29 December 2000 he was appointed chairman of the factory’s supervisory committee at the shareholders’ general meeting. 10. The first applicant owned 12.95% of the shares through purchases made in 1998 and 2002 and was the principal shareholder in the factory after the State (78.61% of the shares). The second applicant owned 2.6% of the shares, purchased in 2002, so together the couple owned a total of 15.55% of the shares. 11. The first applicant was kidnapped in December 2002. After being severely ill-treated by his abductors, he was released in exchange for a large ransom paid by his family. 12. On 12 March 2004 the first applicant was accused of illegally reducing the share capital of the factory, for which he had first been responsible as managing director and then as chairman of the supervisory committee. He was charged with making fictitious sales, transfers and writeoffs, and spending the proceeds without regard to the company’s interests (Article 182 of the Criminal Code – “abuse of authority by embezzling and misappropriating the property of others”). 13. On 15 March 2004 the police and the Kutaisi prosecutor went to the first applicant’s workplace to arrest him. The arrest was filmed by journalists and broadcast on a local private television station the same night. The broadcast consisted of an interview with the prosecutor following footage showing the first applicant’s arrest and escort down a flight of stairs, with his arms held by policemen and surrounded by journalists. The prosecutor made two comments in respect of the matter: that the documents seized during a search of the first applicant’s office “were relevant to an ongoing criminal investigation and would be assessed and analysed”, and that the charge which the first applicant faced carried up to twelve years’ imprisonment. 14. The prosecutor’s interview was followed by that of the Governor of the Region. The Governor, without making any reference to the first applicant or the criminal proceedings against him, declared, among other things, that the State, which was “experiencing difficult times [due to a political crisis], would not stray from the path that it had chosen in pursuit of the identification of those who had devoured public money ... which was exactly why pensions and salaries had not been able to be paid on time”. 15. On 16 March 2004 the first applicant appointed a lawyer to protect his interests. 16. When questioned for the first time as a suspect on 17 March 2004, the first applicant, assisted by his lawyer, protested his innocence and exercised his right to silence. 17. On the same day the prosecuting authority brought an application before the Kutaisi City Court to have the first applicant detained pending trial arguing that the first applicant, who was accused of a crime of a serious nature, might try to evade justice, prevent the discovery of the truth and pursue his criminal activities. Ruling on this request on an unspecified date, the City Court decided to place the first applicant in detention for three months. Applying Article 243 of the Code of Criminal Procedure (“the CCP”), the first applicant challenged that decision before the Kutaisi Regional Court, which dismissed his appeal on an unspecified date. 18. On 25 March 2004 the first applicant sent a letter to the prosecuting authority, which read as follows: “Since I am not indifferent to the future of the automobile factory and consider it possible to settle the problems [I am having] with the State, I express my readiness to forfeit the shares in the factory which are currently in my and my wife’s possession to the State.” 19. On 14 June 2004 the first applicant’s detention pending trial was extended by the Kutaisi Regional Court until 15 July 2004, and in July 2004 it was extended until 15 September 2004. 20. During the first four months of his detention the first applicant was detained in the same cell as the person charged with his kidnapping in 2002 (see paragraph 11 above) and another person serving a sentence for murder. After the Public Defender’s Office complained of that fact on the ground that it put the applicant’s physical and psychological well-being at risk, the prison authorities transferred the applicant to another cell. 21. On 1 August 2004 the first applicant and his lawyer were given access to the criminal case materials. On 6 August 2004 the first applicant appointed a second lawyer to protect his interests in the proceedings. 22. On 6 September 2004 the investigation was terminated, and the first applicant was indicted on the aforementioned charges. Having acquainted himself, with the assistance of his two lawyers, with the case file in its entirety, he again protested his innocence but confirmed his intention to cooperate with the investigation. 23. On the same day both applicants transferred their shares free of charge, representing an overall total of 15.55% of the factory’s share capital, to the State. 24. According to a written statement in the case file from Mr G.T., a worker in the factory, on 6 September 2004 he and nine other employees of the factory transferred their shares to the State ex gratia, at the request of the prosecuting authority, in connection with the criminal proceedings against the first applicant and in exchange for the latter’s release from detention. The case file contains a copy of the relevant ex gratia agreements dated 6 September 2004. 25. The file also contains a witness statement by Mrs M.I., the second applicant’s sister-in-law, that the public prosecutor had also demanded that the first applicant’s family pay 50,000 laris (GEL) (about 21,000 euros (EUR)) to the Fund for the Development of State Bodies ensuring the Protection of the Law (“the Development Fund”) in order to conclude a “procedural agreement” releasing the first applicant from detention. Thus, the public prosecutor had supplied them with the documents necessary for the transfer, adding that the first applicant’s name must not appear as the one paying the money. The public prosecutor insisted that the money not be paid to the Development Fund directly by the applicants. Mrs M.I. therefore agreed to pay the required amount in her own name. 26. As confirmed by the relevant bank-transfer receipt, that payment was made on 8 September 2004, with Mrs M.I.’s name duly appearing on the document as the source of the transfer. 27. On the following day, 9 September 2004, the first applicant filed a written statement with the public prosecutor, requesting him to arrange a “procedural agreement” (hereinafter a “plea bargain”), which procedure had been introduced into the Georgian judicial system in February 2004. The applicant specified that, whilst considering himself to be innocent, he was willing to reach an agreement as regards the sentence and to repair the damage caused to the State; he stated that he would pay GEL 35,000 (EUR 14,700) to the State budget in that connection. He added that he fully understood the contents of the agreement. 28. On the same day the public prosecutor of Kutaisi offered and the first applicant accepted a plea bargain regarding sentence (Article 679 § 2 of the CCP). The written record of the plea agreement mentioned that, whilst the applicant refused to confess to the charges, he had “actively cooperated with the investigation by voluntarily paying compensation in the amount of GEL 4,201,663 (approximately EUR 1,765,000) for the damage caused by his criminal activity by returning 22.5% of the shares in the factory to the State”. The prosecutor further noted that, notwithstanding the fact that the applicant was charged with a particularly serious offence liable to a term of imprisonment of six to twelve years, it was still possible, having due regard to the full compensation of the damage and in the interest of the efficient use of State resources, to offer him a plea bargain. Notably, the prosecutor promised that he would request the trial court to convict the applicant without an examination of the merits, seeking a reduced sentence in the form of a GEL 35,000 (EUR 14,700) fine. It was explained to the applicant that the proposed plea bargain would not exempt him from civil liability. The first applicant stated that he fully understood the content of the bargain and was ready to accept it and that his decision was not the result of any duress, pressure or any kind of undue promise. The record of the plea agreement was duly signed by the prosecutor, the applicant and one of his two lawyers. 29. Also on the same day the public prosecutor filed a brief with the Kutaisi City Court, requesting approval of the aforementioned plea bargain consisting of no examination of the merits of the case, of finding the first applicant guilty of the charges brought against him and of reducing the sentence to which the offences were liable by fining the accused GEL 35,000 (EUR 14,700). It was mentioned in the prosecutorial brief that it was accompanied by the written record of the plea agreement and twelve volumes of the criminal case materials. 30. Also on the same day Mrs M.I. effected a bank transfer to the State in payment of the fine of GEL 35,000 (EUR 14,700) as per the above-mentioned plea bargain between the first applicant and the public prosecutor. 31. At an oral hearing on 10 September 2004, the Kutaisi City Court, sitting in a single-judge formation, examined the prosecutor’s request of 9 September 2004. As disclosed by the record of the hearing, the judge explained to the first applicant, who was assisted by one of the two lawyers who had countersigned the plea bargain (see paragraph 28 above), his rights under Article 679-3 of the CCP. In reply, the applicant acknowledged that he was well aware of his rights and that he had agreed to the bargain voluntarily, without having being subjected to any kind of undue pressure during the negotiations with the prosecutor. That was confirmed by the lawyer as well. The first applicant and his lawyer then asked the judge to endorse the plea bargain, as submitted by the prosecutor, confirming that they fully accepted its consequences. The lawyer added that he had assisted in the plea-bargaining negotiations between his client and the prosecution, that it was his client who had insisted on reaching a settlement, and that he, as a lawyer, had provided all the necessary counselling to the applicant. 32. Relying on the documentary evidence and the testimony of various witnesses acquired during the investigative stage, the Kutaisi Court found that the charges brought against the first applicant were well-founded. The court also noted that, when he was charged on 6 September 2004 with crimes under Article 182 §§ 2 (a), (b) and (c) and 3 (b) of the Criminal Code, the applicant “did not plead guilty and exercised his right to silence. However, having actively cooperated with the investigation, he had voluntarily repaired the damage of GEL 4,201,663 [EUR 1,765,000] caused by his criminal activity by returning 22.5% of the shares in the factory to the State”. 33. The City Court further held that, following the judicial examination, it reached the conclusion that the plea bargain had been concluded in accordance with the law, that the first applicant had signed it in full knowledge of the facts and that it was not the result of any duress, pressure or any kind of promise which went beyond what was permitted in plea bargaining. The court thus sanctioned the agreement by declaring the first applicant guilty of the charges brought against him and sentencing him to a GEL 35,000 (EUR 14,700) fine. The first applicant was then immediately released from the courtroom. 34. As mentioned in its operative part, the Kutaisi City Court’s decision of 10 September 2004 was final and not subject to appeal. A request could be made to have the decision quashed and the case reopened though, if newly discovered circumstances justified such a course of action. 35. According to the case file, after the termination of the criminal proceedings and his consequent release from detention, the first applicant left Georgia and has since been residing in Moscow, Russia. 36. After notice of the application had been given to the respondent Government on 21 September 2006 and the parties had exchanged their observations, the applicants complained to the Court, on 12 November 2007, that the General Prosecutor’s Office (“the GPO”) was continuing to exert pressure on them, this time with the aim of having them withdraw their application from the Court. 37. In support of that assertion, the applicants submitted a written statement given by their daughter, Ms A. Natsvlishvili, dated 6 November 2007. 38. According to that statement, after having been told by her parents that pressure was being brought to bear on them, in September 2004 Ms Natsvlishvili, who was a student at the Central European University in Budapest at the time, decided to approach an acquaintance of hers who was working at the GPO, Ms T.B. Subsequently, Ms Natsvlishvili exchanged several e-mails with her acquaintance in which the latter, claiming to act on behalf of the GPO, expressed that authority’s position on the applicants’ case. The case file contains a copy of the relevant e-mail exchange. 39. In the e-mail exchange, Ms Natsvlishvili and Ms T.B. addressed each other on friendly terms, using shortened, pet names and familiar instead of formal forms of address. 40. Ms Natsvlishvili was the first to contact Ms T.B., on 14 September 2006, asking her, as a friend and an experienced lawyer, to give her some advice about her master’s thesis and a forthcoming examination in law. 41. On 29 November 2006 Ms T.B. advised the applicants’ daughter, whom she considered to be “a friend”, that she had been “personally” working on her father’s case and thus possessed important information emanating from the Prosecutor General. Inviting the applicants’ daughter to express her parents’ position on the matter, Ms T.B. promised to share her hierarchical superiors’ views with them. 42. On 11 December 2006 Ms T.B. informed the applicants’ daughter that the GPO would be ready to reopen the first applicant’s criminal case and then terminate it again, this time in his favour, and to return the GEL 35,000 (EUR 14,700) which had been paid by him as a fine. Ms T.B. encouraged the applicants to think about that proposal quickly and to accept it, otherwise, she stated, “the prosecution authority would defend its position in Strasbourg and might even unilaterally annul the plea bargain and reopen the criminal proceedings against the first applicant”. 43. On 16 December 2006 Ms Natsvlishvili informed Ms T.B. that her father was ready to reach a friendly settlement, as provided for “by the Convention” and under the scrutiny of the Court. Ms Natsvlishvili then asked a number of procedural questions and also enquired whether it was possible, having due regard to the substantial pecuniary and non-pecuniary damage which had been inflicted on her family by the State, to review the conditions of the proposed settlement. 44. On the same date, 16 December 2006, Ms T.B. replied that “her personal involvement in the case was a guarantee that the applicants’ family would not find itself in an inauspicious situation again”. Ms T.B. then stated that the first applicant should file an application with the GPO, complaining that the plea bargain in question had been reached without a full consideration of his interests. The GPO would then treat that application as a request for the reopening of the case on the basis of newly discovered circumstances. Ms T.B. assured the applicants’ daughter that, after the reopening of the case, the first applicant would, as a matter of fact, be rehabilitated by having obtained the deletion of the conviction from his criminal record. 45. Ms T.B. then stated that the State would be ready to return the money which had been paid by the first applicant as a fine and the shares in the factory forfeited by the second applicant; she explained that the first applicant’s shares could not be returned as they had already been assigned to a third party. The GPO employee also assured Ms Natsvlishvili that the first applicant would become eligible to return to Georgia and to start business afresh there, in which entrepreneurial activity the prosecution authority would even assist him. Ms T.B. then continued: “We all know that errors have been committed, but it has become a particularly vital issue, in the interests of the country, to set aside personal experience and trauma now, notwithstanding the painfulness of those [experiences]. I know that this is difficult, but if you can manage it, I am confident that after years have passed you would then be in a position to tell yourself that you were successful in differentiating Georgia, as your own country, from individual State agents, and to tell yourself that you made your own small sacrifice for your country.” 46. Ms T.B. specified that “they”, the GPO, were not telling the applicants to first withdraw their application from the Court and to settle the issue at the domestic level afterwards. On the contrary, the State was ready to start working on the settlement of the issue at the domestic level first. However, Ms T.B. then reminded the applicants’ daughter that “they had only a month left for [filing observations with] Strasbourg”. 47. On an unspecified date, but apparently subsequent to the abovementioned e-mail exchange, Ms T.B. informed Ms Natsvlishvili that the State would be ready to pay to the first applicant, in compensation, GEL 50,000 (EUR 22,000) and to take procedural measures to have the conviction deleted from his criminal record. She specified as follows: “As regards the issue of rehabilitation and compensation, the decision will apparently belong, according to the applicable rules of jurisdiction, to the Kutaisi Court of Appeal. It will therefore be indicated in this court’s decision that, given the fact that the remainder of [the applicants’] shares have been assigned and that the factory has become indebted, it is factually impossible to return the shares in their entirety, which would then lead to the award of GEL 50,000 [(EUR 22,000)] in pecuniary and non-pecuniary damages.” 48. Ms T.B. then assured the applicants’ daughter that they could trust the GPO, as, in any event, should there be any improper conduct by the authorities, the applicants could always then complain to the Court about the alleged hindrance of the right of individual petition under Article 34 of the Convention, which allegation would be of particular harm for the respondent State’s international image. Ms T.B. mentioned, lastly, that the State might be ready to increase the amount of compensation to a maximum of GEL 85,000 (EUR 35,700). | 0 |
test | 001-140030 | ENG | SVN | CHAMBER | 2,014 | CASE OF W. v. SLOVENIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 5. The applicant was born in 1971 and lives in Maribor. 6. On the night of 13 April 1990 the applicant, then eighteen years old, was raped by a group of seven males. Three other males allegedly participated: one as an aider and abettor and two others by committing a sexual assault on her. Five of the accused had not yet reached the age of majority (eighteen years) at the time of the commission of the criminal acts and were accordingly tried as juveniles. 7. In September 1990 criminal charges of rape, aiding and abetting rape and sexual assault were brought against the accused. All of them submitted in their defence that the applicant had voluntarily engaged in sexual activity with them. 8. The court held a number of hearings and obtained expert reports. An expert in clinical psychology found that the applicant had a learning disability and that she had not been physically or mentally capable of offering serious resistance. 9. On 13 November 1990 the Maribor Basic Court rendered a judgment acquitting the defendants of all charges. The verdict was based on the findings that the applicant had not seriously resisted sexual intercourse, that she had changed her testimony regarding the events surrounding one of the rape charges during the proceedings and that the defendants could not be considered to have employed force or threats which would be objectively capable of breaking the victim’s resistance. 10. The Public Prosecutor appealed against the judgment. 11. On 10 April 1991 the Maribor Higher Court quashed the first-instance judgment, finding that the facts had been insufficiently established. It ordered that the case be remitted to the first-instance court for fresh consideration before a different panel, without the participation of the judges who had delivered the impugned judgment. 12. In July 1991 the Maribor Basic Court conducted inquiries in order to establish the place of residence of two of the defendants. However, as the two defendants had allegedly emigrated to Austria, they could not be found. Several more inquiries were made in 1995, 1999, 2000 and 2001, but all attempts at establishing these two defendants’ whereabouts proved unsuccessful. 13. Between 10 March 1995 and 31 August 2000 the applicant sent at least eight letters urging the Maribor District Court (previously called the Maribor Basic Court) to accelerate the proceedings and/or asking for a case review by the president of the court owing to delays in scheduling the first retrial hearing. 14. In the period from 20 May 1999 to 25 September 2001 the court scheduled five hearings, all of which were, however, adjourned for failure of some of the defendants to appear. 15. On 5 January 2001 the Director of the Department for Judicial Administration at the Ministry of Justice informed the applicant that the court had encountered difficulties identifying some of the defendants’ residences. He also noted that between 28 May 1990 and 27 September 2000 there had been frequent changes of the presiding judge in her case due to judges being promoted. He mentioned that in the aforementioned period seven different judges had been dealing with the case. 16. Following this information, on 9 March 2001 the applicant suggested that the charges against the two defendants, one charged with rape and the other with aiding and abetting rape, who were allegedly residing in Austria and could not be found, be severed into a separate case and an international arrest warrant be issued against them. 17. On 29 May 2001 the Maribor District Court issued a detention order against the two defendants, which served as a legal basis for the issuing of the international arrest warrant. 18. On 22 November 2001 the court held the first hearing, followed by four more. It also obtained reports from two experts, one in neuropsychiatry and the other in clinical psychology. 19. On 4 June 2002 the court found one defendant guilty of rape under the first paragraph of Article 180 of the Penal Code and five defendants guilty of aggravated rape under the second paragraph of Article 180 of the Criminal Code. Regardless of the fact that they were tried as juveniles, the rules of sentencing applicable to adults applied to them as they had all reached the age of twenty-one before the judgment was given. The defendants were sentenced to prison sentences ranging from eight months to one year on account of, inter alia, the significant passage of time from the commission of the crime until their conviction. However, the court concluded that prison sentences were appropriate in order to make the defendants realise the gravity of their offences, particularly as they had not shown any genuine regret over the criminal acts committed against the applicant who continued to suffer from the consequences thereof. Lastly, the court acquitted the two defendants who had been charged with sexual assault. 20. The convicted defendants appealed; however, their appeals were dismissed by the Maribor Higher Court on 25 January 2006. Their subsequent extraordinary appeals (requests for the protection of legality) were also dismissed by the Supreme Court on 12 July 2007. 21. The defendant charged with aiding and abetting the rape of the applicant, whose whereabouts had been unknown and whose case had been separated from the main proceedings, was extradited to Slovenia on 9 March 2004. On 30 March 2004 the court held a hearing and found the defendant guilty. He was sentenced to eight months in prison. The defendant’s subsequent appeal was dismissed on 4 August 2004. 22. The other missing defendant was arrested in Slovakia and detained on 21 February 2003. After having been extradited to Slovenia, the court held hearings on 4 and 5 September 2003 and on the latter date convicted him of aggravated rape under the second paragraph of Article 180 of the Penal Code. He, too, was sentenced to eight months in prison. He appealed against the verdict; however, on 9 June 2006 his appeal was dismissed by the Maribor Higher Court. 23. On 22 September 1995 the applicant lodged a civil claim against all ten defendants and a number of the defendants’ parents, seeking compensation for non-pecuniary damage she had sustained as a result of the rape. 24. On 17 June 2002 the civil panel of the Maribor District Court stayed the civil proceedings pending a final decision in the criminal proceedings. The civil trial was resumed in November 2007. 25. Subsequently, two hearings were held and on 21 January 2009 the first instance court gave a judgment awarding the applicant 16,691.70 euros (EUR), together with default interest. The applicant and some of the respondent parties appealed. On 10 March 2010 the Maribor Higher Court upheld the applicant’s appeal and dismissed the respondents’ appeal. In the civil retrial, the District Court found that the two respondents who had initially been excluded from liability for damages owing to their acquittal in the criminal proceedings were jointly liable for the damages awarded to the applicant. 26. One of the two respondents appealed against the judgment, but on 9 November 2011 the Maribor Higher Court dismissed his appeal. 27. Following unsuccessful settlement negotiations with the State Attorney’s Office, on 30 November 2009 the applicant lodged a claim with the Celje Local Court seeking compensation in the amount of EUR 5,000, the maximum amount that could be awarded for non-pecuniary damage incurred as a result of the length of the criminal proceedings. She relied on the Protection of the Right to a Trial without Undue Delay Act (hereinafter “the 2006 Act”). She submitted that her interest in the criminal proceedings had not only been of a pecuniary nature but also aimed at safeguarding her rights under Article 3 of the Convention. 28. On 16 November 2010 the court rendered a judgment, finding that the applicant’s right to trial within a reasonable time had been breached and that the State was to pay EUR 5,000 to the applicant, together with default interest. The court pointed out that the overall duration of the proceedings had amounted to fifteen years and nine months, noting in particular the lack of any activity between April 1991 and March 2001. Moreover, it observed that the applicant’s case had involved two major criminal acts, a gang rape and a sexual assault, which, in addition to posing a considerable threat to society, had caused severe mental distress to the applicant. The court emphasised that due to the nature of these criminal acts committed against her, the criminal proceedings ought to have been conducted in a particularly diligent, determined and prompt manner; however, that had not been the case. It was further noted that the lengthy proceedings had been extremely stressful for the applicant, who had been forced to relive the painful events too many times, in addition to which she had had no effective remedies at her disposal in order to accelerate the proceedings. Thus, having regard to the importance of the case for the applicant and the lengthy period of absence of any procedural acts on the part of the criminal court, the court deviated from the general practice of the domestic authorities to award, within the statutory range of between EUR 300 and 5,000, 45% of the sum that would be awarded for a violation of the right to trial within a reasonable time by the Court. Thus, the applicant was awarded the maximum amount possible under the 2006 Act, although she would have apparently not been entitled to such amount purely on the basis of the excessive length of proceedings. 29. The applicant and the State Attorney lodged appeals. On 4 August 2011 the Celje Higher Court modified the first-instance judgment in so far as it concerned the costs of proceedings. It rejected the remainder of the appeals. 30. On 13 October 2011 the applicant lodged a constitutional appeal and initiative petition for the review of the constitutionality of the 2006 Act in so far as it limited the maximum amount to be awarded for a violation of the “reasonable time” requirement to EUR 5,000. She alleged that the statutory limitation of compensation in this manner was unconstitutional, as the maximum amount did not constitute sufficient redress for particularly arduous cases such as her own. 31. On 10 February 2012 the Constitutional Court rejected the constitutional appeal as inadmissible. Consequently, the applicant’s petition for the review of the constitutionality of the 2006 Act’s limitation on compensation was also rejected, as the court held that the possible annulment of the challenged statutory provision could not have had any legal effects on the applicant’s position. 32. At the time of the incident, the applicable criminal law was the 1977 Criminal Code of the Socialist Republic of Slovenia. However, in the course of the retrial proceedings, a new Criminal Code was adopted in 1994 introducing more lenient sentences for the criminal offences of rape and aggravated rape. In accordance with the general principle of domestic criminal law that a law more lenient on the perpetrator may be applied retroactively, Article 180 of the 1994 Criminal Code was used in the proceedings, which reads, in so far as relevant, as follows: “(1) Whoever compels a person of the same or opposite sex to submit to sexual intercourse with him by force or threat of imminent attack on life or limb shall be sentenced to imprisonment for not less than one and not more than ten years. (2) If the offence under the preceding paragraph has been committed in a cruel or extremely humiliating manner or successively by at least two perpetrators or against an offender serving a sentence in a closed or semi-open type of penal institution, the perpetrator(s) shall be sentenced to imprisonment for not less than three years. ...” 33. Section 286(2) of the Criminal Procedure Act 1994 provides that the presiding judge shall schedule a first trial hearing within two months of receipt of the indictment. If he fails to do so, he must inform the president of the court thereof, and the latter is required to take the necessary steps to schedule the hearing. A provision to this effect was also included in the previously applicable Criminal Procedure Act 1977. 34. According to Article 179 of the Code of Obligations, which constitutes the statutory basis for awarding compensation for non-pecuniary damage, such compensation may be awarded in the event of the infringement of a person’an award. 35. Under Section 2 of the 2006 Act, the right to a trial within a reasonable time is guaranteed to, amongst others, injured parties in criminal proceedings. Section 16 of the Act provides for a compensatory remedy and fixes the maximum amount that may be awarded. It reads as follows: “(1) Monetary compensation shall be payable for non-pecuniary damage caused by a violation of the right to a trial without undue delay. Strict liability for any damage caused shall lie with the Republic of Slovenia. (2) Monetary compensation in respect of individual, finally decided cases shall be awarded in an amount of between 300 and 5,000 euros. (3) When deciding on the amount of compensation, the criteria referred to in section 4 of this Act shall be taken into account, in particular the complexity of the case, the actions of the State, the actions of the party [making the claim] and the importance of the case for that party.” | 1 |
test | 001-171507 | ENG | GBR | CHAMBER | 2,017 | CASE OF AHMED v. THE UNITED KINGDOM | 4 | No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-f - Expulsion);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Robert Spano | 4. The applicant was born in 1977 and lives in London. 5. The applicant left Somalia with his family for the Netherlands in 1992 when he was fifteen years old. After claiming asylum, it would appear that the family were given a period of leave to remain in the Netherlands. During this period the applicant married and had a son, born in 1994. The applicant’s family travelled to the United Kingdom in 1998. The applicant initially remained in the Netherlands but on 11 December 1999 he arrived in the United Kingdom, where he claimed asylum. In doing so, he provided the immigration authorities with a false name and a false immigration history in order to avoid being sent back to the Netherlands. Although the asylum application was unsuccessful the applicant was granted exceptional leave to remain until 2004. 6. The applicant received ten criminal convictions over the period from 16 November 2001 to 4 August 2005. In December 2007 he was convicted of a public order offence and of failing to surrender. He was sentenced to four and a half months’ imprisonment. 7. On 29 January 2008 the applicant was served with notice that the Secretary of State intended to make a deportation order against him. The same letter refused an application for indefinite leave to remain in the United Kingdom. The applicant lodged an appeal against the decision to deport him on 1 February 2008. That appeal was dismissed on 30 June 2008 and his appeal rights were exhausted on 8 July 2008. 8. On 8 February 2008, when the applicant had served half of his final custodial sentence and was eligible for release from prison, he was detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending the making of a deportation order against him. The Secretary of State signed the deportation order on 29 October 2008 and he was thereafter detained under paragraph 2(2) of Schedule 3 to the Immigration Act 1971 pending his removal from the United Kingdom. 9. On 2 June 2009 removal directions were set for 17 June 2009. However, they were cancelled on 16 June 2009 when the applicant made an application to this Court (application no. 26023/09), which granted an interim measure under Rule 39 of the Rules of Court. 10. The applicant’s detention was reviewed monthly and the review forms set out the reasons for maintaining detention. The form from July 2009 includes the following statement in reference to the Rule 39 measure: “Whilst this means that enforced removal is not possible, [the applicant] could reduce the length of time he spends in detention by withdrawing voluntarily”. A similar point features in some, if not all, of the later forms. The form for February 2010 notes that “Rule 39 ECHR is a barrier to removal but I note that FRS [Facilitated Return Scheme] is an option that should be explored to the full to expedite his removal from the UK”. Likewise, the form for July 2010 states that “[t]he length of detention is a direct result of his appeals against deportation and, although it is now 29 months, he has the real option of return to Somalia with the Facilitated Returns Scheme. This option should be further explained to the subject”. Furthermore, the form from December 2010 indicated that the applicant “could minimise his time in detention by withdrawing [the application to the ECHR] and taking up FRS which is offered each month” and that he could “end his detention by volunteering to return (with or without FRS) at any time”. 11. Applications for bail were refused on 9 November 2009, 21 April 2010 and 14 July 2010 as the Immigration Judges were not satisfied that the applicant would answer to any conditions set. On 9 November 2009 the Immigration Judge further noted that although the applicant had been in detention for a lengthy period, “the most recent period of detention is on account of delays with his own application to the European Court of Human Rights”. 12. The applicant made further representations against removal on 10 June 2010. Those representations were treated as an application for revocation of the deportation order, but on 17 November 2010 the Secretary of State refused to revoke the order. However, following an appeal by the applicant, the Secretary of State withdrew the refusal decision on 12 July 2011. 13. On 19 November 2010 the applicant filed a claim for judicial review, contending that his ongoing detention was unlawful. Permission was granted on 17 June 2011 but a further application for bail was refused. On 13 July 2011, some two weeks after the Court ruled in Sufi and Elmi v. the United Kingdom (nos. 8319/07 and 11449/07, 28 June 2011), the applicant was granted bail. 14. A hearing took place on 7 October 2011. Pursuant to the principles set down by the High Court in R. v. Durham Prison Governor ex parte Hardial Singh [1984] 1 WLR 704 (see section on domestic law below), the Secretary of State cannot lawfully detain a person pending removal for longer than a reasonable period and, if it becomes apparent that the deportation cannot be effected within a reasonable period, the detention will become unlawful even if the reasonable period has not yet expired. The applicant claimed that his detention was in breach of the principles (a) on or after 16 June 2009 when the Court granted an interim measure under Rule 39 of the Rules of Court; (b) on or immediately after 16 June 2010 when he applied to revoke the deportation order; or (c) at all points after the revocation refusal on 17 November 2010. 15. In a judgment dated 14 November 2011 the Administrative Court dismissed the claim. It noted that in deciding whether or not there was a realistic prospect that deportation would take place within a reasonable time, the risk of absconding or re-offending were “of paramount importance” but neither risk could be regarded as a “trump card”. Moreover, the fact that the period of detention occurred while the applicant was pursuing an appeal or comparable judicial process would also be a highly relevant factor, especially if there was a risk of absconding or reoffending. 16. The court noted that the applicant in the present case had six convictions for absconding and the Immigration Judges had consistently concluded that he was a significant abscond risk. It agreed with the Immigration Judges and also concluded that the risk was plainly substantial on the evidence available. Equally, the court took into account the fact that the applicant had family in the country at the times he absconded and therefore, contrary to his assertions, their presence did not remove the risk of absconding. Likewise, the Secretary of State’s detention reviews had characterised the risk of the applicant reoffending as “high”. The court further noted that the applicant’s offences became less serious and more intermittent as time went on. However, the fact remained that while he was free he was committing offences of such seriousness as to require him to be imprisoned, including robbery and public order offences. The court also considered whether alternatives to detention could be used such as electronic tagging, monitoring by telephone and regular reporting. However, given the applicant’s history of absconding, it concluded that the alternatives would not have been sufficient and there was an absence of adequate assurances from the applicant. 17. At the time the Administrative Court noted that the interim measure under Rule 39 of the Rules of Court, was awaiting a lead judgment on returns to Mogadishu (Sufi and Elmi, cited above) and it was clear that there would be no resolution of the applicant’s claim - and the interim measure would therefore not be lifted - before that judgment was handed down. However, the Administrative Court observed that at the time the interim measure was indicated, there was uncertainty about when that judgment could be expected. Moreover, while the applicants in Sufi and Elmi would have had a reasonable to good prospect of success, a positive outcome had not been inevitable. Consequently, the Administrative Court did not accept that there was not, at the time the interim measure was indicated, a realistic prospect of removing the applicant within a reasonable time. 18. Furthermore, the court did not accept that by the time of the applicant’s application for a revocation order, a reasonable period had already expired or that there was no realistic prospect of deportation within a reasonable time. In addition, it observed that the Secretary of State had been entitled to take two weeks to consider the applicant’s personal situation in light of the judgment in Sufi and Elmi. It therefore did not consider his continued detention up to 13 July 2011 to be unlawful. 19. The applicant was granted permission to appeal to the Court of Appeal. On appeal, he restated his arguments concerning the Hardial Singh principles which had been advanced in the court below. In addition, he submitted that the detention was vitiated by two public law errors that bore directly on the decision to detain: first, following the indication of the interim measure the Secretary of State had failed to take any reasonable steps to acquaint herself with when it might be lifted; and secondly, that the detention was maintained on the unlawful basis that the applicant could reduce the length of time in detention by withdrawing his application to the Court and returning voluntarily to Somalia. Finally, the applicant argued that his detention was in breach of Article 5 of the Convention. 20. In its judgment of 20 October 2012, tthe applicant’s appeal against deportation as well as three separate bail applications had been rejected by immigration judges, as well as the broader context in relation to the on-going litigation concerning removals to Somalia both before the domestic courts and tribunals as well as before this Court (see §§ 28 to 32). It took into consideration the fact that the Rule 39 measure applied in the applicant’s case did not involve any specific assessment of risk towards him by this Court, since at the material time this Court had adopted a fact-insensitive approach towards Rule 39 measures in respect of removals to Somalia, and noted the consequence that from October 2008 this Court had adjourned 116 applications concerning removal to Somalia. It also took account of correspondence between the Government and the registry of this Court from which it was clear that from April 2009 the Court would be granting a fact-insensitive Rule 39 measure to any applicant with removal directions to Mogadishu as well as the separate correspondence between the Government and this Court concerning the progress of Sufi and Elmi, cited above and the linked domestic case law. 21. With regard to the Hardial Singh ground, the Court of Appeal stated that there could be a realistic prospect of success without it being possible to specify or predict the date by which, or the period in which, removal can reasonably be expected to occur. It accepted that at the time of receipt of the Rule 39 measure in the applicant’s case, although it was not possible to say when the proceedings before the Court would be concluded, there was nonetheless a reasonable prospect of their being concluded and of removal being effected within a reasonable time. Likewise, the Court of Appeal saw no reason to differ from the overall conclusion of the lower court on the lawfulness of the applicant’s detention at the time of the application for revocation of the deportation order or after the judgment in Sufi and Elmi was handed down. Lord Justice Elias dissented on one point only: acknowledging that “there is no one right answer to the question what is a reasonable period”, he believed that the period of two weeks which elapsed following the judgment in Sufi and Elmi before the applicant was released from detention was not reasonable in all the circumstances. 22. With regard to the second ground of appeal, the court accepted that if the applicant were able to show that the decisions to maintain his detention were vitiated by public law he would succeed in establishing that the detention was unlawful and would have a claim of false imprisonment. However, the Court of Appeal found that although some of the passages in the review forms were not very happily expressed, they did not involve any legal error. Moreover, as the same conclusion was reached regardless of whether or not reference was made to the question of voluntary return, it appeared that the applicant’s refusal of this offer played no material part in the assessment of whether detention should be maintained. 23. Finally, the court found that Article 5 § 1(f) of the Convention added nothing of substance in the present case. In reaching this conclusion, it rejected the applicant’s assertion that Mikolenko v. Estonia, no. 10664/05, 8 October 2009 was authority for the proposition that the lack of a realistic prospect of deportation within a defined period rendered detention under Article 5 § 1(f) unlawful. 24. The Supreme Court refused the applicant leave to appeal on 26 March 2013. | 0 |
test | 001-175479 | ENG | HUN | COMMITTEE | 2,017 | CASE OF M.Z. v. HUNGARY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;General principles of international law) | Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 4. The applicant was born in 1974 and lives in Vác. 5. The applicant was employed at a State-owned company from 1 January 2010 until 19 February 2013. Part of his severance payment was taxed at a 98% rate in the amount of 19,349,120 Hungarian forints (HUF) (approximately 64,500 euros (EUR)). | 1 |
test | 001-173772 | ENG | BGR | COMMITTEE | 2,017 | CASE OF GRABCHAK v. BULGARIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for family life) | Nona Tsotsoria;Síofra O’Leary | 5. The applicant was born in 1966 and lives in Kiev. 6. The applicant came to Bulgaria in 1995. In 1996 he started a relationship with Ms M., also a Ukrainian national. In 1997 the two of them had a son. In 2003 the applicant was granted permanent resident status. 7. On 6 November 2006 the head of the Ministry of the Interior’s National Security Service issued an order withdrawing the applicant’s residence permit, ordering his expulsion and imposing a ten-year ban on his re-entering Bulgaria, on the ground that his presence in the country represented a “serious threat to national security”. Factual grounds justifying the order were not indicated; it was merely noted that it was based on “proposal no. B4923”. 8. That proposal, drawn up by National Security Service and also dated 6 November 2006, was submitted to the Court. It stated that the applicant had allegedly been involved in acts of extortion, smuggling, arms deals and money laundering, that he operated with large amounts of illegally obtained money, that he had established contacts with Bulgarian officials, including police officers, who had been providing him with illegal services, and that he had been in contact with presumed terrorists. While enumerating the applicant’s presumed illegal activities, the proposal referred to specific dates and names, but to no evidence to support the allegations. Lastly, it was stated that the applicant had left Bulgaria on 29 October 2006. 9. Unaware of the ministerial order of 6 November 2006, on 15 November 2006 the applicant attempted to re-enter the Bulgarian territory but was stopped at the border and not permitted entry. Since then he has been living in Kiev, while Ms M. and his son remained in Bulgaria. 10. Through his lawyer, the applicant submitted an appeal to the Bulgarian Minister of the Interior against the order of 6 November 2006. The appeal was dismissed on 22 December 2006, the Minister pointing out, in particular, that he considered irrelevant the applicant’s argument that he had settled in Bulgaria with his family. 11. After that the applicant applied for judicial review of the order of 6 November 2006. In particular, he pointed out in his application that his family resided in Bulgaria and that their separation had been unjustified. 12. In the course of the judicial proceedings the applicant’s lawyer was shown proposal no. B4923. 13. In a decision of 30 October 2007 the Supreme Administrative Court held that it was competent to examine the application, with reference to the Court’s judgment in the case of AlNashif v. Bulgaria (no. 50963/99, 20 June 2002) and Article 13 of the Convention, even though, at the time the impugned order had been issued, judicial review had not been available under the legislation then applicable (see paragraph 16 below). 14. The judicial proceedings ended on 19 March 2009 with a final judgment of the Supreme Administrative Court, which upheld the order of 6 November 2006. After enumerating the applicant’s alleged unlawful activities described in proposal no. B4923, it stated merely that the impugned order did not breach the law. Furthermore, it dismissed the applicant’s arguments relating to his family and private life, stating: “any restriction of the rights under the Convention is justified [when based] on national security considerations, in cases where foreign citizens’ behaviour threatens the national security and the public order of the State where they reside.” | 1 |
test | 001-171994 | ENG | ITA | CHAMBER | 2,017 | CASE OF TALPIS v. ITALY | 3 | Preliminary objections joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation;Positive obligations) (Procedural aspect);Violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 - Right to life;Article 2-1 - Life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Armen Harutyunyan;Guido Raimondi;Kristina Pardalos;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Robert Spano | 6. The applicant was born in 1965 and lives in Remanzaccio. 7. The applicant married A.T., a Moldovan national, and two children were born of the marriage: a daughter in 1992 and a son in 1998. 8. The applicant alleged that after their marriage her husband had started beating her. However, in 2011 the applicant followed her husband to Italy in order to provide her children with the opportunity of a more serene future. 9. The applicant submitted that her husband, who was an alcoholic, had already been physically abusing her for a long time when, on 2 June 2012, she requested the intervention of the police after she and her daughter had been assaulted by A.T. 10. When the police arrived, A.T. had left the family home. He was found in the street in a state of intoxication, with scratches on the left side of his face. The police drew up a report of the incident. The report stated that the applicant had been beaten and bitten in the face and the left leg and that she had a number of bruises. The report also stated that the applicant’s daughter had herself been hit after intervening to protect her mother and presented a neck injury caused by a fingernail and injuries to both arms. The applicant and her daughter were informed of their rights and expressed their intention to go to the hospital accident and emergency unit. 11. The applicant alleged that she had not, however, been informed of the possibility of lodging a complaint or contacting a shelter for battered women. She also submitted that she went to the accident and emergency unit in order to have her injuries recorded, but that after waiting for three hours she had decided to return home. 12. The Government, referring to the police report, submitted that there was no evidence that the applicant had gone to the accident and emergency unit. 13. The applicant submitted that after the assault on 2 June 2012 she had taken refuge in the cellar of her flat and started sleeping there. 14. She recounted the following events as follows. On 19 August 2012, after receiving a threatening telephone call from her husband, and fearing an attack by him, she decided to leave the house. When she returned home, she found that the cellar door had been broken. She tried telephoning a friend to ask if she could stay the night with her, but no one answered her call. She then decided to go back to the cellar. A.T. attacked her there with a knife and forced her to follow him in order to have sexual relations with his friends. Hoping that she would be able to seek help once outside, she resigned herself to following him. She asked a police patrol in the street for help. 15. The police merely checked her and A.T.’s identity papers, and despite the applicant’s assertions that she had been threatened and beaten by her husband, they invited her to go home without offering her help and told A.T. to keep away from her. A.T. was fined for unauthorised possession of a lethal weapon. 16. Shortly after she had returned home, the applicant called the emergency services and was taken to hospital. The doctors noted, among other things, that she suffered from cranial trauma, a head injury, multiple abrasions to her body and a bruise on her chest. It was deemed that her injuries would heal up within a week. 17. The Government indicated that, according to the incident report drawn up by the police, they had arrived at Leopardi Street shortly after midnight. The applicant informed them that she had been hit in the face. A.T. had given the police officers a knife. The applicant told the police that she wanted to go to hospital to have her injuries recorded. She had gone there and A.T. had returned home. The knife had been seized and the applicant fined for unauthorised possession of a lethal weapon. 18. At the hospital the applicant spoke to a social worker and said that she refused to return home to her husband. She was then given shelter by an association for the protection of female victims of violence, IOTUNOIVOI (“the association”). 19. The president of the women’s shelter, accompanied by police officers, went to the cellar where the applicant had been living in order to fetch her clothes and personal effects. 20. From 20 August onwards A.T. began harassing the applicant by telephoning her and sending her insulting messages. 21. On 5 September 2012 the applicant lodged a complaint against her husband for bodily harm, ill-treatment and threats of violence, urging the authorities to take prompt action to protect her and her children and to prevent A.T. from approaching them. She stated that she had taken refuge in a women’s shelter and that A.T. was harassing her by telephone. 22. A.T. was placed under judicial investigation on charges of ill-treating family members, inflicting grievous bodily harm and making threats. The police sent the criminal complaint to the prosecution on 9 October 2012. 23. On 15 October 2012 the prosecution, having regard to the applicant’s requests for protection measures, ordered urgent investigative measures, in particular requesting the police to find potential witnesses, including the applicant’s daughter. 24. The applicant was given shelter by the association for three months. 25. In a letter of 27 August 2012 the head of Udine social services informed the association that there were no resources available to take charge of the applicant or to find alternative accommodation for her. 26. The Government gave a different interpretation of that letter, saying that, as the applicant had not first been referred to the Udine social services, which cared for victims of violence in the context of another project, called “Zero tolerance”, the latter could not pay the association’s expenses. In their submission, female victims of violence could contact social services requesting assistance, which the applicant had not done. 27. On 4 December 2012 the applicant left the shelter to look for work. 28. She said that she had first slept in the street before being accommodated by a friend, and had subsequently found a job as an assistant nurse for elderly people and was then able to rent a flat. According to the applicant, A.T. had continued exerting psychological pressure on her to withdraw her complaint. 29. On 18 March 2013 the prosecution, finding that no investigative measure had been carried out, again asked the police to investigate the applicant’s allegations rapidly. 30. On 4 April 2013, seven months after she had lodged her complaint, the applicant was questioned for the first time by the police. She altered her statements, mitigating the seriousness of her original allegations. Regarding the episode of June 2012 she stated that A.T. had unsuccessfully attempted to hit her and her daughter. With regard to the incident that had occurred in August 2012, she said that A.T. had hit her but had not threatened her with a knife. A.T. had, however, pretended to turn the knife on himself. The applicant also stated that at the time she had not spoken very good Italian and had not been able to express herself properly. She also stated that A.T. had not forced her to have sex with other people and that she had returned to live at the family home. She said that when she had been living at the shelter provided by the association, she had not spoken to her husband on the telephone because she had been told not to. She stated that, barring her husband’s alcoholism, the situation at home was calm. She concluded by saying that her husband was a good father and a good husband and that there had been no further episodes of violence. 31. The applicant submitted that she had altered her original statements because of the psychological pressure exerted on her by her husband. 32. On 30 May 2013 the Udine public prosecutor’s office, after noting, firstly, that the applicant, who had been interviewed in April, had mitigated her allegations against her husband saying that he had not threatened her with a knife and that she had been misunderstood by an employee from the shelter where she had taken refuge and, secondly, that no other violent episode had occurred, asked the investigating judge to close the complaint lodged against A.T. for ill-treatment of family members. Regarding the offence of grievous bodily harm, the prosecuting authorities indicated that they intended to continue the investigations. 33. In a decision of 1 August 2013 the investigating judge discontinued the part of the complaint concerning the allegations of ill-treatment of family members and threats. He considered that the course of the events was unclear and that, with regard to the alleged ill-treatment, the offence had not been made out because, since the applicant had complained only about the incident of August 2012, the criterion of repeated episodes of violence was not satisfied. 34. With regard to the complaint of threats aggravated by the use of a weapon, the investigating judge noted that the applicant’s statements were contradictory and that in the report drawn up by the hospital there was no reference to knife injuries. 35. With regard to the offence of causing bodily harm, the proceedings were continued before the magistrate. A.T. was committed for trial on 28 October 2013. The first hearing was held on 13 February 2014 and A.T. was ordered to pay a fine of 2,000 euros (EUR) on 1 October 2015. 36. It can be seen from the case file that on 18 November 2013 A.T. received notice of his committal for trial before the magistrate’s court on 19 May 2014 for inflicting bodily harm on the applicant in August 2012. 37. In the night of 25 November 2013 the applicant sought the intervention of the police in connection with a dispute with her husband. 38. The police made the following findings in their report: on their arrival they saw that the bedroom door had been broken down and that the floor was strewn with bottles of alcohol. The applicant had stated that her husband was under the influence of alcohol and that she had decided to call for help because she thought he needed a doctor. She told them that she had lodged a complaint against her husband in the past, but that she had subsequently changed her allegations. The applicant’s son had stated that his father had not been violent towards him. Neither the applicant nor her son had shown any traces of violence. 39. A.T. was taken to hospital in a state of intoxication. In the night he left the hospital and went to an amusement arcade. 40. While he was walking along the street he was arrested by the police for an identity check at 2.25 a.m. 41. The police report shows that A.T. was in a state of intoxication and had difficulty keeping his balance and that the police had let him go after stopping and fining him. 42. At 5 a.m. A.T. entered the family flat armed with a 12 cm kitchen knife with the intention of assaulting the applicant. The applicant’s son attempted to stop him and was stabbed three times. He died of his wounds. The applicant tried to escape but A.T. succeeded in catching up with her in the street, where he stabbed her several times in the chest. 43. On 1 October 2015 A.T. was convicted by the magistrate’s court of inflicting grievous bodily harm on the applicant, on account of the injuries he had inflicted on her during the incident in August 2012, and sentenced to a fine of EUR 2,000. 44. On an unspecified date in November 2013 the investigation into acts of ill-treatment was reopened. 45. A.T. asked to be tried in accordance with the summary procedure (giudizio abbreviato). 46. On 8 January 2015 A.T. was sentenced to life imprisonment by the Udine preliminary hearings judge for the murder of his son and the attempted murder of his wife and for the offences of ill-treatment of his wife and daughter and unauthorised possession of a prohibited weapon. He was also ordered to pay the applicant, who had applied to join the proceedings as a civil party, EUR 400,000 in damages. 47. With regard to the ill-treatment, the preliminary hearings judge, after hearing witnesses and the applicant’s daughter, considered that the applicant and her children had been living in a climate of violence. He found that A.T. had been habitually violent and held that, apart from the daily harassment suffered by the applicant, there had been four violent episodes. He added that A.T., at his trial, had confessed to experiencing feelings of hatred towards his wife. According to the preliminary hearings judge, the events of 25 November 2013 were the consequence of an attempt by the applicant to get away from A.T. 48. On 22 May 2015 A.T. appealed against the judgment. It can be seen from the file that in a judgment of 26 February 2016 the judgment was upheld by the Court of Appeal. However, neither of the parties annexed the judgment to their observations. | 1 |
test | 001-172322 | ENG | HRV | CHAMBER | 2,017 | CASE OF MARUNIĆ v. CROATIA | 3 | Remainder inadmissible;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 - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1964 and lives in Kostrena. 6. Between 1 October 2003 and 1 October 2007 the applicant was the director of a municipal utility company, KD Kostrena (hereinafter “the company”), whose sole shareholder is the Municipality of Kostrena (Općina Kostrena). The company primarily provides public utility services such as parking, waste disposal, funeral services, maintaining green spaces, cemeteries and so forth. 7. In an article published in the daily Novi list of 19 September 2007, Mr M.U., who was the mayor of Kostrena Municipality and chairman of the company’s General Meeting (skupština) at the time, criticised the way the applicant performed her job. The relevant part of the article reads as follows: “ ... M.U. does not hide his dissatisfaction with the work of Mirela Marunić as head of KD Kostrena. ‘I cannot speak for the others, but after everything that has happened, I can say that Mirela Marunić has betrayed the trust of the members of the General Meeting because she disclosed information which should only have been discussed at the General Meeting. Likewise, in the 2005 [annual] report she spoke in positive terms of building a sports hall, and I do not know what happened to make her change her mind.’ In his words, dissatisfaction with the functioning of KD Kostrena goes beyond the current political crisis in Kostrena and the public statements of Mirela Marunić. ‘The fact is that we had even earlier objected to Mirela Marunić’s work because [the company] has been stagnating for some time now and functioning as a means of transferring municipal funds. Our municipal utility company does not carry out the type of business for which it was established. For example, Žurkovo Bay was leased as a parking lot and a dry [dock] marina, and the same applies to the parking lot near Kostrenka. My question is, how does it benefit the concessionaires to have it and in addition pay rent for it? Had it stayed in our hands we would, apart from making a profit, also have had the chance to employ someone’. M.U. does not hide his dissatisfaction. In a lengthy list of criticisms of the current director of KD Kostrena, M.U. states that he does not like the fact that she has been referred to as a member of his [political] party. He claims that he was the one who had advised her when she was appointed to the position as head of Kostrena’s municipal utility company not to make public statements as a member of [their political party] because someone could misinterpret [the nature of] her work and the way she came to get that position.” 8. In an article published in Novi list eight days later, on 27 September 2009, the applicant replied to the above criticisms. The relevant part of that article reads as follows: “The mayor of Kostrena, M.U., has publicly criticised the current director of KD Kostrena for having disclosed information which should only have been discussed at the General Meeting and for the company’s poor performance, saying it does not engage in the type of business for which it was established. ‘They betrayed my trust by not believing me. I first informed my [political] party but there was no reaction. In particular, at a meeting held before the September session of the General Meeting [of the company] last year, I warned them of all the irregularities, the financial losses and the ruining of KD Kostrena’s business reputation. Then they asked me not to talk about it in the presence of D.G. [who was the only member of the company’s General Meeting from the ruling political party at the State level],’ says Mirela Marunić, repeating that there are written documents in respect of all the issues she had warned the General Meeting about. As regards M.U.’s remark that the company has been stagnating under her leadership, she says that Kostrena Municipality, which does not have a development strategy, has itself been stagnating ... The main precondition for that ... would be, in her opinion, the resolution of property issues which remain outstanding in the case of most of the parking lots administered by Kostrena’s municipal utility company. Marunić illustrates this by referring to the Viktor Lenac parking lot where the municipal utility company has been charging for parking on land which was not even owned by Kostrena Municipality. ‘The legal department of Kostrena Municipality still requires [the company] to charge for parking even though [the company] Lenac refused to do so because of unresolved property issues. That case has now gone to court,’ warns Marunić, ‘and a similar situation exists with the parking lot in Žurkovo and [the one] near Kostrenka, which have been leased out.’ ‘Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney’s Office. I sincerely hope that the State institutions will do their job in this case, as that will save Kostrena. Kostrena needs professionals, but they are being removed, the proof of which is the proposal to remove T.S. as a member of the General Meeting. I hope that a young and ambitious person will replace me and continue the work the municipal utility company has been doing so far.’” 9. By a decision of the company’s General Meeting of 11 October 2007 the applicant was summarily dismissed because of the statements she had made in the media, which were regarded as being damaging to the company’s business reputation. The relevant part of that decision reads as follows: “On 27 September 2007 the Novi list daily published an article ... stating that the director of KD Kostrena, Mirela Marunić, had given a statement to [a] journalist of Novi list saying that KD Kostrena was acting unlawfully, that it was charging for parking where it was not allowed, that she demanded an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney’s Office with a view to looking into KD Kostrena’s operations. The director Mirela Marunić was at the time of the publication of the article ... employed as [chief executive officer] of KD Kostrena, that is, the officer who heads the company and is responsible for the consequences of her own work. Making such allegations in a daily newspaper, if those allegations are true, testifies to unlawful conduct in her job precisely because it is her duty as the officer in charge [of the company] to monitor and make sure that the utility company operates in accordance with the law. If, on the other hand, those allegations are not true but were nevertheless made in the publication that has the largest circulation in the area [of the country] then those allegations gravely harm the [business] reputation of the company because they suggest that KD Kosterna operates unlawfully. That kind of conduct, by an employee who was at the time of the publication of the statement in the daily newspaper the director of the utility company, which she headed, who makes such allegations in the media or engages in unlawful conduct, constitutes, in the opinion of the company’s General Meeting, totally inappropriate behaviour which tarnishes the company’s [business] reputation in the eyes of the public. .. Such conduct ... depicting the utility company in a negative light [constitutes] a particularly serious breach of employment-related duties, and is a particularly important fact which, taking into account all the circumstances and the interests of both contracting parties, makes the continuation of the employment relationship impossible [under section 107 of the Labour Act].” 10. On 22 October 2007 the applicant launched an internal challenge to her dismissal by lodging a request for the protection of her rights (zahtjev za zaštitu prava), a remedy which is guaranteed for every employee by the Labour Act and which employees had to use before bringing a civil action against their employer. The applicant argued, inter alia, as follows: “I contest entirely the argument that by making statements in the media I acted inappropriately and allegedly attacked the [business] reputation of the company ... The utility company is a public company which belongs to the [local] community ... It was my duty, as a member of the [company’s] Management, to contact the media and inform the public because it is a public company and not someone’s private property. I particularly emphasise that I have always given accurate information to the public. It is a well-known fact that the media show a great interest in Kostrena Municipality because of political turbulence among those heading the Municipality. However, my observations were always a defence against the media attacks directed against me by the chairman of the General Meeting. .. it is totally unclear what unlawful conduct I engaged in??? It is true that I warned about unlawful acts [by the company] but [I did so] directly to the General Meeting and the Supervisory Board. My statements were not directed against the utility company but made solely and exclusively with a view to removing any potential liability from myself. Therefore, the arguments in the dismissal decision are a twisted interpretation of the events.” 11. It appears that the applicant received no reply to her request. On 21 November 2007 she therefore brought a civil action for wrongful dismissal against the company in the Rijeka Municipal Court (Općinski sud u Rijeci). She challenged the decision to dismiss her and sought reinstatement. The relevant part of her statement of claim read as follows: “The defendant obviously did not properly read the [impugned] article because the plaintiff merely states some facts in it and, as an example, refers to a particular case of unresolved property issues, which is already the subject of judicial proceedings, and calls for an audit and the involvement of [the prosecuting authorities] with a view to protecting her integrity by expressly stating: ‘Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of the Office for the Prevention of Corruption and Organised Crime and the State Attorney’s Office.’” 12. By a judgment of 12 June 2008 the Municipal Court ruled in favour of the applicant. The court accepted that her statements in the media had been damaging to the company’s business reputation and as such had constituted a serious breach of employment-related duties within the meaning of section 107 of the Labour Act (see paragraph 23 below), making her summary dismissal justified. However, it ruled in the applicant’s favour because it found that pursuant to her employment contract, her job as director of the company had ended on 1 October 2007, when the company had been required to transfer her to another job. That meant that she could not have been dismissed from her job as director, let alone dismissed with retroactive effect, as the decision to remove her had indicated. Furthermore, since the decision to dismiss her had specifically related only to her job as director, it could not be assumed that it had also entailed the termination of her entire employment relationship with the company, including the job to which she was supposed to have been transferred after 1 October 2007. The court thus found that the dismissal had been wrongful and that the applicant’s employment relationship had not been terminated. It accordingly ordered that she be reinstated and assigned to another job within the company. 13. By a judgment of 14 January 2009 the Rijeka County Court (Županijski sud u Rijeci) dismissed an appeal by the company and upheld the judgment of the firstinstance court. Its reasons, however, were different. 14. It first noted that, contrary to the opinion of the first-instance court, the decision to dismiss the applicant had been aimed at terminating the applicant’s entire employment relationship with the company, and not only her job as director, and had been capable of having that effect. However, the County Court also disagreed with the view of the Municipal Court that the applicant’s behaviour, namely her statements in the media, had constituted a serious breach of employment-related duties such as to justify summary dismissal. In that respect the County Court held as follows: “... the defendant company’s [internal regulations] state that the business activities of the company are public [and] that the company informs the public by notifying the media of its organisation, the way and the conditions under which it operates, [and] the manner in which it provides services and runs its business. It follows that neither the [internal regulations] nor the [applicant’s employment] contract prohibit public statements or criticism of the defendant company’s business activities, which are public. Article 38 of the Croatian Constitution guarantees freedom of thought and [freedom of] expression, particularly emphasising freedom of speech and [the freedom] to speak publicly. As established ... by the first-instance court, the plaintiff’s public statements had been made in reaction to the statements of M.U. published a few days earlier in Novi list on 19 September 2007, where he had criticised the plaintiff’s work and stated that she had betrayed the trust of the members of the General Meeting by disclosing information that should only have been discussed at the General Meeting, [had said] that the [company] was stagnating, that it did not operate the type of business for which it had been established [and so on] ... ... Therefore, in this court’s view, the plaintiff’s actions should be interpreted as [the exercise of] her right to speak publicly and the right to freedom of thought, which are rights guaranteed by the Croatian Constitution. Therefore, in the view of this court, the plaintiff’s conduct does not constitute a serious breach of employment-related duties as envisaged in section [107] of the Labour Act as grounds for summary dismissal. Specifically, in the opinion of this court, the plaintiff’s statements are to be seen as [a way of] informing the public of irregularities in the activities of the defendant company as a public institution; [the statements] were given in the public interest and in good faith and constitute a value judgment rather than a serious breach of employment-related duties. The first-instance court therefore correctly applied the substantive law when finding the dismissal wrongful.” 15. The company then lodged an appeal on points of law (revizija) against the judgment of the County Court. 16. By a judgment of 6 October 2009 the Supreme Court (Vrhovni sud Republike Hrvatske) reversed the County Court judgment and dismissed the applicant’s action. The relevant part of that judgment reads as follows: “The findings of the lower courts cannot be accepted. In this particular case, the aforementioned statements by the plaintiff clearly damaged the reputation of the defendant company, since an employer whose leadership structures tolerate and encourage criminal activities certainly cannot have a good reputation or be trusted in the business world. Therefore, the behaviour of the plaintiff, in stating on 27 September 2007 in the Novi list daily ... that the defendant company, which she heads, had acted illegally, namely by charging for parking when it was not allowed [to do so], asking that the [company] be audited, and also seeking the intervention of [the prosecuting authorities] with a view to verifying the activities of the defendant company, has significant repercussions on the employment relationship between the parties and gives the employer a justified reason for terminating the employment contract, within the meaning of section [107] of the Labour Act. Having regard to the given circumstances, it is precisely this which is a particularly important fact making the continuation of employment impossible ... In this particular case, the depiction by the employee of the employer’s business activities in an extremely negative light in the media is a particularly important fact of the kind which gives the employer a justified reason to terminate the employment contract. The plaintiff’s reliance on her duty to speak publicly is unfounded. In this regard it is to be noted that the plaintiff could only have pursued her intention to prevent abuses and protect the property of the defendant company by turning to the relevant State authorities and lodging a complaint with them, which would have resulted in that information being available to the press and other media, and which could not have served as a reason for her dismissal.” 17. The applicant then lodged a constitutional complaint, alleging, inter alia, a violation of her freedom of expression. In so doing she explicitly relied on Article 38 of the Croatian Constitution and Article 10 of the Convention. 18. On 17 February 2011 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint and served its decision on her representative on 14 March 2011. The relevant part of that decision reads as follows: “The Constitutional Court observes that the complainant justifies her conduct towards the employer (namely, her media statements), on account of which the employer summarily dismissed her, by arguing that she had merely been calling for the supervision of her actions in the company by the relevant authorities. That argument is incorrect [having regard to her statements in] the article published in Novi list of 27 September 2009 ... The Constitutional Court notes that the right ‘of a citizen’ to publicly express his or her personal opinions cannot justify a breach of employment-related rights and obligations stemming from an employment contract and the relevant legislation.” 19. Meanwhile, on 21 June 2002 KD Kostrena had brought a civil action in the Rijeka Municipal Court against the water and sewage utility company (Komunalno društvo Vodovod i kanalizacija d.o.o.) of Rijeka seeking to be declared the owner of the Viktor Lenac parking lot in Kostrena. By a judgment of 3 March 2008 the court dismissed KD Kostrena’s action. The final outcome of those proceedings is unknown. However, an extract from the land register concerning the two plots of land that were the subject of the proceedings suggests that the water and sewage company transferred ownership of the plots to shipbuilding company Viktor Lenac on 13 February 2014. 20. On 12 February 2007 the water and sewage company brought a civil action against KD Kostrena in the same court seeking repayment of the parking fees the defendant company had collected from the Viktor Lenac parking lot. The plaintiff company claimed that KD Kostrena had been charging for parking on land owned by the plaintiff. The final outcome of those proceedings is unknown. 21. In June 2013 the applicant won municipal elections and was elected mayor of Kostrena, replacing M.U. She still holds that position at the time of the Court’s judgment. | 1 |
test | 001-163800 | ENG | RUS | COMMITTEE | 2,016 | CASE OF KALUGINA v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 4. The applicant was born in 1954 and lives in Petrozavodsk, in the Republic of Kareliya. She was a municipal unitary enterprise employee in Petrozavodsk, working for Auto Transport Column 1126 (“Avtokolonna 1126”, hereafter “the company”). 5. Avtokolonna 1126 was set up in accordance with a decision of the administration of the town of Petrozavodsk (“the town administration”), and provided public transport services in the town on a commercial basis. In order to carry out its statutory activities, the company had “the right of economic control” (право хозяйственного ведения) over the assets allocated to it by the town administration (see Liseytseva and Maslov v. Russia, nos. 39483/05 and 40527/10, §§ 55-75, 9 October 2014 for further details on the company’s status). In accordance with several agreements between the company and the town administration, the company undertook to provide certain sections of the population with transport services free of charge, and the town administration was to reimburse it for the expenses incurred out of the budget allocated for that purpose by the Ministry of Finance of the Republic of Kareliya or the federal budget. A letter from the town administration to the applicant dated 19 March 2003 shows that at some point, owing to the relevant budgets lacking funds, the company was owed a significant amount of money. Consequently, it was unable to pay its employees on time. In 2004 the town administration asked the legislative body of the Republic of Kareliya to consider allocating additional funds to cover the company’s debt, but to no avail. 6. On an unspecified date the town administration ordered the restructuring of the company in the form of a spin-off as a new entity, and transferred the assets mentioned in paragraph 5 above to the newly created municipal unitary enterprise “Avtokolonna 1126 Plus”. The debt which had accumulated in respect of the unpaid salaries was not transferred, and remained with the applicant’s employer. On 6 July 2003 the Commercial Court of the Republic of Kareliya declared the debtor company “Avtokolonna 1126” insolvent, and liquidation proceedings were commenced. 7. On 18 May 2004 the Petrozavodsk Town Court awarded the applicant 21,830 Russian roubles (RUB) in respect of salary arrears, default interest and non-pecuniary damage. The judgment became final ten days later. According to a payment note on a writ of execution of 20 July 2006, at some point the company paid the applicant RUB 9,206. The remainder of the judgment debt has remained unpaid. 8. On 10 April 2006 a justice of the peace of the 11th Court Circuit of Petrozavodsk ordered the company to pay the applicant RUB 614 in compensation for non-pecuniary damage. The award became final ten days later, but was not paid to the applicant. 9. On 4 October 2006 the Commercial Court of the Republic of Kareliya ordered the company’s liquidation. Creditors’ claims which had not been satisfied during the liquidation proceedings, including the applicant’s remaining claims, were considered settled. On 15 October 2006 the liquidation was recorded in the Register of Legal Entities, and the company ceased to exist. 10. On 16 March 2005, in subsidiary liability proceedings, the Petrozavodsk Town Court refused to hold the town administration liable for the company’s debts. The court found that the applicant had failed to adduce evidence to demonstrate that it had caused the company’s insolvency. It appears that the judgment was not appealed against. | 1 |
test | 001-178872 | ENG | RUS | COMMITTEE | 2,017 | CASE OF LADYUK 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 | 001-158180 | ENG | ROU | COMMITTEE | 2,015 | CASE OF CURELARIU v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Branko Lubarda;Mārtiņš Mits | 3. The relevant details of the two applications are set out in the appended table. 4. In both applications, the applicant complained of inadequate conditions of detention. | 1 |
test | 001-170058 | ENG | UKR | CHAMBER | 2,017 | CASE OF KEBE AND OTHERS v. UKRAINE | 4 | Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Expulsion) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev | 5. The applicants were born in 1984, 1988 and 1987 respectively. The first applicant currently lives in Odessa. The third applicant left Ukraine for Ethiopia on 23 November 2014. His current whereabouts are unknown. The second applicant died on 6 March 2015. According to the applicants’ representative, the second applicant died of a “natural cause”. No further details were given in this regard. The Court was not informed of anyone wishing to pursue the application on his behalf. 6. The following is a summary of the events that led the applicants to seek asylum outside their countries of origin, as submitted by the applicants. 7. The first applicant is an Orthodox Christian. When he was fifteen years old he was forcibly recruited to the army in Eritrea. After having served for two months he deserted and left for Djibouti. In the meantime, his father went missing after he had been arrested by the Eritrean authorities for having complained about the first applicant’s forcible military service. The first applicant believed that his father had been tortured and murdered by the authorities. 8. The second applicant was a Protestant Christian. Initially, he left Eritrea for Ethiopia together with his family. After the outbreak of armed conflict between Ethiopia and Eritrea, the second applicant’s family moved back to Eritrea, though the second applicant remained in Ethiopia as he feared persecution for his religion and forcible military service in Eritrea. As he could have been expelled by the Ethiopian authorities to Eritrea, the second applicant left for Djibouti in 2007. 9. The first and second applicants stayed in Djibouti illegally for several years. In that country both applicants were repeatedly arrested by the authorities allegedly in connection with the armed conflict between Djibouti and Eritrea in June 2008. 10. The third applicant left Ethiopia for Djibouti in 2005 for unspecified reasons. From 2008 to 2010 he was employed by an Ethiopian transport company operating in Djibouti. The third applicant submitted that as he had been a member of the “Medre[k] political party”, he had been dismissed by his employer after that party had lost the 2010 election in Ethiopia to the “Ehadeg party”. The third applicant’s identity card issued by the Ethiopian authorities was retained by his former employer. Thus the third applicant remained in Djibouti illegally and was at risk of possible deportation by the Djiboutian authorities to his country of origin, Ethiopia, where he risked persecution “as a traitor to the Ehadeg political regime”. 11. The Government did not comment on those submissions. 12. On 18 January 2012, with the intention of seeking asylum in any country other than Djibouti or their countries of origin, the applicants covertly boarded a commercial vessel flying the flag of the Republic of Malta. The vessel was leaving the port of Djibouti and heading for Tuzla, Turkey. 13. The next day the applicants were discovered by the vessel crew. The vessel’s owner and insurer were informed accordingly. 14. When the vessel was passing through the Suez Canal, the insurer tried to arrange with the Egyptian authorities that the applicants could disembark in Egypt, but the authorities refused the request. 15. Following the vessel’s arrival in Tuzla on 3 February 2012 the Turkish authorities and a representative of the Office of the United Nations High Commissioner for Refugees (“the UNHCR”) in Turkey met with the applicants on board the vessel. The applicants were not allowed to disembark. Their allegations of persecution in their home countries written in the Amharic and Tigre languages were passed by the vessel’s insurer to the representative of the UNHCR office in Turkey. 16. On 21 February 2012 the vessel left Tuzla in the direction of the port of Mykolayiv in Ukraine. 17. On 24 February 2012, sometime before the vessel anchored in the port of Mykolayiv, a non-governmental organisation “Faith, Hope, Love”, which at the time was based in Odesa and assisted refugees and asylumseekers under a contract with the UNHCR, contacted the head of the Border Control Service in the Southern Region of Ukraine informing him that there were two nationals of Eritrea and a national of Ethiopia on board the vessel and that, according to the UNHCR, they might require international protection. The organisation requested leave for their lawyer, Z., to meet with the applicants. 18. On 25 February 2012 Ukrainian border guards embarked the vessel and met with the applicants. According to information provided by the Government, the applicants did not submit any requests to the border guards. 19. Later on that day, Z. went to Mykolayiv port to see the applicants. She was allowed to embark the vessel and meet with the applicants. She discussed their situation with them and informed them of the asylum procedures in Ukraine. The discussion was in English in the presence of three border guards and two port security officers. As only the first applicant could speak English, he interpreted the discussion into Amharic, which the other two applicants could understand. 20. According to the applicants, during the discussion they expressed the wish to seek asylum in Ukraine and started filling in asylum applications with the help of one of the border guards who had knowledge of English. That border guard was an official interpreter at the State Border Control Service. However, sometime later the border guards stated that they could not accept the asylum applications from the applicants, as the applicants were on board a vessel flying the flag of a foreign State. Such applications had to be submitted to the vessel’s captain. On the same grounds the border guards refused to allow the applicants to disembark. The border guards asked Z. to leave the vessel. Allegedly, Z. was not given sufficient time and interpretation facilities to provide assistance to the applicants in respect of their asylum claims. 21. According to the Government, during that meeting the applicants did not submit applications for asylum; nor did they express a wish to do so. As the applicants had no identity documents, the head of the border-guard unit decided to refuse them leave to enter Ukraine. No copy of that decision was provided to the Court. The Government submitted copies of reports drawn up by the border guards who had been present at that meeting, which indicated that the meeting had lasted for five hours and that the applicants had stated that they needed time to decide whether they wished to request asylum in Ukraine. Z. left the vessel without raising any complaints. The head of the border-guard unit stated in her report that she had explained to the applicants that “in the circumstances the border guards had not been able to accept asylum applications from them”. 22. On 28 February 2012 the applicants, allegedly having been misled by the vessel’s captain who was acting on the instructions of the Ukrainian border guards, signed type-written statements in English, according to which they had boarded the vessel with the aim of reaching Sweden “in search of better living conditions” and that they did not “need the status of refugee, addition[al] [or] temporary protection in Ukraine”. In a letter he sent to the UNHCR on 6 March 2012, the captain stated that the abovementioned type-written statements had been prepared and brought on board by Ukrainian border guards on 28 February 2012. 23. The Government submitted that the applicants themselves had asked the captain to help them to prepare the above-mentioned type-written statements. The Government relied on the captain’s statements obtained on 3 March 2012 when he had been questioned by the migration authorities. In particular, the captain stated that he and the first applicant had prepared the statements and had given them to the other applicants to sign. 24. On 2 March 2012 Z., acting on the applicants’ behalf, lodged with the Court a request for interim measures to be imposed under Rule 39 of the Rules of Court. She stated that the applicants risked removal to Saudi Arabia, for which the vessel was scheduled to depart on 3 March 2012. In their submissions before the Court, the Government did not contest this statement. Z. further argued that in Saudi Arabia asylum-seekers were granted no form of protection and were exposed to the risk of being repatriated. According to her, there was a real risk that the authorities of Saudi Arabia would forcibly return the applicants to their countries of origin where they would be subjected to ill-treatment. She essentially requested the Court to indicate to the Government of Ukraine that the applicants should be allowed to leave the vessel and should be granted access to a lawyer and to the asylum procedure. 25. On the same day the Court granted the request. 26. On 3 March 2012 the border guards accompanied by an officer from the State Migration Service embarked the vessel and met with the applicants. According to the Government, it was during that meeting that the applicants requested asylum in Ukraine. They were allowed to disembark and to cross the State border. 27. On 16 March 2012 the applicants were questioned by the migration authorities concerning their asylum applications. According to the applicants, during the questioning they were not provided with adequate translation or any explanation of the relevant regulations. Nor were they provided with legal assistance. 28. The parties have not informed the Court about the outcome of the applicants’ asylum applications lodged in March 2012; nor have they provided any further details as regards their examination by the migration authorities. 29. It appears from their submissions that in 2014 the applicants lodged new asylum applications with the authorities. 30. On 19 August 2014 the Odesa Regional Department of the Migration Service (the “ORDMS”) rejected the third applicant’s asylum application, finding that it was manifestly ill-founded. The third applicant did not challenge that decision on appeal. On 23 November 2014 he decided to leave Ukraine for Ethiopia. The UNHCR helped him to organise the travel arrangements. The applicants’ representative did not provide any further information as regards the third applicant, as since the third applicant’s departure from Ukraine the representative has lost contact with him. 31. On 9 December 2014 the ORDMS refused the second applicant’s application, finding that his submissions were contradictory and did not concern a situation in which refugee status or complementary protection could be granted. He appealed to the Odesa Administrative Court. The proceedings were eventually terminated as the second applicant died on 6 March 2015. 32. On 12 August 2015 the ORDMS refused the first applicant’s application, principally for the same reasons as in the case of the second applicant. The first applicant appealed to the Odesa Administrative Court, which has not yet decided on the matter. | 1 |
test | 001-177082 | ENG | ROU | GRANDCHAMBER | 2,017 | CASE OF BĂRBULESCU v. ROMANIA | 1 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;André Potocki;Angelika Nußberger;Armen Harutyunyan;Dmitry Dedov;Egidijus Kūris;Guido Raimondi;Iulia Motoc;Jon Fridrik Kjølbro;Ledi Bianku;Luis López Guerra;Marko Bošnjak;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Nebojša Vučinić;Nona Tsotsoria;Paul Lemmens;Paulo Pinto De Albuquerque;Stéphanie Mourou-Vikström;Vincent A. De Gaetano;Georges Ravarani | 10. The applicant was born in 1979 and lives in Bucharest. 11. From 1 August 2004 to 6 August 2007 he was employed in the Bucharest office of S., a Romanian private company (“the employer”), as a sales engineer. At his employer’s request, for the purpose of responding to customers’ enquiries, he created an instant messaging account using Yahoo Messenger, an online chat service offering real-time text transmission over the internet. He already had another personal Yahoo Messenger account. 12. The employer’s internal regulations prohibited the use of company resources by employees in the following terms: “Any disturbance of order and discipline on company premises shall be strictly forbidden, in particular: ... – ... personal use of computers, photocopiers, telephones or telex or fax machines.” 13. The regulations did not contain any reference to the possibility for the employer to monitor employees’ communications. 14. It appears from documents submitted by the Government that the applicant had been informed of the employer’s internal regulations and had signed a copy of them on 20 December 2006 after acquainting himself with their contents. 15. On 3 July 2007 the Bucharest office received and circulated among all its employees an information notice that had been drawn up and sent by the Cluj head office on 26 June 2007. The employer asked employees to acquaint themselves with the notice and to sign a copy of it. The relevant parts of the notice read as follows: “1. ... Time spent in the company must be quality time for everyone! Come to work to deal with company and professional matters, and not your own personal problems! Don’t spend your time using the internet, the phone or the fax machine for matters unconnected to work or your duties. This is what [elementary education], common sense and the law dictate! The employer has a duty to supervise and monitor employees’ work and to take punitive measures against anyone at fault! Your misconduct will be carefully monitored and punished! 2. Because of repeated [disciplinary] offences vis-à-vis her superior, [as well as] her private use of the internet, the telephone and the photocopier, her negligence and her failure to perform her duties, Ms B.A. was dismissed on disciplinary grounds! Take a lesson from her bad example! Don’t make the same mistakes! 3. Have a careful read of the collective labour agreement, the company’s internal regulations, your job description and the employment contract you have signed! These are the basis of our collaboration! Between employer and employee! ...” 16. It also appears from the documents submitted by the Government, including the employer’s attendance register, that the applicant acquainted himself with the notice and signed it between 3 and 13 July 2007. 17. In addition, it transpires that from 5 to 13 July 2007 the employer recorded the applicant’s Yahoo Messenger communications in real time. 18. On 13 July 2007 at 4.30 p.m. the applicant was summoned by his employer to give an explanation. In the relevant notice he was informed that his Yahoo Messenger communications had been monitored and that there was evidence that he had used the internet for personal purposes, in breach of the internal regulations. Charts were attached indicating that his internet activity was greater than that of his colleagues. At that stage, he was not informed whether the monitoring of his communications had also concerned their content. The notice was worded as follows: “Please explain why you are using company resources (internet connection, Messenger) for personal purposes during working hours, as shown by the attached charts.” 19. On the same day, the applicant informed the employer in writing that he had used Yahoo Messenger for work-related purposes only. 20. At 5.20 p.m. the employer again summoned him to give an explanation in a notice worded as follows: “Please explain why the entire correspondence you exchanged between 5 to 12 July 2007 using the S. Bucharest [internet] site ID had a private purpose, as shown by the attached forty-five pages.” 21. The forty-five pages mentioned in the notice consisted of a transcript of the messages which the applicant had exchanged with his brother and his fiancée during the period when he had been monitored; the messages related to personal matters and some were of an intimate nature. The transcript also included five messages that the applicant had exchanged with his fiancée using his personal Yahoo Messenger account; these messages did not contain any intimate information. 22. Also on 13 July, the applicant informed the employer in writing that in his view it had committed a criminal offence, namely breaching the secrecy of correspondence. 23. On 1 August 2007 the employer terminated the applicant’s contract of employment. 24. The applicant challenged his dismissal in an application to the Bucharest County Court (“the County Court”). He asked the court, firstly, to set aside the dismissal; secondly, to order his employer to pay him the amounts he was owed in respect of wages and any other entitlements and to reinstate him in his post; and thirdly, to order the employer to pay him 100,000 Romanian lei (approximately 30,000 euros) in damages for the harm resulting from the manner of his dismissal, and to reimburse his costs and expenses. 25. As to the merits, relying on Copland v. the United Kingdom (no. 62617/00, §§ 43-44, ECHR 2007I), he argued that an employee’s telephone and email communications from the workplace were covered by the notions of “private life” and “correspondence” and were therefore protected by Article 8 of the Convention. He also submitted that the decision to dismiss him was unlawful and that by monitoring his communications and accessing their contents his employer had infringed criminal law. 26. With regard specifically to the harm he claimed to have suffered, the applicant noted the manner of his dismissal and alleged that he had been subjected to harassment by his employer through the monitoring of his communications and the disclosure of their contents “to colleagues who were involved in one way or another in the dismissal procedure”. 27. The applicant submitted evidence including a full copy of the transcript of his Yahoo Messenger communications and a copy of the information notice (see paragraph 15 above). 28. In a judgment of 7 December 2007 the County Court rejected the applicant’s application and confirmed that his dismissal had been lawful. The relevant parts of the judgment read as follows: “The procedure for conducting a disciplinary investigation is expressly regulated by the provisions of Article 267 of the Labour Code. In the instant case it has been shown, through the written documents included in the file, that the employer conducted the disciplinary investigation in respect of the applicant by twice summoning him in writing to explain himself [and] specifying the subject, date, time and place of the interview, and that the applicant had the opportunity to submit arguments in his defence regarding his alleged acts, as is clear from the two explanatory notices included in the file (see copies on sheets 89 and 91). The court takes the view that the monitoring of the internet conversations in which the employee took part using the Yahoo Messenger software on the company’s computer during working hours – regardless of whether or not the employer’s actions were illegal in terms of criminal law – cannot undermine the validity of the disciplinary proceedings in the instant case. The fact that the provisions containing the requirement to interview the suspect (învinuitul) in a case of alleged misconduct and to examine the arguments submitted in that person’s defence prior to the decision on a sanction are couched in imperative terms highlights the legislature’s intention to make respect for the rights of the defence a prerequisite for the validity of the decision on the sanction. In the present case, since the employee maintained during the disciplinary investigation that he had not used Yahoo Messenger for personal purposes but in order to advise customers on the products being sold by his employer, the court takes the view that an inspection of the content of the [applicant’s] conversations was the only way in which the employer could ascertain the validity of his arguments. The employer’s right to monitor (monitoriza) employees in the workplace, [particularly] as regards their use of company computers, forms part of the broader right, governed by the provisions of Article 40 (d) of the Labour Code, to supervise how employees perform their professional tasks. Given that it has been shown that the employees’ attention had been drawn to the fact that, shortly before the applicant’s disciplinary sanction, another employee had been dismissed for using the internet, the telephone and the photocopier for personal purposes, and that the employees had been warned that their activities were being monitored (see notice no. 2316 of 3 July 2007, which the applicant had signed [after] acquainting himself with it – see copy on sheet 64), the employer cannot be accused of showing a lack of transparency and of failing to give its employees a clear warning that it was monitoring their computer use. Internet access in the workplace is above all a tool made available to employees by the employer for professional use, and the employer indisputably has the power, by virtue of its right to supervise its employees’ activities, to monitor personal internet use. Such checks by the employer are made necessary by, for example, the risk that through their internet use, employees might damage the company’s IT systems, carry out illegal activities in cyberspace for which the company could incur liability, or disclose the company’s trade secrets. The court considers that the acts committed by the applicant constitute a disciplinary offence within the meaning of Article 263 § 2 of the Labour Code since they amount to a culpable breach of the provisions of Article 50 of S.’s internal regulations ..., which prohibit the use of computers for personal purposes. The aforementioned acts are deemed by the internal regulations to constitute serious misconduct, the penalty for which, in accordance with Article 73 of the same internal regulations, [is] termination of the contract of employment on disciplinary grounds. Having regard to the factual and legal arguments set out above, the court considers that the decision complained of is well-founded and lawful, and dismisses the application as unfounded.” 29. The applicant appealed to the Bucharest Court of Appeal (“the Court of Appeal”). He repeated the arguments he had submitted before the first-instance court and contended in addition that that court had not struck a fair balance between the interests at stake, unjustly prioritising the employer’s interest in enjoying discretion to control its employees’ time and resources. He further argued that neither the internal regulations nor the information notice had contained any indication that the employer could monitor employees’ communications. 30. The Court of Appeal dismissed the applicant’s appeal in a judgment of 17 June 2008, the relevant parts of which read: “The first-instance court has rightly concluded that the internet is a tool made available to employees by the employer for professional use, and that the employer is entitled to set rules for the use of this tool, by laying down prohibitions and provisions which employees must observe when using the internet in the workplace; it is clear that personal use may be refused, and the employees in the present case were duly informed of this in a notice issued on 26 June 2007 in accordance with the provisions of the internal regulations, in which they were instructed to observe working hours, to be present at the workplace [during those hours and] to make effective use of working time. In conclusion, an employer who has made an investment is entitled, in exercising the rights enshrined in Article 40 § 1 of the Labour Code, to monitor internet use in the workplace, and an employee who breaches the employer’s rules on personal internet use is committing a disciplinary offence that may give rise to a sanction, including the most serious one. There is undoubtedly a conflict between the employer’s right to engage in monitoring and the employees’ right to protection of their privacy. This conflict has been settled at European Union level through the adoption of Directive no. 95/46/EC, which has laid down a number of principles governing the monitoring of internet and email use in the workplace, including the following in particular. - Principle of necessity: monitoring must be necessary to achieve a certain aim. - Principle of purpose specification: data must be collected for specified, explicit and legitimate purposes. - Principle of transparency: the employer must provide employees with full information about monitoring operations. - Principle of legitimacy: data-processing operations may only take place for a legitimate purpose. - Principle of proportionality: personal data being monitored must be relevant and adequate in relation to the specified purpose. - Principle of security: the employer is required to take all possible security measures to ensure that the data collected are not accessible to third parties. In view of the fact that the employer has the right and the duty to ensure the smooth running of the company and, to that end, [is entitled] to supervise how its employees perform their professional tasks, and the fact [that it] enjoys disciplinary powers which it may legitimately use and which [authorised it in the present case] to monitor and transcribe the communications on Yahoo Messenger which the employee denied having exchanged for personal purposes, after he and his colleagues had been warned that company resources should not be used for such purposes, it cannot be maintained that this legitimate aim could have been achieved by any other means than by breaching the secrecy of his correspondence, or that a fair balance was not struck between the need to protect [the employee’s] privacy and the employer’s right to supervise the operation of its business. ... Accordingly, having regard to the considerations set out above, the court finds that the decision of the first-instance court is lawful and well-founded and that the appeal is unfounded; it must therefore be dismissed, in accordance with the provisions of Article 312 § 1 of the C[ode of] Civ[il] Pr[ocedure].” 31. In the meantime, on 18 September 2007 the applicant had lodged a criminal complaint against the statutory representatives of S., alleging a breach of the secrecy of correspondence. On 9 May 2012 the Directorate for Investigating Organised Crime and Terrorism (DIICOT) of the prosecutor’s office attached to the Supreme Court of Cassation and Justice ruled that there was no case to answer, on the grounds that the company was the owner of the computer system and the internet connection and could therefore monitor its employees’ internet activity and use the information stored on the server, and in view of the prohibition on personal use of the IT systems, as a result of which the monitoring had been foreseeable. The applicant did not avail himself of the opportunity provided for by the applicable procedural rules to challenge the prosecuting authorities’ decision in the domestic courts. | 1 |
test | 001-181585 | ENG | GBR | CHAMBER | 2,018 | CASE OF IRELAND v. THE UNITED KINGDOM | 1 | Revision rejected (Art. 35) Admissibility criteria | Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Paul Mahoney;Síofra O’Leary | The cases of T.13 and T.6. General remarks The applicant Government have submitted the cases of eight persons in which the use of the five techniques and sometimes also other forms of ill-treatment were alleged. The Commission has examined the illustrative cases of T.13 and T.6. The allegations in regard to T.6 concern both the five techniques and other forms of alleged ill-treatment, whereas the allegations in regard to T.13 concern the five techniques only. Both cases were among the eleven cases investigated by the Compton Committee. However, neither T.13 nor T.6 had given evidence before that Committee, which based its findings on the oral evidence of the persons who supervised the operations at the centre and of the medical officer who was stationed there, as well as on various medical records, colour photographs and the feeding record (cf. Compton Report, paras. 54 and 55, at p. 14). The Delegates of the Commission heard both case witnesses who gave their evidence in detail and were also cross-examined by the respondent Government. They had before them extracts from the medical officer’s journal at Crumlin Road Prison, the medical examination records on arrival and on departure from the interrogation centre and colour photographs of T.6 as well as various reports by psychiatrists who also gave oral evidence. However, the Delegates were not able to hear oral evidence from members of the security forces in relation to the allegations concerning the interrogation centre. In the first place no witnesses who had been present at that centre were made available. Secondly, the respondent Government stated at the hearing of witnesses at Sola in January 1975 that all of their witnesses had now been instructed not to reply to any questions regarding the five techniques and their use on the ground that the use of these techniques had been discontinued and that there were security considerations involved. This ‘embargo’ on the evidence also related to matters connected with a ‘seminar’ held in Northern Ireland in April 1971 by the English Intelligence Centre for members of the RUC [Royal Ulster Constabulary], where the use of the techniques was taught orally (cf. Parker Report, Minority Report, para. 6 at p. 12; also Witness 13G at VR 6, pp. 190 et seq.). The Commission does not consider it necessary to pursue this matter any further. It is satisfied that the five methods in aid of interrogation which, as a matter of public record, were used in emergency situations at various other places before they were used in Northern Ireland in 1971 (see Parker Report, Majority Report, para. 10 at p. 3 [..]) were applied to the two case witnesses in the present case. It is further satisfied that a ‘seminar’ as described was held in April 1971 by the English Intelligence Centre. Course of events The evidence before the Commission bears out the allegations made by the case witnesses and confirms the findings of the Compton Committee as regards the course of the events for the persons subjected to the five techniques. T.13 and T.6 were, together with others, arrested in the early morning hours of 9 August 1971 and brought to Magilligan Camp, being one of the three Regional Holding Centres set up to receive arrested persons. They were held there for two days and, having been selected for special interrogation were brought, on 11 August 1971, to the unknown interrogation centre. On arrival at the centre they were medically examined and at one stage they were taken by helicopter to another place where they were served with a detention order. They were taken back to the centre where they were interrogated in depth being subjected to the five techniques in the following way: a. Wall-standing – the witnesses demonstrated how they were spreadeagled against the wall, with their fingers put high above the head against the wall, the legs spread apart and the feet back, causing them to stand on their toes with the weight of the body mainly on the fingers (the stress position). They were forced to remain in this position. The exact length of time during which the witnesses were required to stand could not be established. Both witnesses said that they lost their sense of time but that it must have been many hours. The Compton Committee while describing the position as being a different one, found that T.13 had been against the wall during periods totalling 23 hours, and T.6 29 hours. b. Hooding – a black or navy coloured bag was put over the witnesses’ heads. Initially it was kept there all the time, except during interrogations, but later T.13 was allowed to take it off when he was alone in the room, provided that he turned his face to the wall. c. Noise – pending interrogations the witnesses were held in a room where there was a continuous loud and hissing noise. d. Sleep – pending interrogations the witnesses were deprived of sleep, but it was not possible to establish for what periods each witness had been without sleep. e. Food and drink – the witnesses were subjected to a reduced diet during their stay at the centre and pending interrogations. It was not possible to establish to what extent they were deprived of nourishment and whether or not they were offered food and drink but refused to take it. The witnesses were at the centre from 11 to 17 August 1971, when they were transferred to Crumlin Road Prison in accordance with the detention order. In 1971 T.13 and T.6 instituted domestic proceedings to recover damages for wrongful imprisonment and for assault and their claims were settled in 1973 and 1975 respectively for £ 15,000 and £ 14,000. Physical and mental effects resulting from the use of the techniques (i) Physical effects The Commission is satisfied from the evidence given that the witnesses suffered loss of weight resulting from their detention at the unknown interrogation centre and from the use of the five techniques. It is furthermore established that, particularly the wallstanding technique, caused physical pain while it was being applied, but that the pain ceased when the person was no longer in that position. (ii) Mental effects The witnesses themselves described feelings of anxiety and fear, as well as disorientation and isolation during the time they were subjected to the techniques and afterwards. However, the intensity of such sensations was different in respect of T.13 than in respect of T.6, as a result of differences in their personality. Consequently, T.13 had been more strongly affected by the application of the techniques than T.6. On the other hand, the psychiatrists disagreed considerably on the after-effects of the treatment and on the prognosis for recovery. Professors Daly and Bastiaans considered that both witnesses would continue for a long time to have considerable disability shown by bouts of depression, insomnia and a generally neurotic condition resembling that found in victims of Nazi persecution. Drs. 5 and 1 considered that the acute psychiatric symptoms developed by the witnesses during the interrogation had been minor and that their persistence was the result of everyday life in Northern Ireland for an ex-detainee carrying out his work travelling to different localities. In no sense could the witnesses’ experiences be compared with those of the victims of Nazi persecution. On the basis of this evidence the Commission is unable to establish the exact degree of the psychiatric after-effects which the use of the five techniques might have had on these witnesses or generally on persons subjected to them. It is satisfied, however, that, depending on the personality of the person concerned, the circumstances in which he finds himself, and the conditions of everyday life in Northern Ireland at the relevant time, some after-effects resulting from the application of the techniques cannot be excluded. Findings of the Commission The five techniques in aid of interrogation were used in August 1971 on T.13 and T.6. They were applied prior to, between and during interrogations, but not after interrogation was terminated. This means that the persons concerned were subject to the techniques during at least four, possibly five, days. The exact times could not be established. The Commission is satisfied the total periods during which the two witnesses were at the wall, [were] 23 and 29 hours respectively. A certain degree of force was used to make the detainees stand at the wall in the required posture which caused physical pain and exhaustion. The posture required was a stress position and not a normal position required to search a person, although it cannot be considered to be proved that the enforced stress position lasted all the time they were at the wall. No physical injury resulted from the application of the techniques as such, but it caused mentally a number of acute psychiatric symptoms. It cannot be excluded that in certain persons some of these symptoms continue to exist for some time afterwards. The damages granted to them under settlements in court are substantial sums and, although it is not possible in any settlement to say what part was paid with a view to what claim, it may be presumed that the greater part of the sum was awarded in view of the allegations of ill-treatment including the application of the five techniques, having regard to sums normally awarded by courts for claims of assault as compared with sums normally granted for claims of wrongful imprisonment. | 0 |
test | 001-179867 | ENG | ALB | CHAMBER | 2,018 | CASE OF SHARXHI AND OTHERS v. ALBANIA | 3 | Preliminary objections joined to merits and dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-1) Effective domestic remedy;Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6-1 - Access to court;Fair hearing;Article 6 - Administrative proceedings;Right to a fair trial);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court;Fair hearing);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-2 - Interference;In accordance with the law;Article 8-1 - Respect for home;Article 8 - Right to respect for private and family life);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Prescribed by law;Interference;Article 1 of Protocol No. 1 - Protection of property);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Interference;Article 1 of Protocol No. 1 - Protection of property);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo | 6. On 11 November 2009 two of the applicants, Xhuvi Sharxhi (“the first applicant”) and Xhafer Isufi (“the second applicant”), purchased a plot of land measuring 1,663 square metres from several individuals whose property was recognised and returned in 1995 by a decision of the Commission on Property Restitution and Compensation. The land is situated on the coastline of the city of Vlora in the so-called area of Uji i Ftohtë - Tuneli. 7. On an unspecified date the first and second applicants entered into an agreement with a company for the construction of a five-storey residential and service building, with a penthouse floor and an underground floor containing shops (hereinafter “the Jon Residence” or “the building”) on the above-mentioned plot of land. 8. On 17 August 2010 the Vlora Municipal Council for Territorial Planning (Këshilli i Rregullimit të Territorit të Bashkisë Vlorë – “the CTP”) issued a building permit to the company and the first and second applicants. The remaining applicants entered into purchase agreements in respect of the flats to be constructed on the plot of land. The first and second applicants, by virtue of their ownership of the plot of land, were to be owners of some of the flats and shops in the Jon Residence. On 27 December 2012 the building was registered with the Immovable Property Registration Office (“the IPRO”). 9. Upon completion of the construction works in September 2012, it appears that the majority of the flats and shops were furnished, the owners moved into their respective flats, and a pool bar/pizzeria was opened. The adjacent stretch of beach was opened for public use. 10. It appears from a letter from the Ombudsman dated 13 November 2013 (see paragraph 24 below) that on 30 October 2013 the National Construction and Urban Planning Inspectorate (Inspektoriati Ndërtimor dhe Urbanistik Kombëtar – “the NUCI”) requested support from the Vlora district police for the demolition of illegal constructions along the Vlora coastline, to be carried out the same day. Further demolition work was to continue the next day on other parts of the Vlora coastline. 11. On 3 November 2013, without prior notice, officials of the NUCI and the Vlora Construction and Urban Planning Inspectorate (Inspektoriati Ndërtimor dhe Urbanistik Vlorë – “the MUCI”), supported by the State Police, surrounded the Jon Residence and cordoned it off with yellow police tape marked “Crime scene – no entry” (Skenë krimi, nuk lejohet kalimi). According to the evidence submitted by the applicants, which were widely published in the media, the residents of the building were told that the authorities were seizing the building. They were prevented from entering their flats and retrieving their valuables. The applicants only learned of the situation through the media or by telephone from the building’s security guards. They were told that the authorities were examining the legality of the building permit and other relevant documents. It appears from the documents submitted that the building was guarded by armed police officers, who were positioned in such a way as to prevent the residents of the building (including some of the applicants) from entering. Furthermore, when one of the residents asked one of the State employees to provide identification or another official document to justify the authorities’ interference with their property rights, the State employee declared that they were not obliged to give any information because they were an official body. 12. On an unspecified date the NUCI prepared an information report concerning the inspection they had carried out at the Jon Residence on 3 November 2013. According to the report, neither had the members of the CTP, the employees of the Vlora Urban Planning Department nor the inspectors of the MUCI had at no stage carried out the necessary building and planning inspections of the site. With their continuous actions and omissions they had allowed irregularities and unlawfulness throughout the whole period from the very moment the relevant permits had been approved in clear breach of the law, as well as throughout the construction and project implementation process. 13. On 20 November 2013, according to the evidence submitted by the applicants, the then Deputy Minister of Transport and Infrastructure, in an television interview for national TV Top Channel given in relation to the Jon Residence, stated: “...The State is entitled to have the land back in its previous state. The demolition of the building is an indisputable consequence. The land should be cleared. If this means that the building should be demolished, then demolition should take place. The demolition is not a purpose per se. It is the result of a series of unlawful acts, a series of flagrant violations of Albanian law...The Immovable Property Registration Office has been involved in this illegality (futet në këtë valle të paligjshmërisë); then there is Vlora Municipal Council, which – in contravention of the urban plan and in respect of land which does not exist – issued a building permit. The Immovable Property Registration Office has registered a building that has zero – nil – value (ndërtim me vlerë zero, nul). There is a 3,000-square-metre construction on a plot of land that only measures 600 square metres ... it’s like a stage set for a show put on by corrupt authorities. We have reached this point in flagrant violation of the law ... Everyone could have been a victim as a result of this series of illegalities. Those that have bought flats in this building are victims. These people cannot be treated the same as those who have flagrantly violated the law. The Government should approve a fund for the full compensation of the people who have bought flats in this building ...” 14. On 28 November 2013, according to the evidence submitted by the applicants, the Prime Minister publicly declared that the Government intended to realise a project for the construction of Lungomare, a seaside promenade in Vlora, with a view to completion by the summer of 2015. He also declared that the Government would put out a tender for the design of the project. 15. The Jon Residence was demolished with explosives between 4 December 2013 and 8 December 2013. 16. On 4 November 2013 eleven residents, including nine of the applicants (E. Durolli, A. Deromemaj, V. Kacorri, P. Rakipaj, G. Calliku, V. Calliku, B. Rakipaj, Xh. Sharxhi and E. Ballanca) lodged a claim with the Vlora Administrative District Court (“the District Court”) against the NUCI and MUCI, requesting an “acknowledgment of the unlawfulness of the administrative actions carried out on 3 November 2013, which had resulted in a violation of their property rights, and the obligation of administrative authorities, the NUCI and MUCI to refrain from taking any further administrative action, necessary for the protection of the applicants’ property rights” (konstatimi i paligjshmërisë së veprimit administrativ të kryer nga pala e paditur i datës 3 Nëntor 2013, që kanë sjellë cënimin e të drejtave të pronësisë së paditësave; detyrimi i organit administrativ INUK dhe INUV Vlorë për të ndaluar kryerjen e një veprimi tjetër administrativ, të nevojshëm për mbrojtjen e të drejtave të paditësave). 17. It appears from the District Court’s decision dated 7 November 2013 (see paragraph 19 below) that during the proceedings the applicants argued that the actions taken by the NUCI and MUCI had been arbitrary because the construction had been lawful and in accordance with urban planning regulations. They claimed that police officers and representatives of the MUCI and NUCI had refused to allow them to enter the building by surrounding the building with crime scene tape. The cordoning off of the building had been done with a view to its demolition because the authorities had already proceeded in the same manner with other buildings, a fact which made it ever more apparent that there was a risk of adverse consequences for the applicants. The actions taken, namely the surrounding of the building with a view to its demolition without conducting a detailed analysis of whether the documentation was unlawful, and without the situation being examined by a court, had resulted in an extreme interference with the applicants’ property rights. 18. During those proceedings the applicants further requested the District Court to issue an interim order for the necessary measures to stay the implementation of the above-mentioned administrative action and for the removal of the obstacles which had made the seizure of the building possible and had made it impossible for them to use their properties, as well as a stay of all administrative decisions already issued or which were in the process of being issued related to the demolition of a lawful construction. 19. On 7 November 2013 the District Court, under Articles 202 et seq. of the Code of Civil Procedure (“CCP”) and Articles 28, 29 and 30 of the Administrative Disputes Act (see “Relevant domestic law and practice” below), in its operative provisions ordered: “the issuance of an interim order staying the administrative actions of any public authority that can interfere with the peaceful enjoyment by the applicants of their respective properties...the interim order is to remain in place until a decision is given on the merits, provided that the applicants themselves institute proceedings on the merits within ten days of the interim order to challenge the administrative actions or any administrative decision that will be adopted in respect of their properties”. The decision, in so far as relevant, is reasoned as follows: “...it is proved that the applicants – owners of the flats in the Jon Residence have not been allowed to enter their respective properties, thus impeding them in the exercise of their property rights to a property which they have acquired legally in accordance with domestic law...the court considers that the request for the interim order should be accepted because the applicants submitted evidence which proves...that in the event that a civil claim on the merits is allowed, the execution of that decision would be difficult or impossible, thus creating a situation where the legal interest or subjective right recognised by a final judicial decision remains ineffective ... in the present case the interim order requested by the applicants represents their right to access the court with the purpose of prohibiting any further action by the administrative authority...in this way protecting their fundamental constitutional and legal rights until the examination of the merits of their claims...the court considers that the NUCI and MUCI have not documented their administrative decision in the form required by law...under administrative law this [undocumented administrative action] is also considered an administrative decision...this does not affect the actual consequences of the execution of the decision, consequences which may bring about irreparable damage to the legal interest and subjective rights of the applicants...The District Court considers that it is the duty of the administrative authority to issue an administrative decision in the written form required by law, in this way there is compliance with the principle of good governance of the public administration authorities as well as effective compliance with the rights of the party against which the administrative decision has been issued, so that that party is able to institute judicial proceedings and always in respect of the principle of the right to a fair trial...the principle of proportionality during the administrative procedure followed by the authorities in the present case is similar to the constitutional principles of proportionality examined above, which essentially aim to strike a balance between the purpose to be achieved through the administrative act and the means to be used, without disregarding fundamental freedoms and rights and the achievement of legal public interests...” 20. On an unspecified date the applicants’ representative submitted a request to the NUCI, informing it of the interim order of 7 November 2013. He stressed the fact that under Article 210 of the CCP an interim order was an executable decision, even in the event of an appeal against it. He urged the authorities to take the necessary measures for the immediate enforcement of the interim order. It appears that no reply was given. 21. On 11 November 2013 the NUCI lodged an appeal against the interim order of 7 November 2013. 22. On 20 January 2014 the Administrative Court of Appeal terminated the proceedings concerning the interim measure on the grounds that the subject matter of the proceedings had ceased to exist, as the Jon Residence had already been demolished in December 2013 (see paragraph 15 above). The decision, in so far as relevant, reads as follows: “...it was already ...a well-known public fact that the Jon Residence had been demolished, in relation to which the District Court had decided to stay the administrative actions of any State authority with the aim of the peaceful enjoyment of the property by the applicants until the final solution of the dispute ... The outcome which the interim order was trying to stay, has now occurred...” 23. It appears that on an unspecified date one of the applicants complained to the Ombudsman (Avokati i Popullit) about the authorities’ interference with her entering her flat and other residents entering their flats (see also paragraph 24 below). She complained that the authorities had arbitrarily cordoned off the building using yellow police “crime scene” tape. 24. On 13 November 2013, in reply to the applicant’s complaints and to other residents’ complaints appearing in the media, the Ombudsman sent an official letter to the chief of Vlora police station (Komisariati i Policisë), the head of Vlora district police (Policia e Qarkut), and for information to the Director General of the State Police (Policia e Shtetit), recommending that they take all appropriate measures to stop the unlawful actions that had resulted in a violation of the Jon Residence residents’ property rights. The Ombudsman stated that the NUCI had seized the building without any formal act. The cordoning off of the building preventing the applicants from enjoying their properties was unlawful and had consequently resulted in a violation of their legal interests. Moreover, the use of yellow police “crime scene” tape was not appropriate since the events in the present case did not involve a crime scene. He further suggested that it was necessary to examine the case and undertake organisational measures aimed at ensuring that such actions were not repeated in the future. 25. On an unspecified date, but within ten days from the interim order, eleven residents, including nine of the applicants (E. Durolli, A. Deromemaj, V. Kacorri, P. Rakipaj, G. Calliku, V. Calliku, B. Rakipaj, Xh. Sharxhi and E. Ballanca), lodged a claim on the merits with the District Court. It appears from the District Court’s decision of 28 January 2014 (see paragraph 26 below) that the object of the claim was the same as that lodged on 4 November 2013 (see paragraph 16 above). 26. On 28 January 2014 the District Court declared that the actions carried out by the MUCI and NUCI on 3 November 2013 had been arbitrary and in flagrant breach of the Albanian Constitution and the law. The decision in so far as relevant reads as follows: “...[the] MUCI and [the] NUCI abusively and without any administrative decision to justify their illegal actions took arbitrary action with the aim of demolishing a property which had been acquired in accordance with the law. The NUCI had no legal reason to take this administrative action, and therefore its actions were totally illegal...the administrative action for the demolition of the construction as duly authorised by the competent authorities without first analysing in detail the illegality of the actions and without an assessment of the situation by an independent court of law, was within the limits of extreme illegality...The authorities unilaterally and without a full and comprehensive administrative investigation surrounded the building... The authorities with their arbitrary actions gravely violated the principle of legal certainty, according to which no one should suffer an interference with their rights obtained by law and has the expectation that no State authority will take any administrative decision or action by which the rights obtained by law could later be violated as a consequence of the State authorities’ actions...” The District Court accordingly allowed the claim. The applicants, however, withdrew their request for the authorities to be prohibited from taking any further action, which had become devoid of purpose, since the Jon Residence had in the meantime been demolished by the authorities. The District Court therefore discontinued the examination of this part of the claim. 27. On 6 May 2016, following an appeal by the authorities, the Administrative Court of Appeal upheld the District Court’s decision of 28 January 2014. It appears from the decision that the applicants argued that the MUCI and NUCI had abusively and without any administrative decision to justify their illegal actions taken arbitrary action with a view to demolishing a lawful property. The Administrative Court of Appeal reasoned that the cordoning off of the building and prevention of the applicants from entering it had been arbitrary, not in accordance with the law and in breach of their property rights. It further noted that the NUCI were obliged to compensate the applicants for their illegal actions under the Non-Contractual Liability of the State Act (see “Relevant domestic law and practice” below) and Article 608 of the Civil Code. Only after the actions taken by the authorities were declared unlawful were the applicants entitled to bring a claim for damages under section 14 of the Inspection of Buildings Act (see “Relevant domestic law and practice” below). However, it did not decide this issue as it had not been part of the claim. It appears that the proceedings are pending before the Supreme Court. 28. On 8 October 2013 the National Council for Territorial Planning (Këshilli Kombëtar për Rregullimin e Territorit – “the NCTP”) adopted a decision on emergency measures to be undertaken for the protection and rehabilitation of the environment in some areas of national importance, as well as a procedure for the preparation of an integrated sectoral plan concerning stretches of coastline. The decision stated that stretches of coastline were areas of national importance where measures of an emergency nature were to be undertaken with a view to protecting and rehabilitating the territory and environment. Furthermore, it was decided that the granting of new development building permits for individual buildings on stretches of coastline and in other areas of national importance would be suspended pending the preparation of the integrated sectoral plan. 29. On 27 November 2013 the Council of Ministers issued a decision, which came into effect immediately, ordering the expropriation in the public interest of immovable private properties affected by the environmental rehabilitation of Uji i Ftohtë – Tuneli, a protected stretch of coastline in the Vlora Municipality. The expropriation was made in favour of Vlora Municipality within thirty days of the decision. The total compensation awarded was 462,919,230 Albanian Leks (ALL) (approximately 3,456,600 euros (EUR)) in respect of the construction measuring 8,121.39 square metres in total, to be divided among the owners. The decision was taken under the Expropriation Act and on the basis of two decisions of the NCTP – the above-mentioned decision of 8 October 2013 (see paragraph 28 above) and an earlier decision of 23 June 2004 on the approval of the Vlora city centre plan. According to the decision, after the expropriation the legal owners of the property would be compensated (by the authorities) on presentation of their property title documents. The deadline for the termination of the expropriation procedure was set for 28 December 2013. 30. The decision was published in the Official Gazette on 3 December 2013. It appears that the applicants only learned of the decision that day, when the press spokesman for the Minister of Home Affairs announced that the Jon Residence was to be demolished – a process that was to start the following day (4 December 2013). 31. On 2 December 2013 the mayor of Vlora requested the assistance of the NUCI with the demolition of the Jon Residence in accordance with the decision of 27 November 2013. On the same day the NUCI requested the assistance of Vlora police station with the demolition, which was planned to start at 8 a.m. the next morning. The entire building was demolished between 4 December 2013 and 8 December 2013 (see also paragraph 15 above). 32. On 29 January 2014 the IPRO, in response to a letter sent by one of the applicants asking for a copy of her certificate of ownership, said that since the building had been demolished, it was unable to issue a certificate of ownership in respect of a property that no longer existed. 33. On 9 April 2014 the Council of Ministers issued another decision, “On some amendments to the Council of Ministers’ decision of 27 November 2013”, amending its previous decision of 27 November 2013 to the effect that it awarded the applicants a total of ALL 441,168,600 in compensation in respect of a plot of land measuring 7,739.80 square metres. The deadline for the termination of the expropriation procedure was set for 30 April 2014. No appeal was lodged against this decision. 34. On 12 April 2017 the Budget Management Department of the Ministry of Finance addressed a letter to the Government Agent, stating that the Ministry of Finance had approved a fund of ALL 362,919 and ALL 100,000 (approximately EUR 3,460 in total) for the implementation of the Council of Ministers’ decision of 27 November 2013. No payment has been made to the applicants. 35. On 26 December 2013 twenty-one residents, including all the applicants, lodged a claim with the District Court against the Council of Ministers’ decision of 27 November 2013, challenging the value of the compensation awarded and the calculation of the exact surface area of the property which had been expropriated, on the basis that the decision had been issued as a result of an expropriation procedure in flagrant breach of the law. They also requested that the Council of Ministers be ordered to change the amount of compensation (to ALL 57,000 per square metre) and compensate each owner based upon the exact size of their property, corresponding to an amount of fair compensation in accordance with the law and calculated by an expert appointed by the court, also taking into consideration the possibility of development of the property. In their claim the applicants maintained that the expropriation had been unlawful and that a “de facto expropriation” (shpronësim de facto) had taken place. They also maintained that the actions of 3 November 2013 of the NUCI and MUCI had been abusive and had been taken without any administrative decision to justify their illegal actions with the aim of demolishing a lawful property. They further submitted that, even though the authorities had issued an interim order and the Ombudsman had also acknowledged the illegality of the authorities’ actions and had recommended that similar actions in the future should not be repeated without awaiting a decision of the District Court, they had nevertheless adopted the Council of Ministers’ decision of 27 November 2013. 36. On 6 March 2014 the District Court allowed the applicants’ claim. It reasoned that the expropriation had been unlawful in that the Council of Ministers’ decision of 27 November 2013 had been adopted in gross procedural violations and breaches of the Expropriation Act (see “Relevant domestic law and practice” below) and various by-laws. 37. As regards the facts of the case, the District Court mentioned that the actions taken on 3 November 2013 consisting of the cordoning off of the building with a view to its demolition had been arbitrary and taken in breach of domestic law, as it had held in its decision of 28 January 2014 (see paragraph 26 above). It also reiterated the fact that the Ombudsman had recommended that necessary measures be taken so that similar arbitrary actions would not be repeated in the future. It nevertheless noted that the authorities had adopted the Council of Ministers’ decision of 27 November 2013 without awaiting the decision on the merits of the case. 38. As regards the legal arguments as to whether the interference had been lawful, the District Court reasoned that the authorities had not complied with the whole expropriation procedure as set out in sections 9 to 16 and 20 to 21 of the Expropriation Act. The competent ministry had not informed the owners of the property or the construction company of the expropriation, therefore they and any other third parties had been deprived of the opportunity to challenge it. According to their claims submitted before the district court, the applicants had only learned of the expropriation decision through the media, while the building was being demolished. Even afterwards, the applicants had never been informed, despite it being a legal requirement. This would have given them reasonable time to leave the building and take their belongings to other places. The authorities had continued with the demolition of the property without having all the information as to who the residents were. From the documents in the case file it was evident that the relevant ministry had only asked the Vlora Municipality for information about the residents of the Jon Residence a month after the building had been demolished and more than forty-five days after the decision on the expropriation had been issued. It further held that the expropriation had been disguised as a formal expropriation taken in compliance with the legal provisions in force, but that in reality the seriousness of the violations had been such as to make it a “de facto expropriation” (shpronësim de facto). The Council of Ministers’ decision to expropriate the property had been a formal act, the sole purpose of which had been to disguise the actual nature of the expropriation. Furthermore, as a result of the immediate demolition of the building, without the authorities respecting the deadlines set in the law, the applicants had been prevented from being returned to their previous situation, even though the Council of Ministers’ decision had been null and void. The District Court reasoned that the non-compliance with domestic law concerning the expropriation procedure had aggravated the applicants’ situation and, therefore, the violation of the property rights had been so serious that it was unacceptable in a State governed by the rule of law. It reasoned that, according to the Court’s case-law (reference was made to Guiso-Gallisay v. Italy judgment (just satisfaction) [GC], no. 58858/00, §§ 94-95, 22 December 2009), in cases of unlawful expropriation the domestic courts had a strict obligation to award higher compensation than in cases of lawful expropriation. Moreover, as regards the existence of any legitimate aim in the public interest, the District Court noted that there had been no infrastructure or ecological (environmental) regulatory plan approved by law, not even a plan for the development of the protected area. The District Court noted that the decisions of the NCPT of 8 October 2013 and 23 June 2004 had not provided for the demolition of any legal building or its expropriation, or the invalidity of any authorisation that had already been granted and of any construction already built. On the basis of the above considerations, the District Court decided to amend the Council of Ministers’ decision of 27 November 2013 concerning the exact total surface area of the expropriated property, as well as the total amount of compensation and the amounts to be paid to each applicant. More concretely, the District Court increased the total compensation to be awarded to the applicants to ALL 1,580,712,321, on the basis of a court-ordered experts’ report. The District Court found that the authorities had blatantly violated the procedure set out in the Constitution and domestic law concerning the determination of the compensation to be paid in expropriation cases. Therefore, the calculation by the Council of Ministers in its decision of 27 November 2013 had not been made in accordance with the law. It accepted the report on the grounds that the valuation of the property had been based on the open market value following contemporary valuation methods for immovable properties such as the direct comparison and the state of the development of the property and taking also into consideration the location of the property, the development of the property, its actual development on the basis of legal documents as well as analysing the values of sales and rents of similar properties. The experts had also tried to analyse increases or decreases in the market prices of sales or purchases of similar properties. Under the expert report, the price per square metre was EUR 1,155 (ALL 161,700) in respect of the flats and EUR 2,000 (ALL 280,000) in respect of the business premises. The price was calculated using the average market value during the period between 2013 and January 2014 based on a Council of Ministers’ decision “on the valuation methods for immovable properties in Albania” which stated that such calculations are made in accordance with international valuation standards. 39. The District Court also recalculated the surface area of the expropriated property, stating that it actually measured 8,396 square metres. Furthermore, it included all the owners of the Jon Residence in the list of parties to be compensated, as some of the applicants had been excluded from the list under the Council of Ministers’ decision of 27 November 2013. Lastly, the court ruled that the compensation was to be paid by the Council of Ministers and the Vlora Municipality in three tranches over a period of eighteen months from the moment the court’s decision became final. Both the Council of Ministers and the Vlora Municipality were obliged to pay jointly the judicial costs and expenses including the experts’ fee, the court fees for lodging the claim (ALL 11,409,852) and the lawyers’ fee for the representation of G. Calliku, V. Calliku, M. Mecaj, A. Deromemaj, E. Durolli, M. Hanxhari, P. Rakipaj, B. Rakipaj, K. Kapedani (applicants in the proceedings before the Court), J. Ismailaj and S. Ismailaj (not applicants before the Court), which amounted to EUR 12,000 (ALL 1,680,000) in total. 40. On an unspecified date thereafter the applicants lodged an appeal against the part of the District Court’s decision of 6 March 2014 concerning the amount of compensation and the manner in which it was to be paid. They argued that the expert report did not reflect the market value of the property, which was much higher than the value indicated, and that the valuation standards for expropriated properties had not been complied with. More concretely, the experts had not complied with the criteria and standards provided for by The European Group of Valuers’ Associations (TEGOVA) and the valuation standards based on the financial and legal interests of the applicants. The property had had a higher value at the time of its expropriation. The experts had not specified the value of the specific components of the relevant calculation formula or the market value for every flat in order to reflect the market value of the building. Nor had they taken into consideration all the official data in the purchase agreements for the flats. They also complained of factual and calculation errors in the expert report and requested that another be produced. An appeal was also lodged by the Attorney General’s Office. 41. On 23 September 2014 the Administrative Court of Appeal upheld in part the District Court’s decision of 6 March 2014. It reiterated the facts of the case as noted by the District Court and upheld the amount of compensation awarded, the size of the construction land and the list of owners concerned. It decided that the applicants should be compensated individually based on the size of their property. The total amount of compensation (ALL 1,580,712,321) was to be divided as follows: ALL 161,700 (EUR 1,155) per square metre in respect of the flats, which measured 6,564.79 square metres in total, and ALL 280,000 (EUR 2,000) per square metre in respect of the business premises, which measured 1,831.63 square metres in total. It decided that the value calculated in the expert report represented the real value and just compensation in accordance with the Constitution, the European Convention, the Expropriation Act and other by-laws. It ruled that the compensation was to be paid by the Council of Ministers in one lump sum. The Council of Ministers was also obliged to pay the legal costs and expenses. 42. Both the applicants and the Attorney General’s Office lodged an appeal with the Supreme Court against the lower courts’ judgments. The applicants requested a higher amount of compensation for their expropriated property. The Council of Ministers, however, requested that the execution of the decision be stayed. 43. On 15 January 2015 the Supreme Court, on the basis of Article 479 of the CCP allowed the request of the Council of Ministers and the proceedings were stayed. The decision contained no reasoning. The case is still pending before the Supreme Court. There is no information in the case file on what grounds the Council of Ministers appealed against the lower courts’ decisions and requested a stay of execution. 44. It appears from the Ombudsman’s letter of 13 November 2013 (see paragraph 24 above) that on 18 February 2011 the NUCI lodged a criminal complaint with the Vlora District Prosecutor against the head of the Vlora Urban Planning Department, alleging irregularities in the proceedings leading to the granting of the building permit on 17 August 2010. The case was sent to the Vlora District Court for trial. There is no information about the outcome of those proceedings. 45. On 4 November 2013 the first applicant and another resident lodged two separate criminal complaints with the District Prosecutor, alleging abuse of power on the part of officials of the NUCI and the police officers of the State Police involved in the seizure of the Jon Residence on 3 and 4 November 2013. They complained that they had not been allowed to enter their homes, that the State Police had cordoned off the building with police crime scene tape and that inspectors of the NUCI had entered the building. They also asked the authorities to take measures to end the arbitrary interference with their property rights, which was still continuing the day that they lodged the criminal complaint. 46. In February 2014 the District Prosecutor decided not to initiate criminal proceedings, on the grounds that the actions did not constitute a criminal offence (fakti i kallëzuar nuk parashikohet nga ligji si vepër penale). It reasoned that the NUCI’s employees under domestic law had been entitled to carry out the inspection and verify the regularity of the documents concerning the approval of the building permit and the implementation of its technical standards by the construction company. They had accordingly been entitled to enter the premises of the Jon Residence. Furthermore, the officers of the State Police had been entitled to cooperate with and support the NUCI. After the authorities had carried out the inspection criminal proceedings had been instituted, therefore the suspicion of non-compliance with the rules and urban planning conditions had been realistic. The District Prosecutor further reasoned that one of the complainants had said that when he had returned to the building the following day he had seen officers of the State Police inside and had been allowed to enter his flat freely after showing them his certificate of ownership. That statement had also been corroborated with the information given by the NUCI and the Vlora police. 47. On 18 December 2013 the District Prosecutor, following a request lodged by the Taskforce for Territorial Protection (Task-Forca për Mbrojtjen e Territorit – a body under the authority of the Minister of Home Affairs), instituted a criminal investigation against six public officials (some of them employees of the IPRO, others employees of the Vlora Municipality) for possible abuse of power because of the irregularity of the proceedings concerning the restitution of the applicants’ property and the subsequent proceedings concerning the issuance of the building permit. On 20 April 2016 the Vlora Court of Appeal terminated the proceedings in respect of four of the public officials and the remaining two were acquitted. The proceedings are currently pending before the Supreme Court following an appeal by the District Prosecutor. 48. On 14 August 2013 an article was published on the official website of the Vlora Municipality reading, inter alia, as follows: “Today the Vlora Municipality instituted an action for the demolition of illegal buildings in the Old Beach area of Vlora. The head of the Vlora Municipality declared that three weeks ago the Municipality had already demolished 130 other illegal buildings situated in Radhimë village in the city of Vlora. These actions [were] aimed at clearing and releasing territory which had been unlawfully occupied, as well as the management of the urban territory. He also declared that the process for the demolition of all illegal buildings would continue on the whole Vlora coastline. The second phase would deal with the revaluation of lawful constructions which have not been constructed in accordance with the regulatory planning and the touristic perspective of Vlora ...the Vlora Municipality in cooperation with the new Government will provide for legal forms of compensation or if necessary, financial indemnification. In this category there were [two to three] buildings, amongst others, [which] impeded the implementation of the Lungomare [promenade] construction project.” 49. On 2 November 2013 an article was published on an online portal, Shqiptarja.com, stating that the authorities in Vlora were continuing with the demolition of buildings in the area where the promenade would be constructed. Provisional permits had been issued by the authorities for the buildings which operated as bars and restaurants during the summer. 50. On 4 November 2013 an article was published on an online portal, Tema, stating that the residents of the Jon Residence were unable to enter the building. The article mentioned that, according to the NUCI, the building had been seized so that the authorities could inspect the building permit, the relevant documentation for the construction, and whether or not the building permit had been carried out in compliance with the law. The Ministry of Home Affairs, having been contacted by Vizion Plus (a national television station), had clarified that the police had taken part in the actions taken on 3 November 2013 to support the NUCI. The head of the NUCI had declared that they were still examining the case and if any shortcomings resulted, the Taskforce would then have to decide whether or not to demolish the building. 51. It appears from the evidence submitted by the applicants that on 4 December 2013 a local television channel broadcast in their news bulletin that the NUCI, supported by police officers, had started the procedure for the demolition of the building. According to the broadcast, on that day the demolition was considered to be partial, and the residents of the building were given five days to remove their movable property from their flats. The owners of the residential premises had not removed their movable property on the grounds that the authorities had not properly valued their flats, whereas the owners of the business premises had duly removed their movable property. The authorities had valued their flats as being worth EUR 350 per square metre, whereas they had paid EUR 1,300 per square metre when they had bought them. However, according to the broadcast it was noted that the procedure for the demolition of the property had already been started by the authorities following the Jon Residence having been blocked for a long time. 52. On 20 June 2016 an online portal, Vizioplus.tv, published an article stating that the National Inspectorate for Territorial Protection (Inspektoriati Kombëtar për Mbrojtjen e Territorit – “the NIPT”, the former NUCI), had initiated proceedings for the demolition of illegal buildings so as to make possible the implementation of the Lungomare project. A two-storey building had already been demolished on the Monday, and the demolition of two other buildings (bars) would happen in the days that followed. 53. On 29 June 2016 an online portal, JavaNews, published an article stating that the NIPT had initiated an operation in Vlora city for the implementation of the Lungomare project. The NIPT had already demolished a single-storey building. It would also demolish another building. During the first part of the operation the NIPT had already demolished three other buildings. 54. On 31 March 2017 the NIPT addressed a letter to the Government Agent. In so far as relevant, the letter reads as follows: “... [The] NUCI had exercised their functions in accordance with domestic law. On 3 November 2013 the NUCI, in the presence of a representative of the Vlora Urban Planning Department, inspected the construction site of the Jon Residence. All the remaining procedures followed by the NUCI were based on the Council of Ministers’ decision of 27 November 2013. On the basis of the expropriation procedure the Vlora Municipality on 2 December 2013 had requested the NUCI’s cooperation with the implementation of the Council of Ministers decision to demolish immovable properties which would be expropriated. On the basis of this request, the NUCI had carried out the demolition of the building in cooperation with the Ministry of Home Affairs, the Defence Ministry, the Environmental Ministry and the Vlora Municipality... In the present case the NUCI had complied with the interim order of 7 November 2013 and had not taken any action in breach of this decision. In compliance with the Council of Ministers’ decision of 27 November 2013 and following the request of the Vlora Municipality it had undertaken all the necessary steps for the demolition of the building...in the present case there had not been any administrative or criminal investigation in respect of the applicants’ claims concerning the non-enforcement of the interim order...the use of yellow crime scene tape had not been made by the NUCI. It is true that the NUCI had requested the support of the State Police, however it is not the NUCI’s competence to dictate or examine the manner and equipment used by the State Police for securing the perimeter of the site under the authorities’ control...the NUCI had not taken any action that could have impeded the applicants in exercising their property rights. The object of the inspection had been the building and the subject of the inspection had not been the residents but the construction company and the activities of the MUCI’s employees.” 55. The Government submitted as part of their observations domestic case-law consisting of two decisions of the district courts allowing appellants’ claims for compensation in respect of pecuniary damage suffered as a result of the demolition of their properties by the MUCI and NUCI. In one case the demolition had occurred in respect of a property which had been illegally built but for which proceedings for its legalisation were ongoing. The claim was allowed under the Non-Contractual Liability of the State Act and Articles 608 to 640 of the Civil Code. In the other case the district court allowed the appellants’ claim for compensation on the grounds that the demolition of the property had occurred despite another court taking a decision to suspend the NUCI’s decision to demolish the property for being illegally built. The claim was allowed under Articles 608 and 640 of the Civil Code. It is unclear whether the two district court decisions became final. 56. The Government also submitted three other domestic court decisions in which the domestic courts allowed the appellants’ claim for a higher amount of compensation for their expropriated property in the public interest. 57. At the hearing the applicants’ representative pleaded that on 9 December 2013 the applicants had lodged a request with the Vlora Municipality for compensation. On 20 January 2014 the Vlora Municipality had asked the applicants to produce a copy of their certificate of ownership accompanied by a map of flats issued by the IPRO within the last seventy-two hours. The applicants did not submit the two documents. They further submitted that the IPRO had refused to issue the certificates (see also paragraph 32 above). | 1 |
test | 001-172460 | ENG | CYP;TUR | CHAMBER | 2,017 | CASE OF GÜZELYURTLU AND OTHERS v. CYPRUS AND TURKEY | 2 | Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect) (Cyprus);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect) (Turkey);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Ganna Yudkivska;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Iulia Motoc;Pere Pastor Vilanova | 6. The application concerns the murder on 15 January 2005 of Elmas, Zerrin and Eylül Güzelyurtlu, all Cypriot nationals of Turkish Cypriot origin. 7. The applicants are the family of the deceased. The first, second and third applicants are the children of Elmas and Zerrin Güzelyurtlu and the brother and sisters, respectively, of Eylül Güzelyurtlu. The fourth and fifth applicants are Zerrin Güzelyurtlu’s sisters, and the sixth and seventh applicants are her parents. 8. The first five applicants were born in 1978, 1976, 1980, 1962 and 1956 respectively. The sixth and seventh applicants were both born in 1933. The first, fifth, sixth and seventh applicants live in the “TRNC”. The second, third and fourth applicants live in the United Kingdom. 9. Elmas Güzelyurtlu was a businessman and used to live with his wife Zerrin and daughter Eylül in the “TRNC”. In 2000, following the collapse of the bank that Elmas Güzelyurtlu owned, Elmas Güzelyurtlu fled to and settled in Larnaca, in the Cypriot-Government-controlled areas. His wife and daughter joined him in 2001. In 2003 they moved to the Ayios Dometios district of Nicosia. 10. On 15 January 2005 at about 8.00 a.m. on the Nicosia-Larnaca highway, near the Athiainou exit, a police officer spotted a black Lexus car parked on the hard shoulder. The engine was running, the left turn indicator light was flashing and the door of the front passenger seat was open. 11. Zerrin and Eylül Güzelyurtlu were found dead on the back seat of the car. Elmas Güzelyurtlu was lying dead at a distance of 1.5 metres from the car in a nearby ditch. All three were in pyjamas and slippers. Zerrin Güzelyurtlu had adhesive tape on her neck and two rolls of adhesive tape in her hands. Both Zerrin Güzelyurtlu and her daughter Eylül Güzelyurtlu had redness (ερυθρότητα) on the edges of their hands, which indicated that they had been tied with adhesive tape. They also had bruises on their shins which had been sustained in a struggle. 12. The particulars of the investigation and the measures taken, as submitted by the Cypriot Government and as can be seen from the documents contained in the case file, may be summarised as follows. 13. The police officer who discovered the bodies informed Nicosia police headquarters. A number of police officers (some of them high-ranking), arrived at about 8.35 a.m. at the crime scene, which had already been secured and sealed off. 14. A detailed on-the-spot investigation was immediately conducted by the police and a forensic pathologist. Photographs were taken and a video recording was made. Two bullets, two cartridge cases and a kitchen knife were found inside the car. A third cartridge case was found outside the car. 15. An investigation team consisting of eight officers was set up. 16. The car was taken away for further inspection. 17. At about 9.25 a.m. officers went to the victims’ house in Ayios Dometios. The house was secured and sealed off. An investigation was carried out by the investigation team and a forensic pathologist. Photographs and fingerprints were taken and a video recording made at the scene. The investigation determined that the perpetrators of the murders had broken into the house through a window. A suction cup (βεντούζα) and pieces of adhesive tape were found outside the window. Adhesive tape was found in the victims’ bedrooms, the living room and the car park. The security system had been switched off at 4.35 a.m. on that day and one of the cameras appeared to have been turned upwards at 4.29 a.m. 18. Numerous exhibits were collected from the scene of the crime and the victims’ home. These were sent for forensic examination. 19. On the same day the victims’ bodies were taken to the mortuary at Larnaca General Hospital for a post-mortem examination. Death certificates were issued. 20. On 16 January 2005 post-mortem examinations were carried out by a forensic pathologist. It was determined that each of the three victims had died of severe craniocerebral injury caused by a shot from a firearm at close range and that their deaths had been the result of a criminal act. Photographs were taken and a video recording made of the post-mortem examinations. A diary of action (ημερολόγιο ενέργειας) was kept by one of the police officers present during the post-mortem examinations, which recorded, inter alia, the actions and findings of the forensic pathologist. 21. The investigation included the tracing and questioning of numerous witnesses, searching the records of vehicles that had gone through the crossing points between north and south, and examining the security system of the victims’ house and computer hard discs for relevant material concerning the movements of persons and vehicles near the house at the material time. The source of the suction cup and the adhesive tape was determined to be a shop in Kyrenia (in northern Cyprus). 22. From the evidence collected it appeared that on 15 January 2005, between 5.15 a.m. and 5.20 am, three shots had been heard from the area in which the car and the victims were found. 23. According to the witness statements taken by the police, at the time the murders were committed a BMW car without number plates was seen parked behind the victims’ car. Four persons were seen standing around the cars and one person was seen in the passenger’s seat of the Lexus car. It was further ascertained that on 14 January 2005, at 11.00 p.m., a red BMW car with “TRNC” number plates had passed through the Pergamos crossing point located in the British Eastern Sovereign Base Area of Dhekelia but without passing through the Base Area’s checkpoint. At 5.45 a.m. the next day the same car had returned to the “TRNC” through the same crossing point – again without being checked. The driver of the car, who resided in the “TRNC”, had been accompanied by another person. 24. From the evidence gathered, it was determined that the victims had been kidnapped at 4.41 a.m. on 15 January 2005 and had been murdered between 5.15 and 5.20 a.m. 25. According to the relevant police reports, five vehicles and more than eight people were involved in the murder; a fact which pointed to a well-planned and premeditated crime. 26. A ballistics examination established that the bullets had been fired from the same handgun; two of the cartridge cases had been of Romanian manufacture and one of Turkish manufacture. 27. The initial investigation resulted in the identification of five suspects: M.C. (“the first suspect”), E.F. (“the second suspect”), F.M. (“the third suspect”), M.M. (“the fourth suspect”) and H.O. (“the fifth suspect”). It appears from the documents submitted to the Court that the first, second, third and fourth suspects were Cypriot nationals and “TRNC” citizens and that the fifth suspect was a Turkish national. 28. DNA belonging to the first, second and fourth suspects was found on exhibits taken from the crime scene and the victims’ house. DNA belonging to the first suspect was found on the steering wheel of Elmas Güzelyurtlu’s car. The police authorities already had DNA from these three suspects as they had taken genetic material from all of them in the past in connection with other offences (unlawful possession of a firearm and burglary). Moreover, the BMW car was found to be registered in the name of the fourth suspect and to have been driven by the first suspect. 29. Arrest warrants had already been issued in respect of these three suspects with regard to other offences; the first suspect was wanted in relation to a drugs case and for obtaining a passport and identity card issued by the Republic of Cyprus under false pretences; the second suspect was wanted for the unlawful possession and transfer of a firearm, and the fourth suspect was wanted for the unlawful possession of a firearm. 30. The other two suspects were linked to the murder through other evidence. DNA belonging to two unidentified persons was also found. 31. On 20 January 2005 the Larnaca District Court issued arrest warrants in respect of all five suspects on the ground that there was a reasonable suspicion that they had committed the offences of premeditated murder, conspiracy to murder, abducting (απαγωγή) a person in order to commit murder (sections 203, 204, 217 and 249 of the Criminal Code, Cap. 154), and the illegal transfer of a category B firearm (sections 4(1) and 51 of the Firearms and Other Arms Law (Law 113/(I)/2004, as amended). 32. On 21 January 2005 the police authorities sent “stop list” messages to the immigration authorities (that is to say messages asking them to add the suspects to their “stop list” – a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring) and to notify the police should they attempt to leave the Republic. 33. On 23 January 2005 the police submitted “Red Notice” requests to Interpol to search for and arrest the suspects with a view to their extradition. 34. On 24 January 2005 an official request was made by the Director of the Diplomatic Office of the President of the Republic to the Special Representative and Chief of Mission (“the Special Representative”) of the United Nations Peacekeeping Force in Cyprus (“UNFICYP”) to facilitate the handing over to the appropriate authorities of the Republic of Cyprus of all the suspects and all evidential material relating to the crime and/or suspects in northern Cyprus (see paragraph 129 below). 35. On 26 January 2005 Red Notices were published by Interpol in respect of the first four suspects and on 28 January 2005 in respect of the fifth suspect. These sought the provisional arrest of the suspects and stated that extradition would be requested from any country with which the Republic of Cyprus was linked by a bilateral extradition treaty, an extradition convention or any another convention or treaty containing provisions on extradition. 36. As the police authorities were not able to trace the suspects in the areas controlled by the Republic, on 27 January 2005 they applied for the issuance of European arrest warrants. On the same day the Larnaca District Court issued European arrest warrants in respect of all five suspects. 37. As the investigation continued, another three suspects were identified: A.F. (“the sixth suspect”), S.Y. (“the seventh suspect”) and Z.E. (“the eighth suspect”). It appears from the documents submitted to the Court that the sixth and eighth suspects were Cypriot nationals and “TRNC” citizens and that the seventh suspect was a Turkish national. The sixth suspect had been wanted by the authorities since 2003 in respect of a case involving an assault causing serious bodily harm. The relevant case file had been classified as “otherwise disposed of” (Άλλως Διατεθείσα) in 2004. 38. On 4 February 2005 the Larnaca District Court issued arrest warrants against all three suspects on the same grounds as those issued in respect of the other suspects (see paragraph 31 above). 39. On 10 February 2005 the same court issued European arrest warrants against them. 40. On 11 February 2005, at the request of the Cypriot authorities, Red Notices were published in respect of the latter three suspects. 41. On 14 February 2005 a message was sent by Interpol Ankara to Interpol Athens in response to the Red Notice in respect of the fifth suspect. This message stated that the fifth suspect was in police custody and that the Turkish Ministry of Justice had been informed of the crime that he had allegedly committed. They also noted that under the Turkish Criminal Code, a Turkish national who had committed a crime in a foreign country which was punishable with at least three years’ imprisonment under Turkish law could be punished under Turkish law. Furthermore, pursuant to domestic law, it was not possible to extradite a Turkish citizen from Turkey. Consequently, the Ministry of Justice wanted to know if it was possible for the investigation documents to be sent to them via Interpol channels. 42. On 15 February 2005 the police authorities transmitted “stop list” messages to the immigration authorities (see paragraph 32 above). 43. As can be seen from an email dated 7 March 2005 from the Director of the Diplomatic Office of the President of the Republic to the Chief European Union negotiator for Cyprus, the Cypriot authorities around this time forwarded to UNFICYP an interim report by the Laboratory of Forensic Genetics of the Cyprus Institute of Neurology and Genetics in order to facilitate its mediation of the handing over of the suspects in the instant case. The European Commission was asked for any assistance that it might be in a position to provide in bringing the perpetrators of the murders to justice. According to an internal note of a telephone conversation the Diplomatic Office was subsequently informed by UNFICYP that the above-mentioned report had been passed on to the “TRNC” authorities, who had found the evidence that it contained to be insufficient. The “TRNC” authorities requested video tapes but did not clarify whether the suspects would be handed over if such tapes were given to them. 44. The Government submitted that as the investigation had progressed more evidence had been collected implicating the suspects. More than 180 statements had been taken from various persons, including the relatives of the victims, persons who knew or had connections with the victims, and persons involved in the investigation. The authorities had also carried out DNA tests on a number of other possible suspects but no link to the crime had been found. The applicants’ representatives had also met and had been in telephone contact with the Attorney-General. 45. On 12 July 2006 the eighth suspect was arrested by Cypriot police in Limassol (in the Government-controlled area). The next day he was remanded in custody for eight days by order of the Larnaca District Court on the ground that there was reasonable suspicion that he had committed offences under sections 203, 204, 217 and 249 of the Criminal Code (Cap. 154) and sections 4(1) and 51 of the Firearms and Other Arms Act (Law 113/(I)/2004, as amended). He was released, however, upon the expiry of the remand period as the authorities, after questioning him, did not have enough evidence to link him to the offences. According to the relevant police report, some of the allegations he had made could not be looked into as the Cypriot police could not conduct investigations in the “TRNC”. Furthermore, DNA tests did not link him to the crime. 46. In a letter dated 26 July 2006 the Attorney-General assured the applicants’ representatives that the Republic was “doing everything within its power – bearing in mind that it [did] not have effective control over the areas of the Republic occupied by Turkey (in which persons that might be involved [were at that time] and taking into account the relevant Convention case-law – to investigate the ... murder and bring the persons responsible to trial before the Courts of the Republic”. He also informed them that he would keep them informed of the progress of the investigation and reply to the queries that they had submitted on behalf of the victims’ family and that this could be achieved through meetings at his office between him, the applicants’ representatives and the police. 47. A report by the Larnaca police investigation department dated 1 July 2007 stated that the investigation had been extended to the British bases and the occupied areas of Kyrenia and Karavas. It also stated that the investigation was still ongoing as the authorities were waiting for replies from Interpol Ankara. The report also proposed that the officers in the investigation team be commended for their outstanding work on the case. 48. As the authorities were not able to execute the arrest warrants in the “TRNC” or undertake other steps through UNFICYP, and given that the issuance of international arrest warrants had not resulted in the suspects’ surrender by Turkey, the police officer in charge of the investigation suggested in a report dated 30 March 2008 that the case be “otherwise disposed of” (Άλλως Διατεθείσα) pending future developments. 49. On 7 April 2008 the case file was sent, along with the above-mentioned proposal by the Larnaca police investigation department, to the Attorney-General. The latter agreed with the Larnaca police investigation department’s proposal and on 24 April 2008 instructed the police to re-submit (εναποβληθεί) the investigation file if and when the arrest of all or any of the suspects was effected. 50. On 19 May 2008 the case file were transferred to the coroner for the inquest proceedings (inquest nos. 9/05, 10/05 11/05) before the Larnaca District Court. The proceedings were scheduled by the court for 18 August 2009. According to the Cypriot Government, on that date the proceedings were adjourned until October 2009 due to the non-attendance of the first applicant. The first applicant was notified by the officer in charge of the investigation of the inquest proceedings and was requested to attend, as the testimony of a relative of the victims was necessary. No further information has been provided about these proceedings by the Cypriot Government. 51. In a letter dated 25 June 2008 to the Chief of Police, the Attorney-General noted that, despite all efforts on the part of the authorities, the suspects had not been handed over to the Republic, that he had spoken to the President of the Republic and that he had had repeated meetings and telephone conversations with the applicants’ counsel. The Attorney-General noted that the latter had informed him of the applicants’ intention to lodge an application with the Court. The Attorney-General therefore considered that it was necessary – and counsel agreed – that international arrest warrants be issued in respect of the suspects and that Turkey – who had, pursuant to the Court’s judgments, responsibility for whatever occurred in the occupied areas – be requested to enforce them. He requested that, if this had not been done already, international arrest warrants be issued as quickly as possible for the surrender of the suspects to the Republic of Cyprus. 52. On 3 August 2008 the fourth suspect was murdered in the “TRNC”. Following confirmation of his death by UNFICYP and pursuant to instructions by the Attorney-General, the arrest warrant in respect of him was cancelled by the Larnaca District Court on 29 August 2008. 53. On 6 August 2008 the Attorney-General gave instructions for the preparation of extradition requests to Turkey under the European Convention on Extradition of 13 December 1957, to which both States were parties (see paragraphs 164 and 165 below). 54. On 23 September 2008, extradition requests in respect of the six remaining suspects (see paragraphs 45 and 52 above), together with certified translations of all documents into Turkish, were transmitted by the Cypriot Ministry of Justice and Public Order to the Cypriot Ministry of Foreign Affairs for communication through diplomatic channels to Turkey’s Ministry of Justice. The requests were then sent to the Republic’s embassy in Athens for communication to Turkey. 55. By a letter dated 4 November 2008 the embassy of the Republic of Cyprus in Athens informed the Director General of the Cypriot Ministry of Foreign Affairs that on that date the extradition requests and a note verbale from the Cypriot Ministry of Justice and Public Order and had been delivered to the Turkish embassy in Athens in a sealed envelope. The usher of the embassy had given the envelope to the embassy security guard. No receipt of delivery had been given. 56. By a letter dated 11 November 2008 the embassy of the Republic of Cyprus in Athens informed the Director General of the Cypriot Ministry of Foreign Affairs that on that date an employee of the Turkish embassy had left an envelope with the Cypriot embassy’s security guard on which only the address of the Cypriot embassy had been written and which had contained the extradition requests and the note verbale from the Cypriot Ministry of Justice and Public Order, which had been given to the Turkish embassy on 4 November 2008. The person had not stated his identity, but had simply had left (παράτησε) the envelope and departed in haste. 57. By a letter dated 24 November 2008 the Director General of the Cypriot Ministry of Justice informed the Attorney-General of the return of all the above-mentioned documents and stated that it was clear that Turkey was refusing to receive requests for the extradition of fugitives made by Cyprus under the European Convention of Extradition, due to Turkey’s refusal to recognise the Republic of Cyprus as a State. 58. In his reply dated 26 November 2008 the Attorney-General stated that the conduct of Turkey towards the Republic of Cyprus was not that expected of a State which had countersigned the European Convention on Extradition. It was not, however, for the Office of the Attorney-General to decide on the measures to be taken but it was an issue to be taken up on a political level, by the Cypriot Ministry of Foreign Affairs in particular. 59. The Cypriot Government submitted that the domestic arrest warrants were still in force and would remain in force until executed pursuant to section 21 (1) of the Criminal Procedure Law. 60. The particulars of the investigation and measures, according to the submission of the Turkish Government and as can be seen from the documents they provided, may be summarised as follows. 61. On 17 January 2005 the victims’ bodies were taken to the Dr. Burhan Nalbantoğlu State Hospital in Nicosia (“Lefkoşa”) for post-mortem examinations. The “TRNC” police were provided with the death certificates, which had been issued by the Republic of Cyprus. 62. Given that the cause of death required that a coroner’s inquest be held, the “TRNC” police sought a court order for post-mortem examinations. 63. Following a hearing before the “TRNC” Nicosia District Court, the “TRNC” Attorney-General’s office requested the court to waive the requirement for post-mortem examinations, as post-mortem examinations had already been carried out in the Republic of Cyprus. Having heard evidence from two police officers and the hospital’s forensic pathologist the court decided that post-mortem examinations were not required. 64. On 18 January 2005 the first applicant gave a statement to the “TRNC” police. His views were requested concerning potential suspects. In his statement he alleged that there were five likely suspects: M.C, E.F., F.M., M.M. and H.O. (see paragraph 27 above). The “TRNC” authorities checked the entry and exit records of the suspects and established that the first suspect had crossed to the Republic of Cyprus side on the night of the murders and had returned to the “TRNC” side in the early morning hours. There was no record of the entry and exit of the other suspects on that day. 65. On 18 January 2005 the first suspect was taken to Kyrenia (“Girne”) police headquarters (Polis Genel Müdürlüǧü) for questioning by the “TRNC” police. The BMW car he had used to cross the border was seized as evidence. The Kyrenia District Court issued a summons on the same day in respect of both the first and second suspects for the purpose of bringing them before the court on suspicion of theft, vehicle importation and forgery of documents (Hirsizlik Araç Ithali ve Evrak Sahteleme). The first suspect was kept in detention. 66. The first suspect’s BMW car was inspected, but no evidence was found. 67. On the same day (that is to say 18 January 2005) the third and fourth suspects were also taken for questioning by police. An arrest warrant was issued in respect of the third and fourth suspects by the Morphou (“Güzelyurt”) District Court on the same day on suspicion of forgery of documents – specifically, providing fake registered vehicle with falsified documents and statements (Sahte Belge Düzenleme –Yalan Belge ve Beyanlarla Sahte Kayitla Araç Temin Etme). 68. On 19 January 2005 an arrest warrant was issued in respect of the first and second suspects by the Kyrenia District Court for two days (Mahkeme: Zanlilarin 2 gün tutuklu kalmasina emir venir) on suspicion of theft, forgery of documents and “providing fake registry records, etc.” (Hirsizlik, Sahte Belge Düzenlemek, Sahte Kayut Temin Etmek v.s.). 69. The second suspect was arrested the next day and was detained at Lapithos (“Lapta”) police headquarters. 70. The fifth suspect had already left for Turkey (on 18 January 2005) when the Red Notice was published by Interpol on 28 January 2005 (see paragraph 35 above). 71. On 19 January 2005 the “TRNC” Nicosia District Court also remanded the third and fourth suspects in custody for two days on suspicion of theft and forgery of documents. 72. The “TRNC” police searched the houses of the first four suspects, as well as that of another person, on the basis of search warrants issued by the Morphou District Court on 18 January 2005 (in respect of the third and fourth suspects) and by the Kyrenia District Court on 19 January 2005 (in respect of the first and second suspects). No evidence was found. 73. Statements were taken from the four suspects while they were in detention. They all denied involvement in the murders. The “TRNC” police also took statements from a number of other persons, including public servants, mainly in relation to the BMW car that the first applicant had alleged had been used by the murderers. According to the evidence collected, the BMW car had been transferred to the first suspect on 17 May 2004. 74. On 21 January 2005, following an application by the “TRNC” police, the “TRNC” Nicosia District Court remanded the first four suspects in custody for a further three days on suspicion of premeditated murder. 75. On 22 January 2005 the “TRNC” Nicosia District Court issued a summons in respect of the fifth suspect for the purpose of bringing him before the court on suspicion of premeditated murder. “TRNC” Nicosia police headquarters informed all other district police offices that they were searching for this suspect and that a warrant had been issued. 76. On different dates statements were taken from a number of persons, including the first applicant, with a view to obtaining information concerning the fifth suspect. 77. On 23 January 2005 the fifth suspect was arrested as, in the meantime, he had returned to the “TRNC” (see paragraph 75 above). 78. On 24 January 2005 the first four suspects were remanded in custody for another three days by the “TRNC” Nicosia District Court on suspicion of premeditated murder, murder, and possession of an illegal firearm and explosives (Taamüden Adam Öldürme, Adam Öldürme, Kanunsuz Ateşli Silah ve Patlayici Madde Tasarrufu). An arrest warrant was also issued by that court in respect of the fifth suspect in order that he might be remanded in custody for three days. 79. On 25 January 2005 “TNRC” Nicosia police headquarters were informed by the Turkish Ministry of Internal Affairs that a Red Notice had been published by Interpol in relation to the first four suspects. The above-mentioned Ministry requested confirmation of Elmas Güzelyurtlu’s death as the Turkish authorities had been looking for him in order to extradite him to the “TRNC”. They also enquired about the nationality status of the first four suspects, in particular, whether or not they had Turkish nationality. 80. The Turkish Government submitted that on 23 and 28 January 2005 the Turkish Ministry of Internal Affairs received emails from Greek Cypriot Interpol stating that they were searching for the first, second, third and fifth suspects with a view to their arrest and that they should be arrested if they entered into Turkey. 81. On 27 January 2005 the first, second, third, fourth and fifth suspects were remanded in custody for another five days by the “TRNC” Nicosia District Court on suspicion of premeditated murder. 82. On the same day the “TRNC” Nicosia District Court issued a warrant in respect of the sixth and seventh suspects (see paragraph 37 above) for the purpose of bringing them before the court on suspicion of premeditated murder. Search warrants were also issued by the Kyrenia District Court in respect of the house of the fifth suspect and by the Nicosia District Court in respect of the houses of the sixth and seventh suspects. 83. By a letter dated 27 January 2005 “TRNC” Nicosia police headquarters provided the Turkish Ministry of Internal Affairs with information about the suspects’ identities. 84. On 28 January 2005 the “TRNC” Nicosia District Court remanded the sixth, seventh and eighth suspects (see paragraph 37 above) in custody for three days on suspicion of premeditated murder. It also issued a search warrant for the house of the eighth suspect. 85. On the same date the “TRNC” police also took a statement from the fifth suspect. 86. On 31 January 2005 the sixth, seventh and eighth suspects’ detention was extended by a further eight days by the “TRNC” Nicosia District Court on suspicion of premeditated murder. 87. On the same day “TRNC” Nicosia police headquarters requested further information from the Turkish Ministry of Internal Affairs about the criminal record of the fifth suspect. They were provided with his criminal record, photograph and fingerprints on 7 February 2005. 88. On 1 February 2005 the “TRNC” Nicosia District Court extended the first five suspects’ detention for seven further days on suspicion of premeditated murder. 89. On 2 February 2005 “TRNC” Nicosia police headquarters published a notice to all branches of police informing them that they were also looking for another person, M.K., who they also considered to be a suspect in the case. It transpired that this suspect had left for Turkey on 19 January 2005. 90. On 7 February 2005 “TRNC” Nicosia police headquarters requested the Turkish Ministry of Internal Affairs police headquarters to carry out a criminal record check on M.K. and to inform them whether he was in Turkey or not. 91. On 8 February 2005 the “TRNC” police took statements from the first, second, third, fifth, sixth and eighth suspects. An additional statement was taken on 11 February 2005 from the fifth suspect. They all denied involvement in the murders. 92. On or around 11 February 2005 all the suspects were released due to a lack of evidence connecting them to the crime. 93. The Turkish Government submitted that on 11 February 2005 another email was sent to the Turkish Ministry of Internal Affairs by Greek Cypriot Interpol informing them that they had information that the fifth suspect was going to travel to Mersin in Turkey the same day and requesting the Turkish authorities to take the necessary measures. 94. The fifth suspect was arrested on the above date as he was entering Mersin. On 15 February 2005 he was taken to the office of the Mersin public prosecutor, where a preliminary file was opened in respect of the murders and he was questioned by the public prosecutor. The Turkish Government submitted that he was released in the absence of any evidence connecting him to the crime in question and in the absence of an extradition request. 95. M.K. (see paragraph 89 above) was also traced and on 25 March 2005 he was questioned by police at Kyrenia police headquarters. He denied any involvement in the murders. 96. On 15 April 2006 the authorities investigated a well in the village of Myrtou (“Çamlibel”) in the Kyrenia district for evidence. Nothing, however, was found. 97. Throughout the investigation the “TRNC” police questioned and took statements from numerous persons who knew or were somehow connected or related to the suspects. As can be seen from a document in the internal police files entitled “Time/Work Sheet” (İş Cetveli) and the copies of the statements provided, statements were taken from various witnesses, including the suspects. They also searched for evidence and took fingerprints. 98. According to a note/direction in the “Time/Work Sheet”, on 30 January 2006 the “TRNC” Police Chief Inspector (Başmüfettiş - Tahkikat Memuru) wrote to the “TRNC” Nicosia Judicial Police Director – Assistant Police Director (“Polis Müdürü Müavini – Adli Polis Müdürü”) that upon the oral instructions of the “TRNC” Attorney-General (Başsavcı) a copy of the file in respect of the murder of Elmas, Zerrin and Eylül Güzelyurtlu had been prepared and would be submitted for the opinion of the “TRNC” Attorney-General. A note bearing the same date from the “TRNC” Nicosia Judicial Police Director informed the “TRNC” Attorney-General’s Office that the file regarding the case was ready and had been submitted to the “TRNC” Attorney-General. 99. The Turkish Government submitted that, following a report by the “TRNC” Police Chief Inspector, the case had been classified as “non-resolved”. They provided a copy of this report, which was not dated. According to this report, the last action undertaken as part of the investigation appears to have occurred on 22 March 2007, when the fifth suspect’s car, which had been inspected by the “TRNC” police, had been handed over to the “TRNC” Nicosia Customs and Tax Office (Lefkoşa Gümrük ve Rüsumat Dairesi). The inspection had not resulted in the collection of any evidence concerning the crime. In his report the “TRNC” Police Chief Inspector concluded that on the basis of the investigation that the police had conducted from the date of the murders until the time of his writing the report the police had not been able to resolve the case. He therefore suggested that the case be logged as “non-resolved for the time being”. 100. On 19 August 2009 the “TRNC” Attorney-General’s office sent a copy of the case file to the “TRNC” Ministry of Foreign Affairs. They informed the latter that the case had been classified as “non-resolved for the time being” on the instructions of the previous “TRNC” Attorney-General. 101. The Turkish Government submitted that the case file was with the “TRNC” Attorney-General and remained open pending the submission of evidence by the Republic of Cyprus authorities. 102. The Turkish Government submitted that after they received the investigation file from the Cypriot Government through the Court following communication of the case, the “TRNC” police questioned again the first and second suspects on 24 February 2010. The suspects denied their involvement in the killings. 103. Subsequently, in other proceedings, on 31 August 2010 the Kyrenia Assize Court found the first and second suspects guilty of, inter alia, the murder of the first applicant’s bodyguard and passed sentences amounting to thirty years’ imprisonment each. An appeal by the first and second suspects was dismissed by the “TRNC” Supreme Court on 4 January 2012. They are both currently serving their sentences. 104. The Turkish Government submitted that in the context of those proceedings, the first suspect had written on a piece of paper that the second suspect had killed three people. In addition, after being cautioned by the Kyrenia Assize Court that if he made a self-incriminating statement under oath it could be used against him, the second suspect stated: “I saw this Güzelyurtlu incident personally myself. This is what I want to say. There is also one thing, that is what he told me, ... I did not see it, it is what he explained to me. At this stage, I do not want to talk about the Güzelyurtlu murder, your honour”. In its judgment the Kyrenia Assize Court noted that it had to examine the voluntary statements made before it more carefully in the light of the fact that the first suspect had retracted the statements and submitted different statements. The first suspect refused to give any statement to the police. 105. Following the above-mentioned development, the “TRNC” Attorney-General reviewed the investigation file. Taking into account the rules of evidence, he concluded that even if the first suspect had not retracted his statement, in the absence of other evidence, this statement would not have been sufficient for any charges against the suspects to be brought. 106. In a summary of the first applicant’s statements to his lawyers between 2006 and 2007, the first applicant stated, inter alia, the following: 107. On the morning of 15 January 2005 the Cypriot police informed the first applicant of the death of his parents and sister. He went to Larnaca morgue to identify the victims. He signed a form authorising police officers to enter the family home in Ayios Dometios and conduct an investigation. The first applicant was present for part of the investigation and then went with the police to his father’s office in Nicosia, where the police took documents as part of the investigation. 108. The next day the first applicant went to Larnaca morgue and then Larnaca police station, where he spent nine hours giving a statement. In his statement he informed the police of the identities of the persons he suspected of committing the murders and the grounds for his suspicions. 109. On 17 January 2005 the first applicant took the victims’ bodies back to the “TRNC”, where a funeral was held. 110. On 18 January 2005 the first applicant had meetings with the “TRNC” police. 111. On 19 January 2005 the first, second and fourth applicants went to Nicosia police headquarters, where they were shown pictures and sketches of a number of people and asked whether they recognised them. Some of the photos had been taken at the funeral. The first applicant identified one of the suspects. The next day they returned to Nicosia police headquarters and were informed that the Cypriot police had DNA matches for at least three of the suspects and had found other DNA which they could not, however, match to any person in their records. The first applicant also gave them information concerning the investigation by the “TRNC” police. 112. During the two weeks following the killings the first applicant met often with the Cypriot and the “TRNC” police and was informed by both sides of their respective investigations. He also updated each side on the other side’s progress in an effort to prevent the suspects’ release for lack of evidence and to convince the “TRNC” police to surrender them to the Cypriot Government for trial. 113. The first applicant had meetings with a number of “TRNC” high-ranking officials. 114. In March 2007 the Cypriot police informed the first applicant that the car and the material removed from the victims’ home and office could be returned. They also informed the first applicant of the circumstances of the killings, that the investigation remained open and that the evidence had been shown to UNFICYP but that the “TRNC” authorities refused to cooperate. Although the Cypriot police showed the first applicant copies of the Red Notices and witness statements, they refused to give him copies. They also informed him that only a court could take possession of the case file (at the appropriate time). 115. The applicants’ representatives had meetings about the case with the Attorney-General of the Republic of Cyprus in January 2006 and July 2006. 116. Furthermore, on 1 February 2006, at a meeting at Nicosia Police Headquarters, the applicants’ lawyers were informed that one of the suspects had been briefly detained in Turkey. The Cypriot police had received this information from the office of Interpol in Athens. 117. On 15 March 2006 the applicants, upon their request, were given a progress report by the Cypriot police on the case. The applicants submitted that they had requested all the evidentiary material but this was not provided with the report. 118. On 15 July 2007 there was an attempt to kill the first applicant at his home in the “TRNC”. During that month the applicants were also informed by the Cypriot police that the arrest warrant in respect of one of the suspects had been cancelled. 119. In May 2009 the first applicant’s bodyguard was murdered. 120. With regard to the inquest, the applicants submitted that the Larnaca District Court had adjourned the inquest on 19 August 2009 for administrative reasons and not because of the first applicant’s absence. The court had resumed the inquest proceedings on 14 and again on 20 October 2009. Three of the applicants had attended with their counsel and a local lawyer. The inquest had confined itself to investigating whether the deaths had been the result of an unlawful killing. The judge had referred the matter to the Attorney-General as she was functus officio in so far as the criminal proceedings were concerned. 121. The applicants, through their representatives, sent a number of letters to various Cypriot, Turkish and “TRNC” high-ranking officials about the case, including the President of the Republic of Cyprus, the Prime Minister of Turkey and the President of the “TRNC”. 122. In a letter dated 30 November 2006 the applicants’ counsel informed the Prime Minister of Turkey about the case and all the steps that had been taken until that date. They informed him, inter alia, that the Government of Cyprus had stated that they were prepared to hand over the relevant evidence to UNFICYP in order for the latter to decide whether there was a prima facie case against the suspects with the proviso that if UNFICYP concluded that there was indeed such a case, the “TRNC” would undertake to surrender the suspects. As UNFICYP was not prepared to take on this task (see paragraph 149 below) and the “TRNC” insisted on making a decision only after receiving the evidence, the applicants’ counsel stated that “I believe that I have now exhausted the possibilities for reaching the desired compromise through negotiation and mediation”. 123. Following the murders the Cypriot Government, the “TRNC” authorities and the applicants were in contact with UNFICYP officials concerning the case. A number of meetings were held. There was also an exchange of telephone calls and correspondence. The relevant information provided by the parties is set out below. 124. According to this note, the Cypriot authorities made contact with UNFICYP’s Special Representative to see whether UNFICYP could assist. They informed UNFICYP that they intended to carry out a complete investigation into the crime and that the police were working intensively to gather information and evidence. Some of this, however, would have to be collected from the occupied areas. UNFICYP’s Special Representative said that UNFICYP was ready to provide help but suggested, acknowledging the difficulties, that it might be better for the two sides to be in direct contact with each other and to exchange information. The Cypriot authorities had informed him that this was not possible as the Cypriot police could not have direct contact with the “TRNC” police and that it was for this reason they had sought UNFICYP’s intervention. 125. According to this note, a meeting was held on that day at UNFICYP headquarters in Nicosia on the initiative of UNFICYP’s Senior Police Adviser and Commander (“the SPA”) between the SPA and the assistant of the Cypriot Chief of Police. The UNFICYP’s liaison officer was also present. The SPA stated that she had had, on the same day, a long meeting concerning the murders with the “TRNC” Chief of Police in the presence of other officers and the “TRNC” Attorney-General. She had informed the “TRNC” Chief of Police that the Cypriot police had in their possession genetic material linking three of the suspects with the crime (although she was not in a position at that time to tell them who these suspects were), as well as other evidence linking another two persons to the crime, and that one of the cartridges found at the scene had been made in Turkey. She had also informed him that five arrest warrants had been issued by a Cypriot court against the suspects, four of whom were detained in “TRNC” prisons. She had expressed her concerns that if the suspects were released they might leave the “TRNC” and their future arrest would not be possible. The “TRNC” Chief of Police had informed her that these suspects had been detained for minor offences (car theft) and that it was possible that their detention would not be extended by the judge. Although the “TRNC” authorities would try to get their detention extended, they had no evidence to charge them with murder. Although the suspects had already been questioned about the murders and had given some information, this was not enough. No voluntary statements had been made. The “TRNC” Chief of Police had also told her that he was aware that the Cypriot police did not have enough evidence and that only if the two police forces cooperated could more evidence be collected. He had also asked her if, and how, UNFICYP could help; she had informed him that UNFICYP could only intervene if one of the two sides made an official request for help. 126. The “TRNC” Chief of Police had expressed his concerns in respect of the problems that had arisen and might also arise in the future and considered it advisable that the two police forces come to an agreement to enable cooperation in such cases. The “TRNC” Minister of Foreign Affairs was ready to discuss matters of policing and public safety with the Minister of Foreign Affairs of Cyprus and other members of the Cypriot police in order to facilitate cooperation without any political ramifications (προεκτάσεις). 127. UNFICYP’s liaison officer had asked if there was a possibility that Turkey could be involved, so that the suspects could be extradited to Turkey and from there to the Republic of Cyprus. The “TRNC” Chief of Police had answered in the negative; it appeared that the “TRNC” authorities had already examined the matter but could not take such action as it was not provided for by their legislation. The “TRNC” Chief of Police had suggested that the Cypriot police hand over the evidence to the “TRNC” police so that the latter could arrest and try the suspects. If the Cypriot police informed their authorities officially about the evidence and exhibits in respect of the case and officially requested the extradition of the suspects, the “TRNC” authorities could cooperate and possibly extradite them. One of the suspects was in Turkey but appeared not to be connected to the murders. The “TRNC” authorities also had information in their possession linking other persons to the murders. 128. According to the SPA the “TRNC” authorities were sincere and wished to cooperate. They had mentioned, inter alia, their concerns that there could be more crimes of this nature – that is to say criminals going through crossing points, committing crimes and then returning to the other side in order to avoid arrest and punishment. UNFICYP was ready to provide advice as to how the Cypriot Government should act and to sit in any negotiations in order to see how UNFICYP could intervene so as to help investigate (εξιχνιαστει) the murders. The SPA had asked the Cypriot authorities whether Interpol could intervene as she considered it unfair that, although the perpetrators of an atrocious crime had been identified, they remained free because of a political problem. The “TRNC” police had requested to be kept informed by the United Nations (UN) of developments in the case and she had promised that they would be. 129. This letter reaffirmed the Cypriot Government’s determination to bring the suspects to justice. The Cypriot authorities had collected sufficient evidence, issued arrest warrants for five suspects and requested UNFICYP to facilitate the handing over of the suspects and evidential material to the relevant authorities of the Republic of Cyprus. It stated that the Cypriot police had issued international arrest warrants in respect of four of the suspects, which had been forwarded to Interpol’s General Secretariat and to all of Interpol’s member States. The Cypriot police were in the process of issuing an international arrest warrant in respect of the fifth suspect. 130. This note stated that the “TRNC” Attorney-General did not intend to hand over to the police of the Republic of Cyprus the three suspects that were detained in the “TRNC” for the murders, relying on the 1960 Constitution. The “TRNC” Attorney-General had notified UNFICYP of this. An attached memo by UNFICYP stated as follows: “I have seen the [Attorney-General]. Mr A.S. with regard to the inquiries [made in respect of] and the prosecution of the culprits in respect of the Elmas Güzelyurtlu murder. He says that there is no legal and/or constitutional basis for handing over the accused to the Republican Authorities, for the following reasons: The Constitution of Cyprus Articles: 133,153,158,159 (2), (3) and (4) Admin. of Justice Law 14/60 Section 4 Section 5 Section 20 Section 23 He made representation to UN for the Turkish suspect kept by the Greek Police to be handed over to Turkish for prosecution, together with others”. 131. This note stated that the SPA had met with the police at Nicosia police headquarters after she had met the same day with the “TRNC” Chief of Police. The latter had suggested that a meeting be organised with the Cypriot police, in secret, in neutral territory chosen by UNFICYP, so that the issue would not become the object of political manipulation. The “TRNC” Attorney-General had consented to such a meeting. According to the “TRNC” Chief of Police, there were possibly more suspects and the first applicant had given inaccurate information to the Cypriot police, including the wrong photo of the alleged fifth suspect. As a first step, the “TRNC” Chief of Police had suggested the participation in the investigation of an equal number of officers of the same grade from both sides and the presentation of all exhibits collected which could help solve the crime, such as photographs and fingerprints of the suspects and samples of genetic material. He had also mentioned that in order to ensure the continued detention of the suspects, the “TRNC” authorities would like to have the results of the DNA tests linking the suspects to the case. As a second step, the “TRNC” Chief of Police had suggested that the “TRNC” police be given information concerning the ballistic evidence in order to enable the “TRNC” authorities to compare that evidence with information in their database. The SPA had noted that there would be no discussion in any meeting held as to which side would bring the suspects to justice, as the matter at this stage would be limited to the investigation of the case, without giving rise to any political implications. This matter could be discussed later on a political level. The Cypriot police had expressed their hesitations as to the usefulness and repercussions of such a meeting. They would inform her of the Chief of Police’s decision on the matter. 132. This letter stated that at meetings held with UNFICYP and the Deputy Senior Police Advisor (“the DSPA”), the SPA had suggested that meetings between the Cypriot police, the police of the British Sovereign Bases and the “TRNC” police be held at a technical services level (τεχνικό υπηρεσιακό επίπεδο) in the mixed village of Pyla, which is located in the UN buffer zone between the Cypriot police, the police of the British Sovereign Bases and the “TRNC” police. The Cypriot Chief of Police had rejected this as constituting a move towards recognising a “pseudo-state” which provided refuge to fugitives. It was true that UNFICYP’s arguments for the meetings of the technical committees was valid in that there was a risk that the village of Pyla would become a safe haven for criminals. This could be dealt with, however, through more efficient cooperation between UNFICYP and the Cypriot authorities. The Cypriot Chief of Police sought to obtain the Cypriot Government’s political position regarding this suggestion. 133. This note stated that as concerned a meeting held on 17 May 2006 between the SPA, the DSPA, and members of the Cypriot police and investigation team, the DSPA had raised his concerns as to an increased level of collaboration between Greek Cypriot and Turkish Cypriot criminals and their movements across the island. The DSPA had been informed generally about evidence that had been collected. He had also enquired whether: - the Cypriot police intended to give the evidence to UNFICYP for forwarding to the “TRNC” authorities to enable the suspects’ prosecution; - the Cypriot police could make the necessary arrangements for the suspects to be taken to a UNFICYP building at the Ledra Palace Hotel in the buffer zone and be questioned through “the video recording interview method”, and – if this was possible – whether such evidence would be admissible before a Cypriot court; - if one of the suspects were to come over to make a statement against the other suspects, the Cypriot authorities would arrest him and bring criminal proceedings against him. 134. The Cypriot police had informed him that prosecution decisions were made by the Attorney-General. They had also informed him that they would cooperate with UNFICYP but not with the “TRNC” authorities or police. They had highlighted the fact that, despite the Red Notices, Turkey had refused to cooperate and had not surrendered the fifth suspect, who had gone to Turkey. They had arrested him but subsequently released him. 135. The DSPA had stated that the “TRNC” – pursuant to its own laws –could not surrender Turkish Cypriots. It had been stressed by the Police Chief Superintendant that the “TRNC” was not a state. 136. The DSPA had also put forward the suggestion that the suspects could be surrendered to a third country such as Greece, and that steps to bring them to justice could be taken from there. The Police Chief Superintendant had informed him that this was not an option and that Turkey had an obligation to comply with international law. 137. Finally, the DSPA had suggested that the matter could be discussed by the relevant technical committee (see paragraphs 154, 155 and 156 below) in order to avoid the issue taking on a political dimension, to find solutions for cooperation and to bring the perpetrators to justice. He had been informed that this was a sensitive matter and that the political aspects could not be ignored; if the “pseudo-state” authorities were interested in completing the investigation and bringing the perpetrators to justice, they should stop providing refuge to criminals. 138. The note stated that at this meeting, the DSPA had noted that he was trying to convince the “TRNC” authorities to surrender the suspects. The Cypriot police had informed him that they would not be providing any evidence to, or cooperating with, the authorities of the “pseudo-state” but that they were willing to cooperate with UNFICYP without this implying any recognition of any illegal entity. 139. On 24 January 2005 a meeting was held between the private secretary of the “TRNC” Prime Minister, the SPA, the head of UNFICYP’s civil affairs unit, and the envoy of the President of the Republic of Cyprus concerning the suspects held in detention. According to the minutes of the meeting, the “TRNC” authorities needed the results of the DNA tests that had been carried out by the Greek Cypriot authorities, which were reluctant to transmit them on the pretext that this would constitute the [de facto] recognition of the “TRNC”. The “TRNC” authorities suggested these could be transmitted through UNFICYP. A “non-paper” dated 24 January 2005 was given to the envoy. This stated as follows: “According to the Constitution of Cyprus (article 159), any case confined among Turkish Cypriots should be taken by the Turkish Cypriot courts. In the case of murder of Elmas Güzelyurtlu and his family, all the suspects are Turkish Cypriots hence the case should be heard by Turkish Cypriot courts by Turkish Cypriot judges. Since the act took place in Greek Cypriot side and all of the evidences collected successfully by the Greek Cypriot police, cooperation is needed for the justice to be done. This is an urgent situation therefore we need to act together immediately. As a first step the report concerning the DNA analysis is needed to get the court order to have the suspects in custody during the lawsuit. This is a humanitarian issue and totally out of political concerns. The political concerns should not be in the way to prevent the justice to take place.” 140. On 25 January 2005 the “TRNC” Chief of Police held a meeting with the SPA, who gave details about the circumstances of the murders. According to the minutes, Elmas Güzelyurtlu had been known throughout Cyprus and had been suspected of many crimes; some had involved the suspects. The information in the hands of the Greek Cypriot police was sufficient for the purpose of issuing arrest warrants in respect of the suspects. Although the “TRNC” police had already issued such warrants, they did not have evidence to bring proceedings against the suspects; more information was necessary. The SPA had asked for suggestions. 141. On 26 January 2005 a meeting was held between UNFICYP officials and “TRNC” functionaries, including the “TRNC” Deputy Prime Minister. According to the minutes, the question had been raised as to whether the Greek Cypriot authorities were willing to transmit the evidence. The “TRNC” Deputy Prime Minister had mentioned that if this was done the suspects’ detention would be extended; then, if the “TRNC” courts considered the evidence to be credible, the suspects would be handed over to [the Republic of Cyprus] via UNFICYP. 142. On 31 January 2005 another meeting was held between UNFICYP and “TRNC” officials. According to the minutes, the UNFICYP officials had submitted Interpol’s Red Notices in respect of three of the suspects detained in the “TRNC”. They had mentioned that the Greek Cypriot authorities were reluctant to share the suspects’ DNA test results and did not want to collaborate with the “TRNC”. 143. At a meeting held on 7 February 2005 UNFICYP officials and the Prime Minister of the “TRNC” discussed the reluctance of the Greek Cypriot authorities to cooperate. 144. On 18 February 2005 a meeting was held between the head of UNFICYP’s civil affairs unit and the Undersecretary of the “TRNC” Ministry of Foreign Affairs. The former stated that the Greek Cypriot authorities’ attitude concerning their cooperation with the “TRNC” was changing and that they were planning to send the evidence through UNFICYP. He also asked the Undersecretary whether the suspects could be re-arrested and given to the Greek Cypriot authorities through UNFICYP. The Undersecretary replied that under the 1960 agreements if the suspects were Turkish, then they should be tried in a Turkish court. 145. On 30 March 2005 the head of UNFICYP’s civil affairs unit had a telephone conversation with the “TRNC” Head of Consular Affairs. The former informed the latter that the courts of the British Sovereign Base areas did not have jurisdiction to try the suspects; however, the courts of the Republic of Cyprus could sit at the bases and the hearing could take place there. The Head of Consular Affairs stated that the “TRNC” authorities were not planning to take any steps until the evidence and records were given over to them because it was unacceptable to the “TRNC” authorities for the Greek Cypriot authorities to work alone on this matter. 146. On 5 April 2005 UNFICYP officials had a general meeting with the “TRNC” Head of Consular affairs who mentioned that the DNA results given to them were not sufficient in order to proceed further with the case file. The “TRNC” authorities needed more concrete evidence such as police investigation records and security camera records. The head of UNFICYP’s civil affairs unit promised to discuss this with the Greek Cypriot side. 147. Between 2005 and 2006, an exchange of correspondence concerning the investigation of the murders took place between the applicants’ representatives and UNFICYP officials. The text of the most relevant communications between UNFICYP and the applicants’ representatives is set out below: 148. In a communication to UNFICYP dated 19 December 2005, the applicant’s lawyer, requested, inter alia, the disclosure of any possible information relating to the UNFICYP’s efforts in the case, in particular, concerning the mistrust and lack of cooperation between the two sides. He wanted to ensure that all local remedies were properly exhausted and UNFICYP to help him to form a view in general terms about the attitude of both sides. If all legal means to bring about the prosecution of suspects of this heinous crime failed, he had instructions to bring an application before the Court against Turkey and Cyprus. 149. In a letter to the applicants’ representatives dated 23 February 2006 the SPA, stated, inter alia, the following: “1. The Senior Police Advisor (SPA) of the UN police in Cyprus first became involved in the case on 16 January 2005 at the request of the Assistant Chief of Police of the Republic of Cyprus, ... who at that time briefed the Senior Police Adviser on the case. A request was made to the SPA to facilitate the exchange of information between the sides. 2. At no time was the SPA asked to operationally assist in the investigation of the murder or apprehend the suspects. If [she had been] asked this would not have been agreed to as this is not within UNFICYP’s mandate. ...(Illegible) 4. A copy of the preliminary investigation report prepared by the authorities in the south was provided to the Turkish Cypriot authorities, with the SPA’s facilitation. UNFICYP limited itself to a mediation role and therefore neither verified the contents nor kept a copy of the report. 5. At what point the trial venue became an issue cannot be ascertained as this was not within the control or knowledge of the SPA. 6. UNFICYP attempts to facilitate the exchange of information on criminal enquiries when asked to do so by one side or the other. ... (Illegible) 8. As you may be aware, UNFICYP is not part of the internal justice system of the Republic of Cyprus and does not have executive power. UNFICYP is not in any sense an element of the “domestic remedies” available to victims of a crime in the [Republic of Cyprus]”. 150. In an e-mail sent by the DSPA to the applicants’ representative, Ms Meleagrou on 25 October 2006, the following, inter alia, was stated: “I note your request and assure you of the UN’s utmost cooperation in dealing with any matter of a criminal nature, particularly ... in this most serious case. While UNFICYP has been exhausting its efforts to reach some conclusion to this case, it is unfortunate that there is a stalemate at this present time due to the two sides not agreeing on a way forward. I note your comments that: The [Republic of Cyprus] will hand over to the UN in Cyprus all the evidence on the suspects so that the UN legal team can evaluate the evidence and see whether or not there is a prima facie case against them. The [Republic of Cyprus] will only do so if the “TRNC” authorities give an undertaking that they will hand the suspects over to the [Republic of Cyprus] to be tried if the UN is satisfied (possibly after discussion with the “TRNC” – the italicised parenthesis is not strictly speaking part of the proposal at this stage but might be what we will have to argue in order to facilitate matters) that there is such a prima facie case against the suspects: 1. The [Republic of Cyprus] will not hand over any evidence for the purposes of conducting a trial in the north. This is despite the fact that [an]other jurisdiction (United Kingdom) has in the past successfully caused a trial to be conducted in the north [in respect of] a serious crime committed in the UK. 2. The legal processes conducted in the north do not allow for the handing over of any [Turkish Cypriot] suspects to any authorities in the south or any other country in any other circumstances. Therefore UNFICYP stands ready to facilitate [in any way] it can in this case, I can see no resolution being [arrived at] until such time as one side or the other cedes their current position. Either the [Republic of Cyprus] is willing to hand over all the evidence to the north and offer full police and evidentiary cooperation so that a trial can be conducted in that “jurisdiction”, or the north is willing to hand over suspects [on the basis of] sufficient evidence to cause the [issuance] of an arrest warrant in the north, with a view to handling the suspects to UNFICYP for passing on the [Republic of Cyprus]. As always UNFICYP stands ready to cooperate in whatever manner it can.” 151. In an e-mail sent by UNFICYP to the applicants’ representative Ms Meleagrou on 16 November 2006 the following was stated: “As stated in my previous email to you UNFICYP stands ready to facilitate negotiations between the two sides in respect of this matter and indeed continues in its efforts to find a solution. However, UNFICYP is not in a position to formally engage a suitably qualified expert to officially adjudicate on the evidence held by the Republic of Cyprus. It has already been stated that while the UNFICYP believes that there is enough evidence on face value for the two sides to reach a suitable position, it welcomes the delivery of any further or all evidence, copies or otherwise, from the Republic of Cyprus that can be used to further meaningful dialogue between the two sides. I again reiterate the following options that may in my view facilitate further useful negotiations: The [Republic of Cyprus], without prejudice, [should] deliver to the UNFICYP all necessary evidence, allowing this to be used as UNFICYP sees fit, with a view to negotiating the alleged offenders’ arrest and handover to UNFICYP for delivery to the authorities in the south for the purposes of a trial. However, without a clear guarantee that the north will arrest and hand over the alleged offenders there is little chance of this being successful. The only other solution is for the [Republic of Cyprus] to hand over all the evidence to UNFICYP for delivery to the relevant persons in the north with a view to having a trial conducted in the north. This option has already been rejected by the [Republic of Cyprus].” 152. The relevant parts of the UN Secretary-General’s reports on the UN operation in Cyprus are set out below: 153. Report of 27 May 2005: “23. Official contact between the sides is hampered by a high degree of mistrust. On 15 January 2005, three members of a Turkish Cypriot family living in the south were killed ... . Eight suspects were arrested in the north while all the evidence remained in the south. UNFICYP’s efforts to assist the sides to bring the suspects to justice proved unsuccessful, and all suspects were released in the north. This case is an illustration of the growing number of crimes across the cease-fire line, such as smuggling, drug trafficking, illegal immigration and human trafficking. These problems are implicit in the expanding inter-communal contacts, which though positive, have also the potential for adverse consequences if the present lack of cooperation between the sides persists. 24. The continuing absence of official contacts between the sides has accentuated UNFICYP’s role in promoting bicommunal contacts. Although people from either side can meet freely since the opening of the crossings in 2003, the impartiality of the Ledra Palace Hotel venue and the United Nations umbrella are considered indispensable for sensitive humanitarian and other meetings, including those of political parties from the north and the south. It is hoped that under the auspices of UNFICYP, contacts may be established between the sides, without prejudice to their political positions, on humanitarian and related issues generating a climate of trust and easing tensions. During the reporting period, UNFICYP provided facilities for 57 bicommunal events, including those implemented by the United Nations Development Programme (UNDP)/United Nations Office for Project Services (UNOPS) ...”. 154. Report of 2 June 2008: “4. On 21 March [2008], ... the two leaders met in the presence of my then Special Representative and agreed on a path towards a comprehensive settlement (see annex II). The agreement entailed the establishment of a number of working groups, to consider the core issues pertaining to an eventual settlement plan, and of technical committees, to seek immediate solutions to everyday problems arising from the division of the island. They also agreed to meet again in three months to review the work of the working groups and the technical committees and, using their results, to start full-fledged negotiations under United Nations auspices. In addition, the leaders agreed to meet as and when needed prior to the commencement of full-fledged negotiations. ... 5. On 26 March [2008], representatives of the leaders agreed to establish six working groups on governance and power-sharing, European Union matters, security and guarantees, territory, property and economic matters, as well as seven technical committees on crime and criminal matters, economic and commercial matters, cultural heritage, crisis management, humanitarian matters, health and the environment. ... On 22 April [2008], the groups and committees began to meet. They have been coming together on a regular basis since then, as foreseen by the leaders, and facilitated by the United Nations.” 155. Report of 15 May 2009: “9. On 14 April [2009], the leaders agreed to the implementation of 4 of the 23 confidence-building measures identified by the technical committees, which were aimed at improving the daily life of Cypriots across the entire island. They concern the passage of ambulances through crossing points in cases of emergency, the establishment of a communications and liaison facility (operating round the clock) to share information on crime and criminal matters, an initiative funded by the United Nations Development Programme (UNDP) on awareness-raising measures for saving water and the establishment of an advisory board on shared cultural heritage. ...” 156. Report of 9 January 2015: “10. (...) UNFICYP police facilitated meetings of the Technical Committee on Crime and Criminal Matters, and the Joint Communications Room continued to work actively, providing the police services of both sides with a forum for enhanced cooperation. The appointment for the first time of serving police officers as Greek Cypriot representatives to the Technical Committee signaled a significant step forward in cooperation. Over and above the exchange of information on criminal matters that have intercommunal elements, the Joint Communications Room focused on the investigation of crimes that took place within and across the buffer zone, the handover of persons of interest through the UNFICYP police and humanitarian cases.” | 1 |
test | 001-177396 | ENG | RUS | CHAMBER | 2,017 | CASE OF KHADZHIMURADOV AND OTHERS v. RUSSIA | 3 | Remainder inadmissible (Article 35-1 - Six-month period);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Luis López Guerra | 5. The applicants alleged principally that their twenty-one relatives (spouses, children, brothers and an uncle) had been killed by State servicemen on 5 February 2000 in the Novye Aldy settlement on the outskirts of Grozny (see Appendix for details). 6. A criminal investigation into the murders was opened on 5 March 2000 by the Grozny town prosecutor’s office. Over the years, the applicants or close members of their families were granted victim status in the proceedings. Those proceedings are still ongoing. 7. The documents indicate that only one applicant, Olga Soltykhanova (application no. 22304/10), was in the Novye Aldy at the time of the events; the other applicants were out of the district or out of Chechnya, owing to heavy fighting in the preceding months. 8. In support of their claims, the applicants submitted copies of the death certificates issued in respect of their relatives, copies of some documents from the criminal investigation file, decisions granting them or their close relatives victim status in the criminal proceedings, statements which they had made, statements from witnesses to the events, and press and NGO reports. Several applicants also submitted documents issued in 2000 and 2001 by the local administration or “neighbourhood committees” confirming that the houses in which they had lived had been destroyed or damaged in 2000. 9. Some applicants complained that their state of health had deteriorated due to the stress and anguish which they had suffered in the aftermath of the Novye Aldy killings, and particularly in view of the inadequate and callous response of the authorities to their plight. 10. The facts of the present case are connected to the case of Musayev and Others v. Russia (nos. 57941/00 and 2 others, 26 July 2007) in so far as the applicants claimed that their relatives had been killed by the same people and in the same circumstances as the relatives of the applicants in that case. 11. The applicants in Musayev and Others complained that eleven of their relatives had been killed by unidentified servicemen on 5 February 2000 in the Novye Aldy. The first applicant had witnessed the deaths of his seven distant relatives (cousins and nephews). Other applicants in Musayev and Others were more closely connected to the victims, and were their husband, sister or brothers. The first applicant had been granted victim status in the domestic criminal proceedings and had participated in those proceedings (see Musayev and Others, cited above, §§ 68, 81, 94). It appeared that in the domestic criminal proceedings the proximity of the relationships between the victims and the deceased had not been fully ascertained, and, as noted in the Musayev and Others judgment, no single list existed of the victims and the people who had been granted victim status in the proceedings (ibid., §§ 74, 80, 162). The Government did not challenge the first applicant’s victim status under Article 2 of the Convention. 12. On the basis of the parties’ submissions and inferences drawn by the Court, it was established that on 5 February 2000 eleven relatives of the applicants had been killed by State servicemen in the Novye Aldy settlement on the outskirts of Grozny, during a special operation (a “sweeping” operation) carried out by, amongst others, servicemen from the Police Special Task Unit (Отдел милиции особого назначения (ОМОН)) from St Petersburg (hereinafter the St Petersburg OMON). 13. According to the documents examined by the Court, more than fifty people had been killed on that day in the Novye Aldy by unidentified servicemen wearing camouflaged uniforms and using automatic weapons, equipped with portable radio sets, armoured personnel carriers (APCs) and military Ural trucks. The same servicemen had also looted and burnt down a number of houses. 14. In April 2006, when the parties exchanged observations in Musayev and Others, the criminal investigation was still ongoing. Although the investigation file reflected some attempts to identify the servicemen involved, there was no information that anyone had been charged with the crimes. The Court concluded that the authorities had failed to carry out an effective investigation into the deaths. 15. In addition, the first applicant, who had witnessed the deaths of his relatives and had himself been held at gunpoint, was found to be a victim of inhuman and degrading treatment in breach of Article 3 of the Convention. Lastly, a breach of Article 13 of the Convention was found, since the criminal investigation into the deaths had been inefficient, rendering any other remedy equally futile. 16. On 5 March 2000 the Grozny town prosecutor’s office opened criminal investigation no. 12011 into the murder of several inhabitants of the Novye Aldy settlement in Grozny by “unidentified men armed with guns” under Article 105 § 2 of the Criminal Code (the murder of two or more persons with aggravating circumstances); the decision also referred to the looting of residents’ property. In response to the Court’s request in the present case, the Government submitted copies of eight volumes of documents from criminal case no. 12011, produced after the judgment issued in Musayev and Others. Those documents can be summarised as follows. 17. The applicants submitted that, prior to the Musayev and Others judgment in July 2007, they had not been aware that another group of victims had applied to the Court. They also submitted that, prior to that date, they had had no reasons to doubt the effectiveness of the domestic investigation, even if no regular updates from the prosecutor’s office had been forthcoming. Some of the applicants also referred to their previous contact with lawyers whom they had instructed to apply to the Court in 2005, but one lawyer had died, and either their instructions to other lawyers had not been complied with or the applicants had not kept any written proof of those instructions. As the documents in the Court’s possession indicate, in March 2005 thirty-one families of victims of the Aldy events sent a letter to the Court stating their intention to apply to the Court. That letter included at least ten applicants in the present case. The signatories failed to submit proper applications or otherwise pursue that complaint, which was eventually discontinued. 18. The deaths of eleven people were found to be in breach of Article 2 of the Convention in the Musayev and Others judgment (cited above), and the family members of five of those people are applicants in the present complaint (see Appendix). While the first applicant in the Musayev and Others case was a cousin and a nephew of the deceased, the applicants in the present group are the deceased’s spouses, children and brothers. 19. The applicants in the present case (or their close relatives) were granted victim status in criminal investigation file no. 12011 on various dates between March 2000 and June 2012 (see Appendix). Eight applicants were questioned and received victim status in March and April 2000. Six were granted victim status in April and May 2004, and one in March 2005. The other five received such status between December 2007 and July 2012. On 19 April 2004 the investigator of the Chechnya prosecutor’s office granted an application made by a lawyer, Mr A. Khamzayev. The application was for thirty-two people to have victim status. The list included fourteen applicants in the present case, twelve of whom later obtained and countersigned proper individual decisions as indicated above. There is no information that any other procedural acts involving the applicants’ participation occurred between April 2000 and December 2007 (see the following paragraph). 20. The investigation was adjourned and resumed a number of times (see subsection 5. Various procedural steps below); on 5 December 2007 the investigation was resumed. As of 2008 the applicants in the present case and in Musayev and Others and their close relatives were regularly questioned about the events of 5 February 2000. Thus, in December 2008 the following applicants were questioned: Zoya Musayeva (no. 21200/09), Malika Ganayeva (no. 30538/09), Ruslan Khadzhimuradov (no. 21194/09), Birland Tasuyeva (no. 27064/09), Ibragim Musayev (no. 21200/09), Aset Khakimova (no. 32851/09), Osman Kudozov (no. 30578/09), Manshura Sugaipova (no. 27259/09), Birlant Beterakhmadova (no. 24693/09), Baret Shamsatova (no. 27159/09), Abulkhasan Khaydayev (no. 30531/09), Alpatu Khirikhanova (no. 24700/09), Yakhita Bishayeva (no. 32855/09), and Yakhita Dzhabrailova (no. 32992/09). In November 2012 the investigators questioned Elina Umarkhadzhiyeva and Madina Dzhamaldayeva (no. 30538/09); in December 2013 they questioned Rashid Gerikhanov (no. 27063/09), Aysest Musostova (no. 32862/09), Abulkhasan Khaydayev (no. 30531/09), and Birlant Beterakhmadova (no. 24693/09). During questioning, the investigators informed the applicants about forensic expert reports on the bodies that had been carried out in 2000. The applicants were also asked questions about the loss of property and were asked to estimate the pecuniary damage which they had sustained. While they provided some estimates, no documents were provided, and all applicants stated that they intended to seek pecuniary damages as civil parties during the trial. 21. Additional questioning of the applicants, their relatives and other local residents continued into 2009 and the years which followed. New victims of the events were identified as late as 2014, and their relatives were granted victim status in the proceedings. The questioning of other local residents continued until 2014, when they were granted victim status in the proceedings, notably in respect of the loss of property. 22. On 9 February 2009 Mrs Birlant Beterakhmadova (application no. 24693/09) complained to the Staropromyslovskiy District Court of Grozny regarding the decision of 24 November 2008 to adjourn the investigation and the prosecutor’s failure to conduct an efficient investigation into the murders. 23. On 3 April 2009 the Staropromyslovskiy District Court noted that the decision of 24 November 2008 had been quashed on 15 March 2009 by the Chechnya Investigative Committee, and dismissed Mrs Beterakhmadova’s complaint. She did not appeal against that decision. 24. The decision of 10 April 2006 to adjourn the investigation (and subsequent similar documents) indicates that in May 2005 the investigation identified S.B. as a suspect. He was charged with aggravated murder and robbery. In February 2000 S.B. had been a police technician with the sapper battalion of the St Petersburg OMON. The charges stated that on 5 February 2000 he, along with three other unidentified persons, had killed Mr Sultan Dzhabrailov (the husband of Mrs Yakhita Dzhabrailova, applicant in case no. 32992/09) by shooting him with a Kalashnikov machine gun. S.B. was also charged with robbing two other people of money and jewellery, A.M and B.M. In October 2005 S.B. escaped to Belarus and his name was put on the international wanted list. In February 2006 the Zavodskoy District Court in Grozny ruled that S.B. should be arrested. The decision of 10 April 2006 states that the investigator informed the victims of that decision, but the case file contains no relevant correspondence. Copies of letters submitted by the parties indicate that a copy of that decision was sent to the victims on 14 November 2007. 25. In April 2011 the investigators asked the prosecutor’s office in St Petersburg to question S.B.’s civil partner about his whereabouts. In November 2012 she stated that she had had no information about S.B.’s whereabouts since 2006, although she had seen him in 2008 in St Petersburg. 26. In November 2012 the investigators examined a social network page belonging to S.B. and noted that the latest photographs on it had been uploaded in 2007. In May 2013 the investigators sought to obtain additional information about S.B.’s whereabouts by questioning his other relatives, locating his mobile phone, and so on. 27. During the questioning of victims and witnesses the investigators collected additional information about the suspects. Thus, in February 2009 Mr Ibragim Musayev (application no. 21200/09) referred to servicemen from the 245th motorised rifle regiment, the commander of that regiment, and the commander of company no. 6 (see Musayev and Others, cited above, § 107) as possible suspects. 28. In April 2010 the investigation produced a list of over 170 servicemen of the St Petersburg OMON who had been posted in Chechnya in February 2000, and asked for verification of whether one of them had a tattoo in the shape of a snake on his neck, mentioned by one of the witnesses. Dozens of servicemen were inspected, but no one with a snake-shaped tattoo was identified. When questioned in February 2011, the servicemen, in brief statements, confirmed that they had served in Chechnya in February 2000 but had no knowledge of the civilians killed in the Novye Aldy. 29. In April 2010 the investigators sent a letter asking the prosecutor of the Northern Caucasus military circuit to identify and question the servicemen and commanders of the 245th motorised rifle regiment (see Musayev and Others, cited above, §§ 105-07). The letter contained detailed information and questions about the events of 5 February 2000, and asked the prosecutor to identify and question the people who had used known radio call signs and to identify the commanders of the operation. In June 2010 an officer of the military unit concerned stated, as a witness, that all details about the use of radio equipment and the assignment of calls were stored as secret information for five years. Several reminders followed in 2011 asking, in particular, for the former commander of the 245th regiment, Major-General S.L., to be questioned. 30. In June 2010 the investigator in charge sought similar information from another military unit (the 15th motorised rifle regiment), including the names of the unit commanders who had taken part in the operation on 5 February 2000. In particular, the letter referred to the commander of company no. 6 of the regiment, who, the investigators suggested, had written a note left by the servicemen for the local residents. 31. In May 2011 the investigators asked the military investigators to submit information about the commanders of the 245th motorised rifle regiment and to ask them a number of specific questions about the events of 5 February 2000. 32. In April 2011 the investigators asked the investigator of St Petersburg to carry out additional ballistic reports on 357 guns used by the St Petersburg OMON in February 2000. 33. In May 2011 the investigator in charge informed the military prosecutor of the Southern military circuit that the special operation on 5 February 2000 in the south of Grozny had been under the command of Colonel Ye.K., the head of the operative headquarters of the internal troops of the Ministry of the Interior. He reminded the military prosecutors of his previous requests for the commanders of that operation to be identified and questioned. It does not appear that any progress was achieved in this respect. 34. During additional questioning in the period 2009-2013, local residents were asked about the damage to their property caused in 2000. They explained that many houses had been burnt down by the servicemen, and that those who had stayed in the district had been forced to give up their jewellery and valuables as a result of threats. Others estimated the amount of pecuniary damage caused (see Appendix). No one was granted victim status in relation to any property offence and no additional documents were requested from the residents. The victims stated that they would seek damages in the course of a criminal trial, as civil parties. 35. On 18 January 2014 the investigator ruled that no criminal proceedings should be opened in connection to the crimes relating to property, due to the expiration of the statutory limits for those crimes. It does not appear that that decision was challenged. In December 2014 decisions according civil party status in criminal proceedings with regard to property claims were issued in respect of the following applicants: Ayset Musostova (no. 32862/090), Birlant Beterakhmadova (no. 24693) and Zoya Musayeva (no. 21200/09). Osman Kudozov (application no. 30578/09) submitted documents which indicated that the house for which he claimed compensation had been owned by M.K., his sister. In his written statement to the Court he stated that at some point M.K. had received compensation from the State for the lost property, but he submitted no relevant documents. 36. On 5 December 2007 the investigation of criminal case file no. 12011 into the events of 5 February 2000 was resumed, and the victims were informed accordingly. 37. On 5 January 2008 the investigation was adjourned. 38. The investigation was then resumed, but on 18 August 2008 was adjourned again, and the applicants were informed accordingly. 39. The investigation was then resumed, but adjourned again on 24 November 2008. A letter informing the victims of the adjournment was dated 24 October 2008. 40. It appears that the investigation was reopened and then adjourned again on 11 January 2009. 41. It was then reopened in March 20009, and on 16 April 2009 adjourned again, for similar reasons as those stated in the decision of 10 April 2006 (see paragraph 24 above). 42. On 22 March 2010 the Chechnya Investigative Committee gave an order for an investigating group to be set up which would include investigators from the military prosecutor’s office, in view of information about the possible implication of military servicemen in the crimes. 43. In June 2010 the investigators watched a video filmed in the Novye Aldy on 9 February 2000 (see Musayev and Others, cited above, § 25) and produced the video’s transcript for the file. 44. In November 2012 the investigators compiled a table of people who had been killed on 5 February 2000, indicating their places of burial, the next-of-kin granted victim status in the proceedings, and the dates of such decisions. The table contains information about forty-seven deaths, including the deaths of twenty people about which the applicants in the present case complain; the one exception is Isa Akhmadov, born in 1964 (the brother of Aysest Musostova, application no. 32862/09). At the same time, the table contains information about the death of a certain Isa Akhmatov, born in 1959, in respect of whose death another person (his brother) was questioned and granted victim status in June 2012. 45. In December 2014 the investigation recognised civil party status of three applicants in connection with the destruction and theft of property during the events of 5 February 2000. 46. It does not appear that the applicants were informed of any other developments, or that they sought further information from the investigating authorities. | 1 |
test | 001-153018 | ENG | ROU | CHAMBER | 2,015 | CASE OF POP AND OTHERS v. ROMANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicants were born in 1967, 1974, 1953 and 1961 respectively and live in Baia Mare. 6. On 1 April 2001 the Cluj Military Security Department started secretly monitoring the applicants’ telephone conversations on the basis of an order issued by the Military Prosecutor’s Office attached to the National Anti-Corruption Prosecutor’s Office (“the Military Prosecutor’s Office”). The surveillance order issued by the Military Prosecutor’s Office was based on Law no. 51/1991 on national security (“the National Security Act”). The applicants were suspected of being part of a network trafficking in Schengen visas. 7. The first two applicants were at the material time Romanian army officers, while the last two applicants were civilians. 8. On 2 October 2002 the first two applicants were questioned for the first time at the Military Prosecutor’s Office as part of the investigation initiated by the domestic authorities against a network of individuals trafficking in Schengen visas. At the material time the two applicants had not been charged with any offence and were not assisted by a lawyer. The first applicant had allegedly been pressurised by the prosecutor to sign a written statement. The second applicant was detained by the Military Prosecutor’s Office for twenty hours, allegedly without an arrest warrant in his name and without being informed about the reasons for his detention. 9. On 3 October 2002 the second applicant was heard by the Military Prosecutor’s Office for the second time. No charges had been brought against him at the time. He was informed of his right to be assisted by a legal representative and agreed that one could be appointed for him. 10. On 12 December 2002 the third applicant was questioned at the Military Prosecutor’s Office for the first time. At the time he had not been informed of the charges brought against him and he was not assisted by a lawyer. 11. On 13 December 2002 the fourth applicant was questioned for the first time at the Military Prosecutor’s Office. At the time he had not been charged with any criminal offence and was not assisted by a legal representative. His written statement contained only confirmation that he had been using a company mobile phone and the phone number attached to the phone since May 2000. On the same day the fourth applicant was summoned to appear at the Military Prosecutor’s Office on 16 December 2002. 12. By a Military Prosecutor’s Order issued on the same date a criminal investigation was opened (ȋnceperea urmăririi penale) against the first three applicants for complicity in bribery and aiding an offender. The Prosecutor’s Order did not expressly state that a criminal investigation had been opened against the fourth applicant as well, although his name and the unlawful act he was suspected of was mentioned in the order. 13. On the same date, in the presence of the chosen legal representative of the first two applicants and of the officially appointed legal representative of the third applicant, the previously mentioned three applicants were charged by the domestic authorities with complicity in bribery and aiding an offender, and were heard in respect of the charges brought against them. They maintained and reiterated their previous statements and they were presented with the evidence available in the file. In addition, they stated that they did not request any other evidence. 14. On 16 December 2002, in the presence of an officially appointed legal representative, the fourth applicant was charged with complicity in bribery and was questioned in respect of the charges brought against him. He too reiterated his previous statement. He was presented with the evidence available in the file. 15. On 20 December 2002 the Military Prosecutor’s Office indicted the four applicants and sent their case to trial before the Bucharest Military County Court. The Military Prosecutor’s Office relied mainly on transcripts of the recordings of the applicants’ telephone conversations, witness statements by some of the individuals the applicants had unlawfully helped to obtain visas, and the applicants’ own statements. 16. On 23 and 24 December 2002 three newspaper articles were published in a national newspaper and on news websites reporting on the four applicants’ indictment and the offences they were suspected of. 17. At the hearing of 4 March 2003 the applicants sought an adjournment of the proceedings in order to allow them to acquaint themselves with the contents of the secret file of the case to prepare their defence. 18. At the hearing of 11 March 2003 the four applicants were heard by the Bucharest Military County Court. They all maintained their statements given before the domestic authorities over the course of the criminal investigation. The first-instance court also ordered the summoning of the individuals unlawfully helped by the applicants to obtain visas, although the applicants expressly stated that they did not insist on those people being heard. 19. At the hearing of 18 March 2003 the first-instance court heard some of the witnesses summoned on 11 March 2003 and ordered the resummoning of the witnesses who had not attended the hearing, although the applicants had once more expressly stated that they did not insist on the remaining witnesses being heard. 20 21. At the hearing of 8 April 2003 the first-instance court allowed the applicants to submit documentary evidence and acceded to their request that the hearing of the remaining witnesses be dispensed with as not necessary to the case. In addition, it noted that no other demands or requests for evidence had been lodged by the applicants, and declared the judicial investigation of the case closed. The court adjourned the hearing in order to allow the parties to make written submissions. 22. By a judgment of 22 April 2003 the Bucharest Military County Court convicted all the applicants of complicity in bribery and aiding an offender, and sentenced them to prison terms of between six months and three years and six months. It held that the second applicant had been pardoned and suspended the sentences of the remaining three applicants for a period of four years. It found amongst other things that once they had been presented with the transcripts of their phone conversations the applicants had admitted to committing the offences they were charged with. Moreover, the transcripts of the applicants’ telephone conversations contained proof of their involvement in unlawful activities, although the court held that the secret monitoring of the applicants’ telephone conversations had not met the formal requirements provided for by the applicable rules on criminal procedure. In particular, in spite of the court’s repeated requests, the prosecution had failed to submit: the Military Prosecutor’s Office’s order authorising the tapping of the applicants’ phones between 17 April 2001 and 2 October 2002; the complete transcripts of the recordings; the certification of the recordings’ authenticity; and the records containing the list of the telephone numbers monitored by the authorities. The applicants appealed against the judgment. 23. On 11 November 2003 the Military Court of Appeal, sitting in a panel of judges which included the judge P.P., allowed the applicants’ appeal, quashed the judgment of 22 April 2003, and ordered a retrial from the moment of deliberation. The court of appeal held that the first-instance court had disregarded the applicable rules on criminal procedure and had deliberated on the case in a single-judge formation, while the legal requirement was a two-judge formation. 24. By an interlocutory judgment of 5 March 2004 the Bucharest Military County Court allowed the applicants’ request for the hearing of the witnesses C.C., M.P. and A.M., after their legal representative took it upon himself to submit to the court the addresses of the aforementioned witnesses. In addition, the court allowed of its own motion the parties to submit observations on the admissibility as evidence of the transcripts of the recordings of the applicant’s telephone conversations included in the secret surveillance case file. Furthermore, it noted that the applicants’ legal representatives had argued that the aforementioned recordings had been carried out unlawfully and could not be considered as evidence in the case. The court also ordered the summoning by orders to appear (mandate de aducere) of all the witnesses mentioned by the Military Prosecutor’s Office in the order of indictment who had not previously been heard by the court, including the three witnesses expressly requested by the applicants. Lastly, it ordered the Military Prosecutor’s Office to provide additional explanations concerning the lawfulness of the interception of the applicants’ telephone conversations, the recordings of which were attached to the secret surveillance file of the case. 25. On the same date the applicants’ legal representative submitted to the court the addresses of witnesses C.C., M.P. and A.M. 26. At the hearing of 23 March 2004 the first-instance court noted that only some of the summoned witnesses were present, and proceeded to hear them. Witnesses C.C., P.M. and M.A. had not attended the hearing. In addition, it ordered the re-summoning of some of the missing witnesses, but not of witnesses C.C., P.M. and M.A. 27. By an interlocutory judgment of 6 April 2004 the first-instance court acknowledged the applicants’ decision not to insist on the hearing of the absent witnesses. In addition, it noted that according to the applicants’ submission the recordings of their telephone conversation could not be adduced to the file because they had been unlawful. Also, the Prosecutor’s Order of 13 December 2002 did not expressly state that a criminal investigation had been opened against the fourth applicant as well, probably because there had been confusion between the fourth and the third applicants’ names. 28. By a judgment of 15 April 2004 the Bucharest Military County Court convicted the applicants of complicity in bribery and aiding an offender and sentenced them to prison sentences of between six months and two years. It held that the second applicant had been pardoned and suspended the sentences of the remaining three applicants for a period of four years. In delivering its sentence the court relied mainly on the witnesses’ and the applicants’ statements. It also held that the transcripts of the recordings of the applicants’ telephone conversations had not met the formal requirements provided for by the applicable rules on criminal procedure. In particular, after the recording of the conversation the investigating authorities had to produce records containing information about the authorisation for the surveillance, the names and numbers of the telephones used for the recorded conversations, the date and time of each conversation, and the number of the device on which the conversation had been recorded. Also, the full content of the conversation had to be reproduced in writing and certified as authentic. Moreover, the original device containing the conversation bearing the seal of the investigating body had to be made available. However, the Military Prosecutor’s Office had failed to submit the full content of the recordings to the court, although it had repeatedly been asked to do so. Furthermore, the court had requested the prosecutor’s office to submit information on whether the recordings of the applicants’ telephone conversations attached to the case file had met the lawful requirements of the Criminal Procedure Code, without success. Lastly, the court had failed to examine the fourth applicant’s argument concerning the failure of the prosecutor’s order to expressly state that a criminal investigation had also been opened against him. The applicants appealed against the judgment. 29. They argued that the first-instance court had wrongly assessed the evidence and misinterpreted the applicable legal provisions, and that the domestic authorities had failed to open a criminal investigation against the fourth applicant. 30. The hearings before the Military Court of Appeal were adjourned three times, on 13 September, 18 October and 22 November 2004, on account of the authorities’ failure to summon some of the parties. The merits of the case were not examined by the domestic court on the abovementioned dates. Judge P.P. was a member of the panel of judges on all three occasions. There is no evidence in the file that the applicants challenged the composition of the court or that they raised this argument before the domestic courts at a later stage of the proceedings. 31. By a judgment of 31 January 2005 the Military Court of Appeal dismissed the applicants’ appeal. It held amongst other things that although many of the individuals who had been helped by the applicants to obtain visas could not be identified in order to be heard by the courts, the transcripts of the recordings of the applicants’ telephone conversations proved that the applicants had demanded sums of money as payment for their alleged influence, regardless of whether the promised action had been taken or not. The applicants appealed on points of law (recurs) against the judgment. 32. The applicants reiterated their arguments that the lower courts had wrongly assessed the evidence and misinterpreted the applicable legal provisions. The fourth applicant also submitted that the lower courts had failed to examine his argument concerning the failure of the domestic authorities to open a criminal investigation against him. 33. By a final judgment of 22 December 2005 the Court of Cassation, sitting as an ordinary criminal court, dismissed the applicants’ appeal on points of law. It held that the lower court had correctly assessed the available evidence and established the applicants’ guilt. The applicants’ arguments that the offences had not taken place had been examined in detail by the lower courts, were rebutted by their own actions, and did not have any lawful grounds. Although many of the individuals who had been helped by the applicants to obtain visas could not be identified in order to be heard by the courts, the lower courts had correctly established that the transcripts of the recordings of the applicants’ telephone conversations proved that the applicants had demanded sums of money as payment for their alleged influence, regardless of whether the promised action had been taken or not. In this context, the obstruction of the investigation by the second applicant could not be ignored. On 2 October 2002 the second applicant had telephoned the wife of one of the co-accused to ask her to “hide and destroy a diary” which contained a breakdown of the money taken from the victims by the aforementioned co-accused. Consequently, the second applicant’s guilt had also been correctly established. There is no evidence in the file that the last-instance court examined the appeal point raised by the fourth applicant. 34. The applicants submitted to the Court a number of newspaper advertisements allegedly published by several third parties offering to act as intermediaries for visa applications. | 1 |
test | 001-159885 | ENG | LTU | CHAMBER | 2,016 | CASE OF BUTERLEVIČIŪTĖ v. LITHUANIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1966 and lives in Panevėžys. 6. The applicant was employed as the head of a municipal kindergarten in Panevėžys. 7. On 11 December 2007 she was informed by the local office of the Special Investigation Service that, as a person of equivalent status to a civil servant, she was under investigation on suspicion of fraudulent management of accounts, abuse of office and forgery of documents. In May 2008 she was informed of additional suspicions against her concerning further acts of abuse of office, forgery of documents and misappropriation of property. 8. In June 2008 the applicant submitted a request to the pre-trial judge to terminate the criminal investigation on the grounds that it had been excessively long. The judge refused the request, noting that the investigation had been completed earlier that month and the case was ready for trial. 9. On 4 July 2008 the case was referred for judicial examination. On 13 July 2009 the Panevėžys District Court (hereinafter “the first-instance court”) found the applicant guilty on several of the charges against her. She was sentenced to a fine of 2,600 Lithuanian litai (LTL, approximately 753 euros (EUR)) and a prohibition on working for the civil service for two years and six months. 10. The judgment was amended on appeal: on 19 February 2010 the Panevėžys Regional Court (hereinafter “the appellate court”) upheld the applicant’s conviction on some of the charges and acquitted her on several others. Her sentence was reduced to a fine of LTL 1,820 (EUR 527) and a prohibition on working for the civil service for one year and nine months. Soon afterwards the applicant was dismissed from her job by the Panevėžys City Municipality in line with the decision of the appellate court. 11. By a final judgment of 16 November 2010 the Supreme Court of Lithuania upheld the reasoning of the appellate court but changed the applicant’s sentence. The Supreme Court found that when determining the length of the applicant’s prohibition on working for the civil service, it was necessary to take into account the fact that she had been suspended from her post during the criminal investigation (see paragraphs 12-19 below). As a result, the period of prohibition was reduced to one year and three months. 12. Immediately after the launch of the criminal investigation against the applicant (see paragraph 7 above), on 12 December 2007 the first-instance court granted the prosecutor’s request to have the applicant suspended from her job as the head of the kindergarten for three months. The court held that there were grounds to believe that the applicant, as a person of equivalent status to a civil servant, might use her official position to hinder the investigation by, for example, destroying or fabricating evidence, or attempting to influence the witnesses in the case, who were her subordinates. 13. The applicant appealed against the decision, arguing that she could not be equated to a civil servant because she worked under an employment contract with the Panevėžys City Municipality. She further argued that all the important documents had already been collected from the kindergarten and all the relevant witnesses had been questioned, so there was no possibility for her to interfere with the investigation. The applicant also submitted that she had no prior convictions and had never been subject to any disciplinary action at work and that her employer’s evaluation of her had always been positive; thus there were no grounds to believe that she would use her official position to hinder the investigation. Lastly, the applicant submitted that her job in the kindergarten was her only source of income and therefore the suspension would cause significant difficulties for her and her young daughter, whom the applicant was raising alone. However, the appellate court dismissed the applicant’s appeal and upheld the reasoning of the first-instance court. 14. Subsequently the first-instance court granted the prosecutor’s requests to extend the applicant’s suspension from her post by further periods of one to three months on essentially the same grounds. The applicant appealed against all the decisions, raising the same arguments as before, but her appeals were dismissed by the appellate court (on 27 December 2007, 21 March 2008, 26 May 2008, 18 June 2008 and 6 August 2008). On 6 August 2008 the appellate court noted, inter alia, that the applicant was only suspended from holding a specific post in a particular kindergarten, so the suspension did not affect her ability to take a different job and thus obtain a source of income. 15. On each of the above-mentioned occasions the decision of the first-instance court was taken following a written procedure, while the appellate court held oral hearings (see paragraphs 23 and 25 below). Neither the applicant nor her representative was present at any of these hearings. The prosecutor was present at the hearing of 21 March 2008. 16. After the criminal case was referred for judicial examination (see paragraph 9 above), in October 2008 the first-instance court held an oral hearing in which it extended the applicant’s suspension from her post by two months on the same grounds as before. The applicant and her representative were present at the hearing. The applicant’s appeal was subsequently dismissed by the appellate court. 17. On 1 December 2008 the first-instance court in an oral hearing at which the applicant and her representative were present, terminated the applicant’s suspension from her post. The court found that almost all the witnesses had been questioned, so there were no grounds to believe that the applicant might attempt to influence them or otherwise hinder the investigation. The applicant returned to her job as the head of the kindergarten the following day. 18. However, on 12 December 2008 the appellate court overturned the decision of the first-instance court, finding that the investigation had not been completed yet, so there was still a risk that the applicant may hinder it. Since the appellate court was not authorised by law to adopt a new decision extending the suspension, the prosecutor submitted a new request for an extension to the first-instance court. During this period the applicant continued working as the head of the kindergarten. 19. On 16 January 2009 the first-instance court, in an oral hearing at which the applicant and her representative were present, renewed the applicant’s suspension from her post for a period of three months. However, on 12 February 2009 the appellate court allowed an appeal by the applicant against this decision and quashed the above extension ordered by the first-instance court. The applicant returned to her job and remained the head of the kindergarten until her dismissal in February 2010 (see paragraph 10 above). 20. On 20 December 2007 the applicant submitted a complaint to the Inspector of Journalistic Ethics concerning several articles in the Panevėžio rytas newspaper. The publications commented on the criminal case against the applicant and presented statements from her subordinates criticising her competence and personality. The applicant complained that these articles had been defamatory and insulting. She also complained about a comment posted by a user on the website of the Lietuvos rytas newspaper which insulted the applicant and her young daughter on the grounds that the applicant was a single mother. 21. On 9 June 2008 the Inspector of Journalistic Ethics partly satisfied the applicant’s complaint. The Inspector found that the comment on the website of Lietuvos rytas was insulting to the applicant and her daughter and ordered the newspaper to remove it from the website. With respect to the articles in Panevėžio rytas, the Inspector held that the applicant was a public figure and therefore had to accept a greater level of media attention and criticism. The Inspector also found that the statements about the applicant in the articles in question reflected the opinions of the interviewed individuals, so the newspaper could not be held accountable for their factual accuracy. 22. The Inspector’s decision indicated that it could be appealed to the court within thirty days. The applicant did not appeal. | 1 |
test | 001-145219 | ENG | SRB | CHAMBER | 2,014 | CASE OF RIĐIĆ AND OTHERS v. SERBIA | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award | Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra | 6. The facts, as submitted by the parties, may be summarised as follows. 7. All applicants were employed by Rudnik bakra Majdanpek, a copper mining company based in Majdanpek (“the debtor”). 8. Between 2001 and 2005 they all instituted separate civil suits against the debtor, seeking pecuniary redress on various grounds. 9. On 10 June 2002 the Majdanpek Municipal Court ruled in favour of the first applicant and ordered the debtor to pay him: (a) the salary arrears due between 31 May 1998 and 20 July 2001, plus statutory interest; (b) the pension, disability, health and other insurance contributions due for the same period; and (c) his legal costs. 10. On 2 October 2002 the judgment became final. 11. Having only received payment of the amounts referred to under (b) above, on 17 December 2002 the first applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court. 12. On 10 January 2003 the court accepted the first applicant’s request and issued an enforcement order. On 21 January 2004 the same court issued an additional order to the same effect. 13. On 18 January 2006 the enforcement proceedings were stayed. 14. In May 2011, following their resumption, the first applicant was paid the full amounts awarded in his favour. 15. On 25 April 2002 the Majdanpek Municipal Court ruled in favour of the second applicant and ordered the debtor to pay him: (a) the salary arrears due between 1 November 1999 and 1 August 2000, plus statutory interest; (b) the pension, disability, health and other insurance contributions due for the same period; and (c) his legal costs. 16. On 19 June 2002 the judgment became final. 17. Having only received payment of the amounts referred to under (b) above, on 17 December 2002 the second applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court. 18. On 10 January 2003 the court accepted the second applicant’s request and issued an enforcement order. 19. On 18 January 2006 the enforcement proceedings were stayed. 20. In July 2011, following their resumption, the second applicant was paid the full amounts awarded in his favour. 21. On 8 February 2001 and 7 February 2002, the latter following a brief reopening of the proceedings, the Majdanpek Municipal Court ruled in favour of the third applicant and ordered the debtor to pay him the salary arrears due between 1 April 1998 and 28 February 2000, plus statutory interest, as well as his legal costs. 22. By 12 April 2002 these judgments became final. 23. On unspecified dates, the third applicant filed separate requests for the enforcement of the above judgments before the Majdanpek Municipal Court. 24. On 19 June 2001 and 13 November 2003, respectively, the court accepted the third applicant’s requests and issued the enforcement orders. 25. On 20 February 2006 the enforcement proceedings were stayed. 26. In May 2011, following their resumption, the third applicant was paid the full amounts awarded in his favour. 27. On 23 October 2001 the Majdanpek Municipal Court ruled in favour of the fourth applicant and ordered the debtor to pay him the salary arrears due between 1 December 1998 and 31 December 1999, plus statutory interest, as well as his legal costs. 28. By 22 November 2001 this judgment became final. 29. On 27 February 2002 the fourth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court. 30. On the same date the court accepted the fourth applicant’s request and issued the enforcement order. 31. On 20 February 2006 the enforcement proceedings were stayed. 32. In May 2011, following their resumption, the fourth applicant was paid the full amounts awarded in his favour. 33. On 11 September 2002 the Majdanpek Municipal Court ruled in favour of the fifth applicant and ordered the debtor to pay him the salary arrears due between 19 December 1997 and 28 March 2002, plus statutory interest, as well as his legal costs. 34. By 24 October 2002 this judgment became final. 35. On 30 October 2002 the fifth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court. 36. On 1 November 2002 the court accepted the fifth applicant’s request and issued the enforcement order. 37. In the course of 2003 and 2004, the debtor covered a part of the fifth applicant’s claims. 38. On 3 February 2006 the enforcement proceedings were stayed. 39. In June 2011, following their resumption, the fifth applicant was paid the full amounts awarded in his favour. 40. On 7 December 2005 the Majdanpek Municipal Court ruled in favour of the sixth applicant and ordered the debtor to pay him compensation for the non-pecuniary damage suffered due to a labour-related injury, plus statutory interest, and his legal costs. 41. By 31 March 2006 this judgment became final. 42. On 1 June 2006 the sixth applicant filed a request for the enforcement of the above judgment before the Majdanpek Municipal Court. 43. On 14 June 2006 the court accepted the sixth applicant’s request and issued the enforcement order. 44. On 30 August 2006 the enforcement proceedings were stayed. 45. In May 2011, following their resumption, the sixth applicant was paid the full amounts awarded in his favour. 46. None of the applicants ever filed an appeal with the Constitutional Court, seeking compensation for any non-pecuniary damages suffered due to the length of the enforcement proceedings in question. 47. As of April 2014, the debtor appeared to be a company predominantly comprised of State or socially owned capital and was still in the process of being restructured. | 1 |
test | 001-179559 | ENG | GEO | COMMITTEE | 2,017 | CASE OF MESKHIDZE v. GEORGIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Nona Tsotsoria;Síofra O’Leary | 5. The applicant was born in 1960 and was serving a prison sentence at the time in question. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicant was arrested on 20 July 2003 and sentenced by the first-instance court on 19 May 2004 to twelve years’ imprisonment for murder. His conviction was upheld on appeal by the Supreme Court of the Autonomous Republic of Adjara on 19 July 2004. 7. According to the available medical file (covering the periods between 30 July-10 September 2005, 25 January - 27 March 2008, and 5 June – 8 September 2008), the first time the applicant was transferred to the prison hospital after his arrest was on 30 July 2005. At that time he was diagnosed with viral hepatitis C, chronic cholecystitis, and radiculitis. The applicant complained of suffering from sleeping disorders and anxiety and was placed in the psychiatric ward of the prison hospital. On 16 August 2005 he was transferred to the infectious ward, where he was treated for his viral hepatitis C. The applicant was discharged from the prison hospital on 10 September 2005. 8. According to the applicant, in October 2007 he had an operation for an ingrowing toenail on his right foot. After the operation the scar became infected and the applicant was sent to the prison hospital on 25 January 2008 on account of his deteriorating health. At that time the applicant’s diagnosis was as follows: chronic arterial insufficiency of the lower limbs, arterial occlusion and obliterating arteritis, and subungual panaritium. 9. On 29 January 2008 the applicant had his toenail removed. He spent the post-surgery period under permanent medical supervision in the prison hospital. Although he was provided with painkillers and treated with antibiotics, the applicant, according to the case file, complained every day about severe pain in his right foot. On 25 February 2008 he was seen by an angiosurgeon, who recommended that he undergo a dopplerography of the legs and that his transcutaneous oxygen pressure (“Tc PO2”) be measured. The surgeon would decide on the need to amputate the big toe on the applicant’s right foot on the basis of these tests. 10. According to a note made by a prison hospital doctor in the applicant’s medical file on 25 March 2008, the dopplerography and Tc PO2 test could not be organised in the prison hospital for technical reasons. The doctor noted an improvement in the applicant’s general condition and concluded that in any event, and notwithstanding the specialist’s recommendation, there was no need for those examinations, given that there were no “absolute indications” that surgery was called for. On 27 March 2008 the applicant was discharged from the prison hospital and sent back to Tbilisi Prison no. 1 with a recommendation that he continue palliative treatment on an outpatient basis. 11. At the request of the applicant, on 5 May 2008 the board of forensic experts of the Ministry of Justice – having examined him – drew up a medical report (“the 5 May 2008 medical report”), which diagnosed the applicant as suffering from the following: arteritis, occlusion of the arteries in the right shin, stenosis of the arteries in the left shin, artery deficiency in the right lower limb (at stage IV of the disease), necrosis of tissue in the right big toe, cardiac ischaemia, second-degree angina pectoris, seconddegree arterial hypertension, second-degree cardiac insufficiency, and lowactivity chronic hepatitis C. The experts concluded that from a cardiological point of view the applicant’s condition was potentially serious. As for his vascular condition, the main blood vessels in both of his legs were damaged and his condition was serious. They recommended that he be placed in a specialist cardiology clinic and have his toe amputated. 12. On 20 May 2008 the applicant’s lawyers complained to the Director of the Prisons Department of the Ministry of Justice (“the Prisons Department”) that their client, who had been in the prison hospital since 25 January 2008, had been sent to Tbilisi Prison No. 1, despite the seriousness of his state of health, and that the treatment in that hospital had not produced any results. They complained that the applicant’s condition had deteriorated there. The lawyers requested that the applicant be taken to hospital on the grounds that his life was in danger. On the same day they sent the same request to the director and the head doctor at the medical unit of Tbilisi Prison No. 1. 13. On 27 May 2008 the head of the welfare unit of the Prisons Department referred the lawyers’ request to the prison governor and a group of qualified medical experts “for an opinion”. He observed that, in accordance with ministerial order no. 717, patients were hospitalised on the orders of the prison governor, following a report by the head doctor of the prison’s medical unit. 14. Following that letter, on 3 June 2008 one of the applicant’s lawyers contacted the prison governor reminding him of the terms of ministerial order no. 717 and asking him what the response of the head doctor had been and enquiring as to when the applicant would be hospitalised. 15. On 9 June 2008 the Prisons Department informed the lawyers that the applicant had been placed in the prison hospital on 5 June 2008. 16. According to the daily notes made in his medical file, the applicant continued to suffer from pain in the right foot. It can be seen from the contents of the medical file that his right foot was treated with antiseptic products and bandaged daily. During that period the applicant was examined by a vascular specialist twice: on 11 June and on 31 July 2008. On 11 June 2008 the vascular specialist recommended that the bandage be changed regularly and the toe treated with antiseptic products. He also prescribed Alprostapint infusions. On 31 July 2008 the vascular specialist recommended a Tc PO2 test in order to assess the possibility of amputating the toe, and prescribed continuing palliative treatment. It appears from the case file that the relevant drugs were administered to the applicant by his wife and other family members. 17. On 7 August 2008 the applicant underwent a Tc PO2 test at a specialist hospital. On the basis of the results of the test the examining doctor concluded that the microcirculation in the lower limbs of the applicant (particularly in the right foot) was very low. In his view, surgical intervention was not appropriate because the particularly low level of oxygen in the right foot would have hampered the healing of the resulting wound. 18. On 8 September 2008 the applicant was discharged from the prison hospital because of the appeal court’s decision to suspend his prison sentence (see paragraph 28 below). 19. On the basis of the 5 May 2008 medical report (see paragraph 11 above), and in view of the fact that his treatment at the prison hospital was producing no results, on 14 May 2008 the applicant applied to the Tbilisi City Court for his sentence to be suspended on health grounds (under Article 607 § 1 (a) of the Code of Criminal Procedure – “the CCP”). A representative of the Prisons Department opposed the application on the grounds that the prison hospital had “a medical service capable of treating the applicant” and that “if necessary he [would] be transferred to a specialist clinic”. One of the experts who had produced the above-mentioned report confirmed to the court judge that the applicant was seriously ill. However, as he had no knowledge of the medical facilities at the prison hospital, he said he could not judge whether it was appropriate to keep the applicant there. He also confirmed that the applicant’s right big toe had to be amputated. 20. On 11 June 2008 the Tbilisi City Court dismissed the applicant’s request, on the grounds that the prison hospital had a medical service capable of providing the necessary treatment and that the applicant, who was being looked after by specialist doctors, would be transferred to a specialist clinic if necessary. 21. On 18 June 2008 the applicant’s lawyer submitted to the court his comments on the record of the hearing of 11 June 2008. The record of the hearing, according to those comments, did not refer to the expert’s opinion in respect of the risk to the applicant’s life. The expert had said that the applicant’s gangrene, which was now at the fourth (and last) stage, could cause septicemia and death if not properly treated. Regarding the applicant’s heart condition, the expert had said that the applicant needed treatment in a specialist clinic to prevent sudden death. On 19 June 2008 the court granted that request and ordered that the record of hearing be amended by adding the expert’s comments. 22. The applicant appealed against the decision of 11 June 2008, pointing out that, according to the medical experts who had examined him, the treatment at the prison hospital had produced no results and that, if he was not properly treated, the question of the amputation of various parts of his right lower limb could arise. The applicant’s lawyers pointed out that prisoners frequently died as a result of a lack of treatment at the prison hospital. They also complained about the Prisons Department having joined the trial as a party to the proceedings, which was in breach of Article 617 § 4 of the CCP. In their view, a representative of the Prisons Department was not in a position to assess the danger that detention might pose to the life of the applicant. Subsequently, the lawyers requested that the applicant’s doctor and the doctor from the specialist hospital who had treated the applicant on 7 August 2008 be heard as witnesses (see paragraph 17 above). At the examination in the specialist hospital in question, apart from the findings of the above-mentioned expert report, Buerger’s disease of the lower limbs had also been diagnosed. 23. At a hearing before the Court of Appeal on 4 September 2008 the applicant’s lawyers requested that the representative of the Prisons Department be debarred from joining the proceedings as a party, in accordance with Article 617 § 4 of the CCP. The Court of Appeal allowed that request but authorised the representative in question to attend the hearing in order to reply to any questions. It also decided to call the prison hospital surgeon, the vascular specialist (see paragraph 17 above), and the forensic expert (see paragraph 11 above) as witnesses. 24. At the next hearing on 8 September 2008 the forensic expert repeated that the applicant’s state of health was serious, and that Article 7 § 2 of order no. 72/N (issued by the Health Minister) concerning the early termination of prison sentences on health grounds was indisputably applicable. He added that necrosis of the tissue of the lower limb had set in and was progressively affecting the limb from the bottom up. If that were to continue, the applicant might develop septicemia and die. In his view, it was impossible to cure the applicant completely. 25. The applicant’s doctor – a surgeon who was a member of the prison hospital’s permanent staff – also gave evidence before the Court of Appeal, explaining the diagnosis and confirming that his patient was seriously ill, with the arterial disease having reached the fourth and final stage. He said that he had seen the applicant in December 2007 and also in May 2008 and that no serious necrosis had been observed at that time. He further explained that at that stage of the disease the treatment usually prescribed was either palliative or surgical. The applicant was being given palliative treatment with medicines (antioxidants, protective drugs, sedatives). An operation was not recommended because it might make his condition worse. The likelihood of the scar healing was nil. The doctor was gradually removing the necrosed tissue in the right foot. The doctor also confirmed that the applicant’s illness was chronic, progressive and that he needed constant medical treatment. He added that he could not be cured at the prison hospital but that there was a clinic outside the prison that could treat this kind of patient. In answer to a question from the judge, the doctor said that the applicant had been hospitalised twice after his operation and that at the relevant time the necrosis had not reached such an advanced stage. At that time the prison hospital doctors had done all they could to halt the development of the necrosis but without much success. If the situation continued, the applicant might have to have his entire right leg amputated. 26. The vascular specialist – a doctor at the prison hospital – said that he had examined the applicant in December 2007 and found that the gangrene had already affected the big toe of the right foot. This had then quickly spread, despite the treatment administered. Shortly before the hearing the applicant had been prevented from lying down and had been made to stay in a sitting position. His state of health was worsening daily. The results of the Tc PO2 test had shown that the oxygen tension in the right foot stood at level 2 in the lying-down position and at level 21 in the sitting position (the normal level being 60-70; an indicator of 30 was necessary if the wound could be expected to heal properly). Accordingly, amputation was impossible. The vascular specialist said that the prison hospital was complying with his orders but that there was no specialist unit. In his view, the applicant’s lower left limb was also damaged, but not yet affected by gangrene. At the time it was a question of saving the applicant’s life and subsequently considering whether to amputate the right leg. 27. In his final address the applicant’s lawyer drew the Court of Appeal’s attention to the fact that, despite the presence of gangrene as early as December 2007, the applicant had been sent to Prison No. 1 and left there untreated. Given that, according to the doctors, the applicant could not be cured, the lawyer requested that her client be dispensed from having to serve the remainder of his prison sentence (under Article 608 § 1 of the CCP). 28. In a judgment of 8 September 2008 the Court of Appeal ordered that the applicant’s prison sentence be suspended pending a substantial improvement in his state of health, provided that he undergo a medical examination every six months and provide the court with the results thereof. The applicant was immediately released. 29. According to a medical report of 6 March 2009, the applicant suffered from cardiac ischaemia, second-degree angina pectoris, thirddegree hypertension and second-degree heart failure. From a cardiological point of view, his heart condition remained serious. With regard to his arteries, the applicant suffered from Buerger’s disease, occlusion of the arteries in the right tibia, stenosis of the arteries in the left tibia, chronic arterial deficiency in the right lower limb at the fourth stage of the disease and gangrene of the tissue in the right big toe. The gangrene was still described as progressive. The experts concluded that the applicant required cardiological and angiological treatment in a specialist institution. 30. Over May and June 2011 the applicant underwent another forensic examination. It appeared from the report of 21 June 2011 that on 6 February 2011 the applicant had had the lower part of his right leg amputated. At the same time he was diagnosed with gangrene on the big toe of the left foot. While confirming his diagnosis from a cardiological point of view as potentially serious the four experts involved in the examination also concluded that the applicant’s angiological condition had deteriorated as a result of ischemia. Thus, from the angiological point of view he was categorised as a seriously ill patient. | 1 |
test | 001-154265 | ENG | FRA | GRANDCHAMBER | 2,015 | CASE OF MORICE v. FRANCE | 1 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - award;Non-pecuniary damage - award | Aleš Pejchal;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Egidijus Kūris;Erik Møse;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Ineta Ziemele;Johannes Silvis;Josep Casadevall;Julia Laffranque;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Paul Lemmens;Zdravka Kalaydjieva;Ksenija Turković | 9. The applicant, who was born in 1960 and lives in Paris, is a lawyer (avocat), member of the Paris Bar. 10. On 19 October 1995 Mr Bernard Borrel, a judge who had been seconded by France for the past year as technical adviser to the Djiboutian Minister of Justice, in the context of cooperation agreements between the two States, was found dead 80 kilometres from the city of Djibouti. His half-naked and partially burnt body was lying some 20 metres below a remote road. The investigation by the Djibouti gendarmerie in the days that followed concluded that he had committed suicide by self-immolation. 11. On 7 December 1995 a judicial investigation was opened at the Toulouse tribunal de grande instance to determine the cause of death. Bernard Borrel’s body, which was repatriated and interred in Toulouse, underwent an autopsy on 15 February 1996. The report concluded that the death was not suspicious, although the body’s state of decomposition did not permit a precise cause to be established. 12. On 3 March 1997 Mrs Elisabeth Borrel, the widow of Bernard Borrel and also a judge, disputing the finding of suicide, filed a complaint as a civil party, in her own name and on behalf of her two minor children, against a person or persons unknown for premeditated murder. She appointed the applicant, Mr Morice, to represent her in the proceedings. 13. On 8 and 23 April 1997 two judicial investigations were opened in respect of premeditated murder committed by a person or persons unknown. 14. In a decision of 30 April 1997 the judicial investigation into the cause of death and the two investigations in respect of premeditated murder were joined. 15. On 29 October 1997 the Court of Cassation accepted a request by the applicant to withdraw the case from the Toulouse court and it was transferred to the tribunal de grande instance of Paris, where it was assigned on 12 October 1997 to Ms M., assisted by Mr L.L. on 7 January 1998, both investigating judges, who were to conduct the judicial investigation jointly. 16. On 19 November 1999 a lawyer at the Brussels Bar informed the police that A., a former senior officer and member of the Djiboutian Presidential Guard, who had found asylum in Belgium, had certain revelations to make concerning Judge Borrel. The information thus disclosed was transmitted to the French authorities via Interpol. A judgment of the Versailles Court of Appeal of 28 May 2009 (see paragraph 18 below) records the following sequence of events: Judges M. and L.L. did not reply, owing to the fact that the witness wished to remain anonymous, and the information was not followed up; the witness’s Belgian lawyer thus contacted the applicant, who arranged for the witness to be interviewed by journalists from the daily newspaper Le Figaro and the French TV channel TF1, at the end of December 1999; lastly, it was as a result of the publication and broadcasting of that interview in early January 2000 that Judges M. and L.L. decided to go to Belgium to assist the Belgian investigator in taking evidence from the witness. 17. On 31 January 2000 Judges M. and L.L. interviewed the witness in Brussels. It was subsequently alleged by A. that he had been pressurised and intimidated by Judge M. so that he would withdraw his testimony, those complaints being expressly made in a letter of 2 February 2000 from his lawyer to the Crown Prosecutor. In addition, the witness accused the public prosecutor of Djibouti of having threatened him to make him recant his statement, and alleged that the head of the Djibouti secret services had ordered the head of the Presidential Guard, Captain I., to draft a statement discrediting him. Captain I. confirmed A’s accusations concerning him. 18. Proceedings were brought in France against the public prosecutor of Djibouti and the head of the country’s secret services for the procuring of false evidence, and Judge Borrel’s widow and son, the witness A., Captain I., and a French lawyer A.M., who was implicated, intervened as civil parties. Evidence was taken from Judge M. in her capacity as witness. The public prosecutor and the head of the secret services of Djibouti were sentenced, respectively, to eighteen and twelve months’ imprisonment, and ordered to pay damages to the civil parties, in a judgment of the Versailles Criminal Court of 27 March 2008, before being acquitted by the Versailles Court of Appeal on 28 May 2009. 19. On 2 February 2000, in the context of the judicial investigation in respect of premeditated murder, three professional unions of judges and prosecutors, namely the Syndicat de la magistrature, the Association professionnelle des magistrats and the Union syndicale des magistrats, applied to be joined to the proceedings as civil parties. 20. On 16 March 2000 the applicant, acting on behalf of Mrs Borrel, requested, first, that evidence be taken from the witness, A., in Belgium, and secondly that a visit to the scene of the crime in Djibouti, in the presence of the civil parties, be organised. 21. In a decision of 17 March 2000 the investigating judges M. and L.L. accepted the request concerning A., finding that a new interview was absolutely necessary. They refused, however, to agree to a site visit, as such a visit had already been made twice, once in 1999 and again one week before the decision in question, as they did not see “how a visit to the site in the presence of the civil party would, at th[at] stage of the proceedings, be helpful for the discovery of the truth”. They added that during their visit to Djibouti a few days before, they had been accompanied by two experts, including the director of the Paris Institute of Forensic Medicine, adding that the scene had been filmed and photographed on that occasion. 22. The applicant and another lawyer appealed against that decision. They filed their pleadings with the Indictments Division, like the lawyer acting for the Syndicat de la magistrature, arguing that the last site visit in the presence of an expert could be regarded as a reconstruction from which the civil parties had been excluded, and that the sole aim of the investigation was to demonstrate that the victim had committed suicide. They also requested that the Indictments Division take over the case from the investigating judges and continue the investigation itself. 23. In a judgment of 21 June 2000 the Indictments Division of the Paris Court of Appeal found that after two site visits in the absence of the civil parties, one of which closely resembled a reconstruction, the need to organise an on-site reconstruction in the presence of the civil parties so that they could exercise their rights was indispensable for the discovery of the truth. Accordingly, it set aside the decision of Judges M. and L.L. on that point. In addition, it withdrew the case from them and appointed a new investigating judge, Judge P., to continue the investigation. 24. On 19 June 2007 the Paris public prosecutor, further to the request of the investigating judge then handling the case, on the basis of Article 11, paragraph 3, of the Code of Criminal Procedure, issued a statement to clarify publicly that “whilst suicide had once been the preferred theory, the evidence gathered, especially since 2002, now point[ed] to a criminal act”, adding that the experts’ reports had determined that “Bernard Borrel was lying on the ground when liquids were poured over him in a random manner”. 25. The proceedings are currently still pending. 26. The Minister of Justice, by acts of 29 June and 16 October 2000, referred to the National Legal Service Commission (Conseil supérieur de la magistrature – the “CSM”), in its capacity as disciplinary board for judges, certain shortcomings attributable to Judge M. in the judicial investigation into the “Scientology” case for which she was responsible and in which the applicant also represented the civil parties. Judge M. was criticised for not devoting the necessary care and attention to the case file, leaving it practically untouched for five years, for having recourse to a friendly settlement procedure which went beyond the jurisdiction of an investigating judge and for not making copies of all the documents in the case file, thus making it impossible to reconstruct the file after its partial disappearance from her chambers. Judge M. requested that the referral to the CSM be declared null and void, particularly on account of the fact that it had been made public by the director of the Minister’s private office at a press conference, even before she had been personally notified of the decision. In parallel, on 18 October 2000, the Indictments Division of the Paris Court of Appeal upheld a request by the applicant for the withdrawal of the “Scientology” case from Judge M. 27. On 4 July 2000, at a general meeting of judges of the Paris tribunal de grande instance, the issue of the disciplinary proceedings against Judge M. was raised, in particular because they had been announced in the press whereas the judge concerned had not been officially informed and the President of that court had not yet been notified. During that meeting a judge, J.M., stated as follows: “We are not prohibited, as grassroots judges, from saying that we stand by Judge [M.] It is not forbidden to say that Judge [M.] has our support and trust.” 28. The general meeting drafted the following motion, which was adopted unanimously: “The general meeting of judges of the Paris tribunal de grande instance held on 4 July 2000, without disputing the authority conferred on the Minister of Justice to take disciplinary proceedings in the conditions prescribed by law, is surprised to learn from the press that such proceedings have been initiated against Judge [M.], investigating judge in Paris, whereas to date neither the judge herself nor her judicial hierarchy have been officially informed thereof.” 29. In the context of a magazine interview published in July-August 2000, the chair of the Syndicat de la magistrature, a civil party in the Borrel case, criticised the “lack of impartiality on the part of Judge M. in the Borrel and [L.] cases”, adding that the judges who had signed the motion “could not have been unaware that in two sensitive cases, the Borrel case and the [L.] case, her impartiality was seriously called into question”. 30. In a judgment of 5 January 2000, the Paris tribunal de grande instance, in a case brought by the applicant as counsel acting for two civil parties, had found the State liable for gross negligence on the part of the courts service on account of the disappearance of the so-called “Scientology” file from the office of Judge M. It awarded damages to the complainants. 31. On 13 December 2001 the CSM dismissed a plea of nullity from Judge M. and, on the merits, while reproaching her for a certain lack of rigour or a failure to keep track of the case sufficiently, did not impose any disciplinary penalty on her. 32. On 1 August 2000 Judge P., who had been appointed to replace Judges M. and L.L., drafted a report in which he noted the following chain of events. In response to the applicant’s request concerning the video-recording made in Djibouti in March 2000 and cited by Judges M. and L.L. in their decision of 17 March 2000, Judge P. replied that it was not in the judicial investigation file and was not registered as an exhibit; on the same day, Judge P. asked Judge M. whether she still had the video-cassette; Judge M. promptly gave him a closed and undated envelope with her name on, showing no sign of having been placed under seal, bearing the address of Judge M. as addressee and that of the public prosecutor of Djibouti as sender; the envelope contained a video-cassette and a handwritten card with the letter head of the public prosecutor of Djibouti, these items then being taken by Judge P. and placed under seal. The public prosecutor’s card addressed to Judge M. read as follows (translated from French): “Hi Marie-Paule, As agreed, I am sending you the video-cassette of the Goubet site visit. I hope the picture will be clear enough. I watched the show Sans aucun doute (Without any doubt) on TF1. I noticed once again how Mrs Borrel and her lawyers were determined to carry on orchestrating their manipulation. I’ll call you soon. Say hello to Roger if he’s back, and also to J.C. [D.]. Speak to you soon. Best wishes, | 1 |
test | 001-180018 | ENG | SWE | CHAMBER | 2,018 | CASE OF X v. SWEDEN | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Morocco) | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant is currently in Sweden. 7. In 2005 he was granted a temporary residence permit in Sweden which was made permanent in 2007. Both permits were based on the applicant’s family ties, but he was not granted Swedish citizenship. In 2009 he married a non-Swedish national who held a permanent residence permit in Sweden. 8. In March 2016 the Swedish Security Service (Säkerhetspolisen) applied to the Migration Agency (Migrationsverket) requesting the applicant’s expulsion. During the Migration Agency’s examination of the request, the applicant applied for asylum, claiming that he was in need of international protection. He further contested the Security Service’s request alleging that, since the Security Service had branded him a terrorist, he would risk torture and at least ten years’ imprisonment in Morocco. He submitted that he would be forced to confess to an act of terrorism that he had not committed. The applicant stated that his parents lived in Morocco and he had visited them a few years earlier. During the visit, police officers had approached him and informed him that they were monitoring him and advised him to “listen to our friends in Sweden or stay away from Morocco forever”. He acknowledged that he had left Morocco legally with his own passport, that he had not been wanted in Morocco, that there were no legal proceedings pending against him and that he had never published anything on, for example, religion or politics. Moreover, to his knowledge, his parents had never been approached by the authorities because of him and the Moroccan authorities had never contacted him in Sweden. However, he claimed that the Swedish Security Service would inform the Moroccan authorities of the reasons for his arrest and expulsion and other Moroccans in Sweden might also submit such information. He was not aware if his situation had been noted in Morocco. The applicant referred to country information about Morocco according to which physical ill-treatment and arbitrary detention occurred, in particular of suspected terrorists. Such persons had been tortured into confession and sentenced to lengthy terms of imprisonment. He also referred to the Court’s case law. 9. On 22 April 2016 the Migration Agency granted the Security Services’ request to expel the applicant and, at the same time, rejected the applicant’s demand for asylum and international protection. It noted that the human rights situation in Morocco had improved significantly. Violence at police stations and prisons had decreased. Imprisonment was common in terror-related cases and persons affiliated with Islamic movements ran a higher risk of being subjected to violence. Older reports contained accounts of torture and illtreatment in cases concerning national security and terrorism. However, the Moroccan authorities had publicly stated that the fight against terrorism should not be used as a pretext for depriving people of their rights. Torture was illegal and efforts to curb the use of torture had been successful. In terror-related cases, arrested suspects were examined by doctors before and after interrogation to prevent the use of violence by the interrogators. 10. As concerned the applicant’s situation, the Migration Agency found no reasons to question the Security Service’s assessment of the applicant. In this regard, it found that the applicant lacked credibility since his submissions relating to his background and previous activities were contradicted by the information submitted by the Security Service. Moreover, the Agency considered that he had not made out that the Moroccan authorities had previously showed an interest in him. It took into account that he had lived outside Morocco for about a decade and that, as he said himself, he had lived an inconspicuous life in Sweden without political or religious activities. Furthermore, after his last visit to Morocco, he had left the country legally using his passport. His parents in Morocco had not reported any visits from the authorities enquiring about him and the Moroccan authorities had never contacted him in Sweden. They had never requested his extradition either, or informed him that he was suspected of terrorism or any other kind of criminality. He had never been convicted of any terrorrelated crimes in Sweden. The Agency observed that the applicant had submitted that he was not sought in Morocco, that he had not been involved in any legal proceedings there and that the Moroccan authorities had never subjected him to any acts of persecution in the past. As late as towards the end of 2015, the applicant had travelled internationally using his passport, without being stopped. Even though older “country of origin” reports included accounts of ill-treatment, the most recent reports instead spoke of measures taken by the Moroccan authorities aimed at reinforcing the rule of law. 11. As concerned the risk upon return because it was the Security Service which had requested the expulsion, the Migration Agency found that the applicant had not made out that he risked persecution upon return on this ground. It took into account that no objective evidence suggested that the Moroccan authorities were aware of his case and that the legislation had regard to the possible risks of being labelled a terrorist and had been designed to avoid such risks. 12. The Migration Agency concluded that, even taking into account the applicant’s submissions, it shared the Security Service’s assessment and considered that there were grounds to expel the applicant with reference to Section 1, paragraph 2, of the Special Controls of Aliens Act (lagen [1991:572] om särskild utlänningskontroll). It thus rejected his request for asylum and international protection, revoked his permanent residence permit and ordered his expulsion to either Morocco or another specified country. It also decided on a lifelong ban on returning to Sweden. 13. The applicant appealed to the Government, submitting that the Security Service’s assessment had been accepted by the Migration Agency without a careful examination, rendering the proceedings unfair and partial. He maintained his claims and stressed that the use of torture was frequent in Morocco, in particular in relation to suspected terrorists. 14. The Migration Agency forwarded the appeal to the Migration Court of Appeal (Migrationsöverdomstolen) in accordance with Section 3 of the Special Controls of Aliens Act. The Agency maintained its stance and stated, inter alia, that the applicant had not made it probable that he was of interest to the Moroccan authorities and there was no concrete information indicating that they should be aware of what had happened to him in Sweden. The Security Service stated that it was as transparent as possible but, for reasons of confidentiality, could not reveal its working methods and sources. It added that it was continually assessing whether it was possible to enforce the expulsion. If information were to emerge which raised the issue of impediments to the expulsion, the Government would be informed. 15. On 22 June 2016, after having held an oral hearing, the appellate court shared the reasoning of the Migration Agency and decided to recommend that the Government uphold the Agency’s decision. It found, inter alia, that there was nothing to support that the applicant at that point in time was known by the Moroccan authorities and of interest to them. 16. On 8 September 2016 the Government upheld the Migration Agency’s decision in full. The Government noted the Security Service’s submissions concerning the applicant’s background and connections and found that there were no grounds for questioning these submissions. In view of what was known about the applicant’s former activities and other circumstances, the Government concluded that it was reasonable to fear that the applicant would commit or participate in committing a terrorist offence which warranted his expulsion in accordance with the Special Controls of Aliens Act. 17. On 22 September 2016, following the interim measure indicated by the Court, the Government decided to stay the enforcement of the expulsion order until further notice. | 1 |
test | 001-181844 | ENG | UKR | COMMITTEE | 2,018 | CASE OF KONOROY AND GRYTA v. UKRAINE | 4 | Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time) | André Potocki;Mārtiņš Mits;Síofra O’Leary | 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 of the lack of any effective remedy in domestic law. | 1 |
test | 001-179860 | ENG | CZE | COMMITTEE | 2,018 | CASE OF COLLOREDO MANSFELDOVÁ v. THE CZECH REPUBLIC | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial) | Kristina Pardalos;Pauliine Koskelo;Ksenija Turković | 6. The applicant had a restitution claim concerning movable property located in Opočno Castle. The movable property was initially confiscated from a predecessor of the applicant during the German occupation of Czechoslovakia in 1942 on the orders of the German Secret State Police, which considered him to be an enemy of the German Reich. After the end of the Second World War, the property was once again confiscated, in 1945, by the Czechoslovak State under the Beneš decrees. That expropriation was quashed on appeal by the National Council in Prague (zemský národní výbor) on 21 January 1947 after it had been established that the applicant’s predecessor was of Czechoslovak nationality and had been loyal to the Czechoslovak State. What happened to the property afterwards is disputed and was discussed in the domestic decisions. 7. Due to the large number of items claimed, the domestic courts consecutively issued three judgments, each concerning one of the three parts of the claim. They upheld the first part of the applicant’s claim but rejected the second and the third, which are the subject of the present applications. 8. In the course of the second proceedings, the courts based their decisions, inter alia, on a decision by the Ministry of Agriculture of 30 April 1947 by which Opočno Castle had been declared State cultural property (hereinafter “the 1947 decision”). The 1947 decision had not been raised with the parties in the course of the hearing and the parties had not received an opportunity to comment on it. 9. The situation of the applicant is structurally and contextually the same as that in Colloredo Mannsfeld v. the Czech Republic (nos. 15275/11 and 76058/12, 15 December 2016). | 1 |
test | 001-183266 | ENG | RUS | ADMISSIBILITY | 2,018 | BALANINA v. RUSSIA | 4 | Inadmissible | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom | 1. The applicant, Ms Larisa Dmitiryevna Balanina, is a Russian national, who was born in 1963 and lives in the village of Rassvet in the Krasnodar Region. She was represented before the Court by Mr A. Ivanov, a lawyer practising in Krasnodar. 3. The applicant is the mother of Ms Sofia Zubkova. 4. Ms Zubkova was detained in remand prison no. IZ-1 in the Krasnodar Region from 6 December 2013. On 24 December 2014 she was transferred to the Krasnodar City Clinical Emergency Hospital (hereinafter “the Krasnodar Hospital”) on account of a suspected acute drug poisoning. On the next day she died. The death certificate of 29 December 2014 listed double pneumonia as the cause of death. 5. Investigating authorities examined ex officio the circumstances of the death and on 24 January 2015 refused to open a criminal investigation. 6. On 15 October 2015 the applicant asked the Krasnodar Hospital to provide her with her daughter’s medical files and to answer the following questions: “Did Ms Svetlana Zubkova contract any illness during her stay in [the remand prison] or did her existing diseases exacerbate? What medical institutions ... was Ms Zubkova transferred to for the examination and treatment? Was Ms Zubkova diagnosed with HIV, tuberculosis or any other contagious disease? If so, which institution and when?” 7. On 30 October 2015 the applicant’s request was dismissed. The Krasnodar Hospital replied that her daughter’s medical information remained confidential even after her death. In the absence of her daughter’s prior authorisation the applicant only had a right to receive the death certificate. According to relevant domestic law provisions access to information requested by the applicant could be provided under limited conditions to investigators, courts or public prosecutors. 8. The applicant challenged that decision in court under the Code of Administrative Procedure. 9. On 25 January 2016 the Pervomayskiy District Court of Krasnodar upheld the decision of the Krasnodar Hospital and endorsed its reasoning. 10. On 12 May 2016 the Krasnodar Regional Court dismissed the applicant appeal. On 6 July 2016 the applicant lodged her application with the Court. Only subsequent to that, on 21 July 2016, she filed a first tier cassation appeal, which was dismissed by the Krasnodar Regional Court on 28 July 2016. 11. On 11 April 2017 the applicant’s lawyer, at the request of the Registry, informed the Court that he had decided not to submit a cassation appeal to the Supreme Court for “it was not an effective remedy”. 12. Relevant domestic law provisions have been summarised by the Court in the case of Chigirinova v. Russia (dec.), no. 28448/16, §§ 8-26, 13 December 2016. | 0 |
test | 001-168781 | ENG | AUT | CHAMBER | 2,016 | CASE OF HILLER v. AUSTRIA | 3 | No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1953 and lives in Vienna. 6. M.K., the applicant’s son born in 1981, was taken to the Otto Wagner Hospital on 19 March 2010 suffering from an acute episode of paranoid schizophrenia. The Otto Wagner Hospital is a public institution of the City of Vienna specialising in neurology, orthopaedics, psychiatry and pulmonology. It is situated on a vast area outside the city center in the west of the green-belt of Vienna, consisting of some 26 hospital buildings with annexes, a church, a museum, a theatre and a large park. 7. In a decision of 7 April 2010, the Fünfhaus District Court (Bezirksgericht) ordered M.K.’s involuntary placement in the psychiatric unit of that hospital pursuant to section 8 of the Hospitalisation Act (Unterbringungsgesetz). 8. On 12 May 2010 M.K. failed to return from an authorised walk in the hospital grounds. He had escaped from the premises and died after jumping in front of a subway train. 9. Subsequently, in August 2010 the applicant brought a civil action in the Vienna Regional Civil Court (Landesgericht für Zivilrechtssachen) under the Official Liability Act (Amtshaftungsgesetz) against the City of Vienna (Stadt Wien) as the authority responsible for the hospital, seeking compensation of 20,000 euros (EUR) plus interest in respect of nonpecuniary damage. 10. She stated that in 2006 and 2007 her son had already undergone inpatient treatment for paranoid schizophrenia at the Otto Wagner Hospital and the Vienna General Hospital (Allgemeines Krankenhaus Wien). Hospitalisation had been ordered on 19 March 2010 because M.K. had posed a danger both to himself and others. He had attacked a chewing gum dispenser with a sledgehammer and appeared to be utterly confused when the police arrived on the scene. The expert Dr P., who was called to assess M.K.’s mental state, diagnosed him with paranoid schizophrenia. Because of M.K.’s delusional behaviour, there was a risk that he would harm himself or others. The expert concluded that M.K.’s mental state required him to be placed in a closed psychiatric institution. 11. However, on 25 and 29 March 2010 M.K. managed to escape from the closed ward of the Otto Wagner Hospital and was found and brought back only after a search conducted by the police and the hospital staff. On 12 May 2010 he escaped from the open ward to which he had been transferred in the meantime, and committed suicide by jumping in front of a subway train. 12. The applicant claimed that she had suffered a massive shock as a result of her son’s death. Before his involuntary placement in the hospital, M.K. had lived with her in the same household and they had had a very close relationship. The applicant claimed that as a result of his death she had suffered from depression and insomnia and had been seeing a psychotherapist since June 2010. Nonetheless, her mental state had not improved since. 13. The fact that her son had been able to escape from the hospital premises led the applicant to conclude that the hospital staff had acted negligently in the performance of their duties. Because M.K.’s behaviour had been unpredictable, he should have been under strict supervision. In the circumstances, and especially because he had managed to escape twice before, restriction of his freedom of movement within a closed ward was proportionate, necessary and adequate. Furthermore, such restriction should have included a degree of supervision by the hospital staff. The contract for M.K.’s treatment had included duties of protection and care. There had been signs of suicidal thoughts on the patient’s part, and the hospital staff should therefore have prevented him from leaving the ward. However, the necessary diligence had not been exercised. For these reasons, the applicant claimed that the City of Vienna had been at fault and was therefore responsible for the non-pecuniary damage she sustained. 14. The City of Vienna asked the Vienna Regional Civil Court to dismiss the applicant’s claim. It argued that M.K.’s involuntary placement in the psychiatric institution on 19 March 2010 had been necessary as he had not been aware of his mental illness and had refused to be treated. At the time, he had been utterly confused and it had not been possible to reason with him. Because of the threat he posed to himself and others, he had repeatedly had his freedom of movement restricted whilst in hospital and had had to be medicated parenterally. On 25 March 2010 he had left the acute station without permission and went to his parents’ place. When the police and the ambulance brought him back to the hospital, he had had to be sedated intravenously because of the highly psychotic state he was in. On 29 March 2010, only four days later, he escaped again from the acute station, but was apprehended by the hospital’s security staff on the premises of the hospital. However, from 2 April 2010, M.K.’s attitude changed and he became willing to take oral medication. From that day on, his freedom of movement was no longer restricted. He had appeared well-adjusted and friendly. In view of the progress in his treatment, and as he appeared more reasonable and able to abide by agreements, he had been transferred from the acute station to the subacute ward on 20 April 2010. However, he had then succumbed to socalled “dynamic exhaustion” (dynamische Entleerung), which manifested itself in a noticeable loss of drive and the desire for a quiet environment. The hospital staff had therefore tried to animate M.K. through occupational therapy and recreational walks in the hospital grounds, which − on the basis of a well-documented medical order − he had been allowed to take on his own as of 21 April 2010. This medical order had taken into account the fact that M.K. had twice before escaped from his ward. Thereafter, however, M.K. had continued to receive treatment for over three weeks and there had been a considerable improvement in his condition. Moreover, he had been made aware that he was not allowed to leave the hospital premises and had to notify the staff before going out for a walk and again upon his return. He had also been permitted to leave the building to smoke a cigarette. The hospital had maintained detailed documentary records of his medical treatment and progress. There had been no indication of suicidal thoughts. However, on 12 May 2010 at 5.15pm the doctor on duty was informed by the hospital staff that the applicant’s son had not returned from an authorised walk in the hospital grounds and had apparently taken his personal clothing with him. A search operation had immediately been initiated on the premises and at the same time the police had been asked to search for him. At approximately 9pm the police informed the hospital that M.K. had been killed in a subway train accident at around 4 pm. 15. The City of Vienna submitted that under the provisions of the Hospitalisation Act and in keeping with current practice in the treatment of mentally ill patients, “open” psychiatry was the norm and restriction of a patient’s freedom of movement was permissible only in cases of absolute necessity and within the bounds of proportionality. In the present case, by 12 May 2010 restriction of the physical movement of the applicant’s son (known as “fixation”), and/or the spatial restriction of his movement to the confines of a psychiatric bed, or his permanent supervision, were no longer medically indicated, nor would such measures have been reasonable or adequate. On the contrary, the lack of any indication of suicidal thoughts on the part of M.K. would have rendered any further restriction of his freedom of movement unlawful under the Hospitalisation Act. 16. During the oral hearing of 3 September 2012 the applicant reduced her claim to 15,000 EUR plus 4% interest per annum. 17. On 30 November 2012 the Vienna Regional Civil Court granted the claim. It found that even shortly before his death on 12 May 2010, it could be assumed that M.K. still posed a threat to himself and others, in particular because he still suffered from the delusional idea that he was a different person and did not recognise his parents as his own. Self-harming behaviour could occur outside the hospital environment, due to overstimulation, even in patients who had shown progress after a psychosis. It was no longer possible to determine whether the applicant’s son had jumped in front of the subway train in order to deliberately commit suicide, or whether he followed a spontaneous impulse or a delusional thought to that end. In any event the hospital should have made sure that he was not able to leave the hospital grounds, even if therapeutic walks were medically indicated and permissible in the circumstances. 18. From a legal perspective, the Regional Civil Court affirmed that, as the authority responsible for the Otto Wagner Hospital, the City of Vienna could be held accountable for any culpable action or omission by its organs or officials, pursuant to section 1 of the Official Liability Act. At the material time, the applicant’s son had been lawfully hospitalised by a decision of the Fünfhaus District Court of 7 April 2010, which remained valid until 21 May 2010. Sections 3 and 33 of the Hospitalisation Act in force at the time provided that, in cases where hospitalisation had been ordered, it was also necessary to guard against threats potentially posed by the patient. Accordingly, the hospital was obliged to ensure restriction of the patient’s freedom of movement in order to protect against potential damage. In the instant case, M.K. was allowed to take walks on the hospital premises because such walks were medically indicated. However, no measures were taken to ensure that he respected the restrictions on his freedom of movement. There was no effective supervision of his walks or their duration. By disregarding its duty of supervision, the hospital had implemented the Hospitalisation Act incorrectly. It was immaterial that the applicant’s son had not shown any signs of suicidal tendencies because the hospitalisation was originally effected because of the danger he posed to himself and to others. Therefore, even if he did not pose a threat to himself anymore, the requirement for hospitalisation was still valid because of the threat he posed to others. In the instant case, the lack of supervision of M.K. resulted in the applicant having to suffer the shock of the death of her son. The court concluded that the civil claim was justified and granted the applicant EUR 15,000 plus interest by way of compensation in respect of non-pecuniary damage. 19. The City of Vienna appealed, claiming that the court had wrongly assessed the evidence, that its finding of facts was incorrect, and that it had wrongly interpreted the law. 20. On 26 March 2013 the Vienna Court of Appeal (Oberlandesgericht) granted the defendant’s appeal and dismissed the applicant’s claim. In its view, there had been no causal link between the wholly unexpected suicide of the applicant’s son and the alleged dereliction of the hospital’s duty of supervision under the Hospitalisation Act. Although it was stated in the hospital admission report that there was a danger of M.K.’s putting himself and others at risk due to his disoriented state, it was also explicitly mentioned that he had no suicidal thoughts. According to the expert opinion by Dr P of 25 May 2012, the continuation of M.K.’s hospitalisation on 12 May 2010 was indicated only because of the threat he posed to others, in particular to his mother, but no longer to himself. This was the reason why his freedom of movement at that point had been restricted to the hospital premises rather than just the closed ward. The court found that in the light of the improvement in his symptoms, it was not unusual that he had been allowed to take walks for therapeutic purposes, even if it might have been advisable to allow these walks only when accompanied by hospital staff. 21. The Court of Appeal further affirmed that there had been no indication of self-harm during M.K.’s entire stay at the hospital. He had not voiced suicidal thoughts or undertaken any actions of a suicidal nature. It could not be established whether his jumping in front of the subway train was a suicide which he had planned even before he left the hospital premises, or whether it had been a spontaneous act of self-harm resulting from his psychosis. Naturally, M.K. would not have been able to commit suicide if he had been prevented from leaving the hospital grounds. Even with patients whose psychotic symptoms had improved, the phenomenon of overstimulation could occur if they left the therapeutic environment, whereas such a situation was much less likely to occur within the confines of a hospital. Section 3 § 1 of the Hospitalisation Act referred, as its purpose, only to the protection of the life and limb of the mental patient himself and third parties. The behaviour of M.K. had not been foreseeable because there had no longer been any indication of possible self-harm at the material time and his action was therefore not attributable to the hospital. The fact that the risk of self-harm could never be entirely excluded in the case of psychotic patients did not change this assessment. 22. The applicant appealed, arguing that at the time when M.K. had committed suicide, the initial decision by the Fünfhaus District Court on his hospitalisation had still been valid and was based on the assessment that he posed a danger to himself and others because of his paranoid schizophrenia. No new expert opinion had been obtained, and the hospital had not informed the guardianship court (Pflegschaftsgericht) that the threat of selfharm had ceased to exist. Consequently, the medical indication would still have been a restriction of M.K.’s freedom of movement. By failing to restrict his movement, the hospital had acted contrary to the court decision ordering his hospitalisation. 23. On 18 July 2013 the Supreme Court dismissed the applicant’s appeal, upholding the legal and factual findings of the Court of Appeal. It added that a lawful implementation of the Hospitalisation Act was possible both inside and outside a closed ward. M.K.’s hospitalisation had therefore not been unlawful, even though he had been placed in the open ward from 20 April 2010. Contrary to the applicant’s line of argumentation, the Otto Wagner Hospital had not had a duty to implement the Fünfhaus District Court’s decision on M.K.’s hospitalisation in a manner which compelled it to restrict his movement. This followed from section 32 of the Hospitalisation Act – according to which a hospitalisation order could be lifted at any time by the head of the institution – and section 33, which stated that restriction of movement was permissible in limited cases only. The District Court’s decision had not defined the extent or duration of any specific restriction of movement. Section 33 of the Hospitalisation Act provided that a restriction of freedom of movement might only be used as an exceptional measure and “last resort”. Also, Articles 3 and 5 of the Convention restricted the permissibility of isolating mentally ill patients. Even within a closed ward, mentally ill patients had to have the widest possible amount of freedom of movement. Only the more restrictive measures under section 33 of the Hospitalisation Act were subject to judicial review. 24. The Supreme Court also stated that from a therapeutic perspective M.K. had been allowed to take unaccompanied walks because of the improvement in his condition. Moreover, from the time he had been authorised to take these walks, he had always returned without problems. This measure, which had been ordered by the psychiatrist treating him, had therefore been proportionate and necessary pursuant to section 33 of the Hospitalisation Act. In conclusion, the hospital had not acted culpably, for which reason the applicant’s claim under the Official Liability Act was not justified. | 0 |
test | 001-150317 | ENG | SVN | CHAMBER | 2,015 | CASE OF MIHELJ v. SLOVENIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 5. The applicant was born in 1965 and lives in Ljubljana. Following a request for a criminal investigation against the applicant lodged by M.K. on 25 March 1999 and amended on 9 July 1999, on 30 July 1999 the applicant was summoned as accused to appear before the investigating judge of the Ljubljana District Court. He was also notified of the charge of aggravated fraud under section 217 § 2 of the Criminal Code, and the underlying allegations submitted by M.K. 6. On 6 September 1999 the applicant was heard by the investigating judge. He denied the charge and submitted a number of documents in support of his position that the accusations were fabricated and unfounded, but was unwilling to answer any of the questions posed by M.K.’s legal counsel. 7. On 17 September 1999 the investigating judge of the Ljubljana District Court issued an order for an investigation of aggravated fraud against the applicant. In the course of that investigation, two witnesses were heard who confirmed M.K.’s version of events. The applicant was not present during these examinations, although the investigating judge ordered him to be notified thereof. Judicial records contain no evidence that the applicant received a summons. 8. After the investigation was concluded, on 10 November 1999, the Ljubljana District State Prosecutor’s Office took over the proceedings and on 4 February 2000 lodged an indictment for attempted aggravated fraud under Article 217 §§ 1 and 2 in conjunction with Article 22 of the Criminal Code. The indictment stated that the applicant had deceived M.K. into believing that he could assist her in preventing her husband from claiming ownership of her share of their joint property, namely the family house. The applicant had taken advantage of M.K.’s age and naivety and persuaded her to sign a fictitious loan agreement stating that he would lend her 50,000 German marks (DEM), equivalent to 4,691,500 Slovenian tolars (SIT), which was to be secured with a mortgage on her share of the family house, despite the fact that M.K. did not owe him anything, which he was well aware of. For this purpose, the applicant had M.K. sign an authority form authorising him to take all measures necessary for the execution of the loan agreement. On that basis, the applicant had the mortgage against M.K.’s property entered in the land register, prejudicing the value of her property in the amount of SIT 4,691,500. Moreover, M.K. paid the applicant SIT 225,000 in several instalments for the “favour” he had done her. 9. Having been served with the indictment, the applicant lodged an objection, reiterating that M.K.’s accusations of fraud were fabricated and arguing that he would not be able to enter a mortgage in his favour in the land register without M.K.’s cooperation. The objection was rejected by the pre-trial panel on 7 July 2000. The latter noted in its decision that the criminal offence should be reclassified as attempted fraud under Article 217 § 1 in conjunction with section 22 of the Criminal Code, as the value at issue did not reach the statutory threshold of significant pecuniary damage. Accordingly, the Ljubljana District Court no longer had jurisdiction over the case, which was to be referred to the Ljubljana Local Court. The applicant was served with the decision and appealed against it; however, his appeal was dismissed as unfounded. 10. Following the transfer of jurisdiction to the local court, the ensuing court proceedings were conducted under the rules of summary procedure. 11. The applicant having failed to collect the first two summonses to the hearing which was to take place on 22 January 2002, the hearing was rescheduled for 29 March 2002. A summons to this later hearing was served on the applicant on 4 February 2002 through the court courier service at both his home and his work address, and subsequently on 6 February 2002 by post, again at both his home and his work address. On 28 March 2002 the applicant sent a letter to the court in which he objected to the hearing, alleging that he had received four identical summonses which contained no explanation but only an indication of legal classification of the criminal offence in question. The applicant’s objection to the hearing was received by the local court on 29 March 2002. 12. On 29 March 2002 the Ljubljana Local Court held a hearing in the absence of the applicant, having found that he had not provided justification for his absence, although he had been duly summoned, that he had already been questioned during the investigation, and that his presence at the hearing was not necessary to establish the facts of the case. Thus, the legal requirements for trial in absentia had been met. The court examined M.K. and the two witnesses who had already been questioned during the investigation; their accounts corresponded to their previous statements. In her concluding remarks the district state prosecutor modified the indictment, reclassifying the offence to the actual criminal offence of fraud, rather than attempted fraud. She also added some details to the facts on which the indictment was based, in particular the allegation that the applicant had lied to M.K. that there would be expenses with regard to the entry of the mortgage in the land registry, for which she had paid him a total of SIT 225,000. 13. Having concluded the hearing, the court found the applicant guilty of the criminal offence as specified in the modified indictment, and sentenced him to seven months in prison. M.K. was invited to pursue her pecuniary claim in civil proceedings. 14. The applicant appealed to the Ljubljana Higher Court, arguing that the statement he had given during the investigation could not suffice for the trial purposes, as an indictment had not yet been lodged and thus could not be disputed. He pointed out that a statement given in the investigation could relate to one criminal offence, while the indictment could be lodged for a completely different criminal offence. He was therefore of the view that the provisions on trial in absentia should only be applied to cases where the defendant was questioned after the lodging of the indictment. Moreover, he disputed the credibility of the two witnesses and referred to the loan agreement and other documents he had submitted to the court during the investigation, claiming that M.K. was evading her contractual obligations and charging him with fraud for that reason. He also challenged the imposed prison sentence. 15. On 18 September 2002 the Ljubljana Higher Court dismissed the applicant’s appeal as unfounded and upheld the first-instance judgment. The higher court found that the applicant’s defence right had not been violated by the fact that he was not present at the hearing. It noted that the accused had the right to attend the summary proceedings, but that he was not obliged to do so. The court noted that the applicant had been heard during the investigation, had received the indictment and had been duly summoned to the hearing, where he would have had the opportunity to make a statement and examine witnesses against him. However, given that the facts of the case had been clear and fully established, the higher court took the view that the applicant’s presence at the hearing had not been necessary. In this connection, the court held that a hearing should only be discontinued if the description of the criminal offence in the indictment, albeit based on the same factual elements as before, was substantially changed. In such a case, the defendant ought to be informed thereof and summoned to attend a new hearing. However, this was not the case in the circumstances complained of by the applicant. 16. The applicant appealed on points of law, reiterating that he should not have been tried in absentia, as he had been questioned only before the indictment was lodged. Moreover, he had not been given the opportunity to cross-examine the witnesses against him. 17. On 13 November 2003 the Supreme Court delivered its judgment, in which it upheld the lower courts’ decisions. The Supreme Court found that the offence which prompted the investigation against the applicant was identical to the offence with which the applicant was later charged. Furthermore, the hearing before the court did not bring to light any new information that had not already been uncovered during the investigation. Referring to section 442 of the Criminal Procedure Act, which sets out the conditions for conducting a hearing in absentia, the Supreme Court noted that the defendant had the right to attend the hearing, but that this right could under certain circumstances be waived. It also noted that the applicant had been duly summoned and warned that the hearing could be held in his absence. As regards the examination of witnesses during the investigation, the Supreme Court noted that while there were no indications in the case file that the applicant had been notified of it, this procedural breach had been remedied by the hearing at which M.K. and the other two witnesses had been re-examined. The applicant had had the opportunity to attend the hearing, but had waived his right. 18. The applicant lodged a constitutional complaint, which was declared admissible on 29 May 2006. 19. On 9 November 2006 the Constitutional Court delivered a decision finding that the applicant’s constitutional rights had not been violated. The court noted that the applicant had been heard during the investigation and that the charges in the request for the investigation and the indictment which had been lodged after the investigation and served on him had concerned the same acts and the same alleged offence, regardless of some differences in the wording. They both charged the applicant with misleading M.K. into concluding a fictitious agreement with him with the intent of acquiring illicit pecuniary gain. Observing that the indictment had been modified at the hearing, the Constitutional Court held that although the offence had been reclassified as actual fraud, and no longer as attempted fraud, the charge had remained the same in terms of content as regards the applicant’s conduct and the circumstances in which the offence had been committed. Having regard to that, as well as the fact that the applicant had been duly summoned to the hearing and had failed to provide any valid reason for his absence, the Constitutional Court held that the local court had had no obligation to ensure the applicant’s presence at the hearing. Moreover, the Constitutional Court observed that the applicant had not even alleged that the criminal offence which was the subject of the investigation was different from the one examined at the court hearing. He had merely drawn attention to the fact that “a prosecutor may file an indictment for a completely different criminal offence after the investigation is completed”. It was also found that the applicant could have requested an adjournment of the hearing, but did not do so, and instead had failed to appear without specifying any valid reason. Finally, as regards the examination of the witnesses, the Constitutional Court reached the same conclusion as the Supreme Court had previously. | 0 |
test | 001-177690 | ENG | BGR | CHAMBER | 2,017 | CASE OF VANCHEV v. BULGARIA | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev | 5. The applicant was born in 1952 and lives in Sofia. 6. The applicant is a former police officer. Criminal proceedings were brought against him in 1996. 7. By a decision of the competent prosecutor of 6 March 1996, as provided under domestic law at the time, the applicant was placed under house arrest. The period of arrest continued until 3 April 1996, when the applicant was remanded in custody. He was once again placed under house arrest on 1 July 1996 and was released on 30 September 1997. 8. The applicant therefore was deprived of his liberty for one year, six months and twenty-five days. 9. In a final judgment of 27 January 1998 the Sofia Military Court found the applicant guilty of failing to perform his duties and he was given a oneyear suspended prison sentence. 10. In another set of proceedings, in a final judgment of 26 March 2003 the Supreme Court of Cassation convicted the applicant of fraud and sentenced him to one year of imprisonment. 11. The court also held in the second set of proceedings that the applicant should serve a single sentence for all his offences, which was set at one year in prison. 12. On 1 July 2003 the applicant was once again detained and placed in prison to serve his sentence. He was released on 18 September 2003 by a decision of the competent prosecutor. The prosecutor noted that the period of pre-trial detention should have been deducted from the applicant’s sentence, which meant he had already served it. 13. As he had worked in prison the applicant was also entitled to a reduction of his sentence by seventeen days. 14. In 2004 the applicant brought a tort action against the prosecution authorities under section 2(6) of the State and Municipalities’ Responsibility for Damage Act (see paragraph 21 below). He claimed 20,000 Bulgarian levs (BGN) for non-pecuniary damage for his detention in 1996-97 to the extent it had exceeded the set term of imprisonment and BGN 40,000 for his imprisonment between 1 July and 18 September 2003. 15. The domestic courts examined witnesses and a court-appointed psychologist who said that the applicant had been traumatised by the experience and suffered from anxiety, that his personality had been “permanently altered”, that he had difficulties communicating with others, and that his family ties had been “irreparably damaged”. 16. In a judgment of 2 May 2006 the Sofia City Court (hereinafter “the City Court”) allowed the claim in part, finding that the applicant had been detained for nine months and twenty-nine days in excess of his sentence and awarding him BGN 10,000 for non-pecuniary damage. It stated that his detention in 1996-97 had been “unjustified” and that his imprisonment in 2003 had amounted to “unlawful detention without any valid grounds”. 17. In accordance with the applicable provisions of domestic law, the City Court ordered the applicant to pay BGN 2,040 (the equivalent of 1,040 euros – EUR) in court fees, calculated as a pro rata percentage of the part of his claim that had been dismissed. 18. The judgment was upheld on 18 June 2007 by the Sofia Court of Appeal (hereinafter “the Court of Appeal”), which specified that the prosecution authorities were also liable to pay default interest on the above amount, calculated from 18 September 2003. 19. In a final judgment of 24 April 2009 the Supreme Court of Cassation reduced the award to BGN 3,000 (approximately EUR 1,530), plus default interest. It justified the reduction by referring to the “nature of the offences” the applicant had been convicted for, the “regime under which the sentence had been served” and the “socially acceptable criteria for justice”. It did not deal with the matter of court fees and took no separate decision in that regard. 20. The Court has not been informed whether and when the amount above was paid to the applicant. Calculations made with a calculator available on the Internet show that the default interest on BGN 3,000 for the period from 18 September 2003 to 24 April 2009 would be BGN 2,265 (the equivalent of EUR 1,155). | 1 |
test | 001-158139 | ENG | UKR | CHAMBER | 2,015 | CASE OF CHMIL v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Josep Casadevall;Vincent A. De Gaetano | 5. The applicant was born in 1936 and lives in the town of Ananyiv, Ukraine. At the material time, the applicant was the head of a territorial election commission. 6. At approximately 6.30 a.m. on 31 October 2004 – the day of the first round of the presidential elections – while on his way to the territorial election commission headquarters, the applicant met four police officers walking in the same direction who were unfamiliar to him (later identified as police officers K., L., P. and D.). The applicant struck up a conversation with them, which apparently ended up in a verbal confrontation. 7. According to the applicant, when they reached Ananiyivskyy District Police Station, the police officers pushed him inside and physically assaulted him. 8. According to the Government, when the group reached the police station, the applicant suddenly grabbed L.’s uniform and the grille of the security door and started shouting that he was being beaten. After that, the applicant talked to the head of the police station and left. 9. On the same day, the applicant phoned a prosecutor and complained of the above events. The applicant stated that at 6.30 a.m. police officers he did not recognise had pushed him into the corridor of the police station, knocked him to the ground and started to kick him. A police officer who had been on duty at the time had seen this. The applicant had been kicked in the head, the groin and the spine. As he had also been shouting out during the incident, the head of the police station had come and had ordered the officers to let him go. These events had been witnessed by a certain S. 10. Later, the applicant also testified that he had seen five unfamiliar police officers while walking to work. He had asked them where they were from, and had said that they would be working together that day. They had answered that they were from the town of Ananyiv. When the group had neared the police station, the applicant had been pushed inside. He had grabbed the door grille and shouted. The police officers had continued to hit him and had dragged him into the police station. There, they had kicked him to the floor and had continued to kick him while he was on the floor. 11. At around 1 p.m. on 31 October 2004 the applicant was examined by a forensic medical expert, B. The applicant complained of nausea and a headache, in addition to pain below his right shoulder blade, in the lumbar part of his spine, in his legs and in his groin. The applicant had a scratch on his left cheek and an oedema on his right leg. He was advised to consult both a surgeon and a neuropathologist. The applicant was supposed to go and see the expert again the next day, but did not do so. 12. On the same day, the police officers involved in the incident (K., L., D. and P.) were questioned. Police officer K. reported to the head of the police station that, while walking along the street with his three colleagues, they had been approached by a stranger who had asked them provocative questions such as, “Did you come here to kill and hang people? What are you doing here? What are you eavesdropping on?” The police officers had answered that they had been sightseeing and that the town was very beautiful. In reply, the man had said that they had seen enough and that they, “should go to the town of Reni where police officer P. should sit on the stork’s post”. The group had stopped near the police station, where the man had grabbed L.’s shoulder strap with one hand and the door grille with the other hand, and had started shouting that he had been beaten. After that, the man had entered the police station. 13. The Government also submitted the testimonies of the above police officers, which were dated 31 October 2004 and drafted in almost identical terms. According to those testimonies, in the morning of 31 October 2004, the police officers who had gone to Ananyiv to assist in maintaining public order on election day had been walking from their accommodation to the police station. An unknown man had approached them and shouted, “The fascists are coming!” and had followed them to the police station while insulting them. When L. had tried to enter the police station, the man had grabbed the door grille and L.’s left shoulder strap, and had started shouting that he was being beaten. The head of the police station had intervened. Nobody had hit the man. 14. On the same day, the entrance to the police station was inspected and no trace of a struggle was detected. L.’s uniform coat was also inspected, and it was established that one of the bands with which his left shoulder strap had been attached had been torn off. 15. Police officers K., L., D. and P. were examined by a forensic expert and by a hospital doctor. It was confirmed that they had not sustained any physical injuries and had not been drunk at the relevant time. 16. On 31 October 2004 testimonies of potential witnesses were collected. 17. The testimonies of the police officers present at the time of the incident in the police station were as follows: - police officer Sa. saw the applicant grab the door grille and shout as if somebody had been hitting him; - police officer Bo. saw the applicant grab the door grille and shout hysterically. Twice, the applicant tried to kick a police officer, but missed; - police officer N. saw the applicant in the police station. The applicant was shouting at the police officers, threatening them with dismissal and calling them names; - police officer G. saw four unfamiliar police officers, the applicant, and police officers Bo., Da., and Sa. in the reception area of the police station. The applicant was shouting that he had been beaten; - the head of the police station, Le., and police officer Kl. saw the applicant talking to L. and asking, “Who allowed you to beat me?”. 18. Forensic expert B. testified that he had examined the applicant at around 1.00 p.m. on 31 October 2004. The applicant had been complaining of nausea and a headache, in addition to pain in his back, groin and right leg. The applicant had had a scratch on his left cheek, which may have been caused by the skin being rubbed against some flat object with an uneven surface. The applicant had also had an oedema on his right leg. He had been advised to consult both a surgeon and a neuropathologist. The applicant had said that he had to work that day, and so would consult the doctor the next day. According to B., the applicant’s account – that he had been severely beaten by five police officers – was doubtful, as it contradicted the results of the physical examination. 19. S., a journalist, testified that he had seen a group of police officers walking along the street, flanking the applicant. When the group had reached the police station, the police officers had pushed the applicant inside. The applicant had resisted and the police officers had kicked him on the legs, the stomach and groin and possibly in the back. S. had run towards the police station. He had heard the applicant shout at a police officer, “Why are you beating me?” The head of the police station had been standing nearby. 20. A number of people were standing across the street from the police station at the relevant time and allegedly saw the incident. They testified as follows: - Se., the town mayor, said, “The police officers and A.V. Chmil were walking along the street quite normally. I continued my conversation with other people and suddenly heard A.V. Chmil shouting, ‘Leave me alone!’ A.V. Chmil grabbed the police officers’ clothes and tried to tear away their shoulder straps. The police officers did not use any force. Everybody went into the police station. After three to four minutes, A.V. Chmil then left the police station”; - Ko., a district election commission member, said, “A man was following three or four police officers. As the first police officer was entering the police station, the man squeezed in between them. This was followed by some shouts and a shove in the doorway. The man was pushing the police officers and shouting, ‘Help!’ and ‘Let me go!’”; - Ku said, “A man was following four unfamiliar police officers. As one police officer was entering the police station, the man started to push the others and to shout that they were not to touch or beat him. I did not see anybody beating him”; - Tk., a police officer, said, “A man was walking behind the police officers. As one police officer was entering the police station, the man pushed him. The man also shouted that they were not to touch him. After one minute, the man left the police station”; - Ts., a police officer, said, “A.V. Chmil was following four police officers. As one of the police officers started to go into the police station, A.V. Chmil squeezed in between the other three and started shouting that he was being beaten. He pushed the first police officer inside and then went in himself. A.V. Chmil left the police station after one to two minutes”. 21. The applicant was in hospital from 2 to 19 November 2004. While there, he complained that he had been physically assaulted on 31 October 2004, and was diagnosed with concussion. 22. On 10 November 2004 the Ananiyivskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. The available evidence was summarised as follows. Five witnesses (including two police officers) testified that in the morning of 31 October 2004 they had seen the applicant walking to the police station, accompanied by four police officers. As one of the police officers had gone into the police station, the applicant had squeezed in between the police officers and had started pushing them – grabbing at their uniforms and shouting that they should stop beating him and leave him alone. The witnesses did not see the applicant being physically assaulted. The police officers involved in the incident testified that they had not hit him. Six more police officers who had been in the police station at that time testified that nobody had hit the applicant. A forensic expert, B., testified that he had examined the applicant at 1 p.m. on 31 October 2004. The applicant had had scratches on his left cheek and on his right leg. Judging by the applicant’s injuries, the expert had doubted that the applicant had been beaten by five police officers in the manner that he had alleged. The Ananiyivskyy District Prosecutor’s Office also noted that, as the applicant was in hospital at that time, it was impossible to establish the seriousness of the injuries he had sustained. In view of the evidence outlined above, the prosecutor concluded that the applicant’s allegations were unsubstantiated and that there was no evidence of a crime having been committed. 23. On 22 November 2004, following a request from the Ananiyivskyy District Prosecutor’s Office, a forensic medical expert concluded that the applicant had sustained minor physical injuries. 24. On 30 December 2004 the Odessa Regional Prosecutor’s Office overruled the decision of 10 November 2004 and remitted the case for further investigation. Amongst other things, it was noted that, in view of the applicant’s stay in hospital, a forensic medical examination should have been carried out, and witnesses other than police officers – such as the applicant’s relatives – should have been questioned. 25. In January 2005 in the course of further investigation, a hospital doctor testified that, following his admission to hospital, the applicant had complained that he had been physically assaulted, and had had bruises on his right leg. 26. A territorial election commission secretary testified that on 31 October 2004 she had arrived at work at 8 a.m. The applicant had already arrived, and he had told her that he had been beaten. He had had no visible injuries. 27. On 16 February 2005 the Ananiyivskyy District Prosecutor’s Office instituted criminal proceedings against the police officers for abuse of power. 28. The case material contains records of testimonies drafted in almost identical terms, which the four police officers involved in the incident gave on 19 March 2005. Those testimonies are nearly identical to those given by the police officers on 31 October 2004, save that in the more recent testimonies all of the police officers added that they had been trained, and that, if they had indeed beaten the applicant, then he would have sustained much more serious injuries. 29. On 19 March 2005 four formal confrontations between the applicant and the police officers were also held. The parties were asked the following questions: - Do you know each other and, if so, how did you meet and what is your current relationship? - Do you have any reason to lie about each other? - What were you doing when you met each other on the way to the Ananiyivskyy District Police Station? - In what manner did you enter the Ananiyivskyy District Police Station? - (Of the police officers) When did you learn that A.V. Chmil was the head of the territorial election commission? - Was A.V. Chmil subjected to physical or psychological pressure on 31 October 2004? - Were any procedural documents regarding A.V. Chmil drafted at the police station? 30. The answers in all four confrontation records are identical and are drafted in nearly identical terms. 31. In response to the third question, the police officers said that the applicant had asked them who they were and what they were doing in town. Police officer K. had answered the applicant and had said that they were police officers and were walking around the town. The applicant had started to insult them. 32. The record of the confrontation between the applicant and L. also contains the following verbatim extract: “Как Вы оказались в здании Ананьевского РО УМВД Украины в Одесской области? ... Л.: В райотдел милиции заходили через дверь по одному. Первым в двери зашел Л., за ним начал заходить я, в этот момент гр. Чмиль А.В. встал между мной и П., в дверях в райотдел. При этом одной рукой схватился за решетку двери, другой за мое плече.” “In what manner did you enter the Ananiyivskyy District Police Station? ... L.: We entered the police station one by one through the door. L. went in first, then me, but at that moment A.V. Chmil went to stand between me and P. in the doorway. He grabbed the door grille with one hand and my shoulder with the other hand.” 33. On 12 April 2005, following a decision of 20 March 2005 of the Ananiyivskyy District Prosecutor’s Office to conduct a forensic examination, a group of forensic medical experts concluded that the applicant had sustained a concussion, a scratch to his left cheek, and bruising to the left part of his face, his left hip and the lower part of his right leg. These injuries were categorised as minor. 34. Between April and May 2005 some of the above-mentioned witnesses (see paragraphs 17 - 20 above) were questioned again. They gave testimonies similar to those of October 2004. 35. On 14 July 2005, following a decision of 10 May 2005 of the Ananiyivskyy District Prosecutor’s Office to conduct a forensic examination, a group of forensic medical experts, having studied the relevant case file material, concluded that the applicant had sustained a concussion and a scratch to his left cheek. He had also sustained bruising to the left part of his face, his left hip and the lower part of his right leg. The bruises had been noted on the applicant’s medical card on 2 November 2004. The expert had not mentioned them in the initial examination of 31 October 2004, as they had not yet been visible at that time. The forensic medical experts were of the opinion that the concussion, the scratch and the bruises to the left cheek and lower part of the applicant’s right leg had been caused several hours before the initial examination at 1 p.m. on 31 October 2004. It was impossible to establish the exact time that the applicant’s injuries had been caused. They could have been inflicted between 7 and 8 a.m., but also earlier or later. All of the injuries had been caused by blunt trauma. The possibility that the applicant had sustained the injuries when he had fallen could not be excluded. 36. On 8 September 2005 the Ananiyevskyy District Prosecutor’s Office terminated the proceedings for the absence of any corpus delicti. The prosecutor concluded that the applicant had sustained the injuries in question when he had grabbed L.’s coat inside the police station, lost his footing and fallen down. 37. On 12 September 2005 the Odessa Regional Prosecutor’s Office overruled that decision and remitted the case for further investigation. It was noted that not all of the witnesses had been questioned. 38. On 10 October 2005 the proceedings were terminated again. It was noted that the witnesses Kol. and Sam. had not seen the applicant being subjected to ill-treatment. Kol. had testified that the police officers “had accompanied” the applicant to the police station, but that he had not seen the applicant being beaten. Sam. had seen the applicant after the incident. 39. On 19 December 2005 the Odessa Regional Prosecutor’s Office overruled that decision and remitted the case for further investigation. 40. On 8 August 2006, following a complaint lodged by police officers K. and P., the decision of 16 February 2005 to institute criminal proceedings against the police officers (see paragraph 27 above) was quashed by the Ananiyivskyy Local Court as unsubstantiated, and the case material was sent to a prosecutor’s office for a decision. 41. On 13 August 2006 a group of forensic medical experts gave an opinion on the applicant’s case. They were asked to say whether they thought that the applicant’s second-degree disability (друга група інвалідності) was related to the injuries which he had sustained on 31 October 2004. The Government submitted an incomplete copy of the experts’ conclusion (seven pages out of ten). 42. On 27 November 2006 the Ananiyevskyy District Prosecutor’s Office refused to institute criminal proceedings against the police officers. It found that the applicant had created a conflict situation and had sustained injuries as a result of a fall. 43. On 7 March 2008 the Odessa Regional Court of Appeal quashed the decision of 8 August 2006. The police officers tried again to challenge the decision of 16 February 2005 in court, but to no avail. 44. On 5 May 2008 the Ananiyevskyy District Prosecutor’s Office overruled the decision of 27 November 2006 and remitted the case for further investigation. 45. In the course of that further investigation, the witnesses (the police officers who were present at the time of the incident in the police station and the people who saw the incident from across the road), the applicant and police officers K., L., P. and D. were questioned again. They all confirmed their previous testimonies. A formal confrontation between the applicant and K., L., P. and D. was undertaken, as well as a reconstruction of events. 46. On 27 February 2009, following a decision of the Ananiyivskyy District Prosecutor’s Office, another forensic medical examination was completed. It concluded that the applicant had sustained a concussion and a scratch to his left cheek, bruises to the left part of his face, his left hip and the lower part of his right leg. Those injuries could have occurred on 31 October 2004 between 7 and 8 a.m., or later. All injuries had been caused by blunt trauma – impact from blunt objects or from falling down onto a hard surface, such as the floor. 47. On 2 April 2009 the criminal proceedings were terminated for the absence of any corpus delicti. The conclusion was that at around 6.30 a.m. on 31 October 2004 the applicant had approached four police officers – D., K., P. and L. – who had been in charge of maintaining public order on the day of the elections. The applicant had started to call them names. When the police officers had tried to go into the police station, the applicant had squeezed in between them, grasped the iron grille of the door with one hand and L.’s coat by the other, and had started shouting that he was being beaten in an effort to attract attention. The police officers and the applicant had finally entered the police station, and police officer L. had had his left shoulder-strap torn off. Seven police officers had testified that nobody had beaten the applicant in the police station. Other witnesses had testified that they had not seen the applicant being physically assaulted. According to the forensic medical examination, the applicant’s injuries could have been inflicted between 7 and 8 a.m. or later on 31 October 2004. On 17 February 2009 a forensic medical expert, B., had testified during the reconstruction of events that if the applicant’s version of events had been true, then he would have sustained more serious physical injuries. It was therefore concluded that the police officers had committed no crime. 48. The applicant challenged that decision before more senior prosecutors, but to no avail. By letter of 11 December 2009, the General Prosecutor’s Office informed the applicant that, following the investigation, it had been established that on 31 October 2004 he had approached four police officers and started to insult them and call them “black-shoulder-strappers”. He had also torn off the left shoulder strap of police officer L. Moreover, it had been established that the police officers had not used force against the applicant and that, on the contrary, the applicant had tried to kick one of the police officers in the groin while in the police station. Consequently, there were no grounds for overruling the decision of 2 April 2009. 49. The applicant also instituted proceedings for damages against the Ananiyivskyy District Prosecutor’s Office, but to no avail, as his claims were rejected for failure to comply with procedural requirements. | 1 |
test | 001-154765 | ENG | SWE | ADMISSIBILITY | 2,015 | CARPELAN v. SWEDEN | 4 | Inadmissible | Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 1. The applicant, Mr Greger Carpelan, is a Swedish national, who was born in 1923 and lives in Stockholm. He was represented before the Court by Ms G. Högberg Björck, a lawyer practising in Bro. The Swedish Government (“the Government”) were represented by their Agent, Ms G. Isaksson of the Ministry for Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 1. Background 3. Since 1958 the applicant has resided in a flat located in a building in Bellevue Park in Stockholm: first due to his employment at the property and, as from 1982, on the basis of a rental agreement with the City of Stockholm (the owner of the property and the building). The Bellevue area is considered to be cultural heritage of national interest and has been recognised as such by the National Heritage Board (Riksantikvarieämbetet). 4. In 1996 the applicant appealed against a detailed development plan (detaljplan) adopted by the Municipal Council (kommunfullmäktige) of Stockholm which would allow for the construction of a tunnel under Bellevue Park as part of a motorway project called “Norra Länken”. The appeal was rejected by the Government, for which reason the applicant applied for judicial review before the Supreme Administrative Court (Högsta förvaltningsdomstolen). He claimed, inter alia, that he, and others living within or close to the area, would be negatively affected by the construction of the tunnel as it would cause various disturbances, particularly during the construction. Moreover, he contended that the nature and landscape of the park would be affected in violation of the Law on Natural Resources (lag om hushållning med naturresurser m.m., 1987:12, which was subsequently replaced by the Environmental Code [Miljöbalken, 1998:808]). On 31 January 1997 the Supreme Administrative Court repealed the Government’s decision, finding that the planned construction would constitute a breach of the law invoked in that the construction would encroach upon an area classified as a National City Park (nationalstadspark). 5. Consequently, the Government annulled the detailed development plan in question and, later, the Municipal Council adopted a new detailed development plan which gained legal force in April 2006. Subsequently, the Municipal Council adopted an amendment to this detailed development plan. However, the amendment required changes to the Environmental Code and, in May 2009, such changes were adopted. 2. The proceedings relating to the amendment of the detailed development plan 6. On 11 May 2009 the Municipal Council adopted the amendment to the detailed development plan concerning Norra Länken. The amendment allowed for the construction from above ground of a tunnel through Bellevue Park. The Municipal Council noted that the amendments were focused on the method of constructing the tunnel. It further stressed that the effects on the environment would be essentially temporary as the park would be completely restored after construction had finished. Thus, there would be no considerable impact on the environment, nature, cultural heritage or people’s health and, hence, a formal environmental evaluation would not be necessary. 7. The applicant appealed against the decision to the County Administrative Board (länsstyrelsen), claiming essentially that the amendment was not in accordance with the Environmental Code and that a formal environmental evaluation should have been carried out. In his opinion, the negative effects on the environment and nature outweighed the benefits of the construction of the tunnel. 8. On 17 June 2009 the County Administrative Board rejected the appeal. It agreed with the Municipal Council that there was no need for a formal environmental evaluation. Moreover, having weighed the applicant’s individual interests against the general interests that the amendment sought to protect, the Board concluded that the applicant’s submissions did not suffice to repeal the decision of the Municipal Council. Lastly, it found that no other circumstances had been presented which could lead it to repeal the decision. 9. The applicant appealed against the Board’s decision to the Government. He noted that he had not claimed that his individual interests were of any significance. However, he stressed the general interest in preserving the park and in particular a number of trees in the park. In his view, these general interests had not been considered properly and the Board had completely ignored his claim that the decision breached certain provisions in the Environmental Code. 10. On 15 October 2009 the Government rejected the appeal. It first observed that the purpose of the amendment to the detailed development plan was to render possible the construction of the tunnel from above ground and, at the same time, to ensure that the intrusion would be temporary and limited to the period of the actual construction. The landscape was to be restored immediately afterwards according to an adopted quality programme which was based on an historical park plan from the 18th century. The Government then observed that, although the area affected by the amendment was part of a National City Park, the amendments to the Environmental Code of May 2009 allowed for certain measures that would cause only temporary encroachment or damage to the park. Having regard to all , the Government found no reason to depart from the Board’s assessment that the plan complied with the provisions of the Environmental Code. As concerned the applicant’s other submissions, the Government considered that they did not give reason to alter or repeal the Board’s decision. 11. The applicant then requested a review of the Government’s decision by the Supreme Administrative Court under the Act on Judicial Review of Certain Government Decisions (lagen om rättsprövning av vissa regeringsbeslut, 2006:304; hereafter “the 2006 Act”). He submitted that the Government’s decision violated the Environmental Code as well as the Constitution. He particularly stressed that the construction of the tunnel meant that several old trees in the park would be cut down, causing irreparable harm. 12. On 17 December 2010, the Supreme Administrative Court dismissed the applicant’s request for judicial review. The court noted that, according to Section 1 of the 2006 Act, an individual may apply for judicial review of such decisions by the Government that concern the individual’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention. It then observed that the property where the applicant resided was located outside the area covered by the detailed development plan. He also did not own property within or adjacent to the area covered by the plan. The court concluded that the Government’s decision did not concern the applicant’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention and, therefore, he did not have locus standi before the court. The judicial review procedure 13. On 1 July 2006, the 2006 Act replaced the Act on Judicial Review of Certain Administrative Decisions (lagen om rättsprövning av vissa förvaltningsbeslut, 1988:205, hereafter “the 1988 Act”). 14. According to the preparatory work to the 2006 Act, the purpose of judicial review was to provide access to court as regards decisions which should be subject to judicial review under the Convention, but where Swedish national law did not provide such a right beyond the possibility to apply for the extraordinary remedy of relief for substantive defects (Government Bill 2005/06:56 p. 10). The preparatory works further noted that the scope of application of the 1988 Act had been too narrow in some cases, while in other cases its application went further than required by the Convention in relation to “civil rights and obligations” (ibid., p. 12). Thus, the provision on right of action was formulated differently in the 2006 Act compared to the 1988 Act. 15. Consequently, under Section 1 of the 2006 Act, an individual can only apply for judicial review of decisions by the Government when they involve a determination of the individual’s civil rights or obligations within the meaning of Article 6 § 1 of the Convention. 16. Section 7 of the 2006 Act states that the Supreme Administrative Court shall annul the Government’s decision if the decision contravenes a legislative provision either in the way alleged by the complainant or in a way that is clearly apparent from the circumstances. However, this does not apply if the error obviously lacks significance for the decision. | 0 |
test | 001-161378 | ENG | HUN | COMMITTEE | 2,016 | CASE OF MULTIPROJEKT KFT v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Krzysztof Wojtyczek;Vincent A. De Gaetano | 4. The applicant is a limited liability company registered under Hungarian law, with its seat in Budapest. 5. On 24 November 1998 the applicant initiated a civil lawsuit against two companies requesting the court to declare invalid a real estate sale and purchase agreement concluded between these two companies. 6. The Budapest Regional Court dismissed the applicant’s claim on 26 February 2004. On appeal, the Budapest Court of Appeal quashed the judgment on 5 November 2004. 7. The first-instance court re-heard the case and dismissed the applicant’s claim on 13 October 2005. On appeal, the second-instance court upheld the judgment on 9 November 2006. The applicant challenged the judgment before the Supreme Court which quashed it on 13 September 2007. 8. In the resumed proceedings the Budapest Court of Appeal quashed, on 20 March 2008, the first-instance court’s judgment. 9. On 18 March 2009 the Budapest Regional Court as firstinstance court dismissed the applicant’s claim. On appeal, the Budapest Court of Appeal upheld the judgment on 17 December 2009. The applicant challenged the judgment before the Supreme Court but to no avail. The Supreme Court upheld the final and binding judgment on 13 September 2010 (served on 27 October 2010). | 1 |
test | 001-142970 | ENG | SVN | COMMITTEE | 2,014 | CASE OF MAVRIČ v. SLOVENIA | 4 | Violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses) | Ann Power-Forde;Helena Jäderblom | 5. The applicant was born in 1955 and lives in Ig. 6. On 9 June 2008 the police fined the applicant 333.83 euros (EUR) for verbally and physically assaulting Š.S. The applicant lodged a request for judicial review in which he contested the finding of the police that he had hit Š.S. in the head. He requested that he and two witnesses who had been present on the spot at the time of the alleged commission of the minor offence be heard. 7. On 4 March 2011 the Ljubljana Local Court heard the two witnesses proposed by the applicant, a police officer and another witness. On the basis of their submissions it rejected the applicant’s request for judicial review. 8. On 8 June 2011 the applicant lodged a constitutional appeal complaining that because the Local Court had failed to inform him and his lawyer of the hearing, he could not examine the witnesses and did not have any opportunity to be heard. 9. On 13 September 2011 the Constitutional Court rejected the constitutional appeal as inadmissible. | 1 |
test | 001-181202 | ENG | LTU | CHAMBER | 2,018 | CASE OF MOCKUTĖ v. LITHUANIA | 3 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Violation of Article 9 - Freedom of thought, conscience and religion (Article 9-1 - Change religion or belief;Freedom of religion;Manifest religion or belief);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1973. She grew up in Šiauliai, which in 2003, the time relevant in this case, had about 130,000 inhabitants. She currently lives in Vilnius. 6. The applicant’s medical records show that in May 1992 she was treated for three weeks at Kaunas Psychiatric Hospital (Kauno psichiatrijos ligoninė), where doctors diagnosed her with an acute paranoid reaction disorder (ūmi paranoidinė reakcija). The applicant had been taken to hospital by her parents, who had stated that she had previously joined the Believers in God religious sect (Dievo tikėjimo sekta) and that she had become agitated and disorientated. At her parents’ request and once her health had improved, in summer 1992 she continued treatment at a psychiatric institution in Šiauliai (Šiaulių psichoneurologijos dispanseris), where her diagnosis was acute paranoid psychosis (ūmi paranoidinė psichozė). The doctors noted that the applicant had joined another religious sect, the Hungarian sect (Vengrų), and that her condition had worsened after joining in certain of the sect’s activities in a forest. In particular, she had not been able to communicate well and had spoken only about religion-related topics while at the hospital. Subsequently, the applicant received treatment in the same psychiatric institution in Šiauliai in 1994, when she was diagnosed with paranoia (paranoidinė būsena). She was disorientated and depressed. The doctors noted that the applicant had an inner conflict – she was dissatisfied with the hyper care (hipergloba) given to her by her mother, but was nevertheless not independent or mentally mature. In the summer of 1996 the applicant was again admitted to hospital and treated in the psychiatric institution in Šiauliai, where she was diagnosed with moderately severe endogenous depression (endogeninė depresija, vidutinio gilumo). Once her mental state had improved, the applicant refused to stay in psychiatric institution and was released. 7. On an unknown date, the applicant obtained a degree in law. In 1997 she won a competition to pursue postgraduate studies (podiplominei stažuotei) in the United States, where she studied for two years. 8. In May 2002, the applicant’s father became ill with cancer. The applicant was distressed, did not sleep well and had a car accident. Her mother took her the same month to the Volte private hospital in Vilnius, where she was diagnosed with post-traumatic stress disorder (potrauminio streso sutrikimas). She spent a week in the hospital and was released at her own wish so she could be treated as an outpatient. 9. In December 2002 the private company which employed the applicant as an in-house lawyer was put into liquidation. The applicant later found a job as a lawyer at the Ministry of Economy (Ūkio ministerija). 10. In February 2003 the applicant made her first visit to the Ojas Meditation Centre, the Lithuanian branch of the Osho religious movement (see Leela Förderkreis e.V. and Others v. Germany (no. 58911/00, § 6, 6 November 2008), where she started meditating (pradėjo medituoti). She states that she found “inner spiritual and emotional healing for [her] stressed and disharmonious inner state, [caused by her] father’s illness, car accident and the loss of [her previous private sector] job”. 11. According to the applicant’s medical records and court decisions (also see paragraphs 29, 33 and 45 below), on the morning of 7 May 2003 she arrived for work as usual at the Ministry of Economy in Vilnius. She suddenly felt exhausted and asked her superior (viršininkė) for some time off. When her superior refused, the applicant slammed doors and ran out of the office. She was stressed and agitated. She then left her vehicle unlocked in the middle of the street, returned to her apartment, undressed completely, and began screaming on her balcony. She did not open the door to her work colleagues. The applicant’s mother called her the same day, but could not communicate with her because of the applicant’s state of mind. The mother then asked for help from the applicant’s cousin, E.Š. At about 8 p.m. the applicant’s sister, G.M., and her cousin, E.Š., arrived in Vilnius, and called an ambulance. The applicant was then taken by force to Vilnius Psychiatric Hospital (Respublikinė Vilniaus psichiatrijos ligoninė), a public hospital under the Ministry of Health Care. 12. At the psychiatric hospital, the applicant refused to sign a form consenting to her admission and treatment. Her cousin did so instead, at 9.15 p.m. The applicant was agitated, aggressive and could not understand the situation. She was physically restrained three times for forty minutes, and forcibly administered neuroleptics, including haloperidol. She fell asleep at 4.20 a.m. on 8 May. 13. Later the same morning, the applicant was seen by a psychiatrist, doctor D.Š., who was also a head of division at that hospital, and doctor A.G. The doctors indicated in her medical records that the applicant “did not object to being treated” at that hospital (also see paragraph 29 below). 14. In her application to the Court, and without being contradicted on this point by the Government, the applicant stated that from 8 May to 13 May 2007 she had been placed under the strictest patient regime at Vilnius Psychiatric Hospital. She had been supervised by a nurse twentyfour hours a day in a ward with eight other patients. She had not been able to leave the ward without a nurse. From 13 May to 5 June, the applicant was under a strict care regime. She could have a walk around the hospital grounds, but only if accompanied by a nurse. On 5 June, and until her release on 26 June 2003, the applicant’s care regime was changed and at certain times of the day she could take walks on her own within the territory of the hospital. 15. The applicant’s medical record of 26 May 2003 reads that the applicant at that time did not yet fully understand how sick she was (pilno liguistos būklės suvokimo dar nėra). The record also states that “it has emerged that the patient attends the Osho non-traditional meditation and improvement centre. During conversation [the applicant] states that attending the centre ‘brings her peace’ while not disturbing her social functions; it is also her ‘essential interest’. [The applicant] has an uncritical attitude to attending the centre. Psycho-correction therapy to be continued”. 16. The record of 2 June 2003 reads that the applicant was clear-headed (mąstymas nuoseklus) and was not agitated (afektas adekvatus). The applicant “was gradually adopting a critical attitude towards psychotic behaviour and also about ways to spend her free time. The treatment was to be continued.” 17. The record of 20 June 2003 reads that “during psycho correction, the applicant was categorical about attending the Ojas Centre, and asserted that ‘it was a personal matter (tai jos asmeninis reikalas)’. The applicant showed no psychotic symptoms.” 18. The applicant was released from Vilnius Psychiatric Hospital on 26 June 2003, after fifty-two days. Her medical records, issued by that hospital and later confirmed by the court appointed experts, stated that from 8 May until 26 June 2003 the applicant had a transitory psychotic disorder (tranzitorinis psichozinis susirgimas), which was a serious mental disorder. The applicant’s medical record of 26 June 2003 stated that her affect (mental state) was flat (calm) and stable (afektas lygus, stabilus) and that she was clearheaded. She had realistic and concrete plans for the future, had a critical attitude towards psychotic behaviour (atsiradusi kritika psichoziniam elgesiui), and had promised to continue treatment as an outpatient. 19. On 17 June 2003, while the applicant was still being held in Vilnius Psychiatric Hospital, an episode of the Srovės television programme was aired on the LNK national television channel. The channel made an announcement (anonsas) about the forthcoming broadcast in the following way: “R.S. [journalist]: a secret has been revealed (demaskuota paslaptis). There is a centre which has not been registered anywhere and where the meditation practised is so powerful that to become a member you have to submit medical proof that you are not ill with HIV. ... After such meditation Violeta is today in a psychiatric hospital. Her mother is in tears ...” 20. The programme itself contained the following statements, including two by doctor D.Š., head of division and a psychiatrist at Vilnius Psychiatric Hospital, who was interviewed by the journalist on what appeared to be the premises of Vilnius Psychiatric Hospital: “A.K. [journalist]: B. is a woman who has had a management job all her life. ...Today B. has agreed to talk because what has happened is completely unexpected. The woman did not foresee disaster, she did not foresee how her older daughter, who is now an adult, the thirty-year-old Violeta, had been charmed and what she got herself involved with.” “R.S.: The organisation we are talking about today has many secrets ...” “Doctor D.Š.: It does not appear that this young woman (mergina) would participate in orgies. She is not hypersexual, and, well, you know, as far as I have learned, she is of high morals and studied for a couple of years in America for a master’s degree.” ... “R.S.: We are meeting Violeta’s mother and her seventeen-year-old sister at Vilnius train station. The mother and her daughter came here by train from Šiauliai, wishing to tell Violeta’s story. They did not wish to meet in Violeta’s home town (gimtuosiuose namuose), Šiauliai. They are afraid to hurt Violeta’s father. He is seriously ill and it would be hard for him to accept (išgyventi žinią) what has happened to his elder daughter. More than a month ago, in the apartment in the capital where Violeta lives, the most horrible event in the young woman’s life took place. Violeta suddenly had a complete nervous breakdown, acute psychosis. For Violeta’s family, the reason for that psychosis is the influence of the Ojas Meditation Centre.” The programme then discussed the activities of the Ojas Meditation Centre in Vilnius. The journalist implied that the followers of Osho in Vilnius held sex orgies. As to the applicant’s identity, the journalist also mentioned that “Violeta obtained a master’s degree abroad, had an important job in State service (dirbo atsakingą valstybinį darbą)” and that the person was “currently being treated at a psychiatric hospital”. The programme included the following statements: “R.S.: Violeta’s family state that a couple of weeks before the tragedy Violeta would meditate all day and practically not speak to anyone else. She is currently being treated in a psychiatric hospital. ...After two months of meditation Violeta was placed in a psychiatric hospital, in a state of acute psychosis (ūmios psichozės būsenoje).” “Doctor D.Š.: They [people belonging to sects] do not talk about it at all. As far as I have heard, the teachings there [at the Ojas Meditation Centre] take a couple of years, and enlightment happens or something of that kind. This takes place over four years, something is being cleansed. She [Violeta] does not talk about that. She even says that she performs some kind of practice (atlieka praktikas) there; she hides [things]. This is a common trait of members of sects, that they very much hide that fact. Or, if [things] come to light, they portray it as completely innocent. That is very common.” M.V., who according to the register of religious organisations in Lithuania is the “leader” and master (lyderis (meistras)) of the Ojas Meditation Centre in Vilnius, stated during the broadcast that the applicant had been terrorised by her mother. The broadcast concluded with statements by the journalist and M.V.: “R.S.: Maybe it is a coincidence, but a clear danger to Violeta’s mental state appeared just after she had started meditating in accordance with Osho teachings. The young woman will need a long and difficult course of medical treatment (mergina dar ilgai ir sunkiai gydysis). The fact that she has only been in this [Ojas Meditation] centre for a couple of months leads one to reflect on how the practices of the Ojas Meditation Centre can affect someone who is constantly seeking to liberate their soul.” “M.V.: Actually, there is a Catholic atmosphere and a Catholic resistance, maybe even a Christian resistance, against meditation, because there is no God in meditation ...” The applicant’s mother and sister were shown during the programme and identified by their real first names as “B., Violeta’s mother” and “G., Violeta’s sister”. They made statements about the destructive influence that, in their view, the Ojas Meditation Centre had had on the applicant. 21. On 14 August 2003 on the internet site of the Ojas Meditation Center the applicant published a five-page open letter to the journalists at Srovės, signing it with her real name and surname. She expressed regret that the broadcast had not been an objective portrayal of her story. She stated that “by using me, you have maybe created an interesting story, but it is very one-sided. Maybe by unraveling (narpliodamos) the story through my mother you also wanted to protect me and sought to help me, but in reality your broadcast has caused me to feel much distrust and a lot of pain”. The applicant then mentioned that she had previously been admitted to psychiatric institutions in 1992 and 2002, emphasising that those two periods had been unrelated to meditation. She also wrote that she had only started attending the Ojas Meditation Centre in February 2003 and that her emotional breakdown in May 2003 had had no connection to those visits. For the applicant, the Srovės journalists had therefore given an unfair account of her story, and had shown bias by implying that her mental health issues had been caused by meditating at the Ojas Centre. The applicant also stated that in 2002 she had consulted several psychotherapists (psichoterapeutai), who had helped her realise that her psychological problems had roots in her childhood, when she had been controlled by and had lived in fear of emotional and physical violence from her mother. Even at the time of writing there had been resistance and mockery from her family when the applicant had shared her new interests, such as yoga or meditation. The applicant also stated that she “had not been put under a spell (neapžavėjo)” by meditation. Instead, meditation had entered her life naturally as the result of a long and intense spiritual search. She continued: “Meditation for me is a way to learn about myself and the world, and on the basis of that understanding and by deepening it, to open myself to peace, joy, truth and love. Today meditation for me is a means to reduce emotional, spiritual and psychological tension and stress, to understand the reasons behind unhappiness, including by learning how to avoid it. Meditation allows me to live a more conscious life (sąmoningesnis) and one which is full of joy.” 22. The applicant also referred in the letter to her involuntary admission to Vilnius Psychiatric Hospital in 2003, where she had been taken by force and deceit, and where she had never agreed to be treated. She wrote that the psychiatrists had blindly believed her mother’s stories and had diagnosed her as being under the influence of a sect (sektantiškumas). That had led to the psychiatric treatment she had received being mainly directed at how to cure her from practising meditation (pagydyti nuo meditacijos) in a hostile environment that had damaged her psychologically and emotionally. In particular, the psychiatrists at the hospital had interrogated her (buvau kamantinėjama) about the Ojas Meditation Centre and its practices, forced her to promise not to meditate, alleged that sex orgies had taken place there, that meditation was harmful for her mental health, that she should follow the Catholic religion which is traditional in Lithuania and that meditation was not compatible with her “social status”. During one visit (vizitacija), a doctor had called her “the one from the Ojas Centre”, rather than using her name. The applicant also wrote that when she had spoken about meditation at the Ojas Meditation Centre doctor D.Š. had simply made fun of it, had said that that was not meditation, and that the applicant knew nothing about what meditation actually was. The applicant had not been able to resist the psychiatrists at the hospital because refusing to talk to them or disagreeing with their statements about the Ojas Meditation Centre or their instructions to stop meditating had been treated as signs of mental illness. For that reason, the amount of medication at the hospital had not been reduced for a long time, strong drugs had been injected into her, and her release from hospital had been postponed. The applicant also noted that she had intended to submit a written statement to the hospital that she refused treatment, but she had been persuaded not to do so because the doctors had threatened that otherwise they would diagnose her problems in such a way that could later prevent her from getting a job. 23. The applicant concluded by noting that in July 2003 she had attended a session at the Ojas Meditation Centre, and had finally been able to meditate and recover after nearly two months in Vilnius Psychiatric Hospital in a hostile environment that had harmed her mind and body. She saw meditation as means to live a more conscious and meaningful life. 24. In May 2006 the applicant sued Vilnius Psychiatric Hospital for compensation for non-pecuniary damage. She alleged: (1) unlawful deprivation of liberty; (2) a violation of her right to a private life; (3) a violation of her right to freedom of religion; (4) a violation of her right to the inviolability of her body; (5) failure to provide proper medical care; and (6) a breach of her right to be properly informed about her diagnosis, methods of treatment and prognosis. 25. Vilnius Psychiatric Hospital responded by saying that on 7 May 2003 the applicant had been involuntarily hospitalised since she had been in a state of acute psychosis and had posed a danger to herself and others. The hospital also submitted that the applicant had never complained in writing about being held unlawfully. The hospital argued that it had not disclosed any confidential information about the applicant, and that it could not be responsible for the actions of the applicant’s mother and the way the Srovės broadcast had been presented. It added that the Osho religious movement had been acting outside the law in 2003 because it had only been registered in Lithuania as a religious movement on 12 April 2005 (see paragraph 56 below). Furthermore, the applicant had not proved that the hospital had had no reason to think that her non-traditional religious beliefs had been the reason behind her emotional outburst (emocinės iškrovos priežastis). 26. The Vilnius Regional Court ordered the State Forensic Psychiatry Service at the Ministry of Health Care to produce a report to answer certain questions regarding the applicant’s medical condition and her admission to Vilnius Psychiatric Hospital between 7 May and 26 June 2003 on the basis of her medical records. The forensic report was produced in November 2007. 27. On 25 June 2008 the Vilnius Regional Court granted the applicant’s action. 28. The Vilnius Regional Court noted at the outset that according to Articles 27 and 28 of the Law on Mental Health Care a person could be placed in hospital without his or her consent if there was a clear and present danger of him or her harming themselves or others. Even then, a court order was needed within two days to keep the person in hospital. Should a court refuse such an order, the forced hospitalisation and treatment had to be discontinued (see paragraph 69 below). 29. On the basis of the forensic expert report and other material, the Vilnius Regional Court firstly observed that the applicant had not actually denied that she might have required medical assistance on 7 May 2003 because of her state of mind. However, the court found that as of 8 May 2003 she had no longer been in need of medical support. That was confirmed by the applicant’s medical file, where doctor D.Š. had noted on 8 May at 8.15 a.m. that “the patient is responding to meaningful contact, is correctly orientated (pacientė prieinama prasmingam kontaktui, orientuota teisingai)”. Also, at 8.30 a.m. on the same day, doctor A.G., the other psychiatrist treating her at Vilnius Psychiatric Hospital, had written that “currently the patient is sleepy because of medication ... her mind is clear, she is well orientated when it comes to place and time ... currently the affect is flat (pacientė š.m. mieguista dėl vaistų poveikio, sąmonė aiški, orientacija vietoje ir laike tiksli... šiuo metu afektas lygus)”. The court also based itself on the applicant’s other medical records. All that meant that the applicant’s state of health had no longer corresponded to that set down in Article 27 of the Law on Mental Health Care to permit her further forced hospitalisation. Despite that, the applicant had been held against her will and treated at Vilnius Psychiatric Hospital until 26 June 2003, without the hospital ever asking for a court order. That had been in breach of the twoday time-limit set in Article 28 of the Law on Mental Health Care. 30. The Vilnius Regional Court also agreed with the applicant’s argument that she had not been able to leave the hospital because she was under the influence of drugs, had faced a threat of being physically restrained if she disobeyed the doctors, and had been under a strict regime. The court noted that the requirement that a psychiatric patient should normally be able to express his or her consent to be hospitalised and treated had also been underlined by the Committee for the Prevention of Torture. 31. The Vilnius Regional Court also observed that there was no written evidence that the applicant had ever agreed to be placed in Vilnius Psychiatric Hospital between 7 May and 26 June 2003. According to the forensic expert report, the applicant had not been able to understand her actions on 7 May 2003; however, the experts had not reached the same conclusion about the period between 8 May and 26 June 2003. That notwithstanding, the applicant had been forced to stay in hospital for fiftytwo days for treatment. The court also emphasised that the patient was always the weaker party in relation to the hospital and its personnel. The hospital’s argument that the applicant had agreed to stay by acquiescence was therefore null and void. The court also relied on doctor D.Š.’s admission during court hearings that the applicant’s life had “not necessarily been in danger” for all of the fifty-two days of treatment and to the same conclusion by the applicant’s treating doctor A.G. In fact, the records signed by doctor A.G. on 8 and 12 May 2007 stating that the applicant was being treated at the hospital had given only one side (vienašališki) of the situation as they had not been countersigned by the applicant. In that context, the court also had regard to the applicant’s explanation that because of the side effects of the medication (sleepiness, inability to concentrate) and the possibility of physical restraint (being tied down) in case of disobedience, she had not been able to express her disagreement about being treated at the hospital in writing. The court also considered that the consent given on 7 May 2013 by the applicant’s cousin, E.Š., for the applicant to be put in hospital and treated could also not be considered as an act of agreement expressed by the applicant. 32. In the light of those factors, the Vilnius Regional Court concluded that the procedure set down in domestic law for forced admission to hospital and treatment had not only been breached in the applicant’s case, but outright disregarded. 33. The applicant’s mother also testified before the Vilnius Regional Court. She said that she had learned on 7 May 2003 that the applicant was delirious and had asked E.Š. for help. That had led to the applicant being taken to Vilnius Psychiatric Hospital. The mother also said she had contacted the Ojas Meditation Centre in Vilnius about her daughter, but had not received a constructive response. She had then contacted the journalists from Srovės, because she had wished to find out what was happening to her daughter. She had not known what diagnosis the psychiatric hospital had given the applicant and had only told the Srovės journalists which hospital her daughter was in. 34. Doctor D.Š. testified that she was head of division (skyriaus vedėja) at Vilnius Psychiatric Hospital when the applicant had been treated there. She said that the journalists had not called her directly but that the hospital administration had informed her that they would come and had “kind of stated that the talk would be about Mockutė”. The doctor testified that she had “not discussed [the applicant’s] health” with the journalists, only the Ojas Meditation Centre and meditation as such. 35. The Vilnius Regional Court then turned to the applicant’s complaint of a breach of her right to privacy. Relying on Article 14 of the Law on Mental Health Care and Article 2 § 1 of the Law on the Legal Protection of Personal Data (see paragraphs 59 and 61 below), the court noted that “there was evidence in the case-file (byloje yra pateiktas įrodymas) that doctor D.Š. had, without obtaining the applicant’s consent to disclose confidential information, revealed to the Srovės journalists that the applicant had been diagnosed with acute psychosis (ūminė psichozė), that she was being treated at Vilnius Psychiatric Hospital, and that she had studied in the United States”. The interview with the doctor had been shown during the Srovės programme on 17 June 2003. The court noted that even in 2008 (šiuo metu) there were not many people in Lithuania who had studied in the United States and so that characteristic had not been very common. The court also considered that “other information revealed to the journalists about the applicant could also allow the applicant’s identity to be established”, although the court did not specify what other information it meant. 36. The court then had regard to the applicant’s complaint about freedom of religion by referring to Article 9 of the Convention. It also relied on Article 7 of the Law on Mental Health Care (see paragraph 67 below). 37. The court found valid the applicant’s complaints that the doctors had tried to dissuade (atkalbėti) her from meditating, attempted to alter her views on non-traditional meditation religion and had treated her against meditating and attending the Ojas Meditation Centre. That conclusion was based on the applicant’s medical file, which contained the following records for 26 May and 20 and 23 June 2003: “ ... absence of a critical attitude towards attending [the Ojas Meditation] Centre”; “during psycho-correction expressed opinion in categorical terms about attending the Ojas Centre, argues, that ‘it is a personal matter’”; “when efforts were made during psycho-correction to get the applicant to form a critical attitude (suformuoti kritiką) towards non-traditional religious beliefs, [the applicant] for a long time remained uncritical and also categorical”. The first-instance court underlined the fact that the psychiatric hospital had not provided any proof of the suggestion that practising a non-traditional religion would place the applicant or others in danger. The court thus concluded that “by attempting to alter the applicant’s attitude to non-traditional religion, meditation, and their practice at the Ojas Meditation Centre” the hospital had breached her right to freedom of religion. Lastly, the court rejected as legally irrelevant the hospital’s assertion that at the time of the applicant’s admission to hospital the meditation centre had been operating “unlawfully”. The Vilnius Regional Court observed that the religious movement had been a party to court proceedings for its registration at the time and had been registered on 12 April 2005. 38. After finding that between 9 May 2003 and 26 June 2003 the applicant had been placed in hospital and given treatment against her will in breach of domestic law (see paragraph 31 above), the Vilnius Regional Court considered that there had therefore been a breach of the applicant’s right to the inviolability of her body. Furthermore, Vilnius Psychiatric Hospital had failed to prove that it had properly informed the applicant about her state of health, her diagnosis, the methods of treatment and the prognosis for her condition (see paragraph 70 below). 39. However, the Vilnius Regional Court dismissed as unsubstantiated the applicant’s claims that she had been provided with inappropriate medical care at Vilnius Psychiatric Hospital and that the doctors there had forged her medical records. 40. The Vilnius Regional Court thus granted the applicant’s civil claim in full and awarded her 110,000 Lithuanian litas (LTL, approximately 31,850 euros (EUR)) in compensation for non-pecuniary damage. She was also awarded legal costs of LTL 1,000 (EUR 290). 41. Vilnius Psychiatric Hospital appealed. According to the hospital, there was no proof that doctor D.Š. had disclosed confidential information about the applicant’s acute psychosis and that she was being treated at the hospital. The doctor had merely given an opinion about an unidentified person. Moreover, the doctor had pointed out during the firstinstance hearings that she had only given her views when answering the questions the journalists had put to her. Three witnesses – the applicant’s mother, sister and the journalist R.S. – had explained during the firstinstance court’s hearings that the television programme had been initiated by the applicant’s relatives, who had provided information about the applicant. The first-instance court’s reference to studies in the United States as a way of identifying someone was not sufficiently weighty either, and such information was not protected under Article 14 of the Law on Mental Health Care. 42. As to the applicant’s right to freedom of religion, the hospital argued that the lower court had erred in equating meditation with religion. The fact that since February 2003 the applicant had attended meditation sessions of “unknown origin and manner (neaiškios kilmės ir pobūdžio meditacijas)” and that they could have been one of the reasons behind her illness, had not been denied. The hospital insisted that in February 2003 the Ojas Meditation Centre had been operating outside the law. The hospital also relied on a 29 August 2003 statement by the Ministry of Justice that Osho movement centres did not have the status of a religion (see paragraph 55 below), which supported the hospital’s view that meditation was not a religious practice. Accordingly, the applicant’s “fictitious” (tariama) religious freedom had not been breached. 43. The applicant responded by submitting that the right to privacy included the right not to have her health or other confidential information revealed to the journalists or her mother. The applicant added that when she had been in the psychiatric hospital, doctor D.Š. had persistently asked about the meditation she practised and had spoken of it with contempt. Doctor A.G. would tenaciously try to persuade her to denounce her religion and give up meditation. 44. On 20 March 2009 the Court of Appeal upheld the hospital’s appeal in part. 45. The appellate court upheld the Vilnius Regional Court’s finding that on the basis of her health on 7 May 2003 the applicant had been lawfully placed in Vilnius Psychiatric Hospital. Her condition that day had corresponded to the domestic legal requirements for involuntary hospitalisation (see paragraph 68 below). However, the hospital had not provided any evidence that her treatment from 8 May had been indispensable. It was therefore clear that as of that date her treatment at the hospital and her presence there had been involuntary and also amounted to an unlawful deprivation of liberty. The Court of Appeal relied on the Supreme Court’s practice in case no. 3K-3110/2004 of 11 February 2004 to the effect that it was obligatory to follow the procedure set out in Articles 16 and 28 of the Law on Mental Health Care, both when providing a patient with the necessary help (būtinoji pagalba) and when placing that person in hospital without his or her consent. Under that procedure, it had been possible to place the applicant in hospital and treat her without her consent for no longer than forty-eight hours. Without a court order, the forced hospitalisation and forced treatment had to be discontinued. However, there was no information in the case file that such an order had been granted. To make matters worse, the hospital had never even asked the court for such an authorisation. The Court of Appeal thus fully shared the lower court’s view that legal procedures had been outright disregarded, making the applicant’s stay in the hospital unlawful. 46. The Court of Appeal noted that under Article 22 of the Constitution and Article 14 of the Law on Mental Health Care, patients had a right to have information about their health kept confidential (see paragraphs 58 and 59 above). It could not be disclosed by doctor in charge of treatment or by hospital administration. 47. That being so, the Court of Appeal did not agree with the firstinstance court’s conclusion that doctor D.Š.’s interview with the journalists, which had been shown during the television programme of 17 June 2003, had disclosed information that had revealed the applicant’s identity. The appellate court relied on the Supreme Court’s ruling in case no. 3K-3-630/2004 of 24 November 2004, where it had found that in cases where there was no direct mention of a person in a publication, the process of identification was based on the aggregate evidence of the presence of features which could sufficiently describe the person in mind (see paragraph 63 below). In the particular case of the applicant, the Court of Appeal also referred to her open letter of 14 August 2003 to the Srovės journalists (see paragraphs 21 and 22 above), where she had acknowledged that the television broadcast had been instigated by members of her family, that she had not been shown in the programme in person, and that she had been given a different name. The Court of Appeal considered that the fact that the main character of the programme (laidos herojė) had studied in the United States was not sufficient to establish that the programme was about the applicant. As the applicant had not established that the information disclosed during the broadcast had allowed her to be identified, her claim for breach of privacy had to be dismissed. 48. Lastly, the appellate court rejected the applicant’s argument that her privacy had been breached because confidential information had been given to her mother. The applicant had been treated earlier in psychiatric institutions in Kaunas and Šiauliai because of mental health problems and her mother had been aware of those previous periods in hospital. Moreover, providing information to close relatives about the applicant’s health could not be regarded as a breach of her right to privacy. 49. The Court of Appeal noted that the right to freedom of religion had been enshrined in Article 26 of the Constitution (see paragraph 64 below) and Article 9 of the Convention. It also noted that under Article 7 of the Law on Mental Health Care, people in hospital had the right to perform religious rites. That right could be restricted by a psychiatrist’s decision only if there was a clear danger to the patient or others, and such restrictions had to be recorded in the patient’s medical file (see paragraph 67 below). 50. On the facts of the case, the Court of Appeal disagreed with the lower court’s conclusion that there had been a breach of the applicant’s right to freedom of religion while she was in Vilnius Psychiatric Hospital. For the Court of Appeal, there was no evidence in the file that the applicant had been forbidden from performing religious rites. Even though the medical records showed (yra matyti) that her doctors had tried to get the applicant to form a critical attitude towards her religious convictions (religinius įsitikinimus), there was no information that any restrictions had been applied to her. The Court of Appeal found that “the doctors’ attempts to get the applicant to form a critical attitude towards her religious convictions did not mean that [the applicant’s] religious freedom had been breached”. 51. The Court of Appeal upheld the lower court’s findings that there was no proof that the applicant had received inappropriate medical treatment. It also shared the lower court’s conclusion that Vilnius Psychiatric Hospital had not properly informed the applicant about the treatment she received therein. 52. Having dismissed part of the applicant’s complaints, the Court of Appeal lowered the award for non-pecuniary damage to LTL 20,000 (approximately EUR 5,800). The applicant was also ordered to pay Vilnius Psychiatric Hospital’s legal costs of LTL 3,202 (approximately EUR 927). Lastly, the appellate court quashed the part of the first-instance decision on the applicant’s costs being paid by the hospital so she had to bear the legal costs herself. 53. On 17 June 2009 the applicant submitted an appeal on points of law. She argued that the lower courts had failed to properly apply Convention norms on the right to privacy and freedom of religion. 54. By a ruling of 19 June 2009 the Supreme Court refused to admit the appeal for examination, holding that the applicant’s arguments were not sufficient to merit examination. 55. On 12 March 2003 the Ojas Meditation Centre applied to the Ministry of Justice to be registered as a religious community. On 29 August 2003 the Ministry of Justice rejected the application because it considered that although the Centre was on the “border between self-help psychology and religion (egzistuojantis savipagalbos psichologijos ir religijos paribyje)”, it should not be treated as a religious community. Even though the Osho teachings mentioned in the Ojas Meditation Centre’s by-laws were called religious, meditation there was more based on esoteric doctrines of self-improvement than on a religious practice whose main feature was connecting with God, gods or other sacred forms. The Ministry of Justice also noted that Osho movements did not have the status of a religion in western Europe countries. 56. The Ojas Meditation Centre then started court proceedings. Its action was eventually granted by the Supreme Administrative Court on 4 February 2005. The court found no evidence that the Ojas Meditation Centre propagated any controversial practices amongst its members. It was registered as a religious community (religinė bendruomenė) on 12 April 2005 (see Gineitienė v. Lithuania, no. 20739/05, § 24, 27 July 2010). 57. In her observations sent to the Court on 13 January 2015, the applicant stated that she had continued to that day to practise meditation at the Ojas Meditation Centre. | 1 |
test | 001-177427 | ENG | RUS | COMMITTEE | 2,017 | CASE OF MARKINY AND OTHERS v. RUSSIA | 4 | Violation of Article 6+P1-1-1 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the non-enforcement of domestic decisions and of the lack of any effective remedy in domestic law. | 1 |
test | 001-148642 | ENG | NOR | CHAMBER | 2,014 | CASE OF N.A. v. NORWAY | 3 | No violation of Article 6 - Right to a fair trial (Article 6-2 - Charged with a criminal offence);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant, Mrs N.A., was born in 1986 and lives in Norway. 6. On 16 September 2009 the applicant and her former husband Mr U.A., a Pakistani national who was born in 1985, were indicted (I) under Article 229, third alternative, cf. Article 232 of the Penal Code (straffeloven), of having caused under particularly aggravating circumstances injury to the body and health of their daughter A entailing serious damage, or of having aided and abetted in this, by having exposed her at least on two occasions to violence causing the following damage: “- Two instances of fraction to her cranium; - bleeding under the hard membrane of the brain; - bleeding between the hard membrane of the brain and scull; - oedema changes in the brain; - bleedings in the retina in both eyes; - blue marks and miscolouring on the body; - elbow out of joint. The last-mentioned injury had been discovered in December 2007 and the remainder in January 2008. The injuries to her head had been life-threatening and had led to permanent brain injury. The violence had been caused by the child’s parents, Mr U.A. and Mrs N.A., directly by, amongst other things, blows and/or pushes against a hard surface and forceful shaking and/or by aiding and abetting the perpetration of the violence by not intervening and seeking to prevent the actions carried out against the child, in respect of whom both parents assumed the care.” They were also indicted (II) under Article 219 (2), cf. (1), of having seriously and repeatedly exerted violence or otherwise infringed or illtreated someone in their household – in an aggravated manner because the abuse had been carried out over a long period, had been committed against a defenseless person and had been unprovoked. During the period from 17 August 2005 until 26 January 2008, their son B had a number of times been exposed to violence resulting, inter alia, in the following injuries: “- A fracture in the upper arm caused by twisting; - blue nails on both of his big toes; - several wounds, scars and miscolouring to the body, including scars after scratching on the throat. The violence had been caused by the child’s parents, Mr U.A. and Mrs N.A., either directly and/or by aiding and abetting the perpetration of the violence by not intervening and seeking to prevent the actions carried out against the child, in respect of whom both parents assumed the care.” 7. On 13 January 2010 the Oslo City Court (tingrett) convicted the applicant and her former husband of the charges and sentenced them to terms of imprisonment of two years and a half and three years and a half, respectively. It was not in doubt that the two children had been subjected to gross ill-treatment by adults but concluded that it was not possible from the evidence taken from the defendants and witnesses in the case to identify one or more perpetrators. The statements given had been contradictory to such a degree that this could not be explained as being due to misunderstandings. Several of the statements ought to be considered as untrue leaving no possibility to distinguish between lies and truth on different points. On the other hand the City Court found it established that the damage to the children had mainly occurred while the children had been in the flat. It was further proven that the accused Mr U.A. had been present in the tiny flat occupied by the family while the ill-treatment occurred, as had also been the case of the applicant. The City Court also found it proven that each of the parents had aided and abetted in the commission of the violence by not having interfered or sought to prevent the acts of violence carried out against the children in regard to whom they had a duty of care. The parents were ordered to pay the children 300,000 and 100,000 Norwegian kroner (NOK) (approximately 36,000 and 12,000 euros (EUR)) in compensation for non-pecuniary damage. 8. The applicant and her former husband appealed to the Borgarting High Court (lagmannsrett), which, sitting with a jury, held a hearing for twelve days between 17 August and 3 September 2010). It took evidence from the defendants and eighteen witnesses and two court appointed experts. After the jury had answered all the questions put to it in the negative, the professional judges decided to accept the jury’s verdict of acquittal. 9. In the same judgment of 3 September 2010, the High Court (without the participation of any members of the jury) examined the children’s claims for compensation of non-pecuniary damage under section 3-5 (1) (a) of the Damage Compensation Act 1969. It held: “According to this provision a person who with intent or gross negligence has caused personal injury may be required to pay compensation to the victim. The High Court observes that such infringements as described in Article 219 of the Penal Code can constitute a ground for awarding compensation for non-pecuniary damage under section 3-5(1)(b), cf. section 3-3, even if no damage has occurred in the sense of the Act. The assistance lawyer representing the children [‘bistandsadvokaten’] has argued on their behalf that Mr [U.A.] and Mrs [N.A.], with intent or gross negligence, have caused or aided and abetted [‘medvirket’] in causing serious injury to [A]’s head, her elbow getting out of joint and in seriously and repeatedly exposing [B] to violence. The victims’ claims for non-pecuniary damage has its basis in the same acts as those in respect of which Mr [U.A.] and Mrs [N.A.] has been acquitted in the criminal proceedings. The acquittal in the criminal proceedings does not hinder making an award of compensation for nonpecuniary damage to the victims, since less stringent evidentiary requirements applies to the latter than to criminal punishment. When a judgment of acquittal has been given in the criminal case, the presumption of innocence in Article 6 § 2 of the Convention will set limits to what could constitute the basis for a decision on the civil claims. According to the European Court’s case-law, the national courts cannot justify their decision in a manner calling into doubt the acquitted person’s innocence for criminal law purposes (see the Norwegian Supreme Court’s case-law reports Norsk Retstidende – Rt. 2003 p. 1671). A condition for establishing liability to pay compensation is that it was clearly probable that the damage had been caused by intent or by gross negligence (Rt. 2003 p. 1671). Considering the evidence in the case as a whole, the High Court finds it clearly probable that Mr [U.A.] and Mrs [N.A.] have ill-treated their children or have aided and abetted in doing so by consent or by incitement to the acts, over a long period until 26 January 2008. The High Court further finds it clearly probable that the parents had inflicted or have aided and abetted in inflicting great injuries to A’s head and have inflicted or aided and abetted in inflicting injuries to B through repeated violence, including a fracture to his arm by twisting it. In its assessment of the evidence, the High Court emphasises that several of the injuries ascertained are not compatible with accidental occurrences but on the contrary show that they have been inflicted by strong violence. The High Court also points to the children’s later reactions, including that [B] was in 2008 diagnosed as suffering from post-traumatic stress syndrome. It further refers to witness statements from neighbours about noise in the form of screams of anxiety and painful cries from children in the apartment over a longer period. The High Court is of the view that the physical and psychological injuries sustained by the children are a direct consequence of the illtreatment to which they have been exposed. In the High Court’s view it was further foreseeable for Mr [U.A.] and Mrs [N.A.] that serious injuries, including serious brain damage, could occur in the case of such small children. Accordingly, the conditions for making an award of non-pecuniary damage have been fulfilled. The lawyer representing the children had filed a claim for compensation of non-pecuniary damage in an amount of up to NOK 300,000 in respect of [A] and up to NOK 100,000 in respect of [B]. An award of compensation for non-pecuniary damage is to be evaluated on the basis of a wide discretionary assessment of what would constitute a reasonable amount. Factors which are central in the assessment are the objective seriousness of the act, the extent to which the wrongdoer (‘skadevolder’) is to be blamed and the damaging effects. This case concerns injury on very small children, from they were babies until [A] was fourteen months old and [B] was two years and a half. The ill-treatment has occurred during a considerable part of the children’s lives until it was revealed. At present [B] apparently manage well physically and has no physical ailments. However, in 2008 he was diagnosed as suffering from post-traumatic stress syndrome. [A] was in part paralysed on one side and her development is far behind compared to that of other children of her age. Her injuries can be said to be permanent. Compensation for non-pecuniary damage in respect of [A] is to be awarded in an amount of NOK 300,000 [approximately 40,000 euros (EUR)] and in respect of [B] in an amount of NOK 100,000 [approximately EUR 13,500]. The decision on the civil claims is based on the less stringent evidentiary requirements than those applicable to criminal punishment. Thus, the decision on the civil claim does not contradict [‘rokke ved’] the correctness of the acquittal.” 10. The applicant and her former husband appealed to the Supreme Court (Høyesterett), complaining inter alia of the High Court’s assessment of the evidence and that the reasoning for the award on compensation in this regard had failed to satisfy requirements of national law and entailed a violation of Article 6 § 2 of the Convention. 11. On 4 November 2010 the Appeals Leave Committee of the Supreme Court (Høyesteretts kjæremålsutvalg) refused them leave to appeal, finding that such leave was warranted neither by the general importance of the case nor by other considerations. | 0 |
test | 001-160994 | ENG | LTU | CHAMBER | 2,016 | CASE OF ARBAČIAUSKIENĖ v. LITHUANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1957 and lives in Buivydiškės, Vilnius Region. 6. In 1991 the Lithuanian Parliament enacted the Law on Land Reform which provided that residents of rural areas had the right to acquire land for individual farming (asmeninio ūkio žemė) from the State, in accordance with the requirements set out in the relevant legal instruments (see “Relevant domestic law” below). 7. On 2 May 1992 the applicant’s husband submitted a request to the Zujūnai District Land Council of the Vilnius Region to buy from the State two hectares of land for individual farming in the village of Zujūnai. 8. On 29 October 1993 the Government adopted a decision establishing, inter alia, the order of allocation of land for individual farming. The decision instructed regional and municipal authorities to delimit plots of land to be assigned for individual farming and to prepare the necessary documents for their allocation to individual claimants. 9. On 17 October 1994, in court proceedings instituted by the Government, the Vilnius Region District Court ordered the Buivydiškės District Council of the Vilnius Region to implement the aforementioned decision of the Government. 10. On 16 March 1995 the Buivydiškės District Council adopted a decision on the allocation of 1,520 hectares of land for individual farming in the Vilnius Region. The decision provided a list of individuals who were entitled to buy plots of land from the State. It indicated the amount of land to which each listed individual was entitled but did not specify actual plots. The applicant was included in that list and entitled to buy two hectares of land. 11. On 20 June 1995 the Convention entered into force in respect of Lithuania. 12. On 25 September 2000 the Vilnius County Administration (hereinafter “the VCA”) approved the land allocation plan (žemės reformos žemėtvarkos projektas) for the Buivydiškės cadastral area (this area comprised several villages in the Vilnius Region). The VCA approved the delimitation of plots of land in that territory (patvirtino suformuotų žemės sklypų plotus bei ribas) and instructed Matininkai, a surveyor company, to prepare the necessary documents in order to allocate the plots to individual claimants and to formalise their rights of land ownership or use. 13. In January 2001 the applicant and her husband submitted a request to the VCA to consider as valid their previous request of 2 May 1992 (see paragraph 7 above) and to allocate a plot of land in the village of Zujūnai to them, for the nominal price of 1,884 Lithuanian litai (LTL, approximately 546 euros (EUR)). 14. On 28 January 2002 the VCA approved a list of individuals who were using land for individual farming in the Buivydiškės cadastral area. The applicant was included on the list as using two hectares of land in the village of Buivydiškės. However, as submitted by the applicant and not disputed by the Government, the applicant had not been using this land since no land had been provided to her at that time. 15. In June 2002 the VCA decided that it was necessary to amend the land allocation plan of the Buivydiškės cadastral area in order to take into account requests for restitution in natura which had been submitted in respect of land there. It ordered Matininkai to amend the delimitation and allocation of plots accordingly and to prepare all the necessary documents by 15 October 2002. 16. In July 2002, April 2004, April and November 2006 and February 2007 the applicant and her husband petitioned the VCA and the National Land Service (hereinafter “the NLS”), stating that they had still not received the land to which they were entitled, and requesting that such land be provided to them without further delay. They were informed that the preparation of the land allocation plan in the area was ongoing. 17. In 2006 the applicant and her husband lodged a claim against the VCA before the Vilnius Regional Administrative Court. They complained that the two hectares of land assigned to them in 1995 had still not been provided, that they had been unable to receive any information from the VCA about the ongoing land reform in the Vilnius Region, and that they had not been given the opportunity to participate in the planning of the reform, unlike other residents of the region. They requested that the court oblige the VCA to enforce the decision of the Buivydiškės District Council of 16 March 1995 (see paragraph 10 above) without further delay. 18. On 13 October 2006 the Vilnius Regional Administrative Court dismissed the claim. However, on 5 May 2007 the Supreme Administrative Court upheld the applicant’s appeal and annulled the judgment of the first-instance court. The Supreme Administrative Court noted that the applicant had been entitled to buy two hectares of land by the decision of 16 March 1995 and that she had been included on the list of land users in January 2002 (see paragraphs 10 and 14 above), so on these grounds the VCA was obliged to allocate a specific plot of land to the applicant. The court ordered the VCA to carry out the necessary administrative procedures to identify and delimit a plot of land for the applicant (atlikti administracines procedūras, susijusias su žemės sklypo suprojektavimu bei jo ribų nustatymu). However, the Supreme Administrative Court denied the applicant’s request to set a precise deadline for the VCA to carry out said actions, noting that no such deadlines were provided in the legislation and that there was no objective possibility to do so due to the complexity of the land reform. 19. In May and June 2007 the bailiff in charge of the enforcement of the Supreme Administrative Court’s judgment submitted several notices to the VCA, urging it to enforce the judgment immediately. 20. On 5 June 2007 the VCA approved an amended land allocation plan of the Buivydiškės cadastral area. It ordered Arlitanus, a surveyor company, to mark the delimited plots (paženklinti vietoje) and to prepare the necessary documents for formalising individual rights of ownership or use. 21. In June and July 2007 the applicant and her husband submitted several requests to the VCA and the NLS, inquiring about the enforcement of the judgment of 5 May 2007 and requesting information about the implementation of the land reform in the Buivydiškės cadastral area. 22. On 26 July 2007 the VCA informed the applicant that it had instructed Arlitanus to identify a specific plot of two hectares for the applicant from the stock of available State land by 1 August 2007. 23. In August and October 2007 the applicant submitted complaints to the VCA concerning the continuing non-enforcement of the Supreme Administrative Court’s judgment. She did not receive any response. 24. In August 2007 the applicant asked the Supreme Administrative Court to clarify its judgment of 5 May 2007 and to set a concrete deadline for the VCA to enforce it. However, the court denied the applicant’s request, noting that it was not authorised to clarify its previous judgments in a way that would alter their content. 25. In October 2007 the VCA again amended the land allocation plan of the Buivydiškės cadastral area and instructed Arlitanus to complete the planning by 1 March 2008. 26. In November 2007 the applicant submitted two requests to the VCA, asking to be provided with a plot of land by the end of the year and requesting information as to whether she had been included in the amended land allocation plan as a candidate to receive land. The following month the VCA informed the applicant that the planning in the Buivydiškės cadastral area had to be completed by 1 March 2008 and that the applicant would be included as a candidate of the seventh priority rank to receive land there. 27. In December 2007 the NLS urged the VCA to examine why the list of candidates to receive land in the Buivydiškės cadastral area had not been compiled in time with a view to ensuring the enforcement of the Supreme Administrative Court’s judgment of 5 May 2007. 28. In April 2008 the VCA again amended the land allocation plan in the Buivydiškės cadastral area. It instructed Arlitanus to complete the list of candidates to receive land in that territory by 30 May 2008 and to complete the planning by 1 December 2008. 29. That same month the applicant and her husband requested that the Supreme Administrative Court order interim measures against the VCA to prevent it from distributing land in the Buivydiškės cadastral area to candidates of the eighth and lower priority ranks. The court dismissed their request, noting that interim measures could only be ordered before the court’s judgment is adopted, while after its adoption the VCA was already under an obligation to enforce the judgment and thus interim measures were unnecessary. 30. On 30 May 2008 the Supreme Administrative Court granted the applicant’s request and clarified its judgment of 5 May 2007. The court held that the VCA was under the obligation to include the applicant on the list of candidates to be provided with land in the Buivydiškės cadastral area by 30 June 2008 and to carry out the remaining administrative procedures necessary for the allocation of a specific plot of land of two hectares to the applicant within three months of the completion of the land allocation plan of the Buivydiškės cadastral area. 31. In August 2008 the applicant asked the VCA to inform her whether the Supreme Administrative Court’s judgment of 30 May 2008 had been enforced. She also requested that they provide her with the list of candidates to receive land in the Buivydiškės cadastral area. She did not receive any response. 32. In October 2008 the VCA approved the amended land allocation plan of the Buivydiškės cadastral area and the list of candidates to receive plots of land in that territory. The applicant was not included on that list. 33. Later that month the VCA approved the list of individuals in the eldership (seniūnija) of Zujūnai who were not using the land which had been assigned to them for individual farming. The list indicated that the applicant had been assigned two hectares of land and that she had not been using them. As submitted by the Government, the purpose of that list was to determine the location of the plots to be allocated – those individuals who were not using any specific land would be provided with plots from the State stock of vacant land. 34. In December 2008 the VCA informed the applicant and her husband that the land allocation plan of the Buivydiškės cadastral area was again being amended, and that the list of candidates to receive land in that territory would be compiled after the completion of the planning when the available land has been identified. The VCA noted that the applicant had been included in the preliminary list as a candidate of the seventh priority rank. 35. In March 2009 the bailiff urged the VCA to immediately enforce the Supreme Administrative Court’s judgment of 30 May 2008. In May 2009 the bailiff concluded that the judgment had not been enforced. In July 2009 the Vilnius City First District Court satisfied the bailiff’s request and ordered the VCA to pay a fine of LTL 400 (EUR 115) for non-enforcement of the court’s judgment, as well as to enforce that judgment within three months. However, in December 2009 the Vilnius Regional Court annulled the first-instance decision, noting that the VCA had already included the applicant on the list of candidates to receive a plot of land (see paragraph 36 below), which meant that the judgment of the Supreme Administrative Court had been partly enforced and thus there were no grounds to order a fine. 36. On 9 August 2009 the VCA approved the list of candidates to receive land in the eldership of Zujūnai, in the Buivydiškės cadastral area. The applicant was included in this list as a candidate of the seventh priority rank. 37. The VCA further amended the land allocation plan in the Buivydiškės cadastral area several times in May to July 2009 and February to June 2010, setting new deadlines for the surveyor company to complete the planning. 38. In June 2010 the bailiff asked the VCA to provide information as to whether the land allocation plan had been completed and whether the necessary administrative procedures had been carried out to provide the applicant with a plot of two hectares. In October 2010 the bailiff declared that the Supreme Administrative Court’s judgment had not been enforced and decided to discontinue the enforcement proceedings. The applicant appealed against the bailiff’s decision and in March 2011 the Vilnius City First District Court allowed the appeal and ordered the bailiff to continue the enforcement. That judgment was subsequently upheld by the Vilnius Regional Court. 39. In July 2010, after an administrative reform, the VCA was abolished and its obligations were transferred to the NLS. 40. In November 2010, during a meeting between Arlitanus and candidates of the seventh priority rank, the applicant was offered two plots of land, amounting to a total of two hectares. She accepted the offer. 41. In June 2012 the NLS approved the plan of the Buivydiškės cadastral area prepared by Arlitanus, which delimited plots of land to be allocated to candidates of the first-to-fourth priority ranks. 42. On 20 May 2013 the NLS held a meeting of candidates of the seventh priority rank. The applicant was offered four plots of land (different from the two which had been previously offered to her – see paragraph 40 above) amounting to a total of two hectares. She confirmed that she was aware of any applicable restrictions on the use of those plots and agreed to the offer. 43. On the same day the applicant submitted a complaint to the NLS, stating that the four plots offered to her were too far from her home, that they could not be reached by road and that they were swampland (užpelkėję), and therefore unsuitable for farming. She requested that the NLS give her the plots of land which were offered to her in November 2010 (see paragraph 40 above) or other plots of equivalent quality. However, a few days later the applicant notified the NLS that she would accept the four offered plots. 44. On 31 December 2014 the NLS approved the land allocation plan of the Buivydiškės cadastral area and a list of over twenty individuals who had been allocated specific plots of land. The list indicated that the applicant had been assigned the four plots of land offered to her on 20 May 2013 (see paragraphs 42 and 43 above). 45. In April 2015 the State Land Fund identified that one of the four plots assigned to the applicant included 0.55 hectares of forestland. As a result, that part of the plot could not be transferred to the applicant and had to be returned to the State. 46. That same month the State Land Fund assessed the value of the four plots (after excluding the 0.55 hectares of forestland). It calculated that their total nominal value, assessed in accordance with the Rules of Land Valuation adopted by the Government in 1999 (see “Relevant domestic law” below), was EUR 627, whereas their total market value was EUR 20,410. 47. In May 2015 the NLS informed the applicant that the preliminary market value of the four plots was EUR 26,740, and that she would subsequently be informed of the final price. 48. In June 2015 the NLS amended the land allocation plan for the eldership of Zujūnai, indicating that the total area which had been allocated to the applicant amounted to 1.45 hectares. 49. In September 2015 the NLS informed the applicant that she had to pay a fee of EUR 157 for registering the four plots in the property register, and that that fee would be subsequently refunded to her in the price of the land. 50. In October 2015 the Government informed the Court that the NLS had identified the remaining vacant State land in the Buivydiškės cadastral area and that the applicant would be included as a candidate to receive 0.55 hectares of farmland in a future land plan. In November 2015 the Government further informed the Court that the NLS had prepared draft agreements to enable the applicant to purchase the aforementioned four plots amounting to 1.45 hectares. 51. In July 2007 the applicant and her husband submitted a complaint against the VCA to the Vilnius Regional Commission of Administrative Disputes (hereinafter – “the Commission”). They complained that they had not received any response to their repeated requests for information, sent in June and July 2007 (see paragraph 21 above). The Commission partly upheld the complaint and ordered the VCA to respond within five days to two requests submitted in June 2007. 52. On 25 September 2007 the applicant and her husband submitted a complaint to the Vilnius Regional Administrative Court, requesting that it order the VCA to comply with the Commission’s decision. They also claimed non-pecuniary damages resulting from the VCA’s deliberate refusal to fulfil its obligations. 53. On 12 December 2007 the Vilnius Regional Administrative Court dismissed the complaint. However, on 20 November 2008 the Supreme Administrative Court quashed the first-instance judgment and ordered the VCA to provide the applicant and her husband with a satisfactory response to their request of June 2007. The court also noted that the applicant and her husband had repeatedly asked the VCA for information about the implementation of the land reform and about the plot assigned to them, that they had petitioned several State institutions (see paragraphs 54-57 below), and that the lengthy non-enforcement of the Supreme Administrative Court’s judgment of 5 May 2007, as well as the VCA’s evasiveness concerning their requests, had caused them inconvenience and negative feelings. Thus, the court awarded the applicant and her husband non-pecuniary damages of LTL 1,500 (EUR 430) each. 54. In April 2006 the applicant and her husband submitted a complaint to the Parliamentary Ombudsperson, stating that they still had not been given the land assigned to them in 1995. In June 2007 the Ombudsperson concluded that the complaint was well-founded, and recommended the Ministry of Agriculture provide assistance to the VCA in enforcing the decision of the Buivydiškės District Council of 16 March 1995. 55. In November 2007 the applicant’s husband again petitioned the Ombudsperson, stating that her previous recommendation had not been implemented. He noted that the Ministry of Agriculture had passed on the Ombudsperson’s conclusion to the NLS, but the latter institution had stated that it was not allowed to influence the decisions of county administrations. The applicant’s husband also complained that he and the applicant still had not been included on the list of candidates to receive land in the Buivydiškės cadastral area and that the land in that territory was being distributed to candidates of lower priority ranks. 56. That same month a group of residents of Buivydiškės, including the applicant’s husband, submitted a complaint to the parliamentary subcommittee on the rule of law, complaining about the actions of the VCA in the implementation of the land reform. The residents claimed that the only individuals who had received land in the Buivydiškės cadastral area had been employees of local institutions and that the land was not being distributed in compliance with the approved priority ranks. 57. Later that month the applicant’s husband also petitioned the Ministry of Agriculture, asking what assistance had been provided to the VCA following the Parliamentary Ombudsperson’s recommendation (see paragraph 54 above). 58. In August 2007 the applicant and her husband requested that the police of the Vilnius Region launch a criminal investigation into the actions of the VCA. They alleged that the VCA had deliberately refused to enforce the Supreme Administrative Court’s judgment of 5 May 2007 (piktybiškai nevykdė teismo sprendimo), in violation of Articles 228, 229 and 294 of the Criminal Code, and that the land in the Buivydiškės cadastral area had been distributed to civil servants working at the VCA and its subordinate institutions, contrary to approved land allocation plans. 59. Subsequently the applicant and her husband requested that the district prosecutor of the Vilnius Region suspend any further actions of the VCA concerning the allocation of land in the Buivydiškės cadastral area, but their request was denied. 60. In December 2007 the district prosecutor of the Vilnius Region decided to discontinue the criminal investigation into the VCA, concluding that no crime had been committed. The applicant and her husband appealed against that decision. The Prosecutor General satisfied their appeal and ordered a different prosecutor in the Vilnius Region to continue the investigation. 61. In March and April 2008 the applicant and her husband submitted written testimonies to the district prosecutor and were recognised as victims. 62. In June 2009 the district prosecutor decided to discontinue the criminal investigation against the VCA on the grounds that no crime had been committed. The prosecutor held that the land reform in the Buivydiškės cadastral area had been prolonged due to reasons outside the control of the VCA, such as requests of former owners of land to receive restitution in natura. The decision also stated that the preparation of the land plan was ongoing and the applicant had been included in the preliminary list of candidates. Lastly, the prosecutor did not find any evidence that the land had been unlawfully distributed to candidates of lower priority ranks. | 1 |
test | 001-178942 | ENG | TUR | CHAMBER | 2,017 | CASE OF ÖZMURAT İNŞAAT ELEKTRİK NAKLİYAT TEMİZLİK SAN. VE TİC. LTD. ŞTİ. v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Public hearing) | Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano | 5. The applicant is a construction company, which was established in 2003 and has its seat of business in Mersin. 6. In 2005, after having obtained a permit to operate a mine, the applicant opened a mine in a plot of land of 8,700 m² which it owned. 7. During the course of its mining activities, on 31 January 2006 an audit commission under the Mersin Provincial Administration conducted an inspection. Subsequently, the commission drew up a report, proposing that the applicant should be ordered to pay 131,250 Turkish liras (TRY) for quarrying substantial amounts of sand in the neighbouring plots of 5,000 m², outside of its licensed area. 8. On 8 March 2006 the Tarsus Provincial Administration informed the applicant that it had decided to impose the proposed administrative fine pursuant to Article 19 of the Regulation Concerning Group A Mines (A Grubu Madenlerle İlgili Uygulama Yönetmeliği). 9. On 8 February 2006 the applicant company’s president, Ü.T., filed a complaint with the Mersin Public Prosecutor’s office, stating that one of the auditors in the commission, M.A.L., had told him that the fine had initially been calculated as TRY 500,000 and that he had reduced that amount. Ü.T. claimed that M.A.L. had asked him to pay TRY 10,000 in return and had threatened to have his mine closed if he refused to do so. He indicated that M.A.L. had acted together with a certain F.G., an official at the Provincial Administration. 10. In his police statements on 9 February 2006, Ü.T. described his conversations with M.A.L. in detail. He noted, inter alia, that after the inspection of the audit commission, he had conducted another inspection with an official from the Directorate of Land Registration, and had calculated that he had trespassed on the neighbouring plots by only 400 metres. He also explained that he had acted as an undercover agent in line with the directions of the Public Prosecutor to catch the perpetrators in flagrante delicto. Accordingly, the police gave him TRY 10,000 and noted down the serial numbers of the banknotes. He stated that in line with the instructions of M.A.L. and F.G., he had given the money to a third person, who had received it in the name of the other two. 11. Subsequently, on 16 February 2006 the Mersin Public Prosecutor issued an indictment against M.A.L. and F.G., accusing them of extortion. 12. On 13 May 2011 the Mersin Assize Court found the two officials guilty as charged. The appeal proceedings with regard to that judgment are still pending before the Court of Cassation as of September 2017. 13. In the meantime, on 17 April 2006 the applicant had filed an objection with the Tarsus Magistrates’ Court and requested a stay of execution of the fine. It informed the court of the criminal proceedings pending against certain officials involved, in which they were being tried for extortion. By a subsequent petition dated 5 June 2006, the applicant also requested the court to hold an oral hearing, to carry out an on-site examination, and to hear its witnesses in order to better evaluate the credibility of the inspection report the fine was based on. 14. On 13 June 2006, the Tarsus Magistrates’ Court rejected the applicant’s requests for an oral hearing and on-site examination without indicating any reasons for its decision. Relying on the inspection report drawn up on 31 January 2006, the court rejected the applicant’s objection. 15. The applicant objected to that decision, arguing that the fine had been unlawfully imposed on it and that the Magistrates’ Court had failed to adequately assess the case as it had not held a hearing. It drew the court’s attention once again to the criminal proceedings against the officials involved. 16. On 10 July 2006 the Tarsus Assize Court rejected the applicant’s objection without holding a hearing. 17. On 7 March 2008 the administration seized the plot of land where the applicant conducted mining activities due to the latter’s failure to pay the administrative fine. | 1 |
test | 001-153775 | ENG | SRB | ADMISSIBILITY | 2,015 | PETROVIĆ AND GAJIĆ v. SERBIA | 4 | Inadmissible | Ján Šikuta;Johannes Silvis;Kristina Pardalos;Luis López Guerra | 1. The applicants, Mr Goran Petrović and Mr Igor Gajić, are Serbian nationals, who were born in 1967 and 1973 respectively. They are represented before the Court by Mr S. Protić, a lawyer practising in Zemun. 2. The facts of the case, as submitted by the parties, may be summarised as follows. On 12 March 2003 Serbian Prime Minister Zoran Đinđić was assassinated. On 13 March 2003 a state of emergency was declared in Serbia. On the same day the Serbian Government issued a directive which limited civil rights during the state of emergency. Among others, habeas corpus and the right to counsel during police custody were suspended. 3. The applicants were arrested on 14 March 2003. They were held incommunicado at different locations until 13 May 2003. According to the applicants, during that time they were subjected to torture, notably, beatings, asphyxiation, electric shocks, mock executions and threats. 4. On 13 May 2003 the applicants were brought before the investigating judge who remanded them in custody pending criminal investigation against them. The applicant Goran Petrović complained before the investigating judge that he had been tortured, while the second applicant’s lawyer said that his client had “injuries on his body and certain health issues” and requested that his client receive medical examination. It would appear that no steps were taken in regard to these complaints by the investigating judge. On 23 June 2003 the applicants’ counsel requested the investigating judge to gather the medical documentation concerning the applicants from different prisons in which they had been detained. 5. On 4 September 2003 Amnesty International reported that the applicants had allegedly been tortured. In response to this report, the Inspectorate General’s Service (“Inspectorate”) instigated an internal investigation on 12 September 2003. On 17 September 2003 the applicants and several witnesses were questioned and a report was finalised on 6 November 2003. Among the facts mentioned in the report, it is stated that on 1 April 2003 a doctor had noted haematomae on both applicants and that on 3 April 2003 prison guards had noted “visible injuries” on both applicants. The report concluded that the allegations from the Amnesty International’s report were “partly founded”: on the one hand, the use of force against the applicants had not been lawful, but on the other hand, their treatment by the police had not amounted to torture. The Inspectorate recommended the Ministry of Interior further to investigate this case, identify the persons who had used force, examine the reasons why the force had been used, and sanction those responsible as appropriate. It is not clear whether the Ministry of Interior did so. 6. On 22 October 2003 the applicants filed a criminal complaint alleging torture against unknown persons. The public prosecutor requested further information concerning this case from the Kruševac Police Station. 7. On 9 August 2004 the Inspectorate requested more information concerning the applicants’ treatment from the Kruševac Police Station. 8. On 13 January 2005, the applicants supplemented the criminal complaint and asked the public prosecutor to interview certain police officers. 9. On 7 March 2005 the public prosecutor received a report of the Kruševac Police Station. 10. On 18 April 2005 the Inspectorate again requested the Kruševac Police Station to provide information concerning the applicants’ treatment. 11. On 22 March 2005 the public prosecutor rejected the applicants’ criminal complaint and the applicants were informed of that fact on 24 March 2005. 12. On 16 June 2005 the chief of the Kruševac Police Station informed the Inspectorate that force had indeed been used against the applicants but that the use of force had been lawful. 13. On 17 June 2005, the applicants filed another criminal complaint, indicating the names of the alleged perpetrators for the first time. The criminal complaint was rejected on 20 January 2006 and the applicants were notified of that fact on 25 January 2006. The applicants had the right to pursue a subsidiary criminal prosecution (preuzeti krivično gonjenje) within eight days of the date that decision had been served on them by filing a request for an investigation (zahtev za sprovođenje istrage). The applicants did not take over the criminal prosecution. 14. On 7 June 2006, upon the applicants’ request, they received a summary of the Inspectorate’s report of 6 November 2003. 15. On 19 December 2006, following an order by the Information Commissioner, the applicants were served with a longer version of the Inspectorate’s report of 6 November 2003. 16. On 15 November 2004 both applicants were sentenced to prison sentences for organised crime. During the first-instance trial and in their appeal, the applicants maintained that they had been subjected to torture in police detention. 17. A hearing for their appeal was scheduled before a five-judge committee of the Supreme Court of Serbia for 15 and 16 September 2005. However, on 14 September the judge rapporteur in this case was arrested and charged with accepting money from one of the applicants to quash the first-instance judgment and release the applicants from pre-trial detention. Shortly after that arrest, one of the ministers in the Serbian Government publicly stated that five other judges of the Supreme Court of Serbia should have also been arrested. The President of the Supreme Court of Serbia then appointed another judge rapporteur and scheduled a hearing for 29 and 30 September 2005. 18. On 30 September 2005 one of the Belgrade newspapers published an article claiming that the new judge rapporteur was also under pressure from criminal cartels through her daughter. Her daughter then made a public statement refuting those allegations. 19. On 30 September 2005 the Supreme Court of Serbia changed the legal qualification of the applicants’ offence and upheld the remainder of the first-instance judgment. 20. The applicants appealed on points of law (zahtev za ispitivanje zakonitosti pravosnažne presude) complaining that the judges dealing with their case had acted under pressure from the executive and the media and that they had therefore lacked independence. Additionally, the applicants claimed that the new judge rapporteur had had only 14 days to prepare a case which consisted of thousands of pages of material. The applicants submitted a statement by the second judge rapporteur in their case (from the criminal trial of the first judge rapporteur) according to which she had been obliged to read up to 20 hours per day. 21. On 24 March 2006, the Supreme Court of Serbia, in a different formation rejected the applicants’ appeal on points of law. The Supreme Court found that the new judge rapporteur had been appointed in accordance with the law and the fact that the trial had attracted significant attention from the media and general public did not mean that the court had acted under pressure. The applicants received that decision on 9 June 2006. 22. The Criminal Code 1977 (published in Official Gazette of the Socialist Republic of Serbia no. 26/77, amendments published in Official Gazette of the Socialist Republic of Serbia nos. 28/77, 43/77, 20/79, 24/84, 39/86, 51/87, 6/89, 42/89, and Official Gazette of the Republic of Serbia nos. 16/90, 21/90, 26/91, 75/91, 9/92, 49/92, 51/92, 23/93, 67/93, 47/94, 17/95, 44/98, 10/02, 11/02, 80/02, 39/03 and 67/03) was in force from 1 July 1977 until 1 January 2006. The relevant Article reads as follows: “Whoever acting in an official capacity ill-treats or insults another or otherwise treats such person in a humiliating and degrading manner, shall be punished with imprisonment from three months to three years.” 23. The Code of Criminal Procedure 2001 (published in the Official Gazette of the Federal Republic of Yugoslavia no. 70/01, amendments published in Official Gazette of the Federal Republic of Yugoslavia no. 68/02 and Official Gazette of the Republic of Serbia nos. 58/04, 85/05, 115/05, 49/07, 20/09 and 72/09) was in force from 28 March 2002 until 15 January 2013. Most criminal offences (including ill-treatment by public officials acting in an official capacity) are subject to public prosecution, but some minor offences are only subject to private prosecution. Pursuant to Article 20 of the Code, the public prosecutor must prosecute when there is sufficient evidence that a named individual has committed a criminal offence which is subject to public prosecution. Article 61 of the Code provides that when the public prosecutor decides not to prosecute such an offence because of the lack of evidence, the victim of the offence may nevertheless start a subsidiary prosecution within eight days from the notification of the public prosecutor’s decision. | 0 |
test | 001-148259 | ENG | POL | CHAMBER | 2,014 | CASE OF K.C. v. POLAND | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-e - Persons of unsound mind);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 6. The applicant was born in 1936 and lived in Żary. She is currently residing in a social care home in K. 7. The applicant, who is a widow, was living alone in an apartment in Żary. She was receiving a pension from the Social Security Board. She has a daughter, with whom she apparently had had no contact for several years. 8. On 24 March 1981, at the request of the applicant’s daughter, the Zielona Góra Regional Court declared the applicant to be partially incapacitated. The court established that she had been suffering from psycho-organic dementia syndrome with elements of paranoia and that she had a tendency to abuse alcohol and medications. It reasoned that it was necessary to declare her to be partially incapacitated because she needed help in making the right decisions, particularly as regards her treatment and the amount of money she spent on alcohol. 9. On 19 December 2007 the Żary City Centre for Social Services (Miejski Ośrodek Pomocy Społecznej) requested the Żary District Court to place the applicant, against her will, in a social care home. The City Centre for Social Services submitted that the applicant was suffering from mental disorders, did not go to doctors and behaved in a way that departed from “socially accepted norms”, which posed a threat to her health and life. The Centre explained that the applicant had been “walking in the streets incompletely dressed, untidy and dirty. She smelled, talked to herself and often looked as if she was under the influence of alcohol”. A medical certificate dated 3 December 2007 was attached to the request. The certificate had been issued by a psychiatrist on the basis of an examination of the applicant in the psychiatric ward of the Żary Military Hospital. It had been found that the applicant had been suffering from organic personality disorders (organiczne zaburzenie osobowości) and that she needed constant care. However, she did not require hospital treatment. 10. The Żary District Court scheduled several hearings at which the applicant failed to appear. Therefore, it was decided to hear the applicant at her place of residence on 25 March 2008. On that day contact with the applicant was difficult; her answers to some of the court’s questions were illogical. She made it clear, however, that she did not want to be placed in the social care home. At the end of the hearing she refused to sign the relevant document and told the people present in her apartment to get out. 11. On 19 June 2008 the Żary District Court decided to place the applicant in a social care home. The court based its decision on an opinion given by a psychiatrist, I.S., who had examined the applicant once, on 8 May 2008, and had diagnosed her with chronic schizophrenia and a disorder of the central nervous system. The doctor found that until the time of the examination the applicant had been in the care of a social guardian, R.D. However, the doctor claimed that “care was not provided properly or was not provided at all”. The applicant had been neglecting the basic principles of hygiene and nutrition, which might lead to infections or undernourishment. He stressed however that she did not pose a direct danger to her own or other peoples’ health or life. The doctor also found that the applicant needed to be under the constant care of a third person. The relevant part of the opinion read as follows: “Through her behaviour she poses a risk to her life, i.e. in certain circumstances leaving her without constant care significantly raises the probability of risk to her life. It is not however a direct risk, but it results rather from the applicant’s neglect of basic hygiene principles, place of residence and nutrition. [The applicant is therefore exposed to] a risk of malnutrition, [and] infections.” The court also examined the possibility of the applicant’s stay at her home and referred in this respect to the possibility of taking care of the applicant by third persons and to the assistance provided by the Local Social Care Centre. The relevant part of the court’s decision read as follows: “...there are no members of family or third persons who could take care of the applicant on permanent basis. In particular the applicant’s daughter declared that she did not want to look after her mother on permanent basis and that she would not take her mother to her place... ... The expert opinion is clear in so far as it states that (the applicant) needs constant care lack of which poses a danger to her life. ... As regards the assistance from the employees of the Żary Social Care Centre it is to be noted that this assistance is not of a permanent nature. This means that social employee does not spend the whole day with a person concerned and does not take care of that person on permanent basis because, as a rule, social employees [...] assist at the same time many persons living in the area covered by their activity. The applicant in turn, requires permanent care which cannot be secured by the social employees.” 12. The applicant was placed in a social care home in K. on 10 September 2008. 13. It appears that the District Court granted the applicant a legal aid lawyer in 2007. However, according to the applicant’s submission the lawyer was not present at the hearing before the first-instance court and de facto she was not represented in the judicial proceedings. 14. On 8 December 2008 the applicant’s daughter appealed against the decision of 19 June 2008. She also requested that her mother be granted a legal aid lawyer and that she be served with the decision of 19 June 2008 with written reasoning. 15. On 29 December 2008 the Żary District Court dismissed the request for a legal aid lawyer, finding that the applicant’s daughter had sufficient knowledge and abilities to represent her mother before the court. It also rejected the appeal and the request for the reasoning of the first-instance decision. 16. On 7 February 2009 the applicant lodged another appeal against the decision of 19 June 2008 and requested leave to appeal out of time. 17. On 3 March 2009 the applicant was granted a legal aid lawyer. Since she was not satisfied with the lawyer who represented her, on 2 June 2009 she was granted another lawyer, who subsequently requested that the court grant the applicant leave to appeal out of time. 18. On 25 August 2009 the Żary District Court granted the applicant’s request for leave to appeal out of time. 19. On 7 December 2009 the Zielona Góra Regional Court dismissed the applicant’s appeal. The minutes of the court decision reveal that nobody was present at the hearing on that day. The same minutes state, however, that “the applicant, who was not represented by a lawyer, was informed that she could request reasons for the decisions in writing if she lodged a relevant request within seven days from the day of publication [of the decision].” The applicant submitted that she had not been served with the court’s decision and that she had found out about it by chance two years later. In the meantime she lodged a complaint with the court about the excessive length of the proceedings. Her complaint was rejected by the Zielona Góra Regional Court on 31 October 2011. 20. When the applicant learned that her appeal had been dismissed she requested the leave of the Regional Court to lodge a request for written reasons for the decision out of time. She also requested leave to lodge a cassation appeal out of time, to be exempted from the court fees and to be granted a legal aid lawyer who would prepare and lodge a cassation appeal on her behalf. 21. On 21 November 2011 the Zielona Góra Regional Court dismissed her request for leave to appeal out of time and therefore she could not lodge a cassation appeal with the Supreme Court. 22. On the same day the Zielona Góra Regional Court dismissed the applicant’s request for exemption from the court fees and for the appointment of a legal aid lawyer to lodge a cassation appeal on her behalf. 23. On 20 November 2008 the applicant’s daughter requested the District Court to vary the measure applied to her mother and to amend the decision of 19 June 2008. 24. The Żary District Court ordered that the applicant be examined by a psychiatrist in order to check whether she needed to remain in the social care home. It also ordered that the applicant be heard by the Gorzów Wielkopolski District Court by way of judicial assistance. 25. The applicant was examined by a psychiatrist on 6 April 2009. The relevant part of the psychiatric opinion reads as follows: “In her current mental state the applicant does not need to be admitted and treated in hospital. ... As a result of her sickness she requires help in day-to-day matters, first of all, taking care of her treatment process and controlling her expenses so that she does not spend money on alcohol. She also needs assistance in preparing meals, personal hygiene and shopping. ... The applicant needs the twenty-four-hour care that may be offered in a social care home. It is admissible that she be placed in a family home provided that the family is able to assure twenty-four-hour care. ... There has been no change in the applicant’s mental state or circumstances which constituted the basis for her placement in the social care home. The applicant does not require to be placed in a psychiatric ward ... She does not pose a direct danger to her own or a third person’s health or life.” 26. On 6 April 2009 the applicant was also heard by the Gorzów Wielkopolski District Court. The hearing lasted fifteen minutes. The applicant’s statement reads as follows: “I am afraid that I could be locked up. I would need a sanatorium where they treat heart disease. I do not feel at ease in the social care home because the people there are not normal, they are constantly asking for cigarettes and I do not smoke. Medical care is assured there. The doctor is a colleague of mine, because I was manager of a chemist and he was the doctor. I take the medication promazyn because I was exposed to radiation during the war, but now I am fine. I am in good hands, I need my home, my daughter comes to see me. She comes every week. I lived in my home in Żary for 30 years. My daughter, when she became an adult, used to come to see me and she helped me out. I want to stay in my apartment in Żary, which is situated not far from my daughter’s apartment.” 27. On 15 June 2009 the court summoned the applicant’s daughter in order to establish whether she was capable of providing care for her mother. She failed to appear, so a further hearing was scheduled for 10 August 2009. The applicant’s daughter again failed to appear. The court then decided to close the case, finding that the facts had been sufficiently established to make a final decision. 28. On 20 August 2009 the Żary District Court dismissed the request lodged by the applicant’s daughter to vary the measure applied to the applicant. Neither the applicant, her daughter, nor the applicant’s guardian was present when the court announced its decision. The decision was not appealed against and became final on 10 September 2009. 29. On 5 April 2009 the applicant requested the Żary District Court to reopen the proceedings which had resulted in her placement in the social care home. If it was not possible to re-open the proceedings, she requested that the respective decision be varied. 30. On 21 May 2009 the District Court rejected her request. The court found that there were no grounds for reopening the proceedings. It further informed the applicant that, under section 41 of the 1994 Psychiatric Protection Act, an applicant placed in a social care home or members of his or her family could request that the court vary the decision on placing him or her in the social care home. The court disregarded the applicant’s alternative request in that regard. 31. On 9 February 2009 the applicant requested the District Court to supplement the decision of 19 June 2008 and allow her to leave the social care home for one hour a day in order to go to a shop, as well as allow her to stay in her room all day. 32. On 25 August 2009 the Żary District Court dismissed the request to supplement the original decision, finding that those matters fell outside the court’s jurisdiction and that they were provided for by the internal regulations of each social care home. 33. On 19 July 2009 the applicant again asked the court to vary the measure applied to her. She also requested legal aid; she submitted that she could not afford to appoint a lawyer at her own expense because 70% of her pension was retained by the social care home. 34. On 1 October 2009 the Żary District Court refused to grant a legal aid lawyer, finding that the applicant was able to deal with her affairs herself and that her case was not complicated from a legal or factual point of view. 35. The applicant appealed against that decision. 36. On 18 November 2009 the Zielona Góra Regional Court quashed the challenged decision and granted the applicant a legal aid lawyer. 37. As regards the applicant’s request to vary the measure, a hearing took place on 6 November 2009 in the presence of both the applicant and her lawyer. Following a request by the lawyer, the court decided to stay the proceedings. They were resumed on 5 February 2010. 38. On 15 March 2010 the Żary District Court dismissed the applicant’s request. The applicant did not appeal against that decision and it became final on 6 April 2010. | 1 |
test | 001-163914 | ENG | UKR | CHAMBER | 2,016 | CASE OF I.N. v. UKRAINE | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Sergiy Goncharenko;Yonko Grozev | 6. The applicant was born in 1963 and lives in the town of Severodonetsk, Ukraine. 7. According to the applicant, in 1996 he brought criminal proceedings for libel before the Severodonetskyy Town Court, complaining that it had been noted in his employment record that he had been dismissed because he had committed theft. The applicant alleged that, following his numerous complaints to a prosecutor’s office about the failure to investigate the above case, in 2000 the prosecutor’s office had requested his placement in a psychiatric facility. 8. According to case-file materials, on 18 March 2000 the principal of the Severodonetsk Territorial Medical Association (Северодонецьке територіальне медичне об’єднання, hereinafter the “Severodonetsk Hospital”) received a letter from the Severodonetsk Town Prosecutor’s Office asking for an opinion on the state of the applicant’s mental health. The parties did not submit a copy of that letter to the Court. 9. Psychiatrists Ma. and K. studied the applicant’s letters at the prosecutor’s office and decided that the applicant should be examined, since the letters contained evidence of a “high probability of socially dangerous behaviour”. The parties did not submit copies of those letters to the Court either. 10. On 19 March 2000, Ma., assisted by a team of paramedics and two police officers, visited the applicant at home. The applicant stated that he had been visited by seven persons in total. 11. The parties differed on the circumstances of this visit. According to the applicant’s testimonies given before the court in civil proceedings (see paragraph 29 below), he opened the door only after the police had threatened to break it. Once the applicant had opened the door, Ma. said that they should go to a hospital to examine the applicant there. A police officer, P., was shouting at the applicant and threatening him with criminal prosecution for resisting the police. The applicant replied that he would “submit to force”. He was subsequently taken by his arms and put in an ambulance. 12. The Government submitted that there was no evidence that any pressure had been applied to the applicant. According to Ma.’s testimonies given in the same court proceedings, the applicant opened the door and let Ma. and the police officers in. Ma. introduced himself and had a conversation with the applicant. It was then proposed that the applicant accompany them to a hospital for further examination. The applicant agreed, collected his belongings, closed the door and got into the ambulance. Upon arrival in the Severodonetsk Hospital it was decided that the applicant needed hospitalisation. 13. On 20 March 2000 the applicant was examined by a panel of four doctors, including Ma. and K., which confirmed the necessity of his urgent hospitalisation. On the next day the applicant was examined by an assistant of the psychiatric medicine department of the Lugansk State University Hospital in the presence of Ma., and was offered hospital treatment. Since he refused, he was further examined by three doctors of the Lugansk Regional Psychoneurological Hospital (Луганська обласна клінічна психоневрологічна лікарня, hereinafter the “Lugansk Hospital”), who concluded that he should be urgently admitted for treatment because he had written threatening letters to various authorities. 14. Between 21 March and 7 September 2000 the applicant was a patient in the Lugansk Hospital. He was allegedly examined on 21 April, 22 May, 23 June and 22 August 2000 by a panel of three psychiatrists. Each time it was decided that his treatment had to be continued. On 26 July 2000 the applicant was examined by a regional medico-social expert commission, which established that he had a second-degree disability. 15. On 7 September 2000 the applicant was transferred to the Svatove Regional Psychiatric Hospital (Сватівська обласна психіатрична лікарня, the “Svatove Hospital”) to continue his treatment there. He was discharged from the hospital on 4 December 2000. 16. The applicant also stayed in a hospital between 31 May and 26 June 2001. 17. In July and August 2001 the applicant requested that the medical establishments where he had stayed in 2000 allow him to study his medical file and inform him on what legal basis he had been subjected to psychiatric treatment. According to the applicant, he received an answer only from the Lugansk Hospital but the answer was not satisfactory. 18. On 26 September 2001 the applicant brought proceedings before the Severodonetskyy Town Court against the Severodonetsk Hospital, complaining of its failure to reply to his request. The case file contains a copy of the applicant’s complaint dated 26 September 2001. There are two handwritten notes on it: “received on 28 September 2001” and “received on 2 October 2001”. The Severodonetskyy District Court issued a note on the progress of the applicant’s case stating that the applicant had instituted the proceedings on 2 October 2001. In October 2001 the applicant lodged a similar complaint against the Lugansk Hospital. 19. On 15 November 2001 the court stayed the proceedings in the case pending examination of the issue of the applicant’s legal capacity. On 26 December 2001 the request to recognise the applicant as legally incapacitated was left without consideration, so the proceedings were resumed on 1 February 2002. 20. On 29 April 2002 the court rejected the applicant’s claims as unsubstantiated. On 21 November 2002 the Lugansk Regional Court of Appeal quashed that decision and remitted the case for fresh consideration. 21. On 6 February 2003 the applicant modified his claims. In addition to his initial claims, he complained, inter alia, that his committal to the psychoneurological department of the Severodonetsk Hospital on 19 March 2000 and his confinement there until 21 March 2000 had been unlawful. He also complained that he had been unlawfully transferred to the Lugansk Hospital and the Svatove Hospital, where he had been confined until 4 December 2000. The applicant also claimed damages. 22. Between 23 February 2003 and 23 March 2004 ten court hearings took place and three hearings were postponed. In particular, on two occasions the defendants and/or their representatives failed to appear in court, and one hearing did not take place because the court recording equipment was not available. 23. Following a request by one of the defendants, on 23 March 2004 the court ordered a forensic psychiatric examination of the applicant. On 14 July 2004 the Lugansk Regional Court of Appeal quashed that decision and remitted the case for examination on the merits. 24. In their observations the Government provided a list of scheduled court hearings which had taken place in the applicant’s case. The case file also contains a note on the progress of the applicant’s case issued by the Severodonetskyy District Court. Those two descriptions of the progress of the proceedings in the applicant’s case contain some contradictory information. 25. According to the Government’s submissions, between 3 September 2004 and 14 June 2005 eleven court hearings were scheduled but only five took place because either the defendants, the applicant or their representatives failed to appear. According to the domestic court record, seven hearings took place. 26. On 14 June 2005 the term of office of the judge in the applicant’s case expired. The next hearing scheduled for September 2005 allegedly with a new judge did not take place because the court recording equipment was not available. 27. Between 3 November 2005 and 13 August 2007 forty-eight court hearings were scheduled. According to the Government, all of them took place; according to the domestic court record, ten of them did not take place because the defendants, the applicant or their representatives failed to appear. The number of such failures to appear was almost equal for both parties. 28. On 13 August 2007 the court partially allowed the applicant’s claims. It summarised his submissions as follows. On 19 March 2000 Ma., with the assistance of the police, had the applicant unlawfully committed to a psychoneurological department, where he stayed for two days. On 21 March 2000 the applicant was transferred to the Lugansk Hospital without his consent; he stayed there until 7 September 2000. He was then transferred to the Svatove Hospital, where he stayed until 4 December 2000. The applicant claimed that Ma. had acted unlawfully, had breached the applicant’s right to respect for his home, had examined the applicant against his will and had deprived him of his liberty. The applicant further complained that he had been unlawfully confined in all three hospitals, and that the principals of those institutions had failed to respond to his requests for information. The applicant claimed 100,000 Ukrainian hryvnas (UAH) in compensation for non-pecuniary damage. 29. The court further noted that in a court hearing the applicant had submitted that he had not challenged his diagnosis but considered that the doctors’ actions had been unlawful. He gave his version of the events of 19 March 2000 (see paragraph 11 above). The applicant also submitted that force had been used against him in the Severodonetsk Hospital; he had been administered with injections and had been kept behind bars in a locked room. He had been transferred to the Lugansk and Svatove Hospitals without his consent. Information about his state of health had been provided to his employers and to the relevant prosecutor’s office. He had been discharged from the Svatove Hospital having been advised not to lodge any official complaints, otherwise he would be hospitalised again. He had not lodged any complaints since he had been “afraid for his future”. The applicant stated that he had sustained non-pecuniary damage caused by his involuntary hospitalisation, the administering of unknown medication by means of injection, poor nutrition, fear for his life, unsanitary conditions and a breach of his right to respect for his home. 30. In court hearings Ma., and police officers Sh. and G. testified that no pressure had been brought to bear on the applicant at the time of the visit to his home. Witness Mb. testified that he did not remember the circumstances of that visit and witness Z. testified that she had seen “a doctor entering [the applicant’s house?] alone, followed several minutes later by a police officer”. She had then seen the applicant getting into an ambulance. Ma. also submitted that the applicant’s hospitalisation had been in compliance with temporary instructions nos. 16 and 17 “On procedure for the conduct of preliminary psychiatric examination of citizens” and “On procedure for urgent hospitalisation of mentally ill persons” (“Instructions nos. 16 and 17”) appended to Order no. 225 of the Ministry of Health of the USSR of 25 March 1988 “On actions for further improvement of psychiatric assistance” (“Order no. 225”), in particular, paragraphs 1, 2, and 10 to 13 of Instruction no. 16 and paragraphs 1, 2, 5 and 6 of the Instruction no. 17 (see relevant domestic law below). 31. The court found that the visit to the applicant’s home on 19 March 2000 when the applicant had been examined and later taken to the Severodonetsk Hospital had been performed in compliance with paragraphs 1, 2, and 10 to 13 of Instruction no. 16 and paragraphs 1, 2 (b), 5 and 6 of Instruction no. 17. Referring to the “testimonies of Ma., Mb. and G.”, the court held that the applicant had failed to prove that any force had been used against him. The decision of 19 March 2000 on the applicant’s admission to hospital had also been adopted in compliance with paragraphs 1 and 2 of Instruction no. 17. The subsequent decision of 21 March 2000 to hospitalise the applicant had also been taken in compliance with paragraph 2 (b) of Instruction no. 17. However, the applicant’s transfer to the Svatove Hospital on 7 September 2000 had been in breach of section 16 of the Psychiatric Medical Assistance Act, which was in force as of 4 April 2000. The applicant’s requests for access to information had been rejected as a result of a decision to limit his access to his medical file, which he had not challenged. Such information could have been provided to the applicant’s relatives if he so wished. The court awarded the applicant UAH 2,000 to be paid by the Svatove Hospital (approximately 286 euros (EUR) at the material time) in compensation for non-pecuniary damage. 32. The applicant appealed, stating, in particular, that by Order no. 81 of 18 April 1996 of the Ministry of Health of Ukraine (“Order no. 81”), Order no. 225 had been declared “not applicable on the territory of Ukraine”. 33. On 29 November 2007 the Lugansk Regional Court of Appeal upheld the decision of 13 August 2007. The court held that the first-instance court had correctly applied the law in force at the material time. The court rejected the applicant’s arguments about the invalidity of Order no. 225 as unsubstantiated without giving any further details. It did not comment on the validity and/or legal effect of Order no. 81. 34. The applicant lodged an appeal on points of law, reiterating his arguments. 35. On 12 February 2008 the Supreme Court of Ukraine dismissed the applicant’s appeal on points of law as unsubstantiated. 36. On 23 November 2010 the applicant complained to the Severodonetskyy Town Court that he had not received a writ of enforcement. In reply, the court informed him that he could receive the writ of enforcement from the court’s secretariat upon a written request. 37. It is unclear whether the applicant received the compensation awarded to him. | 1 |
test | 001-169485 | ENG | RUS | COMMITTEE | 2,016 | CASE OF PASHKEVICH v. RUSSIA | 4 | Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova | 6. The applicant was born in 1952. Until his death in 2016 he was detained in correctional colony no. 14 in the village of Olovyannaya, Zabaykalsk Region. 7. On 29 January 2014 the Fokino Town Court of the Primorskiy Region convicted the applicant of murder and sentenced him to six and a half years’ imprisonment. On the same day he was taken into custody. 8. Prior to his detention the applicant sustained several spinal injuries and lost the ability to walk unaided. Since 2013 he has been confined to a wheelchair. 9. On his admission to a remand prison in January 2014, the applicant was given a general medical check-up by the doctor on duty, to whom he complained of lower back and joint pain. The doctor provisionally diagnosed him with spinal tuberculosis. No drugs were prescribed. 10. According to the applicant’s submissions, which were not disputed by the Government, he was put in an ordinary cell not equipped for wheelchairusing detainees. As a result he suffered various inconveniences, including restricted access the toilet. 11. Several days later he was seen by a medical specialist, who amended his diagnosis to osteoporosis with compression fractures of two discs of the lumbar spine. 12. In February 2014 he was examined by a neurologist, who noted that one of his diagnoses was paraplegia, impairment in motor function of the lower extremities. He was advised to undergo various medical examinations and tests, including magnetic resonance imaging (MRI) of the spine and a hip X-ray. 13. In April 2014 a prison surgeon established that the osteoporosis affected not only the applicant’s spine, but also his legs. He was prescribed pain relief medication and advised to undergo several medical tests. 14. There is no information in the applicant’s file to suggest that the remand prison authorities gave him medication, an MRI scan or radiography. According to the applicant, even painkillers were unavailable in the remand prison. 15. On 9 April 2014 the applicant was sent to serve his sentence in correctional colony no. IK-14/7. On his arrival he was seen by a prison doctor who, in addition to the spinal and joint conditions, diagnosed him with coronary heart disease, angina pectoris and moderate hypertension disease. He was prescribed and provided with comprehensive drug treatment. 16. The Government did not provide any evidence to show that the correctional colony had any special facilities to accommodate wheelchairusing prisoners. 17. On 30 July 2014 the applicant was sent to prison hospital no. 1 in Chita, Zabaiykalsk Region, for an in-depth medical examination to establish whether he was entitled to early release on medical grounds. 18. A hip X-ray revealed that he suffered from an old displaced fracture of the cervical hip with full avulsion of the greater trochanter. 19. On 27 August 2014 a specialist medical panel of the prison hospital concluded that the applicant was not eligible for early release, because none of his illnesses were included in the governmental decree containing a list of illnesses precluding offenders from serving their sentences. On the same day the applicant was discharged from the prison hospital. 20. On 2 October 2014 the Olovyannaya District Court dismissed the applicant’s application for early release, referring to the medical report of 27 August 2014. That decision was upheld on appeal by the Zabaiykalsk Regional Court on 16 December 2014. 21. In the meantime the applicant lodged several complaints with the head of the prison medical authorities, the Federal Service for the Execution of Sentences and the Federal Supervisory Service for Healthcare and Social Development of the Russian Federation. The latter authority found a shortcoming in the applicant’s treatment, namely a failure to ensure he was examined by an orthopaedic traumatologist. 22. On 25 March 2015 the applicant was seen by a traumatologist, who diagnosed him with an inguinal hernia and recommended surgery to be performed at a later date. The doctor also stated that he should be provided with a walking stick and a walking frame. 23. Over the months that followed the applicant was regularly seen by prison doctors and provided with hypotensive drugs and pain relief drugs. 24. In the meantime he brought a civil claim against the medical authorities seeking compensation for damage to his health caused by inadequate medical treatment. 25. On 15 June 2015 the Central District Court of Chita dismissed the claim. Having looked at the list of medical services provided to the applicant, the court concluded that he had been afforded adequate medical treatment. It appears that no appeal followed. 26. On 1 September 2015 a neurologist ordered the applicant’s admission to the prison hospital, which would involve a train journey. The applicant refused, arguing that prison train carriages were not equipped to transport wheelchair-using detainees. 27. On 27 June 2016 the applicant died of a heart attack. | 1 |
test | 001-153061 | ENG | HUN | ADMISSIBILITY | 2,015 | VÁMOS AND OTHERS v. HUNGARY | 4 | Inadmissible | András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 1. A list of the applicants is set out in the appendix. 2. s, may be summarised as follows. 3. The applicants, permanently residing in Hungary, are currently working or studying in other countries. In order to vote in the 2014 Hungarian legislative elections, they were expected to appear in person at the Hungarian embassy or consulate in their country of temporary residence, or else in their constituencies in Hungary. As a consequence, they could not exercise their voting rights or only with substantial material difficulties. 4. Other Hungarian citizens living abroad who do not have a permanent registered address in Hungary were statutorily allowed to vote by post, as provided by section 266 of Act no. XXXVI of 2013 on Electoral Procedure. However, this option was not available under the law to citizens with a permanent address in Hungary, such as the applicants. 5. Act no. CCIII of 2011 on the Election of Members of Parliament provides as follows: “(1) Voters with residence in Hungary may vote for: a) one candidate in any single-member constituency and b) one party list. ... (3) Voters without residence in Hungary may vote for one party list.” 6. Act no. XXXVI of 2013 on the Electoral Procedure provides as follows: “Enrolment in the foreign representation electoral register may be requested by voters who are registered in the polling district electoral register and will be abroad on the day of the voting.” “The National Election Office shall enrol in the register of postal voters all voters with no Hungarian address who are listed in the central electoral register following a request submitted no later than the fifteenth day before the day of voting. The National Election Office shall indicate in the central electoral register that the voter has been entered into the register of postal voters.” “Voters who vote at a foreign representation shall do so by using the ballot paper of the single-member constituency corresponding to their Hungarian address and the ballot paper of national party lists. ...” “Voters listed in the register of postal voters cast their vote by post.” | 0 |
test | 001-183537 | ENG | RUS | CHAMBER | 2,018 | CASE OF ALPEYEVA AND DZHALAGONIYA v. RUSSIA | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;(Art. 35-3-a) Ratione materiae;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom | 5. The first applicant is a Russian national who was born in 1951 and lives in Volzhskiy, in the Volgograd Region. 6. At the relevant time she was a Soviet national and lived in Kyrgyzstan. 7. In 1994 the first applicant applied to the Russian embassy in Bishkek for Russian citizenship. 8. In March 1994 she was granted Russian citizenship and the Russian embassy in Bishkek put a stamp in her Soviet passport to this effect. 9. Thereafter the first applicant moved to Russia. 10. On 14 July 2001 she obtained a new Russian “internal passport” (a citizen’s identity document for use inside Russia). 11. In 2006 the first applicant applied to the Federal Migration Service (FMS) for an “international passport” required for foreign travel. 12. On 11 April 2006 an official from the FMS seized her Russian passport, which was later destroyed. The FMS referred to a report of 26 January 2006 on a check carried out by the agencies of the interior, according to which the first applicant had never properly acquired Russian citizenship and therefore had no right to be in possession of a Russian passport. The report stated, in particular, that whereas the first applicant had been issued with a Russian passport on 14 July 2001, she was not registered in the database of the Ministry of Foreign Affairs as a person who had acquired Russian citizenship. Furthermore, according to a letter of 18 October 2015 from the Russian embassy in Kyrgyzstan, it had no records on her obtaining Russian citizenship either. Accordingly, she had been issued with a Russian passport erroneously in 2001. 13. The first applicant complained to the prosecuting authorities. 14. On 15 June 2006 the Volzhskiy prosecutor’s office rejected the complaint. 15. In a response of 27 October 2006 the Volgograd Region prosecutor’s office stated that the FMS was not competent to seize passports, something which only the agencies of the interior could do; that the first applicant’s passport had been seized in breach of the law; and that the prosecutor’s office recommended that the FMS rectify the situation. 16. On 20 March 2007 the FMS issued report no. 37 to the effect that the first applicant had never properly acquired Russian citizenship, and that a Russian passport had been issued to her unlawfully. 17. The first applicant appealed to a court against the findings of the report of 26 January 2006. 18. On 28 May 2007 the Volzhskiy Town Court found in favour of the first applicant and held that the check which had been carried out by the agencies of the interior had been unlawful. 19. The decision was subsequently quashed by means of supervisory review and the case was remitted for fresh examination. 20. On 28 February 2008 the Volzhskiy Town Court again held that the check had been unlawful. 21. However, the FMS did not set aside the decision to seize the first applicant’s passport, and a new passport was not issued to her either. 22. The first applicant again instituted court proceedings, this time for a finding that the seizure of her passport had been unlawful. 23. On 4 April 2008 the Volzhskiy Town Court dismissed the first applicant’s complaint. It accepted the FMS’s arguments that she had never acquired Russian citizenship, although it also found that the FMS officials’ actions of 11 April 2006 had been procedurally incorrect, as the FMS did not have competence to seize passports. 24. On 3 July 2008 the Volgograd Regional Court upheld the decision on appeal. 25. A request by the first applicant for supervisory review was dismissed on 30 January 2009. 26. The first applicant then instituted another set of court proceedings against the FMS concerning its inaction in relation to issuing her with an identity document. She also contested the FMS report no. 37 of 20 March 2007. 27. On 25 March 2009 the Volzhskiy Town Court dismissed the complaint. 28. On 7 August 2009 the Volgograd Regional Court upheld the decision on appeal. 29. The first applicant reapplied for Russian citizenship. 30. On 14 April 2009 she was granted Russian citizenship under a simplified procedure on the basis of a FMS decision of 16 March 2009 to this effect. 31. On 27 March 2010 the first applicant was issued with a Russian passport. 32. The second applicant was born in 1965 and lives in Kostroma. 33. According to the second applicant, between 1987 and 2010 he lived in the Rostov Region. Initially, he had a Soviet Union passport issued on 21 December 1981 by the Chkhorozkuskiy Department of the Interior of the Republic of Georgia. 34. On 23 December 1998, in accordance with the procedure then in force, the second applicant was issued with an insert for his passport (вкладыш) specifying that he was a citizen of the Russian Federation. 35. On 19 February 2002 the Passport and Visa Directorate of Police Office no. 1 of Taganrog, in the Rostov Region, issued the second applicant with a Russian passport. 36. In 2010 the second applicant moved to Kostroma. 37. On 18 January 2010 the second applicant applied to the FMS of the Centralniy District of Kostroma to register his place of residence. 38. According to the Government, owing to doubts as to whether the second applicant had been issued with a Russian passport in accordance with the established procedure, the FMS of the Centralniy District of Kostroma sent a request to the FMS of the Rostov Region. 39. On 30 June 2010 the FMS of the Rostov Region issued a certificate which reads, in so far as relevant: “On 19 February 2002 [the second applicant] was issued with [a Russian passport] following the exchange of [his passport] issued on 21 December 1981 by the Chkhorozkuskiy Department of the Interior of the Republic of Georgia. In section 8 of the application for issue (exchange) of [the second applicant’s] passport it is noted ‘RF citizen according to section 13(1)’. According to the information [available to the FMS of the Rostov Region], [the second applicant] has not been registered at the address [in Taganrog] since 17 February 2010, as he has moved to Kostroma. In the database of [the Ministry of Foreign Affairs], available to the FMS of the Rostov Region, there is no information as to whether [the second applicant] has obtained Russian citizenship. A copy of [the second applicant’s] passport issued on 21 December 1981 by the Chkhorozkuskiy Department of the Interior of the Republic of Georgia contains a [glued] insert issued by the Department of the Interior of the Leninskiy District of Rostov-on-Don on 21 December [year illegible] to the effect that [the second applicant] is a citizen of the Russian Federation in accordance with section 13(1) of the Russian Citizenship Act of 28 November 1991. On 29 January 2010 ... a request was sent to [the FMS of the Rostov Region] to confirm that [the second applicant] had Russian citizenship. According [to the information received], the issue of the above insert to [the second applicant] and its lawfulness or otherwise is [not] [section illegible] confirmed ... The decision to issue [the second applicant] with [a Russian] passport was made ... by [V.], former head of the Passport and Visa Directorate of Police Office no. 1 of Taganrog, in the Rostov Region, who on 26 April 2004 was ... dismissed from service because she had reached retirement age. It appears to be impossible to question [V.] concerning the circumstances of the issue of the Russian passport [to the second applicant], since she is absent from her place of residence. Accordingly, [V.] ... issued [the second applicant] with a Russian passport in the absence of documents confirming that he was a Russian citizen, and without checking the documents presented for the issue (exchange) of the passport, in breach [of the rules] then in force. The above circumstances allow the supposition that [V.] might have had an interest in issuing [the second applicant] with a Russian passport in breach of the established rules, which constitutes an offence punishable under Article 286 of the Criminal Code. Furthermore, it may be conjectured that [the second applicant] presented a passport [issued in 1981] which contained wrong information to the effect that he had Russian citizenship. On the basis of the foregoing, [it is proposed] ... to consider that [the second applicant’s passport] was issued in breach of the established rules ...” 40. On 22 July 2010, when the second applicant turned 45, in accordance with the applicable procedure, he applied to the FMS to exchange his passport. 41. The second applicant received a verbal refusal to issue him with a new passport. According to the official who notified him of the refusal, the second applicant had failed to prove that he had had a permanent place of residence in Russia on 6 February 1992 (see paragraph 57 below), and he had only had a registered place of residence in Russia since February 2002. 42. On 28 July 2010 the second applicant provided the Kostroma Region FMS with a written explanation to the effect that between 1989 and 2002 his place of residence had been registered in Rostov-on-Don, although he had actually been living with his partner, M., in the Krasnodar Region. 43. On 13 August 2010 the Residential Registration Department of the Leninskiy District of Rostov-on-Don provided the second applicant with a certificate confirming that he was not registered in the Leninskiy District and there was no information about him in the archives either. 44. On 23 September 2010 the Krasnodar Region FMS informed the Kostroma Region FMS that its archives contained no information about the second applicant, and that it appeared to be impossible to question M. because she was absent from her place of residence. 45. On 27 September 2010 the Kostroma Region FMS issued a decision to the effect that the second applicant was not a Russian citizen. With reference to the certificate of 30 June 2010 issued by the FMS of the Rostov Region, the decision stated, in particular, that according to the enquiries carried out, the second applicant’s Russian passport had been issued in breach of the applicable rules. It further stated that it had proved impossible to obtain documentary evidence that the second applicant had been living in Russia on 6 February 1992, and the stamp in his passport only confirmed that he had been registered as resident in the Rostov Region from 15 February 2002 to 17 February 2010. The decision also noted that the database of the Ministry of Foreign Affairs contained no information as to whether the second applicant had obtained Russian citizenship. Accordingly, the enquiries made had obtained no evidence that the second applicant had acquired Russian citizenship or that he had been living in Russia on 6 February 1992. 46. The second applicant appealed to the Sverdlovskiy District Court of Kostroma against the refusal to exchange his passport. 47. At a hearing on 20 October 2010 a representative from the FMS of the Centralniy District of Kostroma stated, in particular: “On the basis of the written instructions from the FMS that there should be an urgent check on all passports previously issued to individuals not born in the territory of the Russian Federation, we sent a request for information to the FMS of the Rostov Region. The FMS of the Rostov Region sent a certificate confirming that the [second applicant’s] passport should be considered as having been issued in breach of the applicable rules. I sent a report stating that it was necessary to obtain corroboration that [the second applicant] either had or did not have Russian citizenship. The head of the FMS ... issued a decision to the effect that [the second applicant] was not a Russian citizen. [The second applicant] was invited to familiarise himself with that decision. [I]t was suggested that he apply for a residence permit and subsequently Russian citizenship, under a simplified procedure. In 2004 the FMS issued instructions for checks to be carried out only in respect of individuals who had applied to exchange their passports. [The second applicant] applied [to exchange his passport], and I discovered that he had not been born in the territory of the Russian Federation, and sent the request. [His] passport was not seized: the FMS did not issue instructions to this effect, so that people would not be left without [an identity] document.” 48. On 21 October 2010 the Sverdlovskiy District Court of Kostroma upheld the decision of the FMS. It noted that, as a result of a check carried out pursuant to sections 51 and 52 of the 2002 Regulation on the Examination of Issues Related to Citizenship of the Russian Federation, the FMS had found that the second applicant had been issued with a Russian passport in breach of the applicable rules, and was not entitled to Russian citizenship. In particular, it had not been confirmed that he had been living in Russia on 6 February 1992. This justified the refusal to exchange his passport. The court also noted that the reports of the checks carried out by the FMS had not been appealed against or set aside in accordance with the established procedure, and that they were not the subject of the court’s examination in those proceedings. 49. The court further dismissed the second applicant’s argument that the fact that he had been using the previously issued Russian passport for eight years constituted a valid reason to exchange the passport. The court likewise dismissed his argument that he had not violated any laws or regulations in 2002, when he had been issued with the Russian passport. The court found that his passport was invalid regardless. 50. The second applicant appealed. 51. On 6 December 2010 the Kostroma Regional Court upheld the decision. The appeal court noted, in particular, that the certificate issued by the Rostov Region FMS on 30 June 2010 showed that a Russian passport had been issued to the second applicant on the basis of a certificate of 23 December 1998 issued by the Department of the Interior of the Leninskiy District of Rostov-on-Don confirming that he was a Russian citizen in accordance with section 13(1) of the 1991 Law on Citizenship of the Russian Federation. However, the legal validity of that certificate had not been confirmed. It further noted that, according to the results of the enquiries carried out in the places indicated by the applicant as his places of residence in Russia between 1989 and 2002, no confirmation of his registration and residence as of 6 February 1992 had been received with respect to any of the addresses indicated. 52. The appeal court also noted that the second applicant’s argument that he had not been informed about the report issued following the check carried out by the FMS, and that therefore he could not have appealed against it, had not affected the lower court’s conclusions. 53. On 25 March 2013, following the entry into force of Law no. 182FZ on Amendments to the Russian Citizenship Act of 12 November 2012, the second applicant applied for Russian citizenship. 54. On 23 April 2013 the FMS of the Kostroma Region decided to grant the second applicant Russian citizenship. 55. On 30 April 2013 the second applicant received a Russian passport. | 1 |
test | 001-147512 | ENG | CYP | ADMISSIBILITY | 2,014 | EMİN (MUSTAFA) AND OTHERS v. CYPRUS | 4 | Inadmissible | George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä | 1. A list of the applicants is set out in the appendix. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicants stated that they are nationals of the “Turkish Republic of Northern Cyprus”. Their names, dates of birth and places of residence are set out in the Annex. They are represented before the Court by Ms Y. Renda, a lawyer practising in Nicosia. 4. The facts of the case may be summarised as follows. The applicants are relatives of a Turkish-Cypriot man who went missing from hospital in Nicosia on 23 December 1963 at a time of mounting tension and violence in which Turkish Cypriots or Turkish-Cypriot villages were targeted. 5. Their relative was listed as a missing person, the information being given to the Cypriot authorities, the Red Cross and the United Nations. 6. The remains of the missing man were found in 2007 during exhumations carried out by the United Nations Committee for Missing Persons (“CMP”). The remains were identified in 2008. 7. By letter dated 11 October 2010, the Attorney-General instructed the police to carry out an investigation into the circumstances of the death of the applicants’ relative. By report dated 21 June 2013, the Attorney-General informed the applicants that police had submitted in the investigation file in September 2012. He had returned it, indicating further steps to be taken. In April 2013, the file had been re-submitted. On the basis of the information obtained and analysis of the file, the Attorney-General had come to the conclusion that the investigation had reached a point where it could not proceed further as all leads had been pursued exhaustively, the evidence concerning the core facts was scanty and did not lead to persons who could be considered as possible suspects. He listed the investigative steps taken, which included The police searched for any evidence in the hospital files to identify anyone who might have been in the same ward or who might have taken the deceased away; they found the name of one person admitted at the same time but this person had since died; The police made enquiries at the state prison where the deceased had been a warder to find information about the persons who might have accompanied the deceased to the hospital or might have come to take him away; only one name H.F. was identified as a person who had come to the hospital to take the deceased away; enquiries revealed that H.F had moved to Greece and had since died; of 17 persons who had been working at the prison at the time, they identified that 11 were still; The police interviewed all 11 ex-prison staff. Six said that they had known the deceased; none admitted having any information about how he had gone missing from the hospital, save for a rumour that his family had gone to pick him up. The police also interviewed police officers who were in service at the relevant time but no relevant information was forthcoming about the deceased. 8. The Attorney-General concluded that the passage of time since events had rendered unfeasible the questioning of the persons who might have been able to shed light on the investigation. As there were no remaining leads, the investigation could not be pursued further. However, if any new evidence or information did come to light in the course of other ongoing investigations into events in 1963-1964, he had instructed the police to bring it to his attention for evaluation and further directions. He would keep the applicants updated in such event. | 0 |
test | 001-146398 | ENG | AZE | CHAMBER | 2,014 | CASE OF KARIMOV v. AZERBAIJAN | 3 | Remainder inadmissible;Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote);Non-pecuniary damage - award;Pecuniary damage - claim dismissed | Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicant was born in 1954 and lives in Baku. 6. The applicant was deputy chairman of the Popular Front Party. He stood in the elections to the National Assembly of 6 November 2005 as a candidate of the opposition bloc Azadliq. He was registered as a candidate by the Constituency Electoral Commission (“the ConEC”) for the singlemandate Sabail Electoral Constituency no. 29. 7. There were a total of thirty-two polling stations in the constituency, twenty-nine of which were ordinary polling stations. Polling Station no. 30 was set up on the premises of a temporary detention centre so that persons detained there could vote. Polling Stations nos. 31 and 32 were set up shortly before the elections exclusively for military servicemen belonging to two military units stationed within the constituency. Those military units were permanently stationed in the Bayil and Badamdar suburbs of Baku. 8. According to the minutes of the ConEC meeting of 29 September 2005, a copy of which was submitted by the Government, on that date the ConEC decided, inter alia, to appoint members to the precinct (polling station) electoral commissions (“the PEC”) for Polling Stations nos. 31 and 32. It appears from the minutes that five out of six members of each PEC in question were military officers or personnel of those military units, with the exception of one member nominated to each PEC by an opposition party. In each PEC, three of the five “military members” were nominated by the ruling party. According to the applicant, prior to the proceedings before the Court, he had never been provided with the full text of the minutes of the ConEC meeting of 29 September 2005. 9. The official election results in the constituency showed that the applicant had received an overall total of 3,454 votes and finished in second place. Of those votes, 3,301 had been cast in Polling Stations nos. 1 to 29 and 153 had been cast in Polling Stations nos. 30, 31 and 32. 10. The winning candidate (M.) received an overall total of 3,661 votes. Almost half of those, a total of 1,816 votes, had been cast in Polling Stations nos. 30, 31 and 32. Of those, 1,369 votes, which constituted over a third of his total vote count, had been cast in the polling stations (nos. 31 and 32) created exclusively for military voting (779 and 590 votes respectively). 11. On 8 November 2005 the applicant lodged a complaint with the Central Electoral Commission (“the CEC”) alleging a number of violations of electoral law in his constituency. He requested that the election results in Polling Stations nos. 30, 31 and 32 be invalidated. He complained, inter alia, of the following: (a) that the setting up of Polling Stations nos. 31 and 32 exclusively for military voting was in breach of Article 35.5 of the Electoral Code, which required that military servicemen should vote in ordinary polling stations and which stipulated that special military polling stations should be set up only in exceptional circumstances. In this case, there were no such exceptional circumstances and the personnel of each military unit in question should have voted in one or more of the several ordinary polling stations already located within very short walking distances of their barracks; (b) that the PECs of Polling Stations nos. 31 and 32, consisting mostly of military officers, had acted as if they were accountable to the Ministry of Defence and not the superior electoral commissions, and that two of the duly appointed PEC members, nominated by the opposition, had been denied access to the polling stations; (c) that in the three “closed” polling stations (nos. 30, 31 and 32) the elections had been unfair, and military servicemen and detainees had voted under coercion. It was noted by observers in Polling Stations nos. 31 and 32 that high-ranking military officers had pressured military servicemen to vote for M. Similarly, undue pressure had been put on detainees in Polling Station no. 30. As a result, M. received about as many votes in those three “closed” polling stations as in all twenty-nine of the other (ordinary) polling stations of the constituency (where he had clearly lost to the applicant by a large margin), which allowed him to pull slightly ahead in the overall vote count. The results of the voting in the three “closed” polling stations and their effect on the election clearly showed that the election had been rigged in favour of the candidate supported by the ruling party. 12. In support of the above complaints, the applicant submitted copies of written observations made by several observers at those polling stations. 13. On 21 November 2005 the CEC issued a decision invalidating the election results in Polling Stations nos. 20 and 21 of Sabail Electoral Constituency no. 29, having found that the electoral law had been breached in those polling stations. It did not provide any details as to the exact nature of those breaches. That decision did not affect the overall election results in the constituency. The CEC’s decision did not mention the applicant’s complaints concerning Polling Stations nos. 30, 31 and 32. 14. On 24 November 2005 the applicant lodged an appeal against the CEC decision, reiterating the complaints that he had made before the CEC. During the Court of Appeal hearing, a representative of the CEC argued generally, without addressing any of the applicant’s factual arguments in detail, that the elections in Polling Stations nos. 30, 31 and 32 had been lawful and that there were no grounds for invalidating the votes cast in those polling stations. 15. On 26 November 2005 the Court of Appeal dismissed the applicant’s complaint, finding that he had failed to substantiate his allegations. In particular, the judgment read as follows: “Under Article 14.2 of the CCP, the court may examine, and rely on, only the evidence submitted by the parties. Despite the requirement of the above-mentioned Article, the claimant, H.H. Karimov, and his counsel, [S.T.], have not been able to produce before the court any reliable evidence in support of the allegations made in the claim. Under Article 77.1 of the CCP, each party must prove the facts to which it refers as a basis for its claims and objections. Under Article 217.4 of the same Code, the court may rely in its judgment only on the evidence examined at the court hearing. Having regard to the above, the court does not find any grounds for upholding the claim and rejects as unsubstantiated [the applicant’s] claim against [the CEC] requesting the invalidation of the election results in Polling Stations nos. 30, 31 and 32 of Sabail Electoral Constituency no. 29 ...” 16. The applicant appealed to the Supreme Court, reiterating his complaints. 17. On 30 November 2005 the Supreme Court dismissed the appeal, essentially on the same grounds as the Court of Appeal. 18. On 1 December 2005 the Constitutional Court confirmed the election results in the majority of the electoral constituencies, including Sabail Electoral Constituency no. 29. | 1 |
test | 001-141175 | ENG | BIH | CHAMBER | 2,014 | CASE OF LONČAR v. BOSNIA AND HERZEGOVINA | 3 | Remainder inadmissible;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court) | Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 5. The applicant was born in 1934 and lives in Sarajevo. 6. He was an employee of Unioninvest Holdings d.d., a company based in Sarajevo (“the company”). In 1991 the applicant was appointed head of its Frankfurt office. 7. On 3 December 1993 the applicant was dismissed because of an alleged breach of duty. The notice of dismissal was sent by facsimile from the company’s headquarters in Sarajevo. An appeal against that decision to the competent court in Sarajevo was possible within fifteen days of the date of its delivery. It should be noted, however, that the relevant legislation at the time provided that before submitting a claim to a court an employee had to complain to his or her employer within fifteen days of the date he or she received the impugned decision (see paragraph 28 below). 8. The applicant attempted to send an appeal through the company’s Frankfurt office by a facsimile, requesting that the appeal be transferred to the competent court in Sarajevo, but it was refused. It would appear that he did not make any further attempts at that time. 9. After his dismissal the applicant was granted refugee status in Germany. 10. On 18 December 1993 he initiated proceedings against the company before the Frankfurt Labour Court (Arbeitsgerichts Frankfurt am Main), in accordance with the Agreement on Secondments between the Socialist Federal Republic of Yugoslavia and Germany, seeking reinstatement and payment of salary arrears. By a court offered settlement concluded on 24 August 1994 the company agreed to pay the applicant his outstanding salary for October, November and December 1993. 11. In the meantime, on 10 August 1994 criminal proceedings were initiated against the applicant before the Sarajevo Municipal Court (“the Municipal Court”) for the alleged breach of duty. It was alleged that the applicant acted in contravention of the Agreement on Secondments by enabling certain persons, who were neither the employees of the company nor the citizens of Bosnia and Herzegovina, to obtain residence and work permits in Germany. 12. On 16 October 1995 the Frankfurt Labour Court declared that it lacked jurisdiction to deal with the applicant’s request for reinstatement. The applicant appealed against that decision to the Hesse District Court (Hessisches Landesarbeitsgericht und Arbeitsgericht). 13. On 8 March 1996 the applicant returned to Sarajevo. 14. After his unsuccessful attempt to obtain the original notice of dismissal of 3 December 1993 (see paragraph 7 above), on 13 June 1996 the applicant initiated proceedings against the company before the Municipal Court seeking reinstatement and payment of outstanding salary from December 1993 onwards. As regards the timeliness of his claim, the applicant submitted that he had been unable to approach the Municipal Court earlier because of the war in Bosnia and Herzegovina and he informed the court about the pending proceedings before the courts in Germany. 15. On 31 July 1996 the company asked the Hesse District Court to discontinue the proceedings on the applicant’s appeal (see paragraph 12 above), in view of the new proceedings before the Municipal Court. It would appear that those proceedings were discontinued. 16. On 29 April 1998 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the 1995 General Framework Agreement for Peace in Bosnia and Herzegovina) about the length of the proceedings before the Municipal Court. On 9 March 2001 the Human Rights Chamber found that the applicant’s right to a hearing within a reasonable time had been violated, awarded him approximately 500 euros (EUR) as just satisfaction, and ordered the Federation of Bosnia and Herzegovina (one of the constitutent Entities of Bosnia and Herzegovina) to secure a prompt resolution of his case before the Municipal Court by 31 July 2001 at the latest. 17. On 14 December 1999 the criminal proceedings against the applicant (see paragraph 11 above) were terminated pursuant to the Amnesty Act 1999. 18. On 13 November 2001 the Municipal Court allowed the applicantʼs claim and held that he had been unlawfully dismissed. It did not, however, examine the timelines of the applicantʼs claim although the company had raised this issue in their submissions to the court. 19. On 7 March 2002 the Sarajevo Cantonal Court (“the Cantonal Court”) quashed that judgment and remitted the case for a retrial. 20. On 7 April 2003 the Municipal Court rejected the applicant’s claim finding that his dismissal had been lawful. In view of such ruling, the court did not find it relevant to separately examine the issue of the timelines of the applicant’s claim. That judgment was upheld by the Cantonal Court on 25 October 2004. 21. On 9 March 2006 the Supreme Court of the Federation of Bosnia and Herzegovina (“the Supreme Court”) dismissed an appeal by the applicant on points of law. It held that the lower courts had misapplied domestic law in rejecting the applicant’s claim, as it should have been dismissed as out of time: it was submitted outside the statutory time-limit prescribed by the labour legislation in force at the time of his dismissal (fifteen days of the date of delivery of the decision). It was also submitted outside the statutory time-limit prescribed by the new labour legislation (one year of the date of delivery of the decision). As regards the applicant’s argument that he was unable to reach the courts in Sarajevo because of the war, the Supreme Court held that the applicant could have submitted his claim to any other court in Bosnia and Herzegovina under the relevant legislation at the time (see paragraphs 25 and 27 below). In that connection, the court noted that other cities in Bosnia and Herzegovina, with a few exceptions, had not been under a total blockade throughout the war as was Sarajevo. However, since the legal consquences for the applicant were the same, the Supreme Court did not amend the lower courtsʼ judgments („nije mijenajo nižestepene presude“). 22. On 8 November 2007 the Constitutional Court of Bosnia and Herzegovina upheld that decision. In so doing, it essentially endorsed the reasons given by the Supreme Court and noted further that the applicant could have sent his claim by post or could have authorised someone in Bosnia and Herzegovina to lodge a claim on his behalf. | 0 |
test | 001-172550 | ENG | RUS | COMMITTEE | 2,017 | CASE OF NOSENKO 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;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. | 1 |
test | 001-161516 | ENG | SWE | ADMISSIBILITY | 2,016 | ARLEWIN v. SWEDEN | 4 | Inadmissible | Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 1. The applicant, Mr Raja Arlewin, is a Swedish national, who was born in 1970 and lives in Stockholm. He was represented before the Court by Mr K. Lewis and Mr J. Södergren, two lawyers practising in Stockholm. 3. In April 2004 TV3, a major commercial television channel, broadcast a television programme in which the applicant 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 fraud offences and other economic offences. The programme was rebroadcast a few days later as well as in September 2004. At this time, no preliminary investigation had been initiated against the applicant. 4. In July 2006 the applicant was indicted for aggravated fraud (grovt bedrägeri), an aggravated tax offence (grovt skattebrott), an aggravated bookkeeping offence (bokföringsbrott, grovt brott), a bookkeeping offence (bokföringsbrott), obstruction of tax control (försvårande av skattekontroll) and violations of the Swedish Companies Act (brott mot aktiebolagslagen). According to the indictment, the offences had been committed within 15 named companies, for which the applicant allegedly had been the actual representative (faktisk ställföreträdare). The prosecutor relied on extensive written evidence and requested that over twenty witnesses be heard and a recording of the abovementioned television programme be shown during the trial. 5. The applicant protested his innocence and submitted that he had been neither the formal nor the actual representative of the relevant companies. Thus he had had no right to decide over the companies, nor had he been responsible for their bookkeeping or reporting their turnover to the tax authority. He had done some consultancy for the companies and assisted with some administrative tasks. However, he had not financed the companies and could not be considered as their principal. 6. The applicant further requested the District Court (tingsrätten) in Stockholm to dismiss the use of the television programme as evidence. He argued, inter alia, that it violated his rights under Article 6 of the Convention as it was a strongly edited journalistic product aimed at creating sensational television and which amounted to defamation of him. Thus it would have a strong negative effect on the objectivity of the court. Moreover, since a number of persons in the programme were anonymous, they were unknown both to the defence and the court and the applicant would not be able to cross-examine them as witnesses. 7. On 3 February 2009 the District Court rejected the request. This decision could only be appealed against together with the court’s final judgment. 8. On 20 March 2009 the District Court convicted the applicant of aggravated fraud and sentenced him to five years’ imprisonment. He was acquitted of the other offences. The court held an oral hearing where the above-mentioned television programme was presented by the prosecutor during the opening procedures and relied on as evidence. At the request of one or both of the parties, 25 witnesses were heard, and the applicant was also heard. Moreover, substantial written evidence was invoked by both parties. The court, in a judgment comprising 69 pages, found it proved beyond reasonable doubt that the principal activity concerned by the indictment was fraudulent advertising sales in a number of companies, causing loss for the customers and gain for the companies. While it considered it a flaw that none of the customers had been heard in the case, it still found it established on the basis of other evidence that the customers had suffered the losses claimed by the prosecutor. 9. The court further found it proved that the applicant had been the actual representative of the companies and thus responsible for the fraudulent activities. He had been active in all of the companies and the driving force behind them and large amounts of money had been transferred from the companies to his personal company. Moreover, the court noted that none of the formal representatives of the companies had any corporate experience or knowledge of organising and running an advertising sales company. Some of them had extensive criminal records. The court also had regard to the fact that several of the companies shared office space, employees moved between the companies and the applicant had kept detailed information relating to, inter alia, taxes, yearly results, bookkeeping, billing and contacts with banks and authorities for all of the companies in his personal computer. 10. The television programme was mentioned in the District Court’s judgment under the heading “Statement of facts” (Sakframställningar) where it was simply noted that the television programme had been broadcast for the first time during the spring of 2004 and that the case against the applicant had been initiated by the Swedish Economic Crime Authority (Ekobrottsmyndigheten) in January or February 2006, more than one year and six months after the broadcast. The court did not mention the television programme in its reasoning. 11. Both the applicant and the prosecutor appealed against the judgment. The applicant also appealed against the decision to allow the television programme as evidence. 12. On 28 October 2009 the Svea Court of Appeal (hovrätten) rejected the applicant’s appeal in relation to the television programme as it found no reason to dismiss it as evidence. This decision could only be appealed against in connection with the Court of Appeal’s final judgment. 13. On 23 February 2010 the Court of Appeal, after having held an oral hearing, upheld the lower court’s conviction but also found the applicant guilty of an aggravated bookkeeping offence and an aggravated tax offence. The sentence was upheld. In addition to the witnesses heard before the District Court, whose testimonies were played to the court, supplementary questions were put to the applicant and eight new witnesses were heard on the applicant’s request. Substantial written evidence was also presented to the appellate court. As regards the television programme, it was stated in the judgment that it had been presented to the court. It was not mentioned by the Court of Appeal in its reasoning. 14. The Court of Appeal, like the lower court, found it proved beyond reasonable doubt that the applicant had been the actual representative of the companies. In addition to the findings of the District Court, the appellate court noted in particular that the applicant had explained his involvement and the large amount of money received from the companies as fees for consulting, with focus on training the sellers in the various companies. However, the court observed that this was not supported by the witness statements and, moreover, the applicant had not been able to give a credible account of the training he alleged to have provided. His explanations had been vague and diffuse and he had no documented qualifications as a trainer. Moreover, before the District Court, he had claimed not to have signed any contracts with the companies and when confronted by the prosecutor before the appellate court with such contracts, signed by him, he claimed not to have any memory of having signed them. That the applicant would have forgot such important acts were not plausible to the court and affected his credibility negatively. The contracts also revealed the applicant’s ability to control the companies. The Court of Appeal further noted that the companies had been inter-connected in various ways, even sharing offices and employees, which was remarkable considering that they were supposedly competitors in the same market. In view of this, the Court of Appeal fully agreed with the lower court’s reasoning and conclusion concerning the aggravated fraud and also found that he had committed an aggravated bookkeeping offence and an aggravated tax offence. 15. The applicant appealed to the Supreme Court (Högsta domstolen) against the judgment as well as the decision not to dismiss the television programme as evidence. He claimed, inter alia, that it was in violation of his right to fair trial under the Convention to allow the television programme as evidence 16. On 4 October 2010, the Supreme Court refused leave to appeal. 17. In the meantime, in October 2006, the applicant initiated defamation proceedings against the anchor man of the television programme. These proceedings were terminated in 2009 and an application regarding this matter, under Articles 6, 8 and 13 of the Convention, was lodged with the Court on 18 March 2010 (application no. 22302/10). 18. Chapter 35, section 1 of the Swedish Code of Judicial Procedure (Rättegångsbalken, 1942:740), reads as follows: “After conscientious assessment of everything that has occurred, the court shall determine what has been proved in the case. As to the effect of certain kinds of evidence, the specific provisions thereon shall govern.” 19. This provision reflects the principle of free submission and evaluation of evidence (principen om fri bevisföring och bevisvärdering) which prevails in Swedish procedural law. It means that, as a main rule, there are no restrictions in law on the submission and evaluation of evidence. Thus, anything that may be of value as evidence in a case may, in principle, be presented during the main hearing. However, the circumstances under which evidence has been collected or given will have an influence on the way in which it is evaluated. The “principle of best evidence” (principen om bästa bevismedlet) is applied; consequently, witnesses and injured parties should normally give evidence during a court hearing, rather than the court reading the statements made during the preliminary investigation, to enable the parties to pose questions and scrutinise the statements more closely. 20. Moreover, according to Chapter 35, section 7 of the Code of Judicial Procedure, a court may dismiss evidence, inter alia, if the circumstance that a party wants to prove is without importance in the case, if the evidence is unnecessary or if it evidently would be of no effect. | 0 |
test | 001-152885 | ENG | HUN | COMMITTEE | 2,015 | CASE OF MACHER v. HUNGARY | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | András Sajó;Helen Keller;Robert Spano | 5. The applicant was born in 1953 and lives in Budapest. 6. On 17 August 2009 the applicant was appointed as deputy general manager of a State-owned company limited by shares. 7. The applicant’s employment was terminated by mutual agreement as of 30 August 2010. Under this agreement the applicant received severance payment, subject to payroll burdens. 8. Under new legislation (see paragraph 9 below) the severance payment was subsequently taxed at a 98% rate in its part exceeding 3.5 million Hungarian forints (HUF); the income tax and social security contributions already paid (see paragraph 7 above) were deducted from the tax payable. Thus, the applicant paid an additional HUF 1,492,898 (approximately 4,700 euros (EUR)) in special tax on 5 September 2011. | 1 |
test | 001-166684 | ENG | RUS | CHAMBER | 2,016 | CASE OF KIRILLOVA v. RUSSIA | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra | 5. The applicant was born in 1962 and lives in Moscow. 6. On 1 February 1994 F. bought a 19.3 square metre flat at 22-2-68 Nagatinskaya Naberezhnaya, Moscow. On 23 July 1997 F. died intestate and without heirs. According to the Government, his flat was locked and sealed by the housing maintenance company. 7. On an unspecified date N. brought a civil action seeking recognition as F.’s heir-at-law. The City of Moscow authorities took part in the proceedings as a respondent. On 8 February 2010 the Simonovskiy District Court of Moscow granted her claim and recognised her title to F.’s flat. The judgment came into force on 19 February 2010. 8. On 14 May 2010 N. sold the flat to K. The transaction was registered by the Federal Registration Service. 9. On 24 June 2010 the Moscow City Court quashed the judgment of 8 February 2010 on appeal and dismissed N.’s claims. 10. On 6 July 2010 K. sold the flat to the applicant. On 21 July 2010 the Federal Registration Service registered the sale agreement and the transfer of the title to the flat to the applicant. 11. On an unspecified date the Housing Department brought a civil action claiming that N. had been erroneously recognised as F.’s heir-at-law and that the City of Moscow should inherit his property instead. 12. On 8 November 2012 the District Court granted the Housing Department’s claims. It ordered the transfer of title to the flat to the City and the requisition of the flat from the applicant. The court also considered that the applicant had not demonstrated due diligence when buying the flat from K. and could not be recognised as a bona fide purchaser. 13. On 4 February 2013, following an appeal by the applicant, the Moscow City Court upheld the judgment of 8 November 2012. 14. On 15 April 2015 the District Court granted the Housing Department’s claims against the applicant and ordered her eviction. 15. According to the Government, the applicant has not been evicted and continues to reside in the flat. 17. On 20 March 2014 the Moscow City Court upheld the judgment of 9 December 2013 on appeal. 18. According to the Government, the bailiff failed to establish K.’s whereabouts or locate any of his assets. The judgment in the applicant’s favour remains unenforced. The enforcement proceedings are still pending. | 1 |
test | 001-157445 | ENG | ITA | ADMISSIBILITY | 2,015 | GIORGINI v. ITALY | 4 | Inadmissible | Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicant, Ms Ebe Gigliola Giorgini, is an Italian national, who was born in 1933 and is under house arrest in Marina di Pietrasanta. She was represented before the Court by Mr D. Ammannato, a lawyer practising in Florence. 2. summarised as follows. 3. On 8 April 2008 the applicant was convicted of a number of criminal offences by the Forlì District Court. Such offences included criminal association, aggravated fraud, and ill-treatment. 4. On an unspecified date she lodged an appeal with the Bologna Court of Appeal. 5. On 22 June 2010 the Bologna Court of Appeal partly upheld and partly reversed the District Court’s judgment. The conviction for the offence of criminal association was upheld. 6. On an unspecified date the applicant lodged an appeal on points of law with the Court of Cassation. 7. She states that on 4 July 2011 the President of Second Criminal Section of the Court of Cassation set the hearing for 15 November 2011. 8. On 24 October 2011 the National Criminal Lawyers’ Association (Unione Camere Penali italiane) called a five-day strike, scheduled to run from 14 to 18 November 2011. 9. On 28 October 2011 the applicant filed additional written submissions with the court. 10. On 7 November 2011 the applicant’s counsel formally adhered to the strike and filed a notice to that effect with the Court of Cassation, having obtained the applicant’s consent in writing. For this reason, he was not present at the hearing of 15 November 2011. 11. It appears from the hearing record that the Prosecutor General requested that the Court of Cassation refrain from adjourning the hearing on account of the counsel’s absence. The court granted the prosecutor’s request and the hearing was held as scheduled. 12. In a judgment of 15 November 2011 the Court of Cassation dismissed the applicant’s appeal. 13. On 9 June 2010 the Pistoia preliminary investigations judge ordered that the applicant be placed in pre-trial detention on suspicion that she had committed further offences. These included the offence of criminal association, of which the applicant was suspected of being the leader, promoter and organizer. The applicant was also suspected of having committed the offence of unauthorized practice of medicine. Specifically, she was suspected of providing medical advice and treatment, as well as prescribing drugs to adults and minors, and using her home as an unauthorized medical clinic. She was further suspected of fraud, aggravated by a number of factors including the exploitation of vulnerable individuals’ pain and suffering, and the generation of ill-founded fears from which she profited. The preliminary investigations judge emphasised that the applicant had been previously convicted of similar offences. 14. It appears from the material in the case file that pre-trial detention had been requested on a number of grounds, namely the strong evidence against her, the seriousness of the suspected offences, and the significant risk that she might reoffend. 15. The applicant states that she was transferred to the Sollicciano correctional facility in Florence on 11 June 2010. 16. On 21 July 2010 the applicant’s counsel lodged a request with the Pistoia preliminary investigations judge, seeking the replacement of the applicant’s detention with a more lenient custodial measure, such as house arrest. He argued that both her advanced age and allegedly critical state of health were incompatible with detention in prison. 17. On an unspecified date the judge ordered that she be examined by an independent medical expert with a view to determining whether this was the case. 18. In an order of 30 July 2010 the judge confirmed that the applicant would remain in custody, as the independent medical expert’s report had stated that her state of health was compatible with detention. 19. On 7 August 2010 the applicant lodged an appeal with the Florence District Court on two main grounds. She contended that while under Article 275 § 4 of the Code of Criminal Procedure (see paragraph 37 below) the detention on remand of persons aged over seventy was only allowed if exceptional reasons warranting such a measure existed, in her case no such reasons could be detected. She further reiterated the argument that her advanced age and critical state of health were incompatible with detention in prison, contending that she suffered from life-threatening medical conditions she identified as cardiovascular disease, acute osteoporosis and diabetes. She also highlighted that she had undergone major surgical procedures in the past, including a gastrectomy, mastectomy, and hysterectomy, and suffered from anxiety disorder and glucose intolerance. 20. The Florence District Court, sitting as the authority with jurisdiction to decide on measures involving deprivation of liberty (tribunale della libertà e del riesame), dismissed the applicant’s appeal on 1 October 2010. It found that the exceptional grounds for her to be detained on remand, as listed in the preliminary investigation judge’s order of 9 June 2010, still existed. It further pointed out that she had in the past been convicted of analogous offences and had, as soon as she had been released, resumed her criminal activity. As to the applicant’s health, the court drew on the expert medical report requested by the preliminary investigations judge to conclude that there was no incompatibility between it and her detention in a correctional facility. Referring to extracts from the report, the court observed that there was no evidence of an imminent risk of congestive heart failure or other life-threatening conditions, contrary to her contentions. It went on to acknowledge the expert’s finding that she had undergone several major surgical procedures in the past, but that these had allowed for the treatment of serious medical conditions, thus leading to an improvement in her clinical situation. Drawing on the report, it further concluded that the provision of special meals to meet her nutritional needs and the necessary drug therapy could be adequately taken care of in a correctional facility. It appears from the order that the court also examined medical reports submitted by the prosecutor and applicant’s counsel and took the latter into account when reaching its conclusions. 21. On 10 October 2010 the applicant lodged an appeal on points of law with the Court of Cassation. 22. On 1 December 2010 she was committed for trial and the first hearing before the Pistoia District Court was scheduled for 22 March 2011. She was formally charged with all the suspected offences including criminal association, the unlawful practice of medicine, and aggravated fraud (see paragraph 7 above). 23. On 16 February 2011 the Court of Cassation declared the appeal inadmissible. 24. On 4 May 2011 the applicant’s counsel submitted a further request seeking the replacement of the applicant’s detention with house arrest, reiterating the argument that both her advanced age and state of health were incompatible with detention in prison. He relied, inter alia, on a medical certificate issued by the prison doctor on 5 April 2011, in which her clinical condition was described as “complex and multifaceted” and “difficult to manage” in a regular correctional facility. 25. On an unspecified date the Pistoia District Court ordered a new medical examination with a view to assessing the compatibility of her state of health with detention. 26. On 5 May 2011 it dismissed the request for house arrest, having regard to the persistent danger that the applicant might reoffend. However, the court ordered that she be transferred to a correctional hospital (centro clinico penitenziario) in Pisa with a view to ensuring increased medical supervision and the provision of any necessary treatment, and preventing a further deterioration in her health. The court reached its conclusions by relying on a number of findings by the expert, who found that the gastrectomy performed in 1967 had left her with some long-term side effects, including insufficient absorption of calcium and vitamin D. He also noted with some concern that she had experienced height and weight loss and that her osteoporosis had worsened during the months spent in detention. In order to manage her condition effectively and prevent its deterioration, the expert noted that she would require small, frequent meals, a special diet enriched by dietary supplements, and some form of exercise. Finally, he pointed out a slight cerebral atrophy, coupled with a mild anxiety-depressive disorder. 27. On 10 May 2011 the applicant lodged an appeal, reiterating the incompatibility of her age and state of health with any form of detention, even in a correctional hospital. 28. On 20 June 2011 the Florence District Court, sitting as the authority with jurisdiction to decide on measures involving deprivation of liberty, placed the applicant under house arrest. It relied on the medical report submitted by the expert to the Pistoia District Court to conclude that an “incompatibility in substance” with detention existed in her case and that a less restrictive measure, such as house arrest, was preferable under the circumstances. 29. It ordered the applicant’s immediate release and set out the specific conditions of her house arrest, including the requirement that she stay in her home at all times, leave only with the authorities’ prior permission, and refrain from contacting or interacting with anyone except her authorised cohabitees and medical staff. 30. On 23 June 2011 the public prosecutor lodged an appeal on points of law with the Court of Cassation. 31. On 19 October 2011 the Court of Cassation declared the appeal inadmissible. 32. On 4 June 2012 the public prosecutor requested that the house arrest be substituted with detention on remand, as the applicant had breached its conditions. He provided evidence that, amongst other things, she had been in contact with several unauthorised individuals including co-defendants in the ongoing criminal proceedings and a number of her “followers” and “admirers”. 33. On an unspecified date the Pistoia District Court ordered a new medical examination with a view to determining whether her state of health was compatible with detention. 34. On 6 July 2012 the Pistoia District Court granted the prosecutor’s request and remanded the applicant in custody, ordering that she be transferred at once to the correctional hospital in Pisa. It found that she had violated the terms of her house arrest, and that the situation which had arisen was conducive to her re-establishing the network which had supported her criminal activity. As to her health, the court drew on the medical report it had requested which stated that adequate monitoring and treatment of her medical conditions, as well as the provision of adequate nutrition in compliance with her special dietary needs, could be carried out in a correctional hospital. In particular, the expert noted that treatment of the applicant’s osteoporosis to prevent future damage to her bone structure would not in any way be hindered by her detention in such a facility. He added that while under house arrest, she had experienced three fractures, suggesting that the monitoring of her condition in a correctional hospital could be in no way considered inferior. 35. On 22 October 2012 the Pisa correctional hospital issued a medical certificate concerning the applicant’s state of health. It described her medical history and the outcome of various specialist consultations she had undergone in the facility in previous months. An orthopaedic specialist had confirmed her advanced osteoporosis and prescribed treatment, a cardiologist had reported good cardiac function, while an ophthalmologist had recommended that she undergo surgery for a cataract in her left eye. The report further contained a recommendation that the applicant undergo a colonoscopy. Concerns were raised regarding the difficulties encountered in the management of treatment and diagnostic tests which had required transporting her to external facilities. Both her cataract surgery and the colonoscopy had to be rescheduled due to the unavailability of police officers who should have escorted her to the external facilities. The doctors concluded that the continued detention of the applicant, albeit in a correctional hospital, could have resulted in the deterioration in her health. 36. On 18 December 2012 the applicant’s counsel submitted a request to the Florence Court of Appeal, seeking the substitution of the detention on remand with house arrest. He reiterated all the arguments raised at first instance and referred to extracts from the report issued by the correctional hospital on 22 October 2012. 37. The request was granted on the same day and the applicant was placed under house arrest. 38. According to the material in the case file, she is currently under house arrest, as the criminal proceedings against her are pending before the Court of Cassation. 39. Article 274 provides that a person may be detained pending trial: “(a) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence and based on matters of fact which must, on pain of nullity, be expressly set out in the decision, which the judicial authority may take of its own motion...; (b) if the accused has absconded or there is a real danger of his absconding, provided that the court considers that, if convicted, he will be liable to a prison sentence of more than two years; (c) where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused...” | 0 |
test | 001-168861 | ENG | BGR | COMMITTEE | 2,016 | CASE OF DIMITROV 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) | Carlo Ranzoni;Khanlar Hajiyev | 4. The applicant was born in 1955 and lives in Sofia. 5. The applicant’s father owned a house with a yard and a garage in Sofia. 6. Pursuant to a decision of the mayor issued on 27 July 1978, the property was expropriated for the purposes of constructing a residential building. The order, based on section 98 (1) of the Territorial and Urban Planning Act (Закон за териториалното и селищно устройство – “the TUPA”), provided that the applicant’s father was to be compensated with a two-room flat and a garage in a building which the municipality planned to construct. 7. In a supplementary decision of 19 February 1979, based on section 100 of the TUPA, the mayor specified the exact location, size and other details in respect of the flat to be provided by way of compensation. As no mention was made of a garage, the applicant’s father applied for judicial review of that decision. In a final judgment of 21 June 1979 the Sofia City Court found in his favour and referred the case back to the administrative authorities with instructions to specify the exact garage to be provided as compensation. 8. In 1982 the flat in question was constructed and handed over to the applicant’s father. 9. After 1992 the applicant’s father filed numerous requests with the municipal authorities asking them to specify the exact garage to be given to him. By a letter of 12 January 2008 the chief architect of Sofia informed him that no buildings with garages earmarked for the purpose of compensation were being constructed at the moment. 10. In 2008 the applicant’s father brought an action for damages under the State and Municipalities Responsibility for Damage Act (Закон за отговорността на държавата и общините за вреди) for unlawful failure on the part of the Sofia municipality to fulfill its obligations to build and provide him with a garage. The action was dismissed in a final judgment of 21 June 2011 of the Supreme Administrative Court, on the grounds that no unlawful failure to act on the part of the authorities had been established. 11. In the meantime, on 7 April 2008 the applicant’s father passed away. The applicant is his only heir. | 1 |
test | 001-178908 | ENG | RUS | COMMITTEE | 2,017 | CASE OF SHMELEVA v. RUSSIA | 4 | Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect) | Dmitry Dedov;Luis López Guerra | 5. The applicant was born in 1958 and lives in St Petersburg. She is the mother of the late Mr Denis Aleksandrovich Vyrzhikovskiy. 6. On 1 October 2010 police officers apprehended the applicant’s son and his friend, Ms Z. and took them to the Moskovskiy District Department of the Interior of St Petersburg (УВД по Московскому району г. СанктПетербурга). No record of their arrest was drawn up. 7. For approximately six hours the applicant’s son was ill-treated by police officers He was repeatedly punched in the stomach and hit to the head, right palm and both calves. He was also subjected to the so-called “swallow” method of torture (“ласточка”), with his head, hands and legs being pulled together towards the spine. 8. Two police officers then took the applicant’s son and Ms Z. to another police station. Ms Z. later testified to having seen a bruise on Mr Vyrzhikovskiy’s forehead and to his having been in pain and having had difficulties getting into a police car. 9. Early in the morning on 2 October 2010 Mr Vyrzhikovskiy was taken from the station to a hospital. He died there eight days later. An autopsy report stated that the cause of death was “a severe fat pulmonary embolism aggravated by bronchopneumonia with cerebral edema resulted from a comminuted humeral head fracture with a tear of joint capsules and massive bruises, suffusion and strain of soft tissue and the subcutaneous fat layer.” A pathologist also found the following ante mortem injuries on Mr Vyrzhikovskiy’s body, all directly linked to his death: massive bruises covering hands, chest, upper back, neck, armpits and most of his face and ears; bruises on the left hip, right palm, right part of the stomach, right thigh, left knee, both calves; abrasions and bruises on the buttocks. All injuries had been inflicted by hard blunt objects. 10. On 12 October 2010 criminal investigation was initiated. The applicant was granted victim status in the proceedings. Several police officers were charged with manslaughter and abuse of powers entailing a substantial violation of individual rights, committed using violence. 11. On 26 March 2014 the Moskovskiy District Court of St Petersburg found the officers guilty as charged and sentenced them to various terms of imprisonment. On 1 October 2014 the St Petersburg City Court partially quashed the judgment and acquitted officers of manslaughter for lack of evidence. While having found it established that the injuries had been inflicted on the applicant’s son intentionally in the police custody, the City Court remitted the case for an additional investigation in order to identify those responsible for his death. 12. On 2 March 2015 the investigation was suspended because the timelimit for the investigation had expired and it was impossible to identify the perpetrators and to carry out any investigative measures in the absence of an accused. On 12 November 2015 the Oktyabrskiy District Court of St Petersburg upheld that decision as lawful. The decision became final on 27 January 2016. | 1 |
test | 001-184519 | ENG | MDA | COMMITTEE | 2,018 | CASE OF MĂTĂSARU AND SAVIȚCHI v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly) | Paul Lemmens;Stéphanie Mourou-Vikström | 5. The applicants, who are husband and wife, were born in 1970 and live in Chișinău. 6. On 29 January 2008 the applicants were involved in a street protest as a result of which they were arrested and detained for six hours and fortyfive minutes. On 18 December 2008 the first applicant was again involved in a street protest, as a result of which he was arrested and detained for approximately four hours and a half. Later both applicants were acquitted and the actions of the police were found to be unlawful. The facts concerning those protests were described in detail in Mătăsaru and Saviţchi v. Moldova, no. 38281/08, §§ 6-58, 2 November 2010. 7. On 29 January 2009 the first applicant organised again a street protest and was arrested again and detained for some six hours. Later the applicant was acquitted and the actions of the police were found to be unlawful. 8. On 2 November 2010 the Court adopted a judgment in the case of Mătăsaru and Saviţchi (cited above), in which it declared inadmissible the applicants’ complaints concerning the alleged breaches of their rights guaranteed by Articles 5 and 11 of the Convention on the ground of their failure to exhaust domestic remedies (see Mătăsaru and Saviţchi (cited above, § 75). 9. After that, the applicants brought a civil action under Law 1545 (on compensation for damage caused by illegal acts of the criminal investigation bodies, the prosecution authorities or the courts) seeking compensation in respect of the breach of their rights guaranteed by Articles 5 and 11 of the Convention in regard to all three street protests of 2008 and 2009. 10. By a final judgment of 6 February 2013 the Supreme Court of Justice acknowledged the breach of the applicnts’ rights guaranteed by Articles 5 and 11 of the Convention and awarded them the equivalent of 900 and 270 euros (EUR), respectively. | 1 |
test | 001-142833 | ENG | NLD | ADMISSIBILITY | 2,014 | MOHAMED HUSSEIN v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Saleh Mohamed Hussein, claims that he is a Somali national, who was born in 1986 and is currently residing in the Netherlands. He was represented before the Court by Mr J.W.F. Noot, a lawyer practising in Dordrecht. 2. The Dutch Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant applied for asylum in the Netherlands on 27 October 2009, claiming that he hailed from Mogadishu, Somalia and belonged to the minority Reer Hamar population group and the Ashraf clan. When he was three years old, he and his family had moved to Saudi Arabia where he had resided illegally. In 2009, the Saudi Arabian authorities had expelled the applicant to Mogadishu. His mother had accompanied him because he did not know anybody in Mogadishu. They had moved in with an uncle of the applicant’s. As the applicant was unknown to most neighbours, he had been suspected of involvement in al-Shabaab. The applicant had been abducted by some neighbours. After a ransom had been paid by his family he had been released and he had fled the country. He feared that, upon return to Somalia, he would fall victim to human rights violations by one of the warring factions there. He also claimed that, as a member of a minority clan, he had a higher risk of falling victim to human rights violations. 5. By decision of 15 July 2010 the Minister of Justice (minister van Justitie) rejected the asylum application, considering that the applicant’s account lacked credibility. The Minister held that the applicant had failed to establish his nationality and identity. The applicant had been unable to describe how he had been identified as a Somali national by the Somali consular authorities in Saudi Arabia. In this respect it was noted that the applicant had stated that the only Somali words he knew were ‘hello’ and ‘good afternoon’. He had further claimed that the conversation with the consular authorities had been conducted in Arabic. It was thus considered implausible that the consular authorities had been able to determine the Somali origins of the applicant. He had further been unable to describe the airports in Jeddah and Mogadishu. 6. The Minister further disbelieved the account of the applicant’s departure from Mogadishu. The applicant had claimed that he had been on a direct flight from Mogadishu to Nairobi, Kenya. However, according to country of origin information all flights from Mogadishu to Nairobi had to make a safety stop at Wajir, Kenya. The applicant had not mentioned this stop. 7. The applicant’s appeal was dismissed by the Regional Court (rechtbank) of The Hague sitting in Middelburg on 26 May 2011. His further and final appeal was dismissed on summary grounds by the Administrative Jurisdiction Division of the Council of State (Afdeling Bestuursrechtspraak van de Raad van State) on 29 August 2012. 8. On 26 September 2012, a report of a linguistic analysis of the applicant’s speech concluded that he spoke deficient Somali with a Reer Hamar accent; that Somali was not his first or dominant language; and that he had grown up in a diaspora community where (Reer Hamar) Somali was spoken. | 0 |
test | 001-153498 | ENG | CZE | ADMISSIBILITY | 2,015 | KUDLIČKA v. THE CZECH REPUBLIC | 4 | Inadmissible | Aleš Pejchal;André Potocki;Angelika Nußberger;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | The applicant, Mr Petr Kudlička, is a Czech national, who was born in 1940 and lives in Boskovice. He was represented before the Court by Mr Z. Pokorný, a lawyer practising in Brno. The Czech Government (“the Government”) were represented by their Agent, Mr Vít A. Schorm, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. On 11 April 2000, the applicant brought an action before the Brno Municipal Court against his former employer, the Czech Post, claiming compensation for wages and travel and subsistence allowances amounting to CZK 8,019 (which at that time corresponded to approximately EUR 220). The substance of the dispute was whether the applicant’s case concerned a business trip or only the employer’s instruction designating a new place of reporting to work. Upon the court’s request, on 27 March and 3 July 2002 the applicant supplemented his action. In his submission of 27 March 2002 he reduced his claim to CZK 6,173 (which by this time, owing to currency fluctuations, was worth about EUR 200). On 10 April 2003, the Municipal Court delivered a judgment in which it granted the action to a large extent. Upon the applicant’s and defendant’s appeals, on 23 November 2004 the Brno Regional Court quashed the judgment and sent the case back to the court of first instance for further proceedings. On 27 April 2006, the Municipal Court delivered a judgment granting the action. Upon the defendant’s appeal, on 20 November 2007 the Regional Court reversed the judgment and dismissed the action. On 28 January 2008, the applicant filed a constitutional appeal, which was dismissed on 11 June 2008. On 21 December 2007, the applicant applied to the Ministry of Justice, claiming compensation for non-pecuniary damage caused by an unreasonable length of the above court proceedings. On 19 November 2008, the Ministry of Justice noted that there had been delays in the court proceedings but did not award compensation to the applicant, considering that the finding of a violation was sufficient in this case. In the meantime, on 27 June 2008 the applicant brought an action for compensation before the Brno Municipal Court, claiming nearly CZK 800,000 (approximately EUR 33,000 at that time). On 28 April 2010, the Municipal Court delivered a judgment awarding the applicant an amount of CZK 10,000 (approximately EUR 390 at that time) for non-pecuniary damage caused by the unreasonable length of the proceedings. Upon the applicant’s appeal, on 21 December 2011 the Brno Regional Court delivered a judgment upholding the judgment of the court of first instance. The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the Court’s decision in the case of Vokurka v. the Czech Republic (no. 40552/02 (dec.), §§ 11-24, 16 October 2007). | 0 |
test | 001-178106 | ENG | GBR | ADMISSIBILITY | 2,017 | TAMIZ v. THE UNITED KINGDOM | 4 | Inadmissible | Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković | 1. The applicant, Mr Payam Tamiz, is a British national, who was born in 1989 and lives in Maidstone. He was represented before the Court by Withers LLP, a firm of solicitors based in London. 2. The United Kingdom Government (“the Government”) were represented by their Agent, Mr P. McKell of the Foreign and Commonwealth Office. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. Google Inc. is a corporation registered in the United States and with its principal place of business there. It provides an Internet blog-publishing service via Blogger.com, a platform that allows any Internet user in any part of the world to create an independent blog free of charge. It includes design tools to help users create layouts for their blogs and, if they do not have their own web address, enables them to host their blogs on Blogger.com web addresses. 5. Blogger.com operates a “Content Policy” which sets out restrictions on what users can do using the service. This makes clear that content such as child pornography, or promoting race hatred, is prohibited. The policy is explained in the following terms: “Blogger is a free service for communication, self-expression and freedom of speech. We believe that Blogger increases the availability of information, encourages healthy debate and makes possible new connections between people. We respect our users’ ownership of and responsibility for the content they choose to share. It is our belief that censoring this content is contrary to a service that bases itself on freedom of expression. In order to uphold these values, we need to curb abuses that threaten our ability to provide this service and the freedom of expression it encourages. As a result, there are some boundaries on the type of content that can be hosted with Blogger. The boundaries we have defined are those that both comply with legal requirements and that serve to enhance the service as a whole.” 6. In addition, Google Inc. operates a “Report Abuse” feature. There are eight grounds for reporting abuse, including “Defamation/Libel/Slander”. If the user selects ‘Defamation/Libel/Slander’, a second screen is displayed which makes it clear that the Blogger.com service is operated in accordance with US law, and that defamatory material will only be taken down if it has been found to be libellous (i.e. unlawful) by a court. According to Google Inc., the reason for this policy is that, given the volume of content uploaded by users of the Blogger.com service, it is usually not practicable for it to remove content without first receiving a court’s determination that the content is, in fact, libellous. Google Inc. is not in a position to adjudicate such disputes itself. 7. On 27 April 2011 a piece appeared on the “London Muslim” blog, a blog hosted on the Blogger.com website. It contained a photograph of the applicant and the following text: “Payam Tamiz a Tory Muslim council candidate with a 5 o’clock shadow has resigned from the party after calling Thanet girls ‘sluts’. Tamiz who on his Twitter page describes himself as an ‘ambitious British Muslim’ is bizarrely studying law so one would have thought this Tory prat with Star Trek Spock ears might have engaged the odd brain cell before making these offensive remarks.” 8. A number of anonymous comments were subsequently posted in response to the publication. Eight of the approximately forty-six comments are set out, as originally posted, in the following paragraphs. 9. Comment A: “I know Mr Tamiz very well and am surprised that it has taken this long for all this to come out, Payam is a known drug dealer in thanet and has been taken to court for theft from his employers tescos in Ramsgate. His whole family are criminals his mother Mrs [L.] has several convictions for theft and shoplifting and got sentenced at maidstone crown court 28 April 2011 14:53” 10. Comment B: “Can’t deny what he said is true but isn’t this the same Payam Tamiz that use to take girls back to his ‘houseparties’ practically every weekend with his friends and sleep with them? Hypocritical much? 30 April 2011 12:28” 11. Comment C: “The blokes a class A prat not only for the comments he recently made. He may have a few half wits as a following but I speak for the people that have known payam for several years and have been on the reciving end of his abuse a disrespect and his not such a nice person. I’m sure we’ll be hearing alot more from his past which will paint a true picture of him. 28 April 2011 23:04” 12. Comment D: “So Mr Whacker is a violent racist, certainly doesn’t like white people does he?! If you’d ever been to Margate you would find the majority are white women, even those from the Eastern bloc. To tar all Margate women with the word slut is very derogatory, how does he know? Does he make a habit of chasing women around? Or as someone implys above, does he sell drugs to them? 28 April 23:51” 13. Comment E: “I’ve only read that Payams claiming to be 21, I’m sure he told me that his older than that. Fake asylum claim was it. The good old home office and all us wankers that pay tax for waste of spaces like him. 29 April 2011 01:09” 14. Comment F: “Before Payam starts to call women sluts it might be an idea for him to look closer to home, how may brothers and sisters has he got, all with different fathers. I thought Muslim men were the one who were meant to have more than one wife, not the women with more than one husband. Is there not a 30 year gap between the ages of his younger to older brother and sister. Look closer to home pal. 29 April 2011 09:40” 15. Comment G: “The only reason his callig girls slags is cos he aint getting none himself. And he blames a relationship breakup for his comments, but the only problem with that being is that Payams never had a girlfriend since I known him and thats been a couple of years, that makes him single at the time. Poor little Payam, has you giving it the large one to your friends blown up in your face and back fired. It couldn’t have happeneded to a better person, his a little snake and he knows it. I’d put my money on him still being a virgin, not being funny but you only got to look at his picture to work that out. 29 April 2011 21:26” 16. Comment H: “And his brothers girl friend is an escort girl, [L.], look closer to home pal. 29 April 2011 18:43” 17. According to the applicant, on 28 or 29 April 2011 he used the “report abuse” function to indicate that he considered certain comments on the blog to be defamatory. 18. On 29 June 2011 he sent a letter of claim to Google UK Ltd (a United Kingdom subsidiary of Google Inc.), which was received on 5 July. In his letter he complained about the blog itself and about comment A. The letter was passed by Google UK Ltd to Google Inc., which responded by email on 8 July 2011 seeking clarification of whether the comment was said to be untrue, since that was not apparent from the terms of the letter. The applicant responded on the same day confirming that comment A was “false and defamatory” and introducing a complaint about comment B. 19. On 19 July 2011 the “Blogger Team” at Google Inc. sent the applicant an email seeking permission to forward his complaint to the author of the blog page and confirming that they would not themselves remove the impugned comments. The applicant gave the necessary permission on 22 July 2011 and complained that comments C, D, E, F and G were also defamatory. 20. On 11 August 2011 Google Inc. forwarded the letter of claim to the blogger. 21. On 14 August 2011 the post and all the comments were removed by the blogger. The applicant was informed the following day. 22. Meanwhile, the applicant sought to bring a claim in libel against Google Inc. in relation to comments A to G. On 10 August 2011 he sent a letter of claim, together with the relevant particulars of claim, to the court and on 22 September 2011 permission was granted to serve the claim form on Google Inc. in the United States. The applicant subsequently incorporated a complaint about comment H into the particulars of claim and served them on Google Inc. 23. Google Inc. sought to have the permission to serve the claim out of jurisdiction set aside and asked the High Court to declare that it had no jurisdiction to try the claim. It argued that: the claim form did not allege that the comments had been accessed by a substantial number of readers in the jurisdiction. There was therefore no “real and substantial” tort (see paragraphs 50-53 below); Google Inc. was not a publisher for the purposes of the English law of defamation, but merely a neutral service provider which did not create and had no control over the content users posted on their blogs; and even if Google Inc. were to be regarded as a publisher, it would be protected from liability by Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (“the 2002 Regulations” – see paragraph 49 below). 24. On 2 March 2012 the High Court held that it should decline jurisdiction and that the order for service out of the jurisdiction should be set aside. 25. The judge first considered whether there was any evidence of a “real and substantial tort” within the jurisdiction. He considered each of the comments individually and while he characterised comments C, E, F, G and H as “mere vulgar abuse” to which no sensible person would attach much, if any, weight, he accepted that comments A, B and D were arguably defamatory. 26. On the question of whether Google Inc. was the “publisher”, the judge noted that the applicant did not allege that it could be liable for the comments complained of before he notified it of their potential unlawfulness. Consequently, the judge only considered it necessary to assess potential legal liability from the point of notification. 27. The judge considered it relevant, although not determinative as a matter of law, that Google Inc. promulgated and attempted to follow a wellknown policy of not removing offending material on the basis that it was not in a position to investigate or come to a decision upon any legal challenge. This was partly a question of principle and partly a matter of sheer practicality: on the one hand, Google Inc. regarded itself as providing a platform for the free exchange of information and ideas and would not wish to be seen as a censor; on the other hand, the blogs on Blogger.com contained more than half a trillion words and 250,000 new words were added every minute. It would therefore be virtually impossible for the corporation to exercise editorial control over content. 28. The judge further noted that one should guard against imposing legal liability in restraint of Article 10 of the Convention where it was not necessary or proportionate to do so. In this regard, he considered the possibility of an action against the authors of the comments and possibly the author of the blog. While he accepted that this approach “may be regarded as more theoretical than real due to problems of anonymity”, it was an argument that could not simply be ignored. However, the important question was not whether the applicant could identify the authors or bloggers in question, but rather whether he was in a position to establish against Google Inc. the necessary attributes of a publisher. 29. The judge concluded: “38. Google Inc. accepts the responsibility of notifying (albeit not always with great promptitude) the blogger(s) in question. It does not, however, accept that it should investigate every complaint received, whether by way of establishing the facts or obtaining advice on the relevant domestic law or laws that may be applicable. The fact that an entity in Google Inc.’s position may have been notified of a complaint does not immediately convert its status or role into that of a publisher. It is not easy to see that its role, if confined to that of a provider or facilitator beforehand, should be automatically expanded thereafter into that of a person who authorises or acquiesces in publication. It claims to remain as neutral in that process after notification as it was before. It takes no position on the appropriateness of publication one way or the other. It may be true that it has the technical capability of taking down (or, in a real sense, censoring) communications which have been launched by bloggers or commentators on its platform. Yet that is not by any means the same as saying that it has become an author or authoriser of publication. It is no doubt often true that the owner of a wall which has been festooned, overnight, with defamatory graffiti could acquire scaffolding and have it all deleted with whitewash. That is not necessarily to say, however, that the unfortunate owner must, unless and until this has been accomplished, be classified as a publisher. 39. It seems to me to be a significant factor in the evidence before me that Google Inc. is not required to take any positive step, technically, in the process of continuing the accessibility of the offending material, whether it has been notified of a complainant’s objection or not. In those circumstances, I would be prepared to hold that it should not be regarded as a publisher, or even as one who authorises publication, under the established principles of the common law. As I understand the evidence its role, as a platform provider, is a purely passive one ... I would rule that Google Inc. is not liable at common law as a publisher. It would accordingly have no need to rely upon a defence (statutory or otherwise).” 30. Finally, the judge said that if, contrary to that view, Google Inc. was to be regarded as a “publisher”, section 1 of the Defamation Act 1996 (“the 1996 Act” – see paragraphs 45-48 below) provided it with a defence, notably because it took reasonable care in passing the complaint on to the blogger once it had been notified. In reaching this conclusion, he accepted that the period between notification and the removal of the offending post was so short as to give rise to potential liability on the part of Google Inc. only for a very limited period with the consequence that its potential liability, if any, would be so trivial as not to justify the maintenance of the proceedings. Alternatively, regulation 19 of the 2002 Regulations would provide Google Inc. with a defence if it were otherwise needed. 31. The applicant sought leave to appeal to the Court of Appeal. He argued that the High Court was wrong to conclude that Google Inc. was not a “publisher” at common law; that Google Inc. had an unanswerable defence under section 1 of the 1996 Act; and that Google Inc. had an unanswerable defence under regulation 19 of the 2002 Regulations. Although his arguments primarily focused on domestic law, at the end of his written grounds he argued that in interpreting regulation 19 of the 2002 Regulations, the right to freedom of expression in Article 10 of the Convention was not to be prioritised, that reputation was among the rights protected by Article 8, and that Article 8 and 10 rights were to be accorded equal weight. 32. Leave to appeal was granted and on 14 February 2013 the Court of Appeal dismissed the appeal. 33. With regard to the date of notification, the applicant had submitted that between 29 April 2011 and the letter of claim he had made various telephone calls to Google UK Ltd and sent two letters to that company’s office. However, the Court of Appeal noted that the transcript of the High Court hearing made it “tolerably clear” that he had been content to proceed on the basis that the date of notification of the complaint to Google Inc. fell between 5 July 2011 (when Google UK Ltd received his letter) and 8 July 2011 (when Google Inc. first contacted him by email). The court refused to admit fresh evidence in the form of the letters allegedly sent to Google UK Ltd since these documents could have been submitted for use at the hearing below. 34. The court further accepted the High Court’s findings as to the nature of the comments and agreed with its conclusion that comments A, B and D were arguably defamatory. 35. On the question of whether Google Inc. was a publisher, the court noted that the applicant’s pleaded case related to the period after Google Inc. had been notified of the complaint. It considered the High Court judge to have been wrong to regard Google Inc.’s role during this period as a purely passive one and to attach the significance he did to the absence of any positive steps by Google Inc. in relation to continued publication of the comments in issue. It explained: “24. By the Blogger service Google Inc. provides a platform for blogs, together with design tools and, if required, a URL; it also provides a related service to enable the display of remunerative advertisements on a blog. It makes the Blogger service available on terms of its own choice and it can readily remove or block access to any blog that does not comply with those terms ... As a matter of corporate policy and no doubt also for reasons of practicality, it does not seek to exercise prior control over the content of blogs or comments posted on them, but it defines the limits of permitted content and it has the power and capability to remove or block access to offending material to which its attention is drawn. 25. By the provision of that service Google Inc. plainly facilitates publication of the blogs (including the comments posted on them). Its involvement is not such, however, as to make it a primary publisher of the blogs. It does not create the blogs or have any prior knowledge of, or effective control over, their content. It is not in a position comparable to that of the author or editor of a defamatory article. Nor is it in a position comparable to that of the corporate proprietor of a newspaper in which a defamatory article is printed. Such a corporation may be liable as a primary publisher by reason of the involvement of its employees or agents in the publication. But there is no relationship of employment or agency between Google Inc. and the bloggers or those posting comments on the blogs: such people are plainly independent of Google Inc. and do not act in any sense on its behalf or in its name ...” 36. The court was also very doubtful that Google Inc.’s role was that of a secondary publisher, facilitating publication in a manner analogous to a distributor. It concluded that, in any event, such an argument could get nowhere in relation to the period prior to notification of the complaint in light of a long-established line of authority that a person involved only in dissemination was not to be treated as a publisher unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory. Since it could not be said that Google Inc. knew or ought reasonably to have known of the defamatory comments prior to notification by the applicant, Google Inc. could not be viewed as a secondary publisher prior to such notification. The court further found that even if it could be so regarded, it would have an unassailable defence during that period under section 1 of the 1996 Act. 37. As to Google Inc.’s position after notification, the Court of Appeal took a different view from the High Court. It considered that if Google Inc. allowed defamatory material to remain on a blog after it had been notified of the presence of that material, it might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of that material on the blog and thereby to have become a publisher of the material. However, such an inference could not properly be drawn until Google Inc. had had a reasonable time to remove the defamatory comments. The court considered it open to argument that the time taken to remove the comments after notification – over five weeks as regards comments A and B – was sufficiently long to give rise to such an inference. The claim could therefore not be dismissed on the ground that Google Inc. was clearly not the publisher. 38. It was accordingly necessary to consider the defence under section 1 of the 1996 Act. Here, while the Court of Appeal accepted that the conditions in subsections 1(a) to (c) were plainly satisfied in relation to the period prior to notification of the complaint, it was not persuaded that in the period after notification Google Inc. did not know, and had no reason to believe, that what it did caused the publication of a defamatory statement. The court was therefore not satisfied that, if Google Inc. were considered to be a publisher, it would have an unassailable defence under section 1 of the 1996 Act. 39. Nevertheless, the Court of Appeal found that the High Court was plainly right to conclude that the claim should not be allowed to proceed because both the damage and any eventual vindication would be minimal and the costs of the exercise would be out of all proportion to what would be achieved (in other words, that there had been no “real and substantial tort”). It explained: “50. ... The allegedly defamatory comments were posted between 28 and 30 April, soon after the initial blog of 27 April. By the very nature of a blog, they will have been followed by numerous other comments in the chain and, whilst still accessible, will have receded into history. As I have indicated, the earliest point at which Google Inc. could have become liable in respect of the comments would be some time after notification of the complaint in respect of them. But it is highly improbable that any significant number of readers will have accessed the comments after that time and prior to removal of the entire blog. It follows ... that any damage to the appellant’s reputation arising out of continued publication of the comments during that period will have been trivial; and in those circumstances the [High Court] judge was right to consider that ‘the game would not be worth the candle’. I do not accept [the] submission that various other features of the claim, including the fact that the appellant’s name is relatively uncommon and distinctive in this jurisdiction, undermined the judge’s conclusion.” 40. It followed that the appeal failed and, in the circumstances, it was unnecessary to consider whether Google Inc. would have had a defence under regulation 19 of the 2002 Regulations. 41. The applicant sought permission to appeal to the Supreme Court. He argued that the judgment of the Court of Appeal did not strike the correct balance between Articles 6, 8 and 10 of the Convention and unlawfully denied him access to a court and deprived him of the means to vindicate his Article 8 rights. 42. On 1 July 2013 the Supreme Court refused permission to appeal on the basis that the applicant did not raise an arguable point of law. 43. In order to become legally responsible for the publication of a defamatory statement, and therefore potentially liable in the tort of defamation, English law requires, as a minimum, knowing involvement in the process of publication of the relevant words: Bunt v. Tilley [2007] 1 WLR 1243. Accordingly, a person whose role is confined to the process of disseminating allegedly objectionable content is not to be treated as a “publisher”, in the sense required to give rise to potential liability in defamation, unless he knew or ought by the exercise of reasonable care to have known that the publication was likely to be defamatory. 45. The Defamation Act 1996 amended the law of defamation. Section 1 is headed “responsibility for publication” and provides, in subsection (1), that a person has a defence in defamation proceedings if he shows that: “(a) he was not the author, editor or publisher of the statement complained of, (b) he took reasonable care in relation to its publication, and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.” 46. Pursuant to section 1(2), “author”, “editor” and “publisher” have the following meanings: “‘author’ means the originator of the statement, but does not include a person who did not intend that his statement be published at all; ‘editor’ means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and ‘publisher’ means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.” 47. Section 1(3)(e) provides that a person shall not be considered the author, editor or publisher of a statement if he is only involved as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control. 48. Pursuant to section 1(5), in determining whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard must be had to: “(a) the extent of his responsibility for the content of the statement or the decision to publish it, (b) the nature or circumstances of the publication, and (c) the previous conduct or character of the author, editor or publisher.” 49. Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, which implemented the provisions of Article 14 of Directive 2000/31/EC of the European Parliament and of the Council dated 8 June 2000 relating to electronic commerce (see paragraph 55 below), provides: “Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where– (a) the service provider– (i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or (ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and (b) the recipient of the service was not acting under the authority or the control of the service provider.” 50. Under English law, a claimant normally requires the national courts’ permission to serve proceedings on a defendant who is domiciled outside the jurisdiction. A claimant may apply to the court for permission without giving notice to the prospective defendant. However, if permission is granted, the foreign defendant may apply to have the order set aside. 51. In Dow Jones & Co Inc v.Yousef Abdul Latif Jameel [2005] EWCA Civ 75 the Court of Appeal held that an application to set aside permission to serve defamation proceedings out of the jurisdiction could be granted on the basis that the publications complained of did not, individually or collectively, amount to “a real and substantial tort”. Although jurisdiction was no longer in issue in that case, the court further noted that it would be an abuse of process to continue to commit the resources of the English court, including substantial judge and possibly jury time, to an action where little was seen to be at stake. 52. In reaching this conclusion, the court observed: “There have been two recent developments which have rendered the court more ready to entertain a submission that pursuit of a libel action is an abuse of process. The first is the introduction of the new Civil Procedure Rules. Pursuit of the overriding objective requires an approach by the court to litigation that is both more flexible and more pro-active. The second is the coming into effect of the Human Rights Act. Section 6 requires the court, as a public authority, to administer the law in a manner which is compatible with Convention rights, insofar as it is possible to do so. Keeping a proper balance between the Article 10 right of freedom of expression and the protection of individual reputation must, so it seems to us, require the court to bring to a stop as an abuse of process defamation proceedings that are not serving the legitimate purpose of protecting the claimant’s reputation, which includes compensating the claimant only if that reputation has been unlawfully damaged.” 53. In Mohammed Hussein Al Amoudi v. Jean Charles Brisard And Jcb Consulting International Sarl [2006] EWHC 1062 (QB) the High Court found no basis for concluding that a claimant in a libel action on an Internet publication was entitled to rely on a presumption of law that there had been substantial publication. Rather, the claimant had to prove publication from the Internet either to identifiable third parties or by asking the court to draw an inference based upon facts admitted or proved. 54. On 28 May 2003, at the 840th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted a Declaration on freedom of communication on the Internet. According to Principle 6, “In cases where the functions of service providers are wider and they store content emanating from other parties, member states may hold them co-responsible if they do not act expeditiously to remove or disable access to information or services as soon as they become aware, as defined by national law, of their illegal nature or, in the event of a claim for damages, of facts or circumstances revealing the illegality of the activity or information.” 55. Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) provides, insofar as relevant: 1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information. 2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider. 3. This Article shall not affect the possibility for a court or administrative authority, in accordance with Member States’ legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for Member States of establishing procedures governing the removal or disabling of access to information. 1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. 2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.” 56. A Joint Declaration by the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression, adopted on 21 December 2005, stated the following: “No one should be liable for content on the Internet of which they are not the author, unless they have either adopted that content as their own or refused to obey a court order to remove that content.” | 0 |
test | 001-171498 | ENG | UKR | COMMITTEE | 2,017 | CASE OF KIYASHKO v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Erik Møse;Yonko Grozev | 4. The applicant was born in 1955 and lives in Poltava. 5. On 16 September 2004 the applicant, who at that time was undergoing inpatient medical treatment in a psychiatric hospital, was arrested in connection with an offence of fraud. 6. On 6 October 2006 the Kyivskiy District Court of Poltava found the applicant guilty of having committed fraud as part of a group, and sentenced him to five years’ imprisonment. 7. On 14 September 2007 and 20 January 2009 the Poltava Regional Court of Appeal and the Supreme Court of Ukraine respectively upheld that judgment. 8. From 4 October 2004 to 2 October 2007 the applicant was detained in Poltava Pre-Trial Detention Centre no. 23 (“the SIZO”). 9. During his detention in the SIZO in Poltava, the applicant was held in various cells of the same type. Each cell measured 7 sq. m. and was occupied by three to four people. The window was covered by a metal shield and metal bars, preventing daylight and fresh air from reaching the cell. There was no ventilation in the cell, and most of the detainees were smokers. In the summer it was extremely hot, and this forced everyone to wear very little clothing, and during the winter it was very cold. The light in the cell was very poor, with only an electric bulb of 25-40W positioned above the front door. It was always switched on. A centrally operated radio loudspeaker was constantly on from 6 a.m. to 10 a.m., playing loud and unvaried music. Detainees had no access to television or newspapers. 10. The cells had poor sanitary conditions and were infested with rats, mice, bedbugs, lice, spiders and cockroaches. They were very damp and the walls were covered with mould and stained with smoke. The toilet was not separated from the living area, had no flush, and emitted a foul smell that lingered in the air. Detainees were forced to eat their meals in close proximity to the toilet. No toiletries, apart from soap, were distributed to them. Bed linen was issued once and for the whole period of detention, which was three years in the applicant’s case. His mattress was dirty and torn. The food was of poor quality, often made from products which had spoiled, and was unvaried. It smelled bad. No meat, fresh fruit or vegetables were provided. Detainees were allowed to take a shower once every seven to ten days, or even once a fortnight, and then only for ten to fifteen minutes. In order to get to the shower area or investigation rooms, or to be transferred to court, detainees had to pass through an underground tunnel which had poor lighting and was flooded with sewage. The shower was dirty and the water flow could not be adjusted. The floor was flooded with dirty water, as the drainage system did not work properly. The hairdresser at the SIZO used the same hair clippers on all of the detainees, without disinfecting them. Only one pair of scissors was available for cutting their nails, and these were also not disinfected. The applicant’s cellmates were often suffering from tuberculosis, hepatitis, and scabies, or were HIV-positive. 11. Outside walks were at the discretion of the SIZO authorities. Sometimes they took place every other day, and sometimes they took place once a week. 12. On 9 June 2006 the applicant slit his wrists in protest against the conditions of detention. 13. From 19 to 26 April 2007 the applicant was placed in a disciplinary cell. The cell had a concrete floor and was flooded with cold water in order to make him suffer more. As a result, he got a fever and had to spend a week at the SIZO’s medical unit. No food or hot water was provided. 14. On unspecified occasions in 2007 the applicant was taken to court for hearings or to examine his case file. On each occasion his journey took a whole day. He did not receive any food or water during the trips. He was transported in a prison van, which was originally designed to carry a maximum of ten passengers, but which actually contained fifteen to eighteen detainees whose hands were handcuffed behind their backs. Before being placed in the van, the detainees were held in a small, airless and smoky preliminary reception cell. Upon returning to the detention facility, the detainees had to wait for a long time in the van before being transferred to the preliminary reception cell, where they also had to wait to be escorted to their cells. It was very cold in the prison van in winter and hot in summer. During the court hearings the applicant was not taken to the toilet. He had to take an empty plastic bottle with him so that he could relieve himself during hearing breaks. 15. To support his application, the applicant submitted, inter alia, photos showing the poor sanitary conditions of different cells he claimed to be cells in the SIZO. He also presented written statements from his cellmates. 16. The Government submitted that the conditions of the applicant’s detention in the SIZO had been adequate, mainly referring to the statutory regulations on detention. They argued that the applicant had been held in seventeen cells of the same type during his detention in the SIZO, and it was unclear which of them he was referring to in his complaint to the Court. The Government provided no details as to the exact size of the cells, but stated that an inspection carried out at some point after the complaint had been communicated to the Government had determined that each cell in the SIZO allowed each detainee at least 2.5 sq. m of personal space, which was in compliance with the relevant domestic standards. A toilet was located in the corner of each cell, separated from the living area by fixed partitions. The windows were protected by metal bars, and allowed daylight and fresh air to reach the cells. All cells were equipped with artificial ventilation and lighting, as well as a radio. The food the applicant received met the standards set by domestic law, and he was provided with bedding in accordance with the relevant regulations. 17. The Government further denied that there had been rats and insects in the cells, as three times a year thorough measures against rats were implemented and the entire SIZO facility was disinfected. The statutory regulations also provided that the SIZO detainees had weekly access to bathing facilities. The conditions of those facilities were appropriate. Toiletries were available at the SIZO shop, which the applicant was free to use. The applicant’s right to a one-hour daily walk was never breached. 18. The Government could not provide any information about the dates and conditions of the applicant’s transport to and from the court hearings, because the time-limit for keeping the relevant documents had expired and the records had been destroyed. However, they provided a description of the general transport arrangements and advised that prison vans had been in use in 2004-2007. The vans were designed to accommodate twenty-one people in three compartments (two larger ones and one designed for single occupancy). The vans had no windows, but they were equipped with ventilation grills and had metal bars integrated in the lower and upper part of the vehicle door. The Government further submitted that, on average, it took up to ten minutes to transport detainees from the SIZO to the Oktyabrskiy District Court of Poltava (a distance of 7 km), and about twenty minutes to transport them to the Kyivskiy District Court of Poltava (a distance of 10 km). The latter court was not equipped with a room for defendants, and the detainees were therefore held in the courtroom. They were able to use public toilets. At the Oktyabrskiy District Court of Poltava the detainees were kept in the rooms for defendants, which were equipped with all the necessary sanitary facilities. 19. From 2 October 2007 to 22 September 2009 the applicant was serving his sentence in Kremenchuk Correctional Colony no. 69 (“the prison”). 20. Upon his arrival, the applicant was put in the admission ward (карантин) for fourteen days. The cell measured 13 sq. m and accommodated ten to twelve prisoners. Some of them were suffering from HIV and tuberculosis. There was no daylight in the cell, as the only small window was covered with metal bars, and a grid was attached to it from the outside. The artificial light in the cell was very poor, and there was only an electric bulb of 40W. It was always switched on. There was no natural or artificial ventilation in the cell. The toilet was not separated from the living area, had no flush, and emitted a foul smell that lingered in the air. The cell was infested with rats, mice and cockroaches. Outside walks did not take place on a daily basis, but at the discretion of the prison authorities, and lasted about twenty to thirty minutes. 21. During his time in the prison, the applicant was placed in the admission ward four times, each time for fourteen days. 22. The applicant was placed in disciplinary cells three times: from 17 to 22 January 2009, from 2 to 17 March 2009, and from 25 March to 26 June 2009, and on some occasions with people who were suffering from tuberculosis. The cells were dark, damp and cold. The toilet had no flush and emitted a smell. Outside walks lasted about twenty to thirty minutes and took place in very small yards on and under the prison roof, and were allowed to take place three times per week. Once per week the applicant had access to a shower. There was no hot water in the shower and the floor was flooded with dirty cold water. No visits or exchanges of correspondence were allowed. The applicant’s plank bed was chained to the wall from 5 a.m. to 9 p.m., so he had to stand during this time, although this went against his medical prescription. There was no chair in the cell and his walking stick was taken away. 23. The applicant spent the remainder of his sentence in the sociopsychological unit of the prison (unit no. 5) in the following conditions. 24. His cell measured 120 sq. m and accommodated seventy to eighty prisoners. Many of them were HIV-positive, suffering from tuberculosis, hepatitis and fungal diseases. The cell was dirty and infested with parasitic insects. The light in the cell was very poor, with eight electric bulbs of 40W, half of which did not work. The artificial ventilation in the cell did not work, and most of the prisoners were smokers. In summer it was extremely hot in the cell and during the winter it was very cold. The prisoners had to cook their food using an open flame, because of power cuts in the unit from 7.30 a.m. to 5 p.m. 25. No disinfection products were available, and all cellmates shared water containers, scissors and a needle. Shower, toilets and dining rooms were also in an unhygienic state. The toilets had no flush and emitted a foul smell. The food was of poor quality and was often made from products which had spoiled. 26. Prisoners could use the showers once a week. The bathroom was equipped with fifteen shower taps and it was not possible to adjust the water flow or temperature. 120-150 prisoners had only one hour to complete the whole process, including getting to the bathroom, which was 700 metres away from the cell. Thus, ten prisoners had to share one shower tap at the same time. The floor was flooded with dirty water, as the drainage system did not work properly. The hairdresser at the prison used the same hair clippers on all the prisoners, and these were not disinfected. 27. To support his allegations, the applicant submitted photos which he claimed were of a disciplinary cell and the exercise yards of the prison. He also referred to interviews former prisoners had given to newspapers, in which they provided, inter alia, a similar description of their detention conditions, including the disciplinary cells. In order to support this part of his application, the applicant also made reference to a complaint to an MP by his former cellmate, who was HIV-positive, and to the newspaper articles mentioned above, which contained interviews with other prisoners. Lastly, he relied on a report by the Ombudsman regarding the general unsatisfactory detention conditions of prisons in Ukraine. 28. The Government referred to the statutory regulations governing detention in particular types of cells, and submitted the following. 29. The quarantine cell at the prison measured 27 sq. m and could accommodate up to twelve prisoners. It had two windows, which were not covered with metal bars and could be opened at any time. Four artificial ventilation channels were also available. The artificial light in the cell was ensured with two electric bulbs of 100W and one of 40W. The cell was disinfected on a daily basis and measures against rats were implemented no less than twice a year. The duration of daily outside walks was not less than two hours. 30. The isolation unit consisted of eight disciplinary cells, two of which were for prisoners suffering from tuberculosis. The concrete floor of all the isolation wards was covered with wooden planks. An appropriate temperature in the cells was ensured by radiators, and daily outside walks lasted not less than an hour. 31. Each prisoner in unit no. 5 had about 2.2 sq. m of living space. The number of beds corresponded to the number of prisoners, and two prisoners shared one bedside table. HIV-positive prisoners, as well as those suffering from tuberculosis, were held separately from healthy prisoners. The unit had four windows, which could be opened to let in fresh air; artificial ventilation was also available. Artificial light in the cell was ensured with eight electric bulbs of 100W and two of 40W, and the temperature in the unit was never lower than 18˚C. Smoking was only allowed in smoking areas, and those who breached the rules faced administrative punishment. The Government denied the applicant’s allegations that there had been power cuts and that the prisoners had had to use an open flame to prepare their food. In this respect, they argued that cooking in the unit had been prohibited by law. 32. Prisoners were provided with soap and could buy other necessary toiletries, such as toilet paper, toothbrushes and toothpaste, at the prison shop, as the relevant regulations made no provision for these items to be provided by the State. Prisoners had access to bathing facilities once a week, and could use the services of a hairdresser. The hairdresser’s tools were disinfected. The quality and quantity of the food corresponded to the domestic standards, and no cases of poisoning had been registered. 33. In 1996 and 1998 the applicant sustained head injuries, and in 2004 he suffered spinal trauma. As a result, he experienced neurological dysfunction and his eyesight deteriorated. When arrested, the applicant was undergoing inpatient medical treatment for his health problems at a psychiatric hospital. 34. On 5 October 2004, upon his arrival at the SIZO, the applicant underwent an initial medical examination by a general practitioner, a psychiatrist, a dentist, a dermatovenereologist, and a tuberculosis specialist. He also had an X-ray. No particular health problems were noted. 35. According to the applicant, from January 2006 onwards he started experiencing severe pain in his back and legs, and he sought assistance from the medical unit at the SIZO. 36. On 22 February 2006 the applicant was examined by a neurologist from Poltava Hospital no. 1. The applicant’s mother arranged the appointment with the neurologist, as the SIZO did not have the relevant medical specialist. He was diagnosed with severe after-effects of closed head injuries (in 1996 and 1998), stomping gait syndrome, post-traumatic spinal osteochondrosis, and vertebrogenic left-side polyradiculitis, and was prescribed treatment (нейровітан, тіоцетам). 37. On 23 February 2006 the applicant had an X-ray of his spine and was diagnosed with post-traumatic osteochondrosis and spondylarthrosis deformans. 38. On 10 March 2006, following an X-ray, the applicant was diagnosed with early arthrosis of the left knee. 39. On unspecified dates in March 2006 the applicant underwent inpatient treatment at the SIZO medical unit on account of his neurological problems and vegetative-vascular dystonia, chronic gastroduodenitis, myopia, and arthrosis of the left knee. 40. On 26 March 2006 the applicant was registered with a psychiatrist as a result of his going on hunger strike (from 26 March to 12 October 2006) and self-harming (9 June 2006), and he was regularly examined by the psychiatrist. 41. On 13 April 2006 the applicant was examined by a general practitioner at the SIZO. 42. On 15 April 2006 the applicant had an X-ray and was diagnosed as having ribs which were too close together. 43. On 12 October 2006 the applicant was examined by the head of the neurological department of the hospital located at prison no. 100. He was diagnosed with osteochondrosis of the lumbar spine, right-sided lumbodynia, radicular pain syndrome, the after-effects of head injuries, asthenoneurotic syndrome, and toxic polyneuropathy. He was prescribed treatment (пентоксифілін, піроксікам, нейровітан). 44. On 27 October 2006 the applicant had an X-ray of his chest and was found to be healthy 45. On 1 November 2006 the applicant was given a walking stick. 46. Between 20 February and July 2007 the applicant was examined by a psychiatrist, a surgeon and a general practitioner. They confirmed the earlier diagnosis relating to the problems with his spine. 47. On 26 July 2007 the applicant was examined by a tuberculosis specialist and was found to be healthy. 48. On 6 September 2007 the applicant was examined by a neurologist from Poltava Hospital no. 1. His mother had arranged the appointment. The neurologist confirmed the diagnosis of 22 February 2006 and prescribed treatment (діклак, нейровітан). 49. After his transfer to the prison on 2 October 2007, the applicant had a medical examination which confirmed the previous diagnosis. He was advised to undergo inpatient treatment at the neurological department of the hospital at prison no. 100. He stayed at the hospital from 6 to 27 November 2007 and from 12 to 26 February 2008. 50. On 22 February 2008 the applicant was classified as having group III disability status (group III being the least severe category). He was expected to remain in this category for one year. 51. On 27 February 2008 the applicant was diagnosed with chronic hepatitis C. 52. On 11 March 2008 the applicant decided to have an HIV test. According to the results of this test dated 26 March 2008, the applicant had HIV antibodies. He was also diagnosed with persistent generalised lymphadenopathy and registered as an HIV-positive person. 53. On 10 April 2008 the applicant had an X-ray of his chest and was found to be healthy. 54. On 12 June 2008 the prison authorities informed the applicant about the results of the HIV test. According to the applicant, the authorities tried to conceal the situation, and he lodged a number of complaints in order to find out about the test results. 55. In July and August 2008 the applicant complained to different authorities that, despite his requests, no further measures had been taken to specify his diagnosis and provide him with the relevant medical treatment. 56. On 21 August 2008 the applicant was examined by an infectious disease specialist. He was diagnosed with clinical stage 2 HIV and persistent generalised lymphadenopathy. It was decided that he should be transferred to the hospital at Daryivska Correctional Colony no. 10 in the Kherson Region, which specialised in HIV treatment (“the HIV Treatment Facility”), in order to decide whether he had to have antiretroviral therapy (ART). The applicant was further prescribed a CD4 cell count at Poltava City Aids Prevention and Control Centre (“the AIDS Centre”) on 8 October 2008. The Court has not been informed of the results of that test, if any exist. 57. From 14 October to 13 November 2008 the applicant had a medical examination at the HIV Treatment Facility. 58. On 1 February 2009 the applicant was diagnosed with a chronic duodenal ulcer at an acute stage. 59. On 27 February 2009 he was further diagnosed with HIV, chronic compensated hepatitis, a chronic duodenal ulcer in remission, chronic cholecystitis and pancreatitis in remission, and the after-effects of closed head injuries. 60. On 25 March 2009 the applicant was rediagnosed with clinical stage 1 HIV. 61. On 3 April 2009 the applicant was examined by a neurologist, who confirmed the earlier diagnosis. 62. From 27 June 2009 until an unspecified date the applicant had medical treatment at the HIV Treatment Facility on account of his clinical stage 2 HIV, onychomycosis of the feet, vertebrogenic radiculopathy in unstable remission, toxic polyneuropathy, slight myoparesis of the feet, tardive after-effects of closed head injuries, chronic viral hepatitis B in remission and duodenal ulcer in remission. 63. On 8 July 2009 the applicant was reclassified as having group III disability status for another year, on account of the diagnosis relating to his central nervous system. 64. On 20 July 2009 the applicant was rediagnosed with clinical stage 2 HIV and onychomycosis of the feet. 65. On 20 August 2009 the applicant was diagnosed with a duodenal ulcer in remission and chronic hepatitis in remission. 66. On 22 September 2009, upon being released from the prison, the applicant was declared to be in a satisfactory state of health. He was advised to register with an infectious disease specialist based near his home. 67. In September 2009 the applicant consulted a neuropathologist, a surgeon and an eye specialist. He was diagnosed with second-degree discirculatory encephalopathy, vestibular-atactic and cephalic syndromes, spinal osteochondrosis, radiculopathy with slight paresis of the right foot, stage 1-2 arthrosis of the knee, hyperopia, phacosclerosis, retinal angiopathy and amblyopia of both eyes. 68. On 15 October 2009 the applicant was also diagnosed with chronic hepatitis B, a chronic duodenal ulcer in unstable remission, chronic bronchitis and cardiosclerosis. 69. In November 2009 the applicant had a CD4 cell count, the result of which was 761 cells. On 14 December 2009, at the AIDS Centre, the applicant was diagnosed with clinical stage 2 HIV, recurrent infections of the lower respiratory airways, tuberculosis, chronic viral hepatitis C and a chronic inflammation of the gallbladder. Following this examination, the applicant received unspecified medical assistance at the AIDS Centre and was advised to go before a medical commission which could decide on his assignment to a disability group. 70. On 13 January 2010 the applicant was classified as having group II disability status. On 31 January 2013 he was confirmed as having this status. 71. Referring to, inter alia, the medical evidence he had submitted to the Court, the applicant alleged that his health had seriously deteriorated while he was in detention, in particular owing to the poor conditions of his detention, combined with the absence of medical care. 72. The Government stated that the medical assistance provided to the applicant throughout his detention had been adequate. They provided no medical evidence in this regard, mainly referring to the fact that the SIZO registers for the relevant years on medical assistance provided to detainees by the SIZO medical specialists had been destroyed because the time-limit for keeping those documents had expired. 73. At the same time, the Government provided some factual information regarding some of the applicant’s medical examinations in both detention facilities. These submissions appear to be based on the information contained in a reply to the applicant’s complaint regarding the lack of medical treatment in prison, which was given by a prosecutor in 2008. The Government asserted that the relevant medical documents had been studied by prosecutors during their inquiries into the applicant’s complaints regarding the lack of medical assistance, and no proof had been found. | 1 |
test | 001-177494 | ENG | MLT | ADMISSIBILITY | 2,017 | BORG v. MALTA | 4 | Inadmissible | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano;Georges Ravarani | 1. The applicant, Mr Darryl Luke Borg, is a Maltese national who was born in 1986 and lives in Birkirkara. He was represented before the Court by Dr D. Camilleri and Dr J. Gatt, lawyers practising in Valletta. 3. The applicant suffered from Attention-Deficit Hyperactivity Disorder (hereinafter referred to as “ADHD”), and was the subject of a treatment order. In view of the treatment order, he was being kept at Mount Carmel Hospital (the State mental health hospital). 4. On 4 August 2013 a shop in Birkirkara, Malta, was burgled. 5. On 6 August 2013 the applicant was arrested by the police on suspicion of committing the burglary in question. The applicant was questioned at police headquarters and detained overnight. 6. On 7 August 2013, the applicant was arraigned before the Court of Magistrates (as a Court of Criminal Inquiry) charged with aggravated theft and other related offences. During the arraignment procedure the applicant requested that he be released on bail, but this was refused. Since the applicant was the subject of a treatment order, the court ordered that he be kept under arrest at the Forensic Section of Mount Carmel Hospital. However, the applicant was kept under arrest at the Corradino Correctional Facility rather than the hospital. 7. On 9 August 2013, the applicant’s lawyers became aware that on 8 August a certain R.G. had admitted committing the burglary in Birkirkara (of which the applicant had been accused), and that that person had, on the 9 August, confirmed his admission before the Court of Magistrates. On the same day, the applicant applied to the Court of Magistrates to be released on bail. 8. Later on 9 August 2013, the police inspector who had arrested the applicant was informed of R.G.’s arrest for the same incident the applicant had been accused of, and that R.G. had admitted to committing the crime. The inspector communicated later that day with the Attorney General (hereinafter referred to as “the AG”), who directed him to submit an urgent application to the Court of Magistrates for the applicant’s release. 9. At 6.00 p.m. that day, in the light of the applicant’s and the police’s applications for his release on bail, the Court of Magistrates ordered the applicant’s conditional release against a personal guarantee of 7,000 euros (EUR). He was forbidden to leave the country, approach witnesses or commit any other crimes. He was also obliged to sign in at the police station every day and a curfew was imposed from 10 p.m. to 8 a.m. 10. On 12 August 2013, the police withdrew the charges against the applicant. According to the applicant, he lost his right to the treatment order at Mount Carmel Hospital as a result of the arrest and arraignment. 11. On 14 August 2013, the applicant filed proceedings before the Civil Court (First Hall) in its constitutional jurisdiction. He argued that he had been arraigned without there having been a reasonable suspicion against him. Moreover, on the basis of that arraignment he had been denied release on bail. The applicant further submitted that the Commissioner of Police, despite realising that the applicant had been detained for no reason (because R.G. had admitted to committing the crime the applicant had been accused of), had failed to withdraw immediately the accusations against the applicant. In the applicant’s view, all those facts, either taken together or separately, had resulted in an infringement of his right to liberty under the Convention and the Constitution. 12. On 27 June 2014, the Civil Court (First Hall) in its constitutional jurisdiction found that the applicant had not suffered any violation of his rights. The costs of the proceedings were to be paid by the applicant. 13. The court held that it would not substitute its own discretion for that of the police. Its role was to analyse whether the police could have had a reasonable suspicion that the applicant had committed the crime, in the light of the evidence they had had before them at the time they had made the decision to arrest and eventually arraign the applicant. It noted firstly that when the applicant had been arraigned he had failed to contest the validity of his arrest. In determining whether the police could have had a sufficiently reasonable suspicion, the court considered factors, including, but not limited to: the fact that the police had received a tip-off/confidential information that the applicant had committed the crime; CCTV footage of the shop that had been held-up and CCTV footage of some of the neighbours of the shop. According to the court, in the light of other information the police had had in its possession, it had been reasonable for them to conclude that the person seen in the footage was the applicant, especially given the similar build and hair style. Indeed, once the police had seen the applicant in person they had confirmed that he looked like the person in the CCTV footage. Moreover, the court noted that, according to the police, the applicant’s mother had failed to confirm that her son had been at home at 9 p.m. (the time of the commission of the offence), leading the chief investigator to believe that he had no alibi for the time of the crime. Also, the police had found out that on the weekend where the burglary occurred the applicant had been on leave from the hospital. In addition, the applicant’s past had been taken into account, including: the fact that the applicant was known to the police as a person taking drugs; that he had ongoing proceedings against him for theft with aggravated assault allegedly committed in March 2013; and that he had previously been found guilty of crimes related to theft and drug abuse. Furthermore, the police had discovered that on the day of the hold-up the applicant had argued with his mother about money and drugs-related issues. Taking all those factors into account, the Civil Court (First Hall) in its constitutional jurisdiction confirmed the existence of a reasonable suspicion and thus a justification for the arrest. 14. It also concluded that the Court of Magistrates’ refusal to grant the applicant release on bail had not been unreasonable. The Court of Magistrates had considered the applicant’s regular visits to Mount Carmel Hospital; his past involvement in crimes involving violence; and factors associated with the risk and gravity of the crime at issue. 15. With regard to the applicant’s complaint that the criminal proceedings against him had not been withdrawn immediately upon R.G.’s arrest and admission to the crime, the court noted that the only person who could have shed light on what had happened was the inspector, but he had not been produced as a witness. Nevertheless, based on the evidence before it, the court observed that as soon as the inspector who had carried out the applicant’s arrest had found out that another person (R.G.) had been arrested for the same crime, he had requested direction from the AG. The inspector had then proceeded to submit an urgent application to the Court of Magistrates for the applicant’s release. The first time a third person had come into the scene had been on 9 August 2013, when R.G. had been arraigned. The applicant had been released from detention later the same day. In the light of those facts the court concluded that there had been no failings by the police. It noted that Article 5 concerned protection from arbitrary arrest or detention and that the applicant had been released on 9 August 2013. The fact that the accusations against the applicant had only formally been withdrawn on 12 August 2013 did not raise any issue under Article 5 of the Convention or Article 34 of the Constitution. 16. On 11 July 2014, the applicant lodged an appeal with the Constitutional Court. He reiterated his claims and argued, inter alia, that there had been no reason for the Court of Magistrates to fear that he would not attend court proceedings, or that he would in any way influence the proceedings against him because he had been undergoing a treatment order at Mount Carmel Hospital. The applicant also stated that the police had found out about R.G.’s involvement in the hold-up on 8 August 2013 but had waited until 9 August 2013 (when R.G. had been arraigned before the Court of Magistrates and had pleaded guilty to the charges) to take action towards remedying the applicant’s situation. He argued that the police were obliged to remedy a situation of unlawful detention as soon as they became aware of it, as was also contemplated under Article 137 of the Criminal Code. He complained that as a result of their delay he had spent an extra day in detention and had later been subject to conditional release. 17. The Constitutional Court upheld his claims in part. It found a violation of the applicant’s rights as protected under Article 5 § 1 (c) of the Convention and Article 34(1)(f) of the Constitution for the limitation of liberty the applicant had suffered between 9 August and 12 August 2013, but rejected his other complaints. It awarded him EUR 150 as compensation for non-pecuniary damage. 18. The Constitutional Court confirmed the first-instance court’s finding in respect of the existence of a reasonable suspicion justifying arrest which had persisted until the applicant’s arraignment before the Court of Magistrates. The applicant had thus not suffered a violation of his rights protected by Article 5 § 1 (c) of the Convention during that period. 19. The Constitutional Court considered that until 9 August 2013 the applicant’s situation had remained the same as on 7 August 2013. However, it had changed on 9 August 2013, when a third party had been arraigned before the Court of Magistrates for the same crime. The Constitutional Court observed that as soon as the inspector responsible for the applicant’s arrest had been informed that another person had been arrested for the same offence the inspector had taken action. On the same day, as requested by both the police and the applicant himself, the Court of Magistrates had ordered the applicant’s conditional release. The applicant had been released later that day, against a personal guarantee. The Constitutional Court found that the amount of time that had passed between the third party being arrested and the applicant’s release had been reasonable. Therefore, the applicant’s detention until his release on 9 August 2013 had not been arbitrary and had not violated his rights protected under Article 5 § 1 (c). 20. According to the Constitutional Court, the same could not be said of the period between 9 and 12 August 2013, during which the prosecution had no longer held a reasonable suspicion against the applicant. At that point, the restriction of liberty had, according to the Constitutional Court, no longer been justified under Article 5 § 1 (c) of the Convention. 21. In awarding compensation, the Constitutional Court considered that the applicant had contributed to the violation himself by only requesting conditional release on 9 August 2013, rather than unconditional release. The court ordered the applicant to pay three-quarters of the costs of the proceedings before the first-instance court and the Constitutional Court and the Commissioner of Police to pay one-quarter. | 0 |
test | 001-180288 | ENG | ROU | CHAMBER | 2,018 | CASE OF CIOCODEICĂ v. ROMANIA | 3 | No violation of Article 13+P1-1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1969 and lives in Timişoara. 6. In 2004 the applicant lodged a civil action against her employer, a private company, C.G.H.T. (“the company”), seeking the revocation of its decision of 17 October 2003 to dismiss her, and claiming various salary entitlements. 7. On 29 April 2004 the Timiș County Court dismissed her action as illfounded. The applicant appealed. 8. In a final judgment of 29 September 2004 (“the judgment”), the Timișoara Court of Appeal allowed the applicant’s appeal. It ordered the company to revoke its dismissal decision and to pay the applicant pecuniary damages in the form of all her salary entitlements from 17 October 2003 until the pronouncement of the final judgment, updated and index-linked. The domestic court also awarded the applicant the costs and expenses incurred in the proceedings. 9. On 15 November 2004 the Timiș County Court validated the judgment (învestire cu formulă executorie), pursuant to Article 374 of the Romanian Code of Civil Procedure (hereinafter “the RCCP”), as in force at the time (see paragraph 37 below). 10. The applicant instituted enforcement proceedings on 21 January 2005, requesting the bailiffs’ office M.S.R. & S.A.I. (“the bailiff”) to enforce the judgment. 11. On 26 January 2005 the bailiff issued a notice of payment (somație) and served it on the company. 12. According to a report of 11 February 2005 issued by the bailiff, the bailiff and the applicant’s lawyer visited the company’s premises. As the company’s legal representative was not present, the bailiff granted the company a further five days in which to execute the final judgment of their own accord. 13. However, the company refused to fulfil its obligations. Moreover, it lodged a complaint seeking to have the enforcement proceedings annulled, pursuant to Article 399 of the RCCP, as in force at the time (see paragraph 39 below). During those proceedings and at the company’s request, on 24 February 2005 the Timișoara District Court ordered the suspension of the enforcement proceedings until a final judgment was given; the suspension was made subject to payment of a deposit of 4,000,000 Romanian lei (ROL), namely approximately 90 euros (EUR). 14. In response, on 16 May 2005 the applicant brought urgent proceedings seeking to have the impugned suspension lifted. She argued that the matter was urgent because she needed to obtain the salary entitlements that would allow her to provide for herself and her infant. 15. In a judgment of 18 May 2005 the Timișoara District Court dismissed the applicant’s request, holding that she had not proved the existence of any imminent damage, so as to justify the urgency of the request. 16. On 2 June 2005 the Timișoara District Court allowed the company’s complaint against the enforcement proceedings. The court held that the procedural requirements had not been thoroughly complied with in so far as the bailiff had failed to serve the company with a copy of the enforceable judgment. 17. The applicant lodged an appeal on points of law against the court’s judgment. On 6 October 2005 the Timiș County Court dismissed the applicant’s appeal on points of law as ungrounded. The first-instance judgment thus became final. 18. The company lodged another request seeking to obtain the annulment of the restriction order (anularea măsurii de poprire) issued by the bailiff in respect of its bank accounts. On 21 April 2005 the Timișoara District Court allowed the request, in so far as the restriction order had been issued subsequent to the suspension of the enforcement proceedings ordered by the court (see paragraph 13 above). 19. In the meantime, on 29 June 2005, the bailiff issued another notice of payment. On 4 July 2005 it was posted, together with the enforceable judgment, at the company’s main entrance. 20. On 2 November 2005 the bailiff received a letter from the applicant, in which she enquired whether the company had complied with the outstanding judgment. The bailiff replied in the negative on 4 November 2005. 21. In so far as this was the last exchange of information between the applicant and the bailiff concerning the impugned enforcement procedure, and in view of the obligations imposed by law on the creditor, who was required to play a constantly active role throughout the enforcement procedure, on 28 May 2007 the bailiff issued an official report, noting that, under Article 389 of the RCCP as in force at the time, the procedure had become time-barred (“perimarea executării”; see paragraph 38 below). It is not clear whether that report was communicated to the applicant or not. 22. On 5 May 2005 the applicant lodged a complaint before the Timișoara District Court seeking to obtain a court order for immediate enforcement of the judgment, pursuant to Article 5803 of the RCCP as in force at the time (see paragraph 40 below). 23. In a decision of 18 August 2005 the Timișoara District Court allowed the applicant’s complaint and ordered the company to pay a coercive fine of ROL 500,000 per day until it fulfilled its obligations. 24. An appeal by the company against that decision was allowed on 16 December 2005 by the Timiş County Court. The court held that the coercive fine had the nature of a civil penalty aimed at securing the enforcement of a personal obligation which could not be otherwise executed, as provided for by Article 5803. However, the payment of the company’s debt could be enforced with the assistance of a bailiff; therefore the applicant’s complaint was ill-founded. 25. On 12 July 2005 the applicant complained to the Minister of Justice about the outcome of the judgment of 2 June 2005 (see paragraph 16 above). The complaint was lodged under the provisions of Law no. 303/2004, defining the framework for judges’ disciplinary and criminal responsibility and the specific authorities empowered to initiate such proceedings. 26. On 24 August 2005 the applicant’s complaint was forwarded to the Timișoara Court of Appeal. On 5 September 2005 the Timișoara Court of Appeal noted that the impugned proceedings had been terminated by a judgment that was final and therefore not subject to appeal. 27. In 2005 the applicant complained to different State authorities that the company’s representatives had failed to execute the judgment. She relied on Articles 277, 278 and 280 of the Labour Code and Article 83 of Law no. 168/1999 regarding the resolution of labour disputes (see paragraphs 43-44 below). 28. On 5 December 2006 a criminal investigation was initiated against M.D., the company’s administrator, for refusal to execute the judgment. On 4 February 2008 the prosecutor’s office at the Timișoara District Court decided to discontinue the proceedings against M.D. and fined him RON 1,000, namely approximately EUR 250. The prosecutor investigating the case found that M.D.’s actions could not be classified as an offence. 29. A complaint lodged by the applicant against that decision was dismissed on 8 April 2008 by the senior prosecutor at the Timişoara District Court. 30. On 2 June 2008 both the applicant and M.D. appealed against the prosecutors’ decisions before the Timişoara District Court. The court dismissed both appeals on 17 October 2008. It held that the applicant’s appeal had been lodged outside the time-limit. With regard to M.D.’s appeal, it reiterated that even though he had not executed the judgment, his actions could not be classified as an offence and, therefore, the administrative fine had been fair. 31. In a final judgment of 28 January 2009 the Timiş County Court dismissed appeals on points of law lodged by the applicant and M.D. 32. On 5 August 2014 the company’s two shareholders decided that the company should be liquidated (dizolvare), in accordance with the provisions of Law no. 31/1990 on trading companies. At their request, the Companies Registration Office (Oficiul Registrului Comerţului) decided on 7 August 2014 to publish the shareholders’ decision in the Romanian Official Journal. The decision was published on 26 August 2014, in accordance with the provisions of Emergency Government Ordinance no. 116/2009 regulating the registration of specific acts in the companies register (see paragraph 48 below). 33. It was noted in an accounting report drawn up on 30 August 2014 that the company’s only creditors were the two shareholders. 34. On 10 October 2014 one of the shareholders asked the Companies Registration Office to strike the company off the register. The request was granted on the same day, and the Companies Registration Office decided that the decision would be published in the Romanian Official Journal. 35. No appeal was lodged against the decisions taken by the Companies Registration Office in respect of the company. | 0 |
test | 001-159803 | ENG | RUS | CHAMBER | 2,016 | CASE OF SALAMOV 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;George Nicolaou;Helen Keller;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1960 and lives in Grozny, Chechnya. 6. In early October 1999 the Russian Government launched a counter-terrorist operation in the Chechen Republic. 7. On 14 December 1999, during an identity check, military servicemen seized a truck (and the registration papers) from the home of the applicant and his family at 90, Shkolnaya Street, in the town of Shali, Chechnya. The truck had the following vehicle details: model – “KAMAZ”-53212; year of manufacture – 1991; registration number – И 05-92 ЧИ; engine number 798859; chassis number – 071560; cab number – 1392122; colour – khaki. According to the applicant, the truck was in working order and in use. The servicemen failed to present any document authorising the seizure. 8. On several occasions between December 1999 and February 2000 the applicant’s father, Mr Abu-Sultan Salamov, complained to various military and civilian authorities, as well as the local police and the prosecutor’s office, and requested the return of the truck. 9. On an unspecified date Major-General V., the head of the “East” zone group of the joint forces of the internal troops of the Ministry of the Interior, wrote to the Shali district prosecutor’s office: “In reply to your written enquiry of 22 February 2000 concerning Mr A. A. Salamov’s complaint, I would like to confirm that vehicle “KAMAZ”-53212, made in 1991, engine number 798859, khaki colour, chassis number 071560, is indeed located at the base of military unit no. 3702. At present the truck is not being used; it has been sealed and placed in the car park for seized and wanted cars. Enquiries about a car with the above vehicle details have been sent to units of the [Ministry of the] Interior and other armed forces in order to verify the ownership of the truck on the basis of the lists of vehicles seized (stolen or lost) during the antiterrorist operations in 1994-1995 and 1999-2000. Upon confirmation that the vehicle concerned does not belong to a unit of the [Ministry of the] Interior or other armed forces, the truck will be returned to its owner, Mr A. A. Salamov.” 10. On 24 April 2000 the truck was returned to the applicant. On the same date Colonel K., Commander of the operative headquarters of the zone “East” of the counter-terrorist operation, issued the applicant with the following certificate: “The present document is given to Mr Aslambek A. Salamov, residing at ..., passport ..., to certify that on 14 December 1999, during an identity check, officers of the [Ministry of the] Interior seized his truck KAMAZ-53212, made in 1991, colour khaki, engine number 798859, chassis number 071560, registration no. Ч 05-92 Ш, and returned it to him on 24 April 2000. The vehicle’s registration document and number plates were lost while it was at the military unit.” 11. On 27 April 2000 a commission consisting of a deputy head and two employees of Shali town council – in the presence of the applicant’s father – drew up an evaluation report to certify the damage caused to the truck. It stated that on 14 December 1999, during an identity check, officers of the Interior had seized the truck and on 24 April 2000 had returned it to the applicant’s father (referred to as the owner) without the vehicle registration documents and number plates. The commission prepared a list of parts missing from the vehicle (which amounted to 69 items) and estimated the total damage at 147,650 Russian roubles (RUB). 12. On 26 May 2003 a forensic expert examined the truck and stated that its engine number had been erased, but that the cab number (1392122) remained intact. 13. On an unspecified date the applicant brought an action in the Oktyabrskiy District Court of Grozny for his title to the truck to be recognised. 14. On 21 August 2003 the District Court granted the action. It noted that the vehicle registration documents had been lost by military officers and that the state archives had been destroyed during the conflict. On the basis of statements given by the applicant and two witnesses, as well as the relevant documents submitted by the applicant, the court held that the applicant was the owner of a KAMAZ truck corresponding to the relevant vehicle details, with the registration number И 05-92 ЧИ, but without an identification number. On 1 September 2003 the judgment became final. 15. The applicant attempted to obtain compensation from the military authorities and lodged complaints with various law-enforcement and administrative authorities in Chechnya, describing in detail the seizure of the vehicle on 14 December 1999, alleging that it had been used by the military unit stationed at the village of Avtury, in the Shali district, and referring to the damage inflicted. The applicant’s family had written, inter alia, to the head of the Chechnya Administration (on 28 January 2001), the Chechnya military prosecutor (on 3 January 2003), and the Shali district prosecutor’s office (on 3 January 2003). On 22 August 2003 the military prosecutor of military unit no. 20116 advised the applicant to seek damages in civil proceedings. 16. On 17 May 2004 the applicant sued military unit no. 3702 in the Prikubanskiy District Court of Krasnodar for unlawful seizure of his truck. He also claimed compensation for the missing parts, the cost of repairs and the use of the truck by the military. The applicant also sought non-pecuniary damages. He referred to Articles 151 and 1064 of the Russian Civil Code (see “Relevant domestic law and practice” below), which set out the general principles of liability in respect of pecuniary and non-pecuniary damage. 17. On 22 July 2004 the Prikubanskiy District Court of Krasnodar delivered its judgment. It examined the log book of the military unit for the period between 14 and 16 December 1999, but found no record of the seizure of the applicant’s truck. The court heard evidence from two servicemen who had served in unit no. 3702 at the relevant time and who denied the presence of any alien truck in the base of the unit. On this basis, the court doubted the veracity of the information contained in the letter from Major-General V. (see paragraph 9 above) which stated that the truck was being kept at the base of military unit no. 3702. It noted that the letter had not referred to the sources of such information and that, in any event, the ownership of the truck in question remained unclear at that time. The court declined to calculate the amount of damages on the basis of the evaluation report of 27 April 2000 because the commission consisting of the local council representatives had had no special knowledge or expertise enabling it accurately to assess the damage inflicted. The court examined the case with reference to Articles 1069 and 1070 of the Russian Civil Code (see “Relevant domestic law and practice” below). Under those provisions, damage caused by an unlawful act or a failure to act on the part of the State or municipal bodies, or their officials, is to be compensated at the expense of the federal, regional or municipal treasury, as appropriate. The court thus concluded that military unit no. 3702 was not the proper defendant in the case. 18. On 14 September 2004 the Krasnodar Regional Court held an appeal hearing. It endorsed the reasoning of the first-instance court. 19. The Government submitted that following the communication of the case, another check had been carried out by the military prosecutor for the North Caucasus Military Circuit (“the military prosecutor”). They submitted documents attesting to the following. 20. On 13 January 2009 military unit no. 3702 informed the military prosecutor that although a number of military units of the Ministry of the Interior had been involved in special operations on 14 December 1999 in the town of Gudermes [in the Shali district], they had not conducted any operations in the town of Shali. Further details about the nature of operations in Gudermes could not be disclosed as such information was classified. The archive of the military unit contained no documents relevant to the alleged seizure of the KAMAZ truck and no record of any complaints by the applicant regarding the alleged seizure. 21. On 22 January 2009 the chief of headquarters of the North Caucasus regional command centre of the joint forces of the internal troops of the Ministry of the Interior (“the regional command centre”) informed the military prosecutor by letter that military unit no. 3702 had not been involved in any special operations in the village of Avtury, in the Shali district, on 14 December 1999. The regional command centre had no information about the truck allegedly seized from the applicant or about his complaints to that effect. Finally, the letter stated that Major-General V. had not served in the regional command centre of the Ministry of the Interior. 22. On 24 January 2009 military unit no. 3702 issued two notes, to the effect that on 14 December 1999 its servicemen had not carried out any operations in the village of Avtury and that they had not undertaken any actions there aimed at the identification of stolen vehicles and had not seized the applicant’s truck. 23. In January 2009 four servicemen who had served in military unit no. 3702 signed affidavits concerning the events of December 1999. The servicemen confirmed that they had been serving in military unit no. 3702 in December 1999 and had been stationed in the village of Avtury, but could not recall the presence or use of any KAMAZ truck seized from a local inhabitant. 24. On 2 February 2009 the head of military unit no. 3702 signed a report on an internal investigation into the alleged seizure and retention by the military unit of the applicant’s KAMAZ truck in December 1999. The investigation had begun in December 2008 following the communication of the applicant’s complaint to the Russian Government. The report referred to two documents produced in 2000 (see paragraphs 9 and 10 above) as the basis for the allegation. The report further noted that four officers who had served in the military unit during its mission to Chechnya in 1999-2000 – two colonels and two lieutenant-colonels – had stated in January 2000 that they had not been aware of any such seizure (see preceding paragraph). The report concluded that it could not be established that the KAMAZ truck had been kept at the base of military unit no. 3702 following its seizure on 14 December 1999. | 1 |
test | 001-172934 | ENG | NLD | ADMISSIBILITY | 2,017 | OJEI v. THE NETHERLANDS | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra | 1. The applicant, Mr Justice Ojei, is a Nigerian national, who was born in 1994 and lives in Amsterdam. He was represented before the Court by Mr F.L.M. van Haren, a lawyer practising in Amsterdam. 3. The applicant lodged an application for asylum at Schiphol (Amsterdam) Airport on 30 March 2010. 4. On 31 March 2010 he was interviewed about his identity, nationality and travel itinerary (eerste gehoor). Confronted with the fact, apparent from the Eurodac database, that he had lodged a previous asylum request in Malta, he admitted that he had done so, claiming to be an adult. He stated that he had spent eighteen months detained in a Maltese reception centre where he had been badly treated. He had been refused asylum in Malta. He had travelled by boat from Malta to Italy and overland from Italy to the Netherlands. 5. A Dublin Claim interview (gehoor Dublinclaim) was held on 1 April 2010. The applicant stated that he had left Malta because he had been refused asylum. He alleged that he had been detained underground in a prison. 6. On the same day the applicant, through his counsel, submitted a document containing corrections and additions (correcties en aanvullingen) to the report of the Dublin Claim interview and “weighty advice” (zwaarwegend advies). He stated, inter alia, that if forced to return to Malta he would be locked up for a year in an underground prison known as “Paola”. 7. On 6 July 2010 the Minister of Justice rejected the applicant’s asylum request on the ground, in so far as relevant to the case before the Court, that under Article 16 of Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”) the State responsible for examining his application for asylum was Malta and Malta had agreed to take him back. The applicant had failed to make out a convincing case that he was at risk of treatment contrary to Article 3 of the Convention; moreover, he could be expected to make use of the domestic remedies offered by Malta if need be. 8. The applicant appealed to the Regional Court (rechtbank) of The Hague on the same day. As relevant to the case before the Court, he alleged that sending him back to Malta would expose him to conditions of detention violating Article 3 of the Convention. He submitted documents in support of this allegation. At the same time he requested a provisional measure in the form of a stay of deportation. 9. On 3 November 2010 the Regional Court of The Hague (sitting in Haarlem) dismissed both the request for a provisional measure and the appeal, finding that the applicant had failed to make out his case that Malta would fail to meet her Conventional obligations towards him. 10. Having in the meantime been informed that his transfer to Malta was scheduled for 10 November 2010, on 4 November 2010 the applicant requested the President of the Administrative Jurisdiction Division (Afdeling bestuursrechtspraak) of the Council of State (Raad van State) to order a provisional measure in the form of a stay of deportation. On 6 November 2010 the applicant lodged a further appeal (hoger beroep) with the Administrative Jurisdiction Division. 11. On 8 November 2010 the President of the Administrative Jurisdiction Division dismissed the applicant’s request for a provisional measure. 12. On 9 November 2010 the applicant was found to be in a psychiatric state of such seriousness that he was not fit to travel. His flight to Malta was cancelled and he was transferred to an institution for psychiatric treatment. 13. On 31 October 2011 the Administrative Jurisdiction Division dismissed the applicant’s further appeal on summary reasoning. 14. On 8 November 2010 the Court received from the applicant a request for a stay of expulsion to be indicated to the Netherlands Government. On 9 November 2010 President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be expelled to Malta for the duration of the proceedings before the Court. 15. The applicant has submitted a medical statement dated 15 September 2016 from which it appears that he continues to receive psychiatric treatment. 16. The relevant European, Maltese and Netherlands law, instruments, principles and practice in respect of asylum proceedings, reception of asylum-seekers and transfers of asylum-seekers under the Dublin Regulation are set out in Tarakhel v. Switzerland [GC], no. 29217/12, §§ 28-48, ECHR 2014 (extracts); Hussein Diirshi v. the Netherlands and Italy and 3 other applications ((dec.), nos. 2314/10, 18324/10, 47851/10 and 51377/10, §§ 98‑117, 10 September 2013); Mohammed Hussein v. the Netherlands and Italy ((dec.), no. 27725/10, §§ 25-28 and 33-50, 2 April 2013); Suso Musa v. Malta, no. 42337/12, §§ 23-32, 23 July 2013; and Aden Ahmed v. Malta, no. 55352/12, §§ 31-39, 23 July 2013. 17. By letter of 15 February 2012, the Agent of the Maltese Government submitted replies to questions of the Judge Rapporteur (Rule 44 § 3 (a) of the Rules of Court). As relevant to the case now before the Court, these included the following: “1. When did the applicant arrive in Malta and on what basis did he request protection (asylum, subsidiary protection or other) there? In what manner has this request been dealt with in practice; what was the outcome of the procedure and was the applicant provided with shelter, subsistence and medical care during this time? The applicant entered Malta in an irregular manner on the 3rd September 2008. Upon arrival, the applicant was served with a removal order and was put in the detention centre. Whilst in detention, the applicant was housed in a sheltered compound with adequate bedding and was provided on a daily basis with breakfast, lunch and dinner. The applicant was also given clothing and supplies to cater for his personal hygiene. Furthermore, the detention centres are equipped with the services of a medical practitioner and the services of a nurse and these services are available on a daily basis in order to assist and cater for the medical needs of persons in detention. The applicant requested international protection at the Office of the Refugee Commissioner on the 24th September 2008. The applicant requested asylum on the basis that he claimed that he was next in kin to become the king in his village but this was not accepted by his uncle who had poisoned his father and brother and had, therefore, instilled fear for personal safety in the applicant. In the applicant’s preliminary questionnaire which was conducted on the 24th September 2008, the applicant declared that he was born on the 20th March 1985. On the basis of this information, the applicant was presumably 22 years old upon arrival. The applicant did not mention that he suffered from any particular medical condition. On the 5th June 2009, the applicant sat for his asylum determination interview and he again confirmed his date of birth. The applicant added that apart from the problem that he had with his uncle in his country of origin, that is, Nigeria, there were no further problems in his country. On the 20th June 2009, the Refugee Commissioner rejected the applicant’s asylum application. On the 16th July 2009, the applicant appealed from the decision by filing an application before the Refugee Appeals Board. The appeal is still pending given that the applicant absconded from Malta in the meantime. Furthermore, the applicant was released from detention on the 3rd September 2009 and was moved to an open centre which is run by the Agency for the Welfare of Asylum Seekers. The applicant had free medical care when he was accommodated in the open centre given that his asylum application is still pending in the appeals board. The applicant remained in the open centre until the 26th February 2010 and left the open centre without leaving any contact details. 2. What, if any, concrete, practical and effective steps are taken by the Maltese authorities to ensure that aliens returned to Malta under the terms of the Dublin II Regulation, considering also that the applicant is a minor with a medical condition, are provided with shelter, subsistence and medical care upon arrival in Malta? The Government wishes to emphasize that the applicant always declared that he was not a minor upon his arrival: in fact the date of birth given to the local authorities makes it clear that the applicant was 22 years old upon arrival in Malta. Moreover, the applicant never complained that he suffered from any medical condition. When aliens are returned to Malta, they are not being taken into police custody unless it results that an offence was committed by them in Malta. Moreover, given that the applicant’s appeal is still pending, he is still considered to be an asylum seeker, and the applicant will be housed if he so wishes in the open centres where he will have access to free medical care pending the determination of his appeal. Moreover, if it is established that the applicant is a minor, the Agency for the Welfare of Asylum Seekers provides its services to unaccompanied minor asylum seekers under a ‘care order’ issued in terms of the Children and Young Persons (Care Orders) Act.” 18. The applicant replied on 13 March 2012, stating that living conditions in the open centres were very bad and unsuited to persons in his condition. 19. Appended to the applicant’s reply were: (a) a report by the Commissioner for Human Rights of the Council of Europe, Mr Thomas Hammarberg, following his visit to Malta from 23 to 25 March 2011 (CommDH(2011)17, 9 June 2011). On the subject of open centres, this report stated the following: “21. Material conditions in the open centres visited by the Commissioner were clearly sub-standard, with the Hal-Far tent village offering totally inadequate conditions of accommodation even for short periods of time. The village, which at the time of the visit hosted approximately 600 migrants, mainly from Africa, consists of tents, some of which had been damaged due to bad weather conditions, and containers, as well as offices, a classroom, sanitary facilities, a mosque, and a restaurant. Each tent is shared between approximately 20-25 men who sleep in bunk beds. The tents were clearly overcrowded and offered no privacy. Residents have complained to the Commissioner about bad sanitary conditions, including having to share the same space with persons who are sick, and about the very cold temperatures in the facilities in the winter and hot temperatures during the summer. The presence of rats was also reported by migrants. The tent village has a building with toilets, showers and basins for laundry. However, hot water is reportedly not always available. A female migrant stated that she avoided using the toilets at night as she felt unsafe covering the considerable distance between them and the container where she was accommodated. Reportedly the tent village was served by one social worker and one nurse. For medical services migrants were referred to centres outside of the tent village. 22. At walking distance from the tent village another complex, the Hangar Open Centre in Hal-Far, which includes a few dozen containers and a dilapidated hangar, accommodated approximately 500 migrants, mainly from Africa. At the time of the visit, the Commissioner noted that certain women and families with children were accommodated in containers separately from the male migrants. In the centre there was a recent building that included toilets and showers. The hangar was closed and not in use. However, the Commissioner was informed that following the new arrivals from Libya since his visit, the hangar has been re-opened and that tents have been placed inside of it to accommodate migrants. Material conditions in the hangar are reported to be seriously sub-standard, with lack of adequate bedding, dirty floors, toilets (which are shared by men, women and children), and kitchen, insufficient lighting, and the presence of rats. These conditions are all the more worrying as the Commissioner understands that a number of family units with young children are accommodated there, as mentioned below. 23. Conditions were somewhat better at the open centre in Marsa with approximately 600 male residents mostly from Somalia and Sudan. Unlike the tent village and hangar complex in Hal-Far, which are run directly by the Agency for the Welfare of Asylum Seekers (AWAS) the running of the centre in Marsa is subcontracted by the authorities to a non-governmental organisation (the Foundation for Shelter and Support to Migrants). The Commissioner notes that extensive refurbishment work, which would allow for better conditions and a more functional distribution of space, were underway during his visit. At the time of the visit however, serious overcrowding was still very obvious. Toilets visited by the Commissioner, although they had been cleaned, appeared to be run down, while the whole area of the open centre in Marsa, situated near a port, was covered by a smell which appeared to be caused by stagnating water in a neighbouring canal.” (b) two reports by Schweizerische Flüchtlingshilfe, a Swiss NGO engaged in providing assistance to asylum-seekers and refugees, the first dated 6 September 2010, the second dated November 2011. Both describe the open centres as squalid and overcrowded and basic facilities, including for vulnerable groups, as insufficient. (c) two letters from a child and juvenile psychiatrist who was treating the applicant, dated 23 February and 1 March 2012, describing the applicant as psychotic and potentially suicidal and expressing concern that conditions for the applicant’s reception in Malta should be appropriate to his mental state. 20. On 30 December 2015 the Maltese Minister for Home Affairs and National Security published a paper entitled “Strategy for the reception of asylum seekers and irregular migrants”. The following is taken from this document: “Malta’s ratio of asylum seekers in proportion to population has consistently been among the highest, and very often the highest, among all EU Member States. In fact, Malta received a total of 20.2 asylum applications per 1,000 inhabitants between 2009 and 2013, compared to an EU average of 2.9. It is also to be stated that the Maltese Office of the Refugee Commissioner does not only receive international protection applications from irregular migrants; for during 2014 up to 824 asylum applications were also received from migrants who applied directly at the Office of the Refugee Commissioner. All this goes a long way to show that even though asylum applications may be generally constant, the number is at the same time elevated when compared to the country’s geo-physical and social circumstances and realities. Matters are further complicated by the fact that a majority of those who seek international protection in Malta are actually found to be deserving of such protection. This means that these people do not only require immediate reception arrangements, but also long-term solutions. In view of the abovementioned circumstances, conditions in reception centres have been rendered difficult during certain periods; however over the last few years several initiatives were carried out in order to improve the living conditions of irregular migrants and asylum seekers residing in such centres, including by means of EU funding mechanisms. Similar to previous years, apposite European funding mechanisms and national funds will be utilised for the provision of adequate food supplies, bedding, clothing and medical support among other initiatives. Investment will also continue being made in reception facilities, where the required refurbishment initiatives in open and closed centres will be undertaken. Furthermore, Malta’s Open Reception capacity will be enhanced by means of a new Reception Facility, with the utilisation of EU funds, in order to better address current and future needs. The present document seeks to build upon the existing reception system, introducing improvements at several stages with a view to ensuring compliance with new EU obligations, as well as to improve the system from the perspective of national security on the one hand and humanitarian and human rights considerations on the other.” (page 3) and “Asylum seekers and beneficiaries of international protection released from the Initial Reception Facility or from Detention shall, if no alternative accommodation arrangements are available to them, be offered accommodation at Open Centres managed by the Agency for the Welfare of Asylum Seekers, or an entity or NGO working in partnership with the Agency. Such accommodation shall also be offered, on the same terms and conditions, to asylum seekers who would have reached Malta regularly, wherever Malta is the State responsible for determining their asylum application, and to beneficiaries of international protection granted protection by the Maltese authorities who would have been resettled or relocated into Malta. ... Persons accommodated at Open Centres shall be provided with accommodation free of charge and, so long as they are not employed, with an allowance intended to cover daily expenses, such as meals and transport. Migrants considered vulnerable, with the exception of unaccompanied minors, shall also be accommodated at Open Centres as per above. However, such persons shall be offered additional support, be it psychological, medical or otherwise as required.” (page 19) 21. The United Nations Human Rights Council’s Working Group on Arbitrary Detention visited Malta between 23 and 25 June 2015. Its report of this visit was published by the Human Rights Council on 23 June 2016 (UN document A/HRC/33/50/Add.1). The following is taken from this report (page 10, advance unedited version): “37. The Working Group also visited Hal Far Open Centre for immigrants, outside Valetta, run by the Ministry for Social Affairs. The centre has a capacity for 800 persons. 260 were persons present during the Working Group’s visit. In the open centres, migrants enjoy freedom of movement but are requested though they are requested [sic] to undergo daily movement registration and provide details of their whereabouts. 38. The Working Group received information that 889 persons were living in three open centres including Hal Far, which consisted of prefabricated container housing units that had replaced scores of tents. Most of them were asylum-seekers awaiting decisions on their applications. Some migrants whose applications for asylum had already been rejected were also hosted there. Residents were suffering uncomfortable living conditions given inadequate ventilation and high temperatures in the summer months, in addition to the overcrowded condition in each unit. Residents were referred to the centre by immigration authorities. 39. The Working Group was informed that although the open centres were locked and guarded by security officers, residents were allowed to enter and exit the premises freely. Residents were allowed to stay for a maximum period of one year. Their beds would be restored after three weeks of absence so that it could be assigned to another migrant in need. It was brought to the attention of the Working Group that some residents arrived at the centre in April 2014, which means that they had been held there for more than 12 months. The Working Group was informed that during their stay at the open centre, residents were offered accommodation; free food, and were provided with a transportation allowance to enable them to travel to the city centre. In addition, the Working Group was informed that the centre would provide English language courses, computer training and cultural orientation.” 22. There is a prison in Paola. Its official name is Corradino Correctional Facility. Conditions of detention in this institution were the object of Story and Others v. Malta, nos. 56854/13, 57005/13 and 57043/13, §§ 104-129, 29 October 2015. | 0 |
test | 001-146387 | ENG | RUS | CHAMBER | 2,014 | CASE OF RAKHIMBERDIYEV v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1936. 6. In the summer of 2005, the applicant was hired as a guard to accompany a shipment of some sixty tonnes of onions from Tajikistan to Siberia. After a nine-day journey by rail, the cargo arrived at Rubtsovsk station in the Altay Region. Using sniffer dogs, Russian customs officials found concealed rubber containers inside onion skins that held a total of more than seventy-three kilograms of heroin. 7. At about 9 p.m. on 1 August 2005 the applicant was taken to the organised crime department at the Rubtsovsk police station and placed in a room (no. 26) under police guard. A record of his arrest was not drawn up. The applicant spent the night on a mattress in the corridor. 8. At 8.50 a.m. on 2 August 2005 a criminal case was instituted in connection with the uncovered shipment of drugs. The investigator, L., accepted the case at about 11 a.m. and interviewed the applicant. He was searched, and a small package of heroin was found concealed in his bag. 9. Later that day a record of arrest was drawn up, and the applicant was formally remanded in custody on a charge of drug smuggling. According to the record, the applicant was arrested at 8.20 p.m. on 2 August 2005 at the Rubtsovsk police station. 10. During the applicant’s trial, his counsel repeatedly raised the issue of his unrecorded detention from 1 to 2 August 2005 and put questions to the police officers, who were heard as witnesses, about the events following the applicant’s apprehension. According to the hearing records, they replied as follows: 11. The chief of the drug control department, M., stated: “Rakhimberdiyev was taken to the department. While [there], he remained under guard. He stayed in the department for five hours. Pending [his placement in] the IVS (temporary detention cell), he was not allowed to go outside. During the twenty-four hour period of detention, Rakhimberdiyev did not go to the toilet, he did not ask to.” 12. The deputy chief of the organised crime department, Ch., stated: “Rakhimberdiyev could not get up and go out because we had to take a decision on the basis of the documents. I cannot say what the grounds for keeping him in the corridor were.” 13. An operative of the drug control department, Shl., testified: “Rakhimberdiyev could not go out because the door was locked, he was under guard.” 14. An officer of the special-purpose department of the criminal police, B., stated: “Rakhimberdiyev could not leave because I said so – the case was in progress, the expert was working. I do not know what the grounds for his detention were ... I stood guard over him so as to prevent him from going out ...” 15. On 9 March 2006 the Rubtsovsk Town Court found the applicant guilty of drug smuggling with intent to supply and sentenced him to ten years’ imprisonment in a high-security facility. 16. On 18 May 2006 the Altay Regional Court acquitted the applicant on the charge of smuggling, but upheld his conviction in the part concerning the possession of twenty-seven grams of heroin. The sentence was commuted to three years’ imprisonment. 17. In the meantime, counsel for the applicant complained to the Rubtsovsk town prosecutor about the applicant’s unrecorded detention from 1 to 2 August 2005. The prosecutor forwarded the complaint to the chief of the organised crime department for verification. 18. On 13 April 2006 the chief of the organised crime department approved the conclusions of an internal inquiry a senior operative had carried out into the allegation of unlawful detention. The inquirer took a statement from the chief of the drug control department, M., who claimed that the applicant had been released on the night of 1 August 2005 but had asked to stay at the police station overnight because he had had nowhere else to go. Further statements from officers Ch., Shl., B., Me., and Shn. corroborated M.’s claims. Without questioning the applicant, the inquirer concluded that the allegation of unlawful detention was unsubstantiated. 19. By a decision of 20 April 2006, an investigator from the Rubtsovsk town prosecutor’s office refused to open a criminal investigation into the applicant’s complaint of unlawful detention. He referred to the statements of the police officers, who had claimed unanimously that the applicant had refused to leave because he had had nowhere else to go, and that they had allowed him to stay overnight in the corridor, where he had slept on a mattress. The investigator did not interview the applicant, but reached the conclusion that his complaint to the prosecutor was to be considered “a way of seeking to avoid liability for the particularly serious crime he had committed”. 20. Counsel for the applicant challenged the decision before a court. 21. On 12 May 2006 the Rubtsovsk Town Court held that the investigator’s decision had not been lawful or justified: “The descriptive part of the decision contradicts the findings of the investigation. Thus, [the investigator] established that on 1 August 2005 Rakhimberdiyev had been detained on suspicion of committing a crime and that his detention was only formalised on 2 August 2005 at 8.20 p.m. The investigator did not assess all the documents in the case file: the expert report dated 1 August 2005; the judgment of 9 March 2006, which established that on 1 August 2005 Rakhimberdiyev had been taken to the organised crime department at the Rubtsovsk police [station] and had remained there under continuous guard until his formal arrest at 8.20 p.m. on 2 August 2005 ... The decision does not refer to the crime scene inspection report, which indicated that the scene had been inspected at 5.45 p.m. on 1 August 2005. All the witnesses testified that Rakhimberdiyev had been taken to the police station immediately after the inspection of the crime scene and had stayed there of his own will, which is contradicted by the statement of the convict. The investigator merely reproduced the testimony of the police officers in his decision, without giving a legal assessment. The actions of the police officers, which were incompatible with Article 92 § 1 of the Code of Criminal Procedure, were not justified.” 22. On 1 July 2006 another investigator from the Rubtsovsk town prosecutor’s office refused to open a criminal investigation, reproducing verbatim the text of the decision of 20 April 2006. On 21 July 2006 the town prosecutor quashed that decision and ordered an additional inquiry. 23. Further to a complaint by counsel, on 24 July 2006 the Town Court held that the town prosecutor had unduly delayed the inquiry into the applicant’s complaint. 24. On 2 August 2006 a senior investigator from the town prosecutor’s office again refused to open a criminal case. He found that it could not be shown to the required standard of proof that the applicant had stayed in the police station against his will. 25. On 10 August and 19 October 2006 respectively, the Rubtsovsk Town Court and Altay Regional Court summarily upheld the investigator’s decision. | 1 |
test | 001-147019 | ENG | SRB | CHAMBER | 2,014 | CASE OF POP-ILIĆ AND OTHERS v. SERBIA | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed;Non-pecuniary damage - award | Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Luis López Guerra | 6. On 13 April 2006 the Vlasotince Municipal Court ruled in favour of the applicants. The respondent, AD Retex, a privately owned company as of 2003, was ordered to: (a) reinstate them to their former jobs; (b) pay their salary arrears; (c) pay the relevant social insurance contributions due for the same period; and (d) pay the their legal costs. 7. By 11 July 2007 this judgment, as amended on appeal in respect of the legal costs, became final. 8. On 27 July 2007 the applicants filed a request for the enforcement of the said judgment. 9. On 6 August 2007 the Vlasotince Municipal Court accepted the applicants’ request and issued an enforcement order. 10. On 3 December 2007 the Leskovac District Court upheld this decision on appeal. 11. In January 2008 the Vlasotince Municipal Court carried out an assessment of the debtor’s movable assets. 12. On 21 April 2008, in response to a third party’s request, the Vlasotince Municipal Court excluded certain movable assets from the enforcement proceedings. 13. On 26 May 2008 the Vlasotince Municipal Court obtained an additional report regarding the value of the debtor’s movable assets. 14. On 22 April 2010 the Leskovac High Court ordered the re-examination of the third party’s exclusion request lodged in respect of the debtor’s assets. 15. On 21 January 2011 the Leskovac Commercial Court opened insolvency proceedings (stečajni postupak) in respect of AD Retex and on 3 June 2011 the applicants’ claims were confirmed in their entirety. The applicants themselves were classified as third-class creditors. 16. On 16 June 2011 the debtor’s assets were sold as part of the insolvency proceedings. 17. On 12 June 2013 the enforcement proceedings were stayed. 18. The insolvency proceedings before the Leskovac Commercial Court are still pending, and the applicants have yet to be paid apparently as a consequence of two related civil suits brought by other creditors. 19. On 26 April 2010 the applicants lodged an appeal with the Constitutional Court, maintaining that they had suffered a breach of the right to a fair trial within a reasonable time and a violation of their property rights. In terms of redress, the applicants sought recognition of these violations, an order from the Constitutional Court for the expedition of the impugned enforcement proceedings, and the “removal of all adverse consequences” suffered in this connection (including through the payment of their outstanding pecuniary claims). 20. On 4 April 2012 the applicants noted the adoption of the amendments to the Constitutional Court Act, and specified their compensation claims accordingly. Specifically, on account of the pecuniary damage suffered, the applicants requested the respective amounts awarded to them by the final judgment in question, whilst as regards the nonpecuniary damage sustained they claimed 2,200 euros each (see paragraphs 27-30 below). 21. On 27 March 2013 the Constitutional Court found, in the operative part of its ruling (u izreci), that the applicants had indeed suffered a violation of their right to a fair trial within a reasonable time, as well as a violation of their property rights, but rejected the compensation claims regarding the non-pecuniary damages sought by the applicants. The Constitutional Court, lastly, ordered that the impugned enforcement proceedings be terminated in accordance with the applicable legislation (see paragraph 31 below). 22. In its reasoning the Constitutional Court established that the courts in question had not acted promptly between 27 July 2007 and 21 January 2011. Concerning the compensation issue, the Constitutional Court stated that the applicants’ pecuniary and non-pecuniary damage claims had been filed out of time. In so doing, it merely referred to Articles 36 § 1 (2) and 85 § 3 of the Constitutional Court Act, as amended in 2011, and Article 40 § 1 of the amendments themselves (see paragraphs 27-30below). | 1 |
test | 001-144521 | ENG | NLD | ADMISSIBILITY | 2,014 | NDIKUMANA v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Claver Ndikumana, is a Burundian national, who was born in 1973 and lives in Leiden. He was represented before the Court by Mr D. Schaap, a lawyer practising in Rotterdam. 2. The Netherlands Government (“the Government”) were represented by their Agents, Mr R.A.A. Böcker and Mrs J. Schukking, both of the Ministry of Foreign Affairs. 3. On 12 March 2000 the applicant arrived at Amsterdam Airport and reported at the asylum application centre (aanmeldcentrum) in Zevenaar. On 21 March 2000 he had a first interview (eerste gehoor) with officials from the Immigration and Naturalisation Service (Immigratie- en Naturalisatiedienst; hereafter “IND”) and requested asylum. He had another interview with the officials of the IND on 22 March 2000. During these interviews the applicant explained that he had come to Amsterdam via Frankfurt Airport in Germany. 4. On 23 March 2000 the IND informed the applicant that it considered his case to fall within the scope of the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities that had been concluded in Dublin on 15 June 1990 (hereafter “the Dublin Convention”; see paragraphs 18-20 below) because he had travelled through Germany. 5. Additionally, the applicant was informed that he would not be provided with any reception facilities. At the material time, the Netherlands had a policy in place according to which asylum seekers in the applicant’s position (so-called “Dublin claimants”) had no access to State-sponsored reception and care facilities for asylum seekers (see paragraphs 13-15 below). Accordingly, the applicant’s request for assistance in the form of food, shelter and medical care was denied. It appears that on 23 March 2000 the police issued to the applicant a card entailing the obligation to report (meldingsregistratiekaart). The card notes two dates, 26 April and 24 May 2000 respectively. 6. On the same day, 23 March 2000, the applicant was informed by the Foundation for Legal Aid in Asylum Cases in North-East Netherlands (Stichting Rechtsbijstand Asiel Noordoost-Nederland, hereafter “the Foundation”), a non-governmental organisation engaged in assisting asylum seekers, that his asylum request would probably be declared inadmissible because pursuant to the Dublin Convention another State was responsible for the examination of that request. He was further informed that in the opinion of the Foundation it would be without avail to institute proceedings against the decision that would probably be taken by the Ministry of Justice (Ministerie van Justitie). This opinion was confirmed in writing in a letter given to the applicant by the Foundation on the same day. This letter also noted: “The Netherlands authorities have decided not to provide you with reception facilities because there will be a [Dublin] claim in your case. We regret that you are not provided with any reception facilities but, unfortunately, we cannot change this. Proceedings previously instituted against this governmental decision (overheidsbesluit) have been lost.” 7. The applicant left the application centre and went to Amsterdam. 8. The “transfer report” drawn up at the Zevenaar application centre on 21 April 2000 notes that the applicant waited at the centre’s front gate for “several days” before he was admitted into the application centre on that day at 8.30 p.m. 9. On 15 August 2000 the applicant was granted a provisional residence permit valid from 21 March 2000 until 20 March 2001. He was later granted a residence permit for the purpose of asylum for an indefinite period (verblijfsvergunning asiel voor onbepaalde tijd). The document informing him of this last decision was dated 6 April 2004. 10. On 12 May 2005, the applicant requested the Public Prosecutor’s Office (arrondissementsparket) of The Hague to institute criminal proceedings against the Ministry of Justice because of the denial to him of reception facilities from 23 March until 21 April 2000. In his letter the applicant stated that on 23 March 2000 he had been told by the IND that he would be sent to Germany within three months and that in the meantime he would have no right to reception facilities; he had been given the advice to go to a big city such as Amsterdam where there were “many African people” who would be willing to “help him”. The applicant further stated that on 23 March 2000 he had spent the night at Amsterdam central train station and that he had returned to the application centre on 24 March 2000. When he had been denied access to the application centre, he had remained waiting at the centre’s front gate without any food or water. After having stood there the entire day he had fallen down during the night and had been taken into the application centre by security guards. The next day he had been told by application centre officials that he would have to leave the centre or face deportation to his country of origin. In view of this threat he had decided to leave the centre and he had spent the next three weeks living on the streets, trying to survive by all possible means. He had spent most of his nights in underground stations where he had been harassed a number of times by police who had handcuffed and beaten him and on one occasion he had met a man who, after listening to his story, had offered him accommodation. When the applicant had taken this man up on his offer he had been sexually abused by the man under threat of what the applicant believed to be a gun. He had managed to escape and had gone back to the asylum application centre in Zevenaar where he had again been denied admission. He had remained at the front gate the following three days. On the night of 21 April 2000 he had gone towards the nearby railway tracks with the intention to commit suicide but had been prevented from doing so by the police who had taken him into the application centre. 11. The acting chief public prosecutor (fungerend hoofdofficier van justitie) responded to the applicant’s request to institute criminal proceedings against the Ministry of Justice by letter of 21 June 2005 stating that there were no indications of any criminal offences (strafbare feiten) having been committed and that he had therefore forwarded the applicant’s complaint to the director of the IND. By letter of 24 January 2006, the IND notified the applicant that there had not been any irregularities in the processing of his asylum application and that neither the IND nor the Minister for Immigration and Integration (Minister van Immigratie en Integratie) could be held responsible for whatever hardship he had suffered. Furthermore, the applicant was informed that in 2000, persons whose request of asylum was subject to the Dublin Convention had been refused shelter and food unless there were “reasons (i.e. medical situation)” which would have necessitated proper accommodation and care. In the applicant’s case, no such reasons had been mentioned by him during his interview. 12. Until 1 April 2001, the admission, residence and expulsion of aliens were regulated by the Aliens Act 1965 (Vreemdelingenwet 1965). Further rules were laid down in the Aliens Decree (Vreemdelingenbesluit), the Regulation on Aliens (Voorschrift Vreemdelingen) and the Aliens Act Implementation Guidelines (Vreemdelingencirculaire). 13. At the relevant time, the provision of reception facilities was laid down in the Asylum Seekers and Other Categories of Aliens (Provisions) Regulations 1997 (Regeling verstrekkingen asielzoekers en andere categorieën vreemdelingen 1997, hereafter “Rva 1997”). The Rva 1997 granted asylum seekers, in principle, a right to reception facilities. On 12 October 1998 a new provision added to the Rva 1997 entered into force (see the Official Gazette (Staatscourant) 1998, no. 194), which read as follows: ... 2. These Regulations do not apply to asylum seekers in respect of whom the Minister has requested, or will request, [transfer] to another State, party to the Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities (Dublin, 15 June 1990), until such time as this request is rejected by the other State.” 14. This amendment of the Rva 1997 was repeated and further clarified in the Aliens Act Implementation Guidelines 1994, which clarification included the following: ... If, in the IND’s view, Dublin claimants find themselves in very acute humanitarian need, the IND will notify the Central Agency for the Reception of Asylum Seekers (Centraal Orgaan opvang asielzoekers, hereafter “COA”) hereof and advise the COA to provide reception facilities despite the Dublin claim.” 15. On 21 November 2002 section 2a of the Rva 1997 ceased to apply (see Official Gazette 2002, no. 223). 16. The Dublin Convention provided for measures to ensure that asylum seekers had their applications examined by only one of the Member States and that they were not referred successively from one Member State to another. Articles 4 to 8 set out the criteria for determining the single Member State responsible for examining an application for asylum. The Netherlands and Germany were both signatory States. 17. Article 7 of the Dublin Convention, in its relevant part, read as follows: 1. The responsibility for examining an application for asylum shall be incumbent upon the Member State responsible for controlling the entry of the alien into the territory of the Member States, except where, after legally entering a Member State in which the need for him or her to have a visa is waived, the alien lodges his or her application for asylum in another Member State in which the need for him or her to have a visa for entry into the territory is also waived. In this case, the latter State shall be responsible for examining the application for asylum.” 18. The Dublin Convention has been superseded by Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin Regulation”), which, in its turn, has been superseded by Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013. 19. Directive 2003/9 of 27 January 2003, laying down minimum standards for the reception of asylum seekers in the Member States (“the Reception Directive”) requires that Member States ensure a dignified standard of living to all asylum seekers, paying specific attention to the situation of applicants with special needs or who are detained. It regulates matters such as the provision of information, documentation, freedom of movement, healthcare, accommodation, schooling of minors, access to the labour market and to vocational training. It also covers standards for persons with special needs, minors, unaccompanied children and victims of torture. 20. The deadline for transposition of the Reception Directive by the Netherlands expired on 6 February 2005. | 0 |
test | 001-163821 | ENG | MNE | CHAMBER | 2,016 | CASE OF MUGOŠA v. MONTENEGRO | 4 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence) | Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani | 5. The applicant was born in 1962 and lives in Podgorica, but is currently detained at the Institute for Execution of Criminal Sanctions (Zavod za izvršenje krivičnih sankcija; “IECS” hereinafter) in Spuž. 6. On 19 February 2011 the applicant was detained on suspicion that he had committed a murder. 7. On 21 February 2011 the High Court (Viši sud) in Podgorica issued a detention order against the applicant. It is clear from the case file that the applicant’s detention was extended on 16 March 2011, 17 May 2011 and 18 July 2011. The decisions of 17 May and 18 July 2011 are in the case file. The decision of 17 May 2011 specified that the detention would last “until a further decision of the court” (ima trajati do dalje odluke suda). The decision of 18 July 2011 specified nothing in this regard. 8. On 16 May 2011 the applicant was indicted for murder. 9. On 23 September 2011 the applicant approached the prison authorities requesting that he be released in the absence of any decision extending his detention after 18 September 2011. 10. The same day the applicant was served with a copy of a decision of 22 September 2011, sent by fax. The copy was neither signed nor stamped. The decision, in its reasoning part, specified as follows: “On 16 May 2011 the High State Prosecutor in Podgorica lodged an indictment Kt.br. 29/11 against [the applicant] for the criminal offence of aggravated murder under Article 144 § 1 (1) and (4) of the Criminal Code. [The applicant] was detained pursuant to decision Kri.br. 151/11 issued by the investigating judge of this court on 21 February 2011, which detention was extended by decisions of this court’s panel, Kv. Br. 268/11 of 16 March 2011 and Kv. Br. 472/11 of 17 May 2011. The three-judge panel (krivično vijeće) has, on its own motion, within the meaning of Article 179 § 2 of the Criminal Procedure Code, examined further detention of [the applicant] and found as follows: - the detention [of the applicant] should be extended pursuant to Article 175 § 1 (1) and (4) of the Criminal Procedure Code. Notably, given that [the applicant] is indicted for an aggravated murder pursuant to Article 144 § 1 (a) and (4) of the Criminal Code, and in view of the seriousness of the criminal offence for which he could be sentenced to between 10 and 40 years of imprisonment, and especially in view of the fact that the accused committed the said criminal offence on 17 February 2011 at around 21.30, after which he fled the crime scene, and that the authorised police officers of the Police Directorate – Podgorica Unit deprived him of liberty on 19 February 2011 at 13.00, these are the reasons, in view of the panel, justifying the extension of detention pursuant to Article 175 § 1 (1) of the Criminal Procedure Code. In the opinion of this panel [the applicant’s] detention should be extended also pursuant to the detention basis as provided in Article 175 § 1 (4) of the Criminal Procedure Code, given that [the applicant] is charged with aggravated murder under Article 144 § 1 (1) and (4) of the Criminal Code, and having in mind that the provided sentence is between 10 and 40 years of imprisonment, the first condition for the extension of detention under Article 175 § 1 (4) of the Criminal Procedure Code is fulfilled, that is that the provided sentence for the criminal offence is 10 years or more. Furthermore, in this particular case there are particularly qualifying circumstances of the criminal offence at issue due to the manner in which it was committed or its consequences, which are reflected in the fact that [the applicant], as it transpires from the case-file, [...] in an insidious manner and for material gain, deprived X of his life [...] by shooting him at close range in the chest and in the back with an automatic gun several times, inflicting on him numerous injuries and causing his immediate death, after which he fled, and according to this panel the aforementioned established facts and circumstances, in their entirety, represent extraordinary circumstances indicating that the [applicant’s] release would threaten public order and peace, which reasons justify the extension of detention.” 11. On 26 September 2011 the applicant appealed, complaining about the manner in which the decision had been served on him and claiming that his detention had ended on 17 September 2011, that is two months as of the last extension of detention. The same day the applicant was served with the stamped and signed decision of 22 September 2011. 12. On 29 September the applicant filed another appeal. 13. On 4 October 2011 the Court of Appeals (Apelacioni sud) in Podgorica dismissed both appeals. It established that the decision delivered by fax was identical to the original which was signed and stamped. It further considered that the applicant had been served with a decision bearing no signature or stamp by an obvious mistake, which did not make the decision unlawful or cause a violation of his human rights guaranteed by the Constitution and the Convention. One of the judges involved in the ruling was S.V. 14. By 4 November 2011 the applicant filed a constitutional appeal, submitting a number of complaints, one of them being that S.V. should have been excluded from the bench given that she was related to the representative of the injured party. 15. On 12 January 2012 the Constitutional Court (Ustavni sud) in Podgorica quashed the decision of the Court of Appeals and ordered that the case be re-examined. The Constitutional Court quashed the said decision on the ground that S.V. had indeed to be excluded from ruling on the applicant’s appeals as she was the sister of the injured party’s representative. In view of this, the court did not consider it necessary to examine the other complaints. 16. On 25 January 2012 the Court of Appeals, upon the remittal by the Constitutional Court, dismissed the applicant’s appeals. This decision was not submitted to the case-file. From the subsequent decision of the Constitutional Court (see paragraph 18 below), however, it transpires that the Court of Appeals held, in particular, that: (a) the applicant’s detention had not ended on 17 September 2011, as the previous detention order had not specified how long the detention would last and the statutory time-limit of two months was not mandatory (see paragraphs 33 and 34 below); and (b) the absence of the stamp and signature on the detention order did not make it unlawful. 17. On 22 March 2012 the applicant filed a constitutional appeal complaining that his detention had not been extended within the statutory time-limit of two months, that the copy of the relevant decision had not been signed and stamped, and that the presumption of innocence had been violated by the High Court’s decision. He relied, inter alia, on Articles 5 and 6 of the Convention. 18. On 20 April 2012 the Constitutional Court dismissed the applicant’s constitutional appeal. It considered in particular that the relevant legislation limited the duration of the detention to three years after the indictment, and that there was no other limitation in that regard. The courts had a duty to examine every two months if reasons for detention persisted and, depending on the circumstances, extend it or revoke it. There was no obligation on the courts to specify how long the detention would last, given their obligation to control the duration of the detention every two months. However, these statutory time-limits were not mandatory and the fact that the decision had been issued after two months and four days could not therefore be decisive for concluding that the applicant’s right to liberty was violated. The court also held that the High Court and the Court of Appeals had not stated that the applicant was guilty but that it transpired from the case-file and the disputed decisions that the applicant had been charged with the relevant criminal offence. The court did not address the complaint about the lack of a stamp and signature on the copy of the decision extending the detention on 22 September 2011. 19. It is clear from the case-file that the above decision of the Constitutional Court was not dispatched before 18 May 2012. 20. On 22 March 2013, as submitted by the Government, the High Court issued a first-instance decision on the charges against the applicant. They did not provide a copy thereof. There is also no information in the case-file as to whether the criminal proceedings against the applicant have ended in the meantime and if so what the outcome was. | 1 |
test | 001-158031 | ENG | GBR | CHAMBER | 2,015 | CASE OF FAZIA ALI v. THE UNITED KINGDOM | 3 | No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Civil rights and obligations;Independent tribunal) | George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev | 5. The applicant, a parent of two young children, is a homeless person in priority need of accommodation within the meaning of Part VII of the Housing Act 1996 (“the 1996 Act”). 6. Birmingham City Council (“the Council”) is a local housing authority within the meaning of the 1996 Act and is required, under Part VII of that Act, to perform statutory functions in relation to homeless persons in its area. 7. The applicant applied as a homeless person to Birmingham City Council for assistance in October 2006. By letter dated 7 November 2006 the Council determined that the applicant was homeless, eligible for assistance, in priority need and not intentionally homeless. The authority therefore accepted that it owed the applicant the “main housing duty” to provide accommodation to her and her family. On 8 November 2006 the authority made the applicant an offer of accommodation which she refused because she was unhappy with the location. The authority told the applicant that in its view the accommodation was suitable but following a review of that decision, which was determined in the applicant’s favour, they agreed to make her another offer. 8. On 14 March 2007 a Housing Officer informed the applicant by telephone that another offer was being made, that a viewing had been arranged and that a letter would follow. The authority claims that on that same day a written offer of accommodation at 16 Bromford Lane, Birmingham was sent to the applicant. That letter contained a statement to the effect that if the applicant refused the offer without good cause the authority would consider that it had discharged its duty to her under Part VII of the 1996 Act. However, the applicant denied receiving the letter; instead, she claimed that she had to telephone the housing office to obtain the address and arrange the viewing appointment. She viewed the property on 19 March 2007 but declined the offer as she was not happy with the condition of the communal area. 9. By letter dated 21 March 2007 the Council notified the applicant that, by reason of her rejection of its offer, pursuant to section 193 of the Housing Act its duty to her under Part VII of the 1996 Act had been discharged. By letter dated 29 March 2007 the applicant notified the Council that she had not received an offer in writing and requested that the Council review its decision. 10. While the applicant’s case was pending before the review panel, a further offer of accommodation was made to her pursuant to a different scheme, namely the scheme for the provision of housing accommodation under Part VI of the 1996 Act. She did not accept this offer. 11. On 1 May 2007 a Homelessness Review Officer employed by the Council conducted a telephone interview with the applicant to establish her reasons for refusing the offer of accommodation at 16 Bromford Lane. The Officer claimed that in the course of this conversation the applicant accepted that she had in fact received the offer letter but refused the offer of accommodation because there was no lift and the entrance to the property was dirty, which could put her youngest son’s health at risk. However, the applicant claims that at the time she had thought she was being questioned about the subsequent offer of accommodation, in respect of which she did not deny having received a letter. 12. By letter dated 2 May 2007 the Homelessness Review Officer upheld the decision that the applicant’s refusal of the offer of accommodation had discharged the Council’s main housing duty to her under section 193(2) of the 1996 Act. In particular, the Officer found that the applicant had been sent an offer letter from the Council which complied with the mandatory requirements of section 193 of the 1996 Act prior to her refusal and there was no reason to believe that she had not received it. In any case, she noted that the applicant had not refused the accommodation because she had not received a written offer but because she did not consider the accommodation to be suitable for her family’s needs. 13. The applicant appealed to Birmingham County Court under section 204 of the 1996 Act, which allowed for an appeal on a point of law only. The jurisdiction exercised by the County Court under section 204 was that of judicial review. In her grounds of appeal the applicant claimed that the Council, in reaching its decision, had taken into account irrelevant considerations and/or acted under a fundamental mistake of fact; that the Council had acted unlawfully as it had failed to make adequate inquiries to enable it to reach a lawful decision; that its decision was one which no rational Council would have made; that it had fettered its discretion; and that it had acted in breach of natural justice. 14. The appeal was heard on 29 August 2007, on which date the judge noted that the only ground of appeal argued before him was that the letter of offer had failed to arrive. The applicant submitted that the County Court should hear evidence on the matter so that it could determine it for itself. However, although the judge accepted that the Homelessness Review Officer was not an independent or impartial tribunal, he found that the decision whether or not the letter had been received was properly and fairly to be made by her and he declined to hear evidence on the point. Although it was not specifically stated in the correspondence between the Council and the applicant, the judge appeared to consider whether or not the Council had discharged its duty under section 193(7) (see paragraph 25 below). 15. The applicant subsequently appealed to the Court of Appeal and then to the Supreme Court. At each level, the grounds of appeal were that the decision taken by the Council’s Homelessness Review Officer had constituted a determination of the applicant’s civil rights for the purposes of Article 6 § 1 of the Convention; that the Officer had not been an independent or impartial tribunal as required by Article 6 § 1; that the decision of the Officer had turned on the resolution of a simple question of disputed primary fact, involving no application of specialist knowledge; that pursuant to Tsfayo v. the United Kingdom, no. 60860/00, 14 November 2006, Article 6 § 1 required that the applicant be able to appeal that simple factual determination; and, alternatively, that the restriction of all statutory appeals to points of law, no matter what the nature of the decision, was incompatible with Article 6 § 1. 16. Both the Court of Appeal and the Supreme Court decision on the applicant’s appeal followed the decision of the House of Lords in Runa Begum v. London Borough of Tower Hamlets [2003] UKHL 5. In Runa Begum the House of Lords found that judicial review of a Homelessness Review Officer’s decision that a claimant had been unreasonable in rejecting the accommodation offered to her provided “sufficiency of review” for the purposes of Article 6 § 1. The House of Lords stressed that although the Officer had been called upon to resolve some disputed factual issues, these findings of fact were “only staging posts on the way to the much broader judgments” concerning local conditions and the availability of alternative accommodation, which the Officer had the specialist knowledge and experience to make. Although the Officer could not be regarded as independent, since she was employed by the Council which had made the offer of accommodation which the claimant had rejected, statutory regulations provided substantial safeguards to ensure that the review would be independently and fairly conducted, free from improper external influences. Any significant departure from the procedural rules would have afforded a ground of appeal. 17. The applicant submitted that the present case could be distinguished from that of Runa Begum because it concerned the simple question of a finding of primary fact rather than an evaluative judgment, such as a qualitative assessment of “suitability”. 18. On 7 November 2008 the Court of Appeal dismissed the applicant’s appeal. In doing so, it proceeded on the assumption that the case involved the determination of the applicant’s civil rights for the purposes of Article 6 § 1 of the Convention. In relation to the question whether the decision of the Homelessness Review Officer had turned on the resolution of a simple question of primary fact, or whether it required the application of specialist knowledge, Thomas LJ stated that: “i) It is far from easy to draw the distinction advanced in practice. A finding of suitability is itself a finding based on conclusions of primary fact ... ii) There would be considerable complexity in administering a scheme with these distinctions. A scheme which enabled certain factual issues to be subject to a full right of appeal and others which would not be so subject would be too uncertain and too complex ... iii) ... [I]f the extent of the review by the court was determined by the answer to the questions of whether a finding of fact was a primary finding, or whether that finding required expertise or whether that finding was determinative, the room for argument and uncertainty would be considerable ... .... v) The additional review which would be provided by the suggested full right of appeal on fact would not in practice be very wide ... vi) The full right of appeal sought from a review officer on fact might have to be significantly different from an appeal from a court ... the procedure adopted by the reviewing officer in reaching findings of fact is informal and there are no transcripts of evidence. .... viii) There would therefore clearly be significant implications for not only the statutory scheme but for the court and tribunal system, if this court were to hold that a full right of appeal was required on findings of primary fact or on issues of primary fact where the finding was determinative ... The statutory scheme for housing and the statutory scheme for the method of appeals in respect of courts and tribunals are determined by Parliament; funds are provided for their finance by Parliament ... ix) The present scope of the appeal provides a real measure of protection for homeless appellants. It is clear from the careful judgments of Judge MacDuff QC and Judge McKenna that both considered that the housing authority had fairly treated both appellants in cases where the determinative issue was a question of fact. This conclusion reinforces the view I have expressed that the review by the County Court in cases of this kind was sufficient and that there is no reason to attempt to find that it is outside the scope of the decision in Runa Begum. It demonstrates, as Lord Bingham observed at paragraph 11, that the scheme properly operated should ensure fair treatment. I consider that it does whether the decision turns on a simple issue of primary fact or a conclusion of fact based on primary facts (such as a conclusion on suitability).” 19. Thomas LJ therefore concluded that the decision of the House of Lords in Runa Begum applied to all County Court appeals under section 204 of the 1996 Act, no matter whether the decision turned on a simple issue of primary fact or not. He further held that the decision in Tsfayo, which concerned the housing benefit scheme, did not affect appeals brought in homelessness cases: “34. ... In the first place the Strasbourg Court relied on the decision in Runa Begum in reaching its conclusion and said nothing that cast doubt on the correctness of the decision. Secondly, the decisions in Runa Begum and Tsfayo each turned on a careful examination of the whole of the statutory scheme relevant to the particular case. Thirdly, it is apparent from the details of the scheme considered in Tsfayo that whereas in the case of prospective benefit, central government reimbursed the local authority 95% of what it was required to pay, it only reimbursed 50% of backdated awards (see paragraph 19 of the decision); this fact had been heavily relied upon in argument (see paragraph 37 of the decision) for the powerful contention that the hearing had taken place before a tribunal consisting of members of an authority which would be required to pay 50% of the benefit if it made an award in the applicant’s favour; the HBRB was not independent of the parties. Finally when the housing benefits scheme was looked upon as a whole, it was readily apparent that a conclusion could be reached, in contradistinction to the scheme under Part VII of the Housing Act, that the particular scheme was not compliant with Article 6.1.” 20. On 17 February 2010 the Supreme Court dismissed the applicant’s appeal, finding that the determination by the Council, that its duty to secure accommodation for the applicant had ceased, was not a determination of her civil rights within the meaning of Article 6. Lord Hope of Craighead with whom Baroness Hale and Lord Brown agreed, stated that: “... I would be prepared now to hold that cases where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, do not engage article 6(1). In my opinion they do not give rise to ‘civil rights’ within the autonomous meaning that is given to that expression for the purposes of that article.” 21. In supporting that conclusion Lord Hope looked to what the relevant provisions within Part VII of the 1996 Act were intended to achieve. He observed that: “... It provides a right to assistance if the relevant conditions are satisfied. But this is not a pecuniary right, nor is the benefit that is to be provided defined by the application of specific rules laid down by the statute. Even where the full homelessness duty arises under section 193, the content of the statutory duty lacks precise definition. There is no private law analogy. The duty is expressed in broad terms – to secure that ‘accommodation is available’ – which leaves much to the discretionary administrative judgment of the authority.” 22. He continued, following a review of the jurisprudence of the Court, by noting that: “43. There are however ... a number of straws in the wind since Runa Begum that suggest that a distinction can indeed be made between the class of social security and welfare benefits that are of the kind exemplified by Salesi v Italy whose substance the domestic law defines precisely and those benefits which are, in their essence, dependent upon the exercise of judgment by the relevant authority ...” 23. Later in his judgment, Lord Hope, for completeness, set out some observations on whether the scheme of decision-making was Article 6compliant. He commented that the possibility, foreshadowed in argument, of separating simple, formal questions of “gateway” facts, such as the letter issue, from the expert assessment of suitability would needlessly complicate a scheme which was designed to be simple to administer. 24. The court went on to observe that the fact that a County Court did not have a full fact-finding jurisdiction when hearing an appeal under section 204 of the 1996 Act did not mean that the applicant was deprived of what was required to satisfy the guarantees of Article 6 of the Convention. In this connection, Lord Hope said this: “54. ... For ease of administration the review is entrusted to a single officer who is equipped to deal with issues as to the suitability of the accommodation that has been declined. An answer to the question whether or not the letters were received was incidental to a more searching and judgmental inquiry into the accommodation’s suitability. ... These cases are quite different from Tsfayo, where no broad questions requiring professional knowledge or experience had to be addressed once the question whether there was good cause had been answered. In these circumstances I would hold that the ratio of the decision in Runa Begum should be applied and that the absence of a full fact-finding jurisdiction in the court to which an appeal lies under section 204 does not deprive it of what it needs to satisfy the requirements of article 6(1).” 25. Unlike the County Court, the Supreme Court appeared to consider whether or not the Council had discharged its duty to the applicant under section 193(5); however, it appeared to accept that a formal letter of offer was required by that subsection. | 0 |
test | 001-173112 | ENG | RUS | ADMISSIBILITY | 2,017 | SAPONDZHYAN v. RUSSIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 1. The applicants, Ms Dzovinar Sapondzhyan (the first applicant) and Mr Albert Sapondzhyan (the second applicant), are respectively a stateless person and a Georgian national. They were born in 1955 and 1940 and live in Nadzornoye in the Kochubeyevskiy district of the Stavropol Region. They were represented before the Court by Ms O.V. Sadchikova, a lawyer practising in Stavropol. 2. The Russian Government (“the Government”) were represented by Mr G. Matyushkin, Representative of the Russian Federation to the European Court of Human Rights. 3. The Georgian Government were invited to intervene in the written procedure (Article 36 § 2 of the Convention and Rule 44 § 2 (a)). 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicants are a married couple with four adult sons. Prior to moving to Russia they lived in Georgia with two of their sons, Mr Grigor Sapondzhyan, who was born in 1971, and Mr Sargis Sapondzhyan, who was born in 1975. 6. In 1995 Grigor and Sargis Sapondzhyan moved to Russia. In 1997, the first applicant moved to Russia to join them, using her USSR passport. According to the applicants, on an unspecified date shortly afterwards she underwent a complex kidney operation and had to stay with her sons, who provided her with the necessary care after her surgery. Sometime in 2001 she lost her passport and became stateless. At a later date the first applicant had another kidney operation, meaning she required constant care, which was provided by her family. 7. In 1997 the second applicant arrived in Russia on a visa with his Georgian passport and joined his sons and the first applicant. He later left again and re-entered Russia in May or June 2002 on another visa. 8. In July 2003 Sargis Sapondzhyan obtained Russian nationality. According to the applicants, between 2002 and 2010 he and his commonlaw partner, a Russian national, Ms K.Yu., had four children. 9. On 18 February 2005 the second applicant was fined for a breach of Article 18.8 of the Code of Administrative Offences for failing to regularise his stay in Russia. 10. According to the applicants, they live with their son Sargis and his family in the same dwelling in Nadzornoye. They are fully dependent on him and they take care of his four children. The applicants’ fourth son, Mr Akon Sapondzhyan, has also become a resident of Russia. 11. It appears that the applicants’ third son, Mr Ovanes Sapondzhyan, has continued to reside in Georgia. In September 2016 Grigor Sapondzhyan also obtained Russian nationality. 12. Between the date of their arrival in Russia and 2016 neither of the applicants applied for a temporary residence permit or took any other steps to regularise their stay in the country. 13. On 19 June 2008 the Kochubeyevskiy District Court in the Stavropol Region fined the applicants 2,000 Russian roubles (RUB) (about 50 euros (EUR)) each and ordered their administrative removal (expulsion) from Russia. The court stated that the applicants, residing in Russia since 1997 and 2002 respectively, had not taken any steps to regularise their presence in the country, in breach of Article 18.8 of the Code of Administrative Offences. The court further stated that both applicants had admitted they had failed to regularise their stay and noted in respect of the second applicant that he had already committed a similar violation in 2005. 14. The applicants appealed against the expulsion order to the Stavropol Regional Court. They pointed out that they were long-term migrants and that their sons and other members of their family lived in Russia. They stated that their expulsion would have an adverse effect on their family life as they had been residing with their sons, were fully dependent on them, taking care of their grandchildren, Mr Sargis Sapondzhyan’s children, and that they were not dependent on the Russian social welfare system. 15. On 1 July 2008 the Regional Court upheld the expulsion order on appeal. It did not examine the applicants’ complaint concerning the alleged violation of their right to family life. The order became final and enforceable. 16. According to the Government’s submission, the expulsion order has not been enforced to date and will not be so as under the domestic legislation it could only be carried out within two years of its entering into force. 17. According to the applicants, in September 2016, upon receipt of the Court’s correspondence concerning their application, they decided to take steps to regularise their stay in Russia. No relevant documents were enclosed. The applicants continue to reside in Russia. 18. For a summary of the relevant domestic law see Muradeli v. Russia, no. 72780/12, §§ 45-54, 9 April 2015. | 0 |
test | 001-144139 | ENG | HUN | CHAMBER | 2,014 | CASE OF BAKA v. HUNGARY | 3 | Preliminary objection joined to merits and dismissed (Article 35-3 - Ratione materiae);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Just satisfaction reserved | András Baka;Egidijus Kūris;Guido Raimondi;Helena Jäderblom;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano | 7. The applicant was born in 1952 and lives in Budapest. 8. On 22 June 2009, after seventeen years of service (1991-2008) as a judge at the European Court of Human Rights and, subsequently, more than one year’s service as a member of the Budapest Court of Appeal, the applicant was elected by the Parliament of Hungary, by decision no. 55/2009 (VI.24) OGY, as President of the Supreme Court for a six-year term, until 22 June 2015. 9. In that capacity, the applicant not only performed managerial tasks but also had a judicial role, presiding over deliberations on uniformity issues and guiding decisions. He was also President of the National Council of Justice. This second function was added to the tasks of the President of the Supreme Court in 1997 by the Organisation and Administration of the Courts Act (Act LXVI of 1997). As the head of the National Council of Justice, the applicant was under an explicit statutory obligation to express an opinion on parliamentary bills that affected the judiciary, after having gathered and summarised the opinions of different courts via the Office of the National Council of Justice. 10. On 13 October 2011 the General Assembly of the Network of the Presidents of the Supreme Judicial Courts of the European Union unanimously elected the applicant President of the Network for a two-year term (from 2011 to 2013). 11. In April 2010 the alliance of Fidesz–Magyar Polgári Szövetség (Fidesz–Hungarian Civic Union, hereinafter “Fidesz”) and the Christian Democratic People’s Party (“the KDNP”) obtained a two-thirds parliamentary majority and undertook a programme of comprehensive constitutional reform. Thereafter, the applicant spoke up several times in order to express his views on the integrity and independence of the judiciary. In his professional capacity as President of the Supreme Court and the National Council of Justice, the applicant expressed his views on four issues: the Nullification Bill; the retirement age of judges; the amendments to the Code of Criminal Procedure; and the new Organisation and Administration of the Courts Bill. 12. Firstly, the Nullification Bill (subsequently Act XVI of 2011) sought to redress convictions relating to the crowd dispersion in autumn 2006. The applicant criticised the manner in which that goal would be achieved, namely by reopening final judgments and annulling through legislation certain judicial decisions. On 12 February 2011 the applicant’s spokesman explained to the Népszabadság newspaper that, in the applicant’s view: “the Bill ordering the annulment of some judicial decisions delivered in relation to the 2006 riots gives cause for concern, because it violates the right of judges to freely assess evidence. This is a serious constitutional problem. ... the judiciary is examining the Bill only from a professional point of view and distances itself from any kind of political debate. András Baka [the applicant], President of the National Council of Justice, hopes that Parliament will choose a legal technique that eliminates the problem of unconstitutionality”. On 8 March 2011, the day after the adoption of the Bill, István Balsai (Fidesz MP, Chairman of the Constitutional, Judicial and Standing Orders Committee of Parliament at the relevant time), responded to the critiques of the judiciary in a press conference, where he declared: “The adopted legal solution was said to be unfortunate. Now, I myself find it unfortunate if a member of the judiciary, in any position whatsoever, tries to exert influence over the legislative process in such a way”. 13. Secondly, in relation to the proposal to reduce the mandatory retirement age of judges (from seventy to the general retirement age of sixty-two) in Article 26 (2) of the Fundamental Law of Hungary, on 7 April 2011 court presidents, including the applicant, addressed a letter to different actors in the constitutional process (the President of the Republic, the Prime Minister, the Speaker of Parliament) in which they pointed out the possible risks to the judiciary posed by that proposal. Their concern was that by abolishing the possibility for judges to remain in office until the age of seventy, the proposed rule would force one tenth of Hungarian judges (274 persons) to end their careers unexpectedly in 2012. In the morning of 11 April 2011 (the day of the vote on the proposals for amendment), the applicant addressed a letter to the Prime Minister in which he stressed that the proposal was humiliating and professionally unjustifiable; it infringed the fundamental principles of independence, status and irremovability of judges; and it was also discriminatory, since only the judiciary was concerned. He added as follows: “It is, however, unacceptable if a political party or the majority of Parliament makes political demands on the judiciary and evaluates judges by political standards.” The same day, Parliament adopted the above-mentioned proposal (see Relevant domestic law below). 14. On 14 April 2011 the plenary session of the Supreme Court, the applicant in his capacity as President of the National Council of Justice, as well as the presidents of regional and county courts addressed a communiqué to the Hungarian and European Union public, pleading for the autonomy and independence of the judiciary and criticizing the new mandatory retirement age for judges. The relevant extracts from the communiqué read as follows: “According to the proposal, the mandatory retirement age of judges will be reduced by eight years as of 1 January 2012. As a result, the tenure of 228 judges (among them 121 judges responsible for court administration and professional supervising) will be terminated the same day, without any transition period, due to the fact that they will have turned 62. By the 31 December 2012 a further 46 judges will have to terminate their career. As a consequence of this decision the timeliness of judicial proceedings will significantly deteriorate (reassignment of nearly 40 000 cases will be necessary, which may even cause several years’ delay in the judicial proceedings of tens of thousands of clients). The administration of courts will be seriously hindered since the replacement of dozens of retiring judges is extremely difficult. The multiple effect of the forced pensioning off, without any real justification, of highly qualified judges, who have several years of experience and practice, and most of whom are at the apex of the hierarchy, will fundamentally shatter the functioning of the court system – leaving aside other unforeseeable consequences. Moreover, the proposal is unfair and humiliating with respect to the persons concerned, who took an oath to serve the Republic of Hungary and to administer justice and who devoted their life to the judicial vocation. It is incomprehensible why the issue of the retirement age of judges is worth regulation in the Fundamental Law. There is only one answer: by including it in the Fundamental Law, there will be no chance to contest this legal rule, which violates the fundamental principles of a democratic state governed by the rule of law, before the Constitutional Court. Such an unjustified step insinuates a political motivation. ” 15. Thirdly, on 14 June 2011, Bill T/3522 on the amendment of certain legislation concerning judicial procedure and the judicial system (including the Code of Criminal Procedure) was submitted to Parliament. At the applicant’s request, the Criminal Law Division of the Supreme Court prepared an analysis of the Bill, which was communicated to Members of Parliament. As no substantive changes were made to the Bill (enacted on 4 July 2011 as Act LXXXIX of 2011), the applicant decided to challenge the Act before the Constitutional Court on grounds of unconstitutionality and violation of obligations enshrined in international treaties, making use of that prerogative for the first time in Hungarian history. The Constitutional Court, in its decision no. 166/2011.(XII.20.) AB of 19 December 2011, established the unconstitutionality of the impugned provisions and quashed them (notably, the provision concerning the Attorney General’s right to establish court competence by derogation from default statutory rules). 16. Lastly, the applicant expressed his views in a parliamentary debate on two new Cardinal Bills: the Organisation and Administration of the Courts Bill (no. T/4743) and the Legal Status and Remuneration of Judges Bill (no. T/4744). According to the explanatory memorandum to the Bills, it was proposed that the National Council of Justice be abolished and replaced by a National Judicial Office and a National Judicial Council. The purpose of those proposals was to separate judicial and managerial functions, which had been “unified” in the person of the President of the Supreme Court, who was at the same time president of the National Council of Justice. The proposed reform sought to concentrate the tasks of judicial management in the hands of the president of the new National Judicial Office, while leaving the responsibility for overseeing the uniform administration of justice with the president of the Supreme Court (renamed with the historical appellation “Kúria”). On 26 October 2011, the applicant addressed a detailed analysis of the Bills to Parliament, taking account of the comments received from judges throughout the country. He also decided to express his opinion directly before Parliament, in accordance with Article 45 § 1 of Parliamentary Decision 46/1994 (IX.30) OGY on the Rules of Parliament. In his speech, delivered on 3 November 2011, the applicant raised his concerns about the fact that the draft legislation did not address the structural problems of the judiciary, but left them to the discretion of the chief executive of an external administration (the president of the new National Judicial Office), to whom excessive and, in Europe, unprecedented powers were being conferred without adequate accountability. 17. The Fundamental Law of 25 April 2011 established that the highest judicial body would be the Kúria (the historical Hungarian name for the Supreme Court). 18. On 19 October 2011, in an interview on ATV, the State Secretary of Justice, Róbert Répássy, MP, declared that under the Organisation and Administration of the Courts Bill (no. T/4743), the new Kúria would have the same function as the current Supreme Court and that only the Supreme Court’s name would change. He said that the legislation “will certainly not provide any legal ground for a change in the person of the Chief Justice”. Some months earlier, on 14 April 2011, during a debate on the Fundamental Law, another Fidesz politician, Gergely Gulyás, MP, had declared on Inforádió that the President of the Supreme Court would remain the same and that only the name of the institution would change. 19. On 19 November 2011, Gergely Gulyás submitted a Bill (no. T/4996) to Parliament proposing an amendment to the 1949 Constitution. The amendment sought to provide that Parliament would elect the president of the Kúria by 31 December 2011 at the latest. 20. On 20 November 2011, MPs János Lázár and Péter Harrach, Fidesz and KDNP party leaders respectively, submitted a Bill (no. T/5005) to Parliament on the transitional provisions of the Fundamental Law of Hungary. Under section 11 the legal successor of the Supreme Court and the National Council of Justice would be the Kúria for the administration of justice, and the President of the National Judicial Office for the administration of the courts. Pursuant to section 11(2) of the Transitional Provisions of the Fundamental Law of Hungary Bill, the mandates of the President of the Supreme Court as well as of the President and members of the National Council of Justice would be terminated upon the entry into force of the Fundamental Law. The reasoning of the Bill stipulated that it provided comprehensive regulation of the succession of the Supreme Court, the National Council of Justice and their President. The successor (body or person) would be different according to the different nature of the separated functions. Having regard to the modifications of the court system, the Bill provided that the mandates of the President of the Supreme Court currently in office, as well as that of the President and members of the National Council of Justice, would be terminated upon the entry into force of the Fundamental Law. 21. In order to bring other legislation into line on this issue, on 23 November 2011 a Fidesz MP, Ferenc Papcsák, submitted an amendment to sections 185 and 187 of the Organisation and Administration of the Courts Bill. The amendment sought to terminate the mandates of the members and President of the National Council of Justice as well as those of the President and Vice-President of the Supreme Court upon the entry into force of the Fundamental Law. 22. On 28 November 2011 Parliament enacted both the Organisation and Administration of the Courts Bill (as Act CLXI of 2011) and the Constitution of the Republic of Hungary (Amendment) Bill (as Act CLIX of 2011), the content of which is described above. The Transitional Provisions of the Fundamental Law of Hungary Bill was adopted without amendment on 30 December 2011 and published (as Transitional Provisions of the Fundamental Law of Hungary) in the Official Gazette on 31 December 2011. The date of the entry into force of the Fundamental Law was scheduled for 1 January 2012. 23. The applicant’s mandate was terminated on 1 January 2012, three and a half years before its normal date of expiry. 24. In order for a new president to be elected to the Kúria in due time, the Constitution of the Republic of Hungary (Amendment) Act (Act CLIX of 2011, adopted on 28 November 2011, see paragraph 22 above) entered into force on 2 December 2011. On 9 November 2011, the Organisation and Administration of the Courts Bill was amended with the introduction of a new criterion for the election of the new president of the Kúria. It provided that he or she would be elected by Parliament from among the judges appointed for an indeterminate term, having served at least five years as a judge (section 114(1) of Act CLXI of 2011 – see Relevant domestic law below). On 9 December 2011, the President of the Republic proposed that Parliament elect Péter Darák as President of the Kúria and Tünde Handó as President of the National Judicial Office. On 13 December 2011, Parliament elected those candidates in accordance with the proposal of the President of the Republic. 25. The applicant is serving as a judge of the new Kúria (civil section). According to the internal regulation on press contacts at the Kúria, he is no longer entitled to express his opinions freely, as the giving of interviews is subject to prior consent by the President of the Kúria. 26. The premature termination of the applicant’s mandate has also had pecuniary consequences. Firstly, he has lost the remuneration and other benefits (social security, presidential residence, personal protection) to which a president of the Supreme Court is entitled throughout the period of the fixed presidential term. Secondly, outgoing presidents of the Supreme Court had the statutory right to certain benefits (an allowance for six months following the termination of his or her mandate, an office and a secretariat with two employees for two years, a pension supplement for life) of which the applicant was also deprived. The Remuneration and Allowances Act 2000 dealing, inter alia, with the entitlements of the President of the Supreme Court, was repealed as from 1 January 2012. Section 227(1) of the Legal Status and Remuneration of Judges Act 2011 (as amended on 28 November 2011, in force from 1 January 2012) supplemented this abrogation and stipulated that the repealed legislation would be applied to any former president of the Supreme Court only to the extent that he or she was entitled to the allowance specified in sections 26(1) and 22(1) (pension supplement for life), if he or she had reached retirement age at the time of the entry of force of the Act and had requested the allowance. 27. Since the applicant had not attained retirement age by 1 January 2012, he could not claim payment of that post-function benefit. 28. On 12 December 2011, EU Justice Commissioner Viviane Reding wrote a letter to the Hungarian authorities raising concerns on the issue of the retirement age of judges. An annex to the letter also raised the issues of the President of the new National Judicial Office and the transformation of the Supreme Court into the Kúria, in particular the early termination of the applicant’s mandate as President of the Supreme Court before the end of the regular term. The Hungarian authorities answered and the European Commission, on 11 January 2012, issued a statement on the situation of Hungary. 29. On 17 January 2012, the Commission decided to open “accelerated” infringement proceedings against Hungary on, inter alia, the independence of the judiciary. As regards the new mandatory retirement age for judges (and prosecutors), the Commission stated that EU rules on equal treatment in employment (Directive 2000/78/EC) prohibited discrimination at the workplace on grounds of age. Under the case-law of the Court of Justice of the EU, an objective and proportionate justification was needed if a government were to decide to reduce the retirement age for one group of people and not for others. The Commission did not find any objective justification for treating judges and prosecutors differently from other groups, notably at a time when retirement ages across Europe were being progressively increased. The Commission also asked Hungary for more information regarding the new legislation on the organisation of the courts. In its press release IP/12/24, the Commission stated as follows: “[u]nder the law, the president of a new National Judicial Office concentrates powers concerning the operational management of the courts, human resources, budget and allocation of cases. ... In addition, the mandate of the former president of the Supreme Court, who was elected for six years in June 2009, was prematurely terminated at the end of 2011. In contrast, other former judges of the Supreme Court continue their mandate as judges of the new Curia, which has replaced the Supreme Court.” 30. On 7 March 2012, the Commission decided to send Hungary a reasoned opinion on the measures regarding the retirement age of judges and an administrative letter asking for further clarifications regarding the independence of the judiciary, in particular in relation to the powers attributed to the President of the National Judicial Office (powers to designate a court in a given case and the transfer of judges without consent). 31. On 7 June 2012, the European Commission referred the case to the Court of Justice of the European Union (case C-286/12). On 6 November 2012, the Court of Justice declared that by adopting a national scheme requiring the compulsory retirement of judges, prosecutors and notaries when they reach the age of sixty-two – giving rise to a difference in treatment on grounds of age which is not proportionate as regards the objectives pursued – Hungary had failed to fulfil its obligations under Council Directive 2000/78/EC of 27 November 2000, which established a general framework for equal treatment in employment and occupation. The court observed that the categories of persons concerned by the provisions at issue benefited, until their entry into force, from a derogation allowing them to remain in office until the age of seventy, which gave rise, in those persons, to a well-founded expectation that they would be able to remain in office until that age. However, the provisions at issue abruptly and significantly lowered the age-limit for compulsory retirement, without introducing transitional measures to protect the legitimate expectations of the persons concerned. | 1 |
test | 001-145731 | ENG | RUS | CHAMBER | 2,014 | CASE OF LYAPIN v. RUSSIA | 3 | 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);Non-pecuniary damage - award | Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković | 5. The applicant was born in 1964 and lives in Nizhniy Novgorod. 6. In February 2008 a series of thefts from individual garages was committed in the Volodarskiy District of the Nizhniy Novgorod region. The Volodarskiy District police department (ОВД по Володарскому району) initiated a criminal investigation into the thefts. 7. During the night of 24 to 25 April 2008 police officers U. and K. from the Volodarskiy District police department were patrolling an area of Ilyinogorsk in which there was a garage cooperative where some of the thefts had been committed. At 2.30 a.m. they stopped the applicant, who had entered one of the garages. 8. According to the applicant, that night he had gone to Ilyinogorsk searching for abandoned scrap metal which he could then sell. He entered a garage, the door of which was allegedly open. He was then stopped by two police officers, who asked him to accompany them to a police station to check his identification documents. He explained that he had the documents with him and suggested that they check them right away. They insisted that he should go with them to the police station and he obeyed. 9. According to the reports of police officers U. and K. to the head of the Volodarskiy District police department of 25 April 2008 and their statements as witnesses to an investigator in the garage-thefts case of 26 April 2008, they were patrolling the garage cooperatives on the outskirts of Ilyinogorsk in order to detect persons involved in the garage thefts that had been committed previously. They heard metallic sounds and saw the applicant, who had opened and entered one of the garages. They apprehended him and took him to the Ilyinogorsk police station in order to check his identity and to establish whether he had been involved in the garage thefts. The applicant refused to accompany them to the police station, “swinging his arms” and trying to escape. Therefore they “used physical force” and handcuffs, in accordance with section 12 of the Police Act. At the Ilyinogorsk police station his identity was established and he was found to be in possession of homemade lock-picking tools. 10. According to the search record drawn up at the Ilyinogorsk police station, the police seized, in particular, six metal items made of screws which the applicant had on him. 11. According to the applicant, he was coerced by police officers into confessing to the garage thefts. He described his illtreatment as follows. 12. A police officer, who arrived after the applicant had been searched, took him to one of the offices and tied him up with a rope so that his head was between his legs while he was sitting on the floor with his legs crossed and his hands shackled behind his back. The police officer pressed on his back and legs. After about an hour of such treatment he was untied and placed in a cell for detainees. 13. About ten minutes later another police officer arrived and the applicant was taken to the same office and tied up again in the same way, with his hands shackled behind his back. The second police officer had a box with a handle and two wires, the last ten centimetres of which were bare. The police officers tied the wires to the applicant’s little fingers and the second police officer started rotating the handle. The applicant felt a sharp muscle contraction and screamed. The police officers gagged him. They took turns to rotate the handle. The wires kept falling off and the police officers had to attach them again and again. At some point they poured water over the applicant’s hands to exacerbate the electric shocks. The applicant lost consciousness several times. The electric shocks left burn wounds on his hands. 14. The police officers’ first names were O. and V. Based on information which the applicant received later, he deduced that those police officers were operational officers K.O. and S.V. from the criminal investigation unit of the Volodarskiy District police department. 15. At about 7.30 a.m. the applicant was placed back in the cell. At his request the officer on duty took him to a lavatory where he could hold his hands, which were swollen after the electric shocks, under cold water. He remained in the cell for several hours. 16. Then he was taken again to the same office, where he saw six police officers, each of whom asked him questions about the circumstances of different criminal cases. One of them kicked him in the chest and then punched him in the left ribs. That police officer took the applicant outside to participate in the examination of the applicant’s Gazelle truck conducted by a female investigator. 17. Thereafter the applicant was taken back inside the police station, where the police officers questioned him again, from time to time slapping him on the back of his head. When the applicant could no longer resist their pressure, they took him to some garages, where he acted in accordance with K.O.’s instructions, showing them the garages from which he had allegedly stolen certain property. That was recorded as an on-site verification of his statements. 18. The police officers took the applicant to the Justice of the Peace for an examination of an administrative charge against him (see paragraphs 19, 20 and 25 below). He confirmed before the judge that he had committed the administrative offence as alleged by the police. The police officers thereafter took him to the Volodarskiy District police department in Dzerzhinsk for questioning as a suspect in the garage-thefts case. The investigator gave him a readytosign record of his examination with his confession to the garage thefts, which he signed. 19. At 3 a.m. on 25 April 2008 the officer on duty at the Ilyinogorsk police station, K.S., drew up a record of the applicant’s administrative arrest. It stated that the applicant had been arrested in connection with his disobedience to police officers’ lawful demands, and that a visual examination of the applicant had not revealed any injuries. According to the record, the applicant requested that his wife be notified about the place of his detention. However, the section of the record indicating who was notified about the applicant’s place of detention, and when, was not filled in. 20. At 3.30 a.m. police officer U. drew up a record of the applicant’s administrative offence in which he described the circumstances of the applicant’s apprehension at 2.30 a.m. in the same way as in his report (see paragraph 9 above). He also stated that the applicant had used coarse language and had not reacted to his and his colleague’s demands to stop his disorderly behaviour. The record contains the applicant’s explanation that on his way to the police station he had only stopped once and had not tried to break away from the police officers or to escape. 21. From 12.45 p.m. to 2 p.m. a senior investigator, Ms M., of the investigation division of the Volodarskiy District police department carried out an examination of the applicant’s Gazelle truck in Ilyinogorsk. 22. From 2.10 p.m. to 3.20 p.m. in Ilyinogorsk investigator M. examined the applicant as a suspect in the presence of a lawyer on duty, Ya. According to the record of his examination, the applicant was suspected of having committed “thefts from garage cooperatives in Volodarsk, Ilyinogorsk and Mulino”. He confessed to having committed, starting from February 2008, thefts from five garages in Volodarsk, five garages in Ilyinogorsk and two garages in Mulino. No information was entered in the record about the specific garage which the applicant had entered immediately before his apprehension. 23. From 3.30 p.m. to 3.50 p.m., in the course of the on-site verification of the applicant’s statements, the applicant showed the police the garages in which he had committed the thefts. 24. At some point the head of the Ilyinogorsk police station ordered that the materials concerning the administrative case against the applicant (see paragraphs 19 and 20 above) be transferred to the Volodarskiy District Justice of the Peace for examination. 25. According to a judgment of 25 April 2008 of the Justice of the Peace of Court Circuit no. 2 of the Volodarskiy District, the applicant, who pleaded guilty, was found to have committed an administrative offence under Article 19.3 § 1 of the Code of Administrative Offences – disobedience to a police officer’s lawful demand (in particular, on account of his having used coarse language and having ignored the police officers’ requests to discontinue such behaviour). He was sentenced to five days’ administrative detention, to run from 2.30 a.m. of that day. 26. Investigator M. thereafter ordered that the applicant, as a suspect in the garagethefts case, should be subjected to a measure of restraint in the form of an undertaking not to leave his place of residence and to behave properly. It was stated in that decision that the applicant had fully acknowledged his guilt. 27. A group of police officers took the applicant to Nizhniy Novgorod where they carried out a search of his flat, as ordered by investigator M. According to an official record, the search was carried out from 9.55 p.m. to 10.50 p.m. by operational agent V. of the criminal investigation unit of the Volodarskiy District police department in the presence of the applicant’s wife and two witnesses. 28. From 11.05 p.m. to 12.07 a.m. operational officer K.O. seized some items from the applicant’s other car found near his block of flats, in the presence of his wife and two witnesses. 29. After their return from Nizhniy Novgorod, police officers took the applicant to a detention facility for administrative offenders at police station no. 1 of the Dzerzhinsk Town police department to serve the five days’ administrative detention (see paragraph 25 above). According to the detention facility records, he was placed there at 2 a.m. on 26 April 2008. The records did not mention any injuries on the applicant. 30. In the morning of 26 April 2008 the applicant was visited by his wife and brother. At 10.10 a.m. a police officer on duty called an ambulance at the applicant’s request. 31. According to the medical records, the applicant was examined by an ambulance doctor, Ms V., at 10.28 a.m. He complained of pain in the left side of his chest whenever he made the slightest movement or breathed, pain in the neck and heaviness in his head and explained that he had been beaten up and kicked. An examination revealed that he was suffering sharp pain around the eighth and ninth ribs on the left side, abrasions on his cheekbones and on one of his shoulders, and swelling and hyperaemia of both hands. The applicant was diagnosed with a closed fracture of the left ribs, abrasions on his face and back, and arterial hypertension. He was provided with first aid. The ambulance doctor considered that his condition was incompatible with detention and necessitated his further examination at a traumatology centre. 32. The applicant was therefore released from the detention facility and taken by ambulance to the Dzerzhinsk traumatology centre, where he was examined at 10.55 a.m. and diagnosed with multiple soft-tissue bruises on his face, contusions of the rib cage and abrasions on his wrists. He explained that he had been beaten up by police officers. 33. The applicant’s brother then took him to a hospital in Nizhniy Novgorod. At 12.55 p.m. he was admitted to the Avtozavodskoy District hospital no. 40. He was diagnosed with concussion, contusions of the rib cage and neck, and burns on his hands. The latter diagnosis was made on the basis of several circular lesions under scabs measuring about 0.5 cm in diameter on his hands. 34. On 1 May 2008 the applicant was examined by an expert in forensic medicine, Dr Ya. from the Nizhniy Novgorod Regional Forensic Medical Examination Bureau, in accordance with the Avtozavodskoy Investigative Committee’s decision of 30 April 2008 (see paragraph 51 below). The expert found the following injuries on the applicant: two circular abrasions on the back of each hand measuring 0.2 centimetres in diameter; similar abrasions on the right side of the lips, notably two on the upper and one on the lower lip; and an abrasion measuring 1.5 to 0.7 centimetres on the back of the left hand near the wrist. The above-mentioned wounds had similar characteristics. The applicant also had a circular bruise on his left wrist, a bruise measuring 5.5 to 7 centimetres on the left side of his rib cage and bruises on each side of his face, notably a bruise measuring between 2.5 and 5 centimetres on the right side and a bruise measuring 3 to 4 centimetres on the left side. 35. On 7 May 2008 the applicant was released from hospital and prescribed outpatient treatment, which he underwent at polyclinic no. 37. 36. On 30 May 2008 the forensic expert, Dr Ya., issued report (акт судебномедицинского освидетельствования) no. 104-E on the basis of the applicant’s examination on 1 May 2008 and his medical records from hospital no. 40. The expert considered that, given the morphological characteristics of the injuries, they could have been inflicted as alleged by the applicant. 37. On 14 July 2008 the applicant was examined by another expert in forensic medicine, Dr S. from the Nizhniy Novgorod Regional Forensic Medical Examination Bureau. The applicant had several circular scars on both hands. Having also examined the applicant’s medical records from hospital no. 40, and relying on Dr Ya’s description of his injuries of 1 May 2008, Dr S. concluded in report (акт судебномедицинского освидетельствования) no. 2944-D of 23 July 2008 that the applicant’s injuries, notably the abrasions on his hands and lips, the bruises on his face, left hand and the left side of his chest, and his concussion, had been inflicted by a blunt object and could have originated as a result of his having been punched and kicked. It was not excluded that the injuries could have been inflicted on 25 April 2008. Based on the existing data, it could not be categorically confirmed that the applicant had been subjected to electric shocks. However, it was not excluded that the abrasions and scars on his hands could have been caused as a result of their contact with a currentcarrying conductor. Taking into account the nature of the scars, it was not excluded that the injuries (from which the scars had originated) could have been inflicted on 25 April 2008. 38. On 16 July 2008 a psychotherapist, M., examined the applicant and diagnosed post-traumatic stress disorder, complicated by reactive depression in connection with his alleged ill-treatment by police officers on 25 April 2008. In particular, his recollection of those events provoked involuntary crying. Following the doctor’s recommendation, the applicant received outpatient psychotherapy. As of 31 October 2008 his condition improved and he refused further treatment. 39. On 11 October 2008 the applicant solicited an opinion from Dr L.M. about the origin of the injuries on his hands. Dr L.M.’s opinion, which was based on the applicant’s medical records, was similar to that of Dr S. 40. A letter of 22 June 2009, signed by the head of the organisational and methodological department of hospital no. 40, stated that the lesions on the applicant’s hands looked more like “old burns”. 41. Forensic medical expert opinion (заключение специалиста, судебномедицинское исследование) no. 189/09 of 25 November 2009 was prepared by an expert in forensic medicine, Dr Sh. from the Main State Centre of Forensic Medical and Criminalistic Examinations, on the basis of the previous forensic medical expert opinions of 30 May and 23 July 2008, another expert opinion (28 May 2009, no. 2153-D) and the applicant’s other medical records. It stated that the medical records did not contain the necessary objective clinical symptomatology to confirm the diagnosis of the closed fracture of the ribs, the contusion of the neck and the burns on the applicant’s hands. As regards the lesions on the applicant’s hands, they lacked objective morphological characteristics typical of lesions caused by electric current. The diagnosis could not, therefore, be the subject of forensic medical assessment. The applicant’s other injuries recorded in connection with the events of 25 April 2008, notably his concussion, the bruises on his face, the abrasions on his lips and on the back of his hands, the circular bruise on his left wrist and the contusion of the left side of his rib cage, were objectively supported by the medical documentation. The circular bruise on the left wrist could have been caused by a handcuff. The remaining injuries had been inflicted as a result of an impact with a blunt hard object. This could have been a fist, a shod foot or any other blunt hard object with a limited surface, given the form, small size and isolated character of the injuries. The lesions on the applicant’s face and hands could not have been caused as a result of the applicant’s rubbing his face with his denim jacket and sitting on his hands (as had been suggested by police officers Sh. and M., see paragraphs 58 and 60 below). The injuries could have been inflicted on 25 April 2008. They had caused a short-term – not exceeding twenty-one days – health disorder and should therefore be classified as minor health damage. 42. On 1 July 2008 the applicant lodged an appeal against the judgment of the Justice of the Peace of 25 April 2008 (see paragraph 25 above) and asked for an extension of the deadline for the appeal. He argued that the administrative case against him had been fabricated by the police. 43. On 5 August 2008 the Volodarskiy District Court heard the applicant, who recounted the events of 25 April 2008 and explained that he had pleaded guilty before the Justice of the Peace because he had been intimidated as a result of his ill-treatment at the Ilyinogorsk police station and because a police officer had been present at that hearing. 44. The District Court found no good reasons for the applicant’s failure to lodge his appeal earlier and rejected his request for an extension of the deadline for appealing. 45. On 4 June 2008 the applicant was charged with seven counts of theft from garages committed in February-March 2008. When questioned as an accused in the presence of a lawyer of his choice on 24 June 2008, he denied having committed the thefts and stated that his earlier selfincriminating statements had been given as a result of illtreatment by the police. 46. At a hearing before the Volodarskiy District Court of the Nizhniy Novgorod Region, the victims asked the court to terminate the proceedings since the applicant had fully compensated them for the damage and apologised. The applicant pleaded guilty of seven counts of theft and asked that the victims’ request be granted. On 27 August 2008 the District Court granted the victims’ request and terminated the criminal proceedings against the applicant for reconciliation between the parties. 47. At 11.24 a.m. on 26 April 2008 the Dzerzhinsk traumatology centre reported to the Volodarskiy District police department about the medical assistance administered that morning to the applicant, who had allegedly been beaten up by police officers in Ilyinogorsk on the night of 25 April 2008 (see paragraph 32 above). The Volodarskiy District police department transferred the report to the Dzerzhinsk inter-district investigation division of the investigative committee at the Nizhniy Novgorod regional prosecutor’s office (Дзержинский межрайонный следственный отдел следственного управления Следственного комитета при прокуратуре РФ по Нижегородской области, “the Dzerzhinsk Investigative Committee”) on 4 May 2008. 48. At 4.15 p.m. on 26 April 2008, hospital no. 40 reported to the Avtozavodskoy District police department of Nizhniy Novgorod that the applicant had been hospitalised with injuries allegedly sustained as a result of beatings by police officers in the Volodarskiy District (see paragraph 33 above). On the same day the applicant, who resided in the Avtozavodskoy District, lodged an application with the head of the same police department requesting that criminal proceedings be brought against the police officers who had illtreated him at the Ilyinogorsk police station on the night of 25 April 2008. 49. On 28 April 2008 the Avtozavodskoy District police department transferred the materials concerning the applicant’s alleged ill-treatment to the Volodarskiy District police department, which in its turn transferred them to the Dzerzhinsk Investigative Committee on 19 May 2008. 50. In the meantime, on 30 April 2008 the Avtozavodskoy District investigation division of the investigative committee at the Nizhniy Novgorod regional prosecutor’s office also received the applicant’s complaint of illtreatment. The applicant stated that he could identify the police officers who had ill-treated him, including those who had done so on the instructions of the investigator in charge of the garage-thefts case. 51. On the same day an investigator of the Avtozavodskoy Investigative Committee started a pre-investigation inquiry into the applicant’s allegation and ordered his forensic medical examination (судебномедицинское освидетельствование). In her decision she stated that during the night from 25 to 26 April 2008 the applicant had allegedly been gagged, tied up with a rope, punched and kicked, and electric current had allegedly been applied to him leaving burns marks. 52. On 2 May 2008 the head of the Avtozavodskoy Investigative Committee granted the investigator’s request for an extension of the timelimit for the preinvestigation inquiry to ten days, in order to receive the applicant’s “explanations” (see paragraph 105 below). 53. The applicant’s wife and the applicant gave “explanations” to the investigator on 5 and 6 May 2008, respectively. In describing his illtreatment at the Ilyinogorsk police station the applicant stated, in particular, that police officers O. and V. had locked the door of the office from the inside. They had tied his legs with a rope, which they pulled over his shoulders to shackle his hands behind his back, and attached them to handcuffs, thereby bending his head below the level of and between his knees, which were pulled aside. O. had stepped and jumped on his knees, causing him severe pain. O. had also slapped him in the back of his head several times. They had demanded that he confess to the thefts which had been committed in the district. Later in the same office, he had been questioned about the thefts by O., V. and other police officers. One of them had kicked him in the chest and punched him under the left armpit, making it difficult for him to breath. They had mocked him, hit and slapped him. The applicant stated that he could identify police officers O., V. and the third police officer who had kicked and punched him. He described their appearance and how they had been dressed on 25 April 2008. 54. On 6 May 2008 “explanations” were also received from a neurosurgeon of hospital no. 40, who had supervised the applicant’s treatment. He confirmed the information in the hospital medical records. 55. On the same day the investigator ordered that the applicant’s allegation of ill-treatment by Volodarskiy District police department officers, whose actions revealed elements of a crime under Article 286 § 3 (a) of the Criminal Code, be transferred for investigation to the Dzerzhinsk Investigative Committee. 56. On 7 May 2008 an investigator of the Dzerzhinsk Investigative Committee received an “explanation” from police officer U., who stated, inter alia, that following the applicant’s refusal to accompany him and police officer K. to the police station, physical force had been applied to the applicant, notably his arms had been twisted behind his back and he had been handcuffed. U. denied using any other physical force. 57. On the next day the deputy head of the Dzerzhinsk Investigative Committee, like in the proceedings before the Avtozavodskoy Investigative Committee, granted the investigator’s request to extend the initial threeday timelimit for the pre-investigation inquiry to ten days in order to examine the applicant, to identify and examine the police officers who had allegedly beaten him up, and to carry out a medical examination of the applicant after his recovery. 58. On 11 May 2008 the investigator received “explanations” from senior operational officer Sh. from the criminal investigation unit of the Volodarskiy District police department, who had seen the applicant in a cell at the Ilyinogorsk police station. Sh. stated that the applicant “had been sitting on his hands and, therefore, when taken out of the cell his hands had been swollen”. Sh. further stated that the applicant “had been rubbing his face with his denim jacket”. According to Sh., this had caused an irritation to the skin on the applicant’s face. Sh. denied any violence or threats towards the applicant. In Sh.’s opinion the applicant had inflicted his injuries on himself in order to complain afterwards that police officers had used unlawful investigative methods. 59. On 12 May 2008 “explanations” were received from the investigator, Ms M. She stated that operational support in the garage-thefts case had been provided by officers K.O. and S.V. She had arrived at the Ilyinogorsk police station as a member of an investigative task force set up in connection with the series of thefts from garages, questioned the applicant and carried out an onsite verification of his statements. The applicant had had no visible injuries. She denied that she had instructed the police officers to beat the applicant up and considered the applicant’s allegation a slander with a view to avoiding liability for his crimes. 60. On 16 May 2008 the head of the criminal investigation unit of the Volodarskiy District police department, Mr M., explained that a report had been received from the Volodarskiy District police department officer on duty about the apprehension of the applicant, who had forced open a garage door in Ilyinogorsk. As thefts in the proximity of Ilyinogorsk had become more frequent, an investigative task force had been sent to the scene of the incident. When Mr M. had arrived at the Ilyinogorsk police station, he had seen the applicant, who “had been sitting on his hands and, therefore, when taken out of the cell his hands had been swollen”. The applicant had had an irritation on the skin of his face as though he had rubbed it. The applicant had indeed been rubbing his face with his denim jacket. M. had rebuked the applicant for rubbing his face in order to injure himself. M. denied any violence or threats towards the applicant. He considered that the applicant had inflicted his injuries on himself in order to complain afterwards that police officers had used unlawful investigative methods. 61. On the same day the investigator’s request for an extension of the timelimit to twenty days for the pre-investigation inquiry was granted. On 26 May 2008 the pre-investigation inquiry was extended for ten more days. 62. On 28 May 2008 “explanations” were received from operational officer K.O. He stated that he and operational officer S.V. had interviewed the applicant after his arrest on 25 April 2008. He alleged that the applicant had refused to communicate with them and had been placed back in a police cell. K.O. had taken the applicant to Nizhniy Novgorod to carry out a search of his flat. There had been no visible injuries on the applicant except for some redness around his temples. 63. On 29 May 2008 operational officer S.V. explained that on the night of 25 April 2008 he had been informed by phone about the applicant’s apprehension. He had gone to the Ilyinogorsk police station in order to check whether the applicant had been involved in thefts from garages committed recently in Mulino. After his arrival he had joined K.O., who had been interviewing the applicant. The applicant had had no visible injuries, except for some redness on his face. The applicant had denied his involvement in the crimes and had not wished to talk to them. He had therefore been placed in a police cell. 64. Both K.O. and S.V. denied any use of violence against the applicant at the Ilyinogorsk police station. They supposed that the applicant had either inflicted his injuries on himself in order to compromise the police and thereby avoid liability for his crimes, or could have sustained the injuries during his apprehension. 65. Relying on the above “explanations” by the police officers and forensic medical report no. 104-E (see paragraph 36 above), the investigator of the Dzerzhinsk Investigative Committee concluded in his decision of 6 June 2008 that the applicant’s allegations had not been confirmed. He ordered, pursuant to Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”), that no criminal case be opened for lack of the elements of a crime, under Articles 285 and 286 of the Criminal Code, in the acts of investigator M. and police officers U. and K., who had acted in accordance with the Police Act, and officers of the criminal investigation unit of the Volodarskiy District police department, K.O., S.V., Sh. and M. 66. The investigator stated that the time at which the applicant’s injuries had been inflicted, which the forensic medical expert had estimated in report no. 104E as the night from 25 to 26 April 2008, did not match the time of the applicant’s apprehension and the ensuing investigative activities. The allegation concerning burns as a result of torture by electric current had not been confirmed by the applicant’s medical examination. Lastly, the investigator held that the applicant’s allegation of illtreatment by the police had been used as a defence aimed at avoiding liability for the crimes committed by him. 67. On 3 September 2008 the decision of 6 June 2008 was revoked as unfounded by an acting head of the Dzerzhinsk Investigative Committee. He ordered an additional pre-investigation inquiry, in particular another forensic medical examination of the applicant with a view to determining whether his injuries could have been caused in circumstances as suggested by police officers U., K. and M. The time-limit for the preinvestigation inquiry was extended to ten days. 68. On 11 September 2008 an investigator of the Dzerzhinsk Investigative Committee issued a new decision refusing to open a criminal case on the grounds that it followed from “explanations” received from Dr Ya. that the applicant could have sustained his injuries “in circumstances as suggested by the Volodarskiy District police department officers, that is in the course of his apprehension”. The decision did not quote or describe in detail either Dr Ya.’s “explanations” or “the circumstances as suggested by the Volodarskiy District police department officers”. It referred to the initial reports and previously received explanations by U., K. and other police officers (see, in particular, paragraphs 9 and 56 above). 69. On 11 February 2009 the Dzerzhinsk Investigative Committee revoked its decision of 11 September 2008 and ordered an additional preinvestigation inquiry to rectify the defects identified in the Town Court’s decision of 29 December 2008 (see paragraph 84 below). 70. There followed a series of refusals by investigators of the Dzerzhinsk Investigative Committee to open a criminal case on the same grounds and for the same reasons as those in the decision of 11 September 2008, with some new information added. Each time, the decisions were revoked by the investigative committee itself in view of the unsatisfactory and incomplete inquiry. They were delivered on the following dates: - third refusal on 24 February 2009, revoked on 25 February 2009; - fourth refusal on 4 March 2009 (“explanations” from the ambulance staff who examined the applicant on 25 April 2008, consistent with the relevant medical records, were added), revoked on 6 May 2009; - fifth refusal on 8 June 2009, revoked on 15 June 2009; - sixth refusal on 25 June 2009, revoked on 15 July 2009; - seventh refusal on 15 July 2009 (a statement by Ms P., a witness during the search of the applicant’s flat on 25 April 2008, was added; she stated, in particular, that during the search the applicant had looked bad, his face had been “greenish” and he had asked for water), set aside by the main department of procedural control of the investigative committee at the General Prosecutor’s Office of the Russian Federation (Главное управление процессуального контроля Следственного комитета при прокуратуре РФ) on 3 September 2009; - eighth refusal on 25 September 2009 (information about the outcome of the criminal proceedings against the applicant added), set aside on 20 November 2009 by the main department of procedural control of the investigative committee at the General Prosecutor’s Office which noted, in particular, the following defects: the failure to question police officer K. and the police officers on duty at the Ilyinogorsk police station about the circumstances of the applicant’s apprehension; the inconsistencies between the applicant’s and the police officers’ statements about the origin of the injuries; and the inconsistency between the forensic medical report, according to which the alleged ill-treatment had taken place during the night from 25 to 26 April 2008 (see paragraphs 34, 36 and 51), and the statements by the applicant and the police officers, according to which the incident had taken place during the night from 24 to 25 April 2008; - ninth refusal on 14 December 2009 (it was added that no elements of crimes, under Articles 318 and 319 of the Criminal Code, had been established in the applicant’s actions during his arrest), revoked on the same day. 71. On 24 December 2009 the investigator of the Dzerzhinsk Investigative Committee took a new decision in which he held – as in the previous decisions – that pursuant to Article 24 § 1 (2) of the CCrP, no criminal case should be opened into the applicant’s allegation of illtreatment by police officers. The decision cited new “explanations” by some police officers about the events of 25 April 2008, which are summarised below. The decision cited the same “explanations” by police officer U. as before (see paragraph 56 above). 72. Police officer K. stated, in particular, that on their way to the police station the applicant had attempted to run away. K. had managed to grab him by the sleeve of his jacket. K. and U. had pushed him face down on the asphalt, twisted his hands behind his back and handcuffed him. They had retained him on the ground for about ten minutes until he had stopped resisting and insulting them. No other physical force had been used on him. At the police station the applicant had been unshackled and searched. Thereafter, operational agent K.O. had arrived at the police station and taken the applicant to his office. K. had not seen the applicant since then. Later operational agent S.V. had stayed with the applicant in that office, while K., U. and K.O. had searched for the applicant’s car. 73. Police officers M. and Sh. explained, in particular, that they had arrived in Ilyinogorsk together with the investigator, Ms M., and police officer P. from the Volodarskiy District police department in connection with the applicant’s arrest and their work on a series of unsolved garage thefts. They had arrived at the Ilyinogorsk police station at about 11.30 a.m. The applicant had been taken to K.O.’s office for questioning. 74. The decision also referred to police officer K.O., who had stated, in particular, that he had arrived at the Ilyinogorsk police station following a telephone call from an officer on duty, B., about the applicant’s apprehension. K. had told K.O. about the circumstances of the applicant’s apprehension. In particular, K. had seen, in the garage being opened by the applicant, some things that he had collected and was preparing to carry away. B. had said that the applicant had had a bunch of metal picklocks on him. K.O. had believed that the applicant had been involved in the series of garage thefts. The type of lock on the garage which the applicant had opened was the same as those on the other garages from which thefts had been committed. He had taken the applicant to his office and questioned him until 3 a.m. No one else had been present in his office. The applicant had stated that he had had no previous criminal convictions. K.O. had phoned the information centre of the Nizhniy Novgorod regional police department, which had informed him that the applicant had previously been convicted of garage thefts in the Avtozavodskoy District of Nizhniy Novgorod. According to the records of the information centre, the applicant’s mobile phone had been registered as missing in connection with a garage theft in Dzerzhinsk. At about 4 a.m. police officer S.V. had arrived and started interviewing the applicant in K.O.’s office. The applicant had not wished to communicate with them and they had taken him to the officer on duty. 75. K.O. had also explained that he, S.V., K. and U. had searched for the applicant’s car, which they had found in one of the streets in Ilyinogorsk. When looking inside K.O. had seen a spade resembling one which had been stolen from one of the garages. Afterwards they had returned to the police station and waited for the arrival of the investigative task force of the Volodarskiy District police department. The task force consisted of M., Sh. and P., investigator Ms M. and an expert criminologist, I. They had arrived at about midday and carried out investigative measures. In particular, investigator M. had questioned the applicant and then conducted the onsite verification of his statements. The applicant was then taken to the Justice of the Peace. 76. Police officer S.V.’s new “explanations” were largely similar to those of K.O., with some discrepancies in respect of the time of the events. According to S.V., the investigative task force arrived at the Ilyinogorsk police station at about 10 a.m. The group that carried out the searches in Nizhniy Novgorod returned to Dzerzhinsk together with the applicant at about 1 a.m. on 26 April 2008, after which S.V. and another police officer took the applicant to the Dzerzhinsk detention facility to serve his administrative sentence. 77. B., an officer on duty at the Ilyinogorsk police station on 25 April 2008, explained that at about 1 a.m. police officers U. and K. had taken the applicant to the police station. He had not seen any injuries on the applicant. The applicant had been searched. B. had called K.O., who had arrived fifteen minutes later and had taken the applicant to his office. He had not heard any shouts or noise from K.O.’s office. B. did not remember the applicant being brought back and had left at 8 a.m. when his shift had ended. 78. The decision of 24 December 2009 also cited the forensic medical expert report no. 189/09 of 25 November 2009 (see paragraph 41 above). The investigator concluded that the applicant’s medical examination had not confirmed his allegation that he had sustained burns on his hands as a result of torture by electric current. His other injuries – the abrasions on his face, the bruise on his chest and concussion – could have been caused by police officers U. and K. in the course of his apprehension when they had pushed him face down on the asphalt and retained him in that position. The lesions on his wrists could have been caused by handcuffs, which had been used by U. and K. at the time of his arrest. The actions of U. and K. had not violated the provisions of the Police Act and, therefore, did not carry the elements of a crime under Articles 285 and 286 of the Criminal Code. The investigator concluded that the applicant’s allegation of illtreatment by the police officers from the criminal investigation unit had not been confirmed by the results of the pre-investigation inquiry. 79. The applicant appealed against the investigator’s decision of 6 June 2008 (see paragraph 65 above), arguing, in particular, that he had not been personally interviewed by the investigator, the origin of his injuries had not been established and detainees at the Ilyinogorsk police station on 25 April 2008 had not been identified and interviewed. 80. On 8 August 2008 the Dzerzhinsk Town Court dismissed the applicant’s appeal. It noted that a criminal case against the applicant on charges of garage thefts had been pending before the Volodarskiy District Court since 23 July 2008. The Town Court held that any assessment of the applicant’s allegation that physical force had been used against him during questioning would inevitably lead to an assessment of the evidence on which the indictment against him was based. The Town Court had no jurisdiction over that matter, which had to be dealt with at a hearing in the applicant’s criminal case. 81. On 24 October 2008 the Nizhniy Novgorod Regional Court rejected an appeal lodged by the applicant against the Town Court’s decision and fully endorsed the Town Court’s findings. 82. On 3 October 2008 the Dzerzhinsk Town Court dismissed an appeal lodged by the applicant against the investigator’s decision of 11 September 2008 (see paragraph 68 above). It held, in particular, that it had been established during the preinvestigation inquiry that the police officers had used physical force and handcuffs lawfully in order to apprehend the applicant. It followed from Dr Ya.’s “explanations” that the applicant’s injuries could have been received in the course of his apprehension, as had been suggested by the Volodarskiy District police department officers. 83. On 9 December 2008 the Nizhniy Novgorod Regional Court granted an appeal lodged by the applicant against the Town Court’s decision. It found that the Town Court had failed properly to assess the applicant’s arguments about the investigative authority’s omissions in collecting evidence. Thus, by confirming that the forensic medical experts had not been questioned about the applicant’s burns, the Town Court had in fact acknowledged that the applicant’s version of events had not been properly assessed. It had also failed to assess the police officers’ statements in respect of the applicant’s injuries and their origin, in particular his concussion. The Town Court’s finding that the applicant could have sustained the injuries during his apprehension had not been based on a proper assessment of Dr Ya.’s “explanations”. Those “explanations” did not contain any detailed information which would allow the court to come to such a conclusion. 84. On 29 December 2008 the Town Court declared the investigator’s decision of 11 September 2008 unfounded in view of the incomplete preinvestigation inquiry, noting the same defects as those highlighted by the Regional Court. The decision came into force on 11 January 2009 and was served on the investigative committee on 19 January 2009. 85. On 14 October 2009 the Dzerzhinsk Town Court examined an appeal lodged by the applicant against the investigator’s decision of 25 September 2009 (see paragraph 70 above). The applicant argued that the preinvestigation inquiry had not met the requirements of an effective investigation according to the Court’s case-law under Article 3 of the Convention. He also argued that the investigator’s repeated refusals to institute criminal proceedings were unlawful and lacked reasons (he referred to Aksoy v. Turkey, 18 December 1996, § 98, Reports of Judgments and Decisions 1996-VI; Aydın v. Turkey, 25 September 1997, § 106, Reports 1997VI; and Mikheyev v. Russia, no. 77617/01, § 108, 26 January 2006). In particular, the investigator had not interviewed the applicant and his wife and had failed time and again to make a legal assessment of the applicant’s injuries, a failing which had been established by the courts in the course of a previous Article 125 review; the police officers’ suggestions that the injuries had been selfinflicted had been refuted by the expert conclusions in report no. 104E; the allegation concerning the infliction of electric shocks had been found groundless despite the fact that the expert opinions had not excluded that possibility; the investigator had communicated the wrong time (the night of 25 to 26 April 2008 instead of 24 to 25 April 2008) of the alleged illtreatment to the medical experts; and Dr Ya.’s “explanation” that the applicant could have sustained his injuries in “circumstances as suggested by police officers K., U. and M.” was not precise and lacked information as to what those circumstances were and which injuries were concerned. 86. The applicant further argued that the facts of the case could only be established as a result of investigative measures within the framework of a criminal case, such as the identification of the police officers responsible for the illtreatment, a confrontation between him and the police officers and their questioning. The Volodarskiy District assistant prosecutor had submitted to the court that the applicant’s arguments were lawful and reasoned, and that the Dzerzhinsk Investigative Committee’s decision ought to be set aside as unlawful. 87. The Town Court found the applicant’s submissions well founded and the investigative committee’s decision unlawful and unreasoned. It ordered that the shortcomings revealed be corrected by the head of the Dzerzhinsk Investigative Committee. 88. On 8 February 2010 the Dzerzhinsk Town Court dismissed the applicant’s appeal against the investigator’s decision of 24 December 2009 (see paragraphs 71-78 above). It considered that all instructions for correcting the defects of the previous preinvestigation inquiries, in particular those set out in the decision of the investigative committee’s main department of procedural control of 20 November 2009 (see paragraph 70 above), had now been fulfilled; the preinvestigation inquiry had therefore been thorough and the decision lawful and reasoned. 89. The applicant appealed against the Town Court’s decision, relying on the Convention case-law and arguing, in particular, that in order to take a lawful and reasoned decision it was necessary to carry out investigative measures such as identification, confrontation, questioning of the police officers, investigative experiments and on-site verification of statements. That would only be possible within the framework of a criminal case, which the investigative committee had never opened. 90. On 16 April 2010 the Nizhniy Novgorod Regional Court rejected the applicant’s appeal. It stated that the examination of a refusal to institute criminal proceedings within the meaning of Article 125 of the CCrP required a court to examine whether the procedure for taking such a decision had complied with the legal requirements and whether an applicant’s rights and freedoms had been observed in the course of the collection of evidence which served as the basis for such a refusal. The assessment of that evidence fell outside the scope of the examination under Article 125. It endorsed the Town Court’s findings and upheld its decision. 91. The applicant lodged a civil action for damages incurred as a result of the Dzerzhinsk Investigative Committee’s failure to conduct an effective investigation into his allegation of ill-treatment by the police, claiming compensation for non-pecuniary damage in the amount of 2,000 Russian roubles (RUB). 92. On 8 July 2009 the Sovetskiy District Court of Nizhniy Novgorod held that the investigative committee’s decisions refusing to institute criminal proceedings against the police officers, which were taken on the basis of incomplete inquiries and subsequently revoked by the investigative committee’s own officials or quashed by the courts, had violated the applicant’s right to an effective investigation under the Convention. The investigative committee’s decision of 22 September 2008 to refuse the applicant’s representative access to the materials of the pre-investigation inquiry had violated his constitutional rights. The District Court found that as a result of such actions and decisions on the part of the investigative committee, the applicant had suffered non-pecuniary damage. 93. It further noted, having regard to the investigative committee’s decision of 25 June 2009 (see paragraph 70 above), that the applicant’s allegations of ill-treatment had not been confirmed by the pre-investigation inquiry, despite its “thoroughness, completeness and length”. The District Court also stated that the applicant was also responsible for the revocation of the decisions not to institute criminal proceedings, which had been triggered by his complaints. 94. In its judgment of 8 July 2009 the District Court awarded the applicant compensation in the amount of RUB 500 for the nonpecuniary damage suffered by him, to be paid by the federal treasury. The judgment came into force on 27 July 2009. 95. The applicant’s alleged ill-treatment in police custody and the investigative authority’s response to his complaint was reported by the Russian mass media. Information about his alleged ill-treatment by the police was included in Amnesty International’s report of 2009 on “The state of the world’s human rights”. | 1 |
test | 001-178951 | ENG | TUR | COMMITTEE | 2,017 | CASE OF ÜÇEL v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal) | Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens | 5. The applicant was born in 1985 and lives in Denizli. 6. On 13 June 2009 the applicant was dismissed from the Expert Gendarmerie School due to non-compliance with disciplinary rules. Subsequently, he initiated proceedings before the Supreme Military Administrative Court and requested the annulment of the dismissal decision. 7. On 15 April 2009 the Supreme Military Administrative Court rejected the applicant’s request, taking into account the “secret documents” submitted by the Ministry of Defence. These documents were not disclosed to the applicant. This decision was served on the applicant on 7 May 2009. | 1 |
test | 001-156731 | ENG | POL | ADMISSIBILITY | 2,015 | KALISZ v. POLAND | 4 | Inadmissible | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicant, Mr Kazimierz Kalisz, is a Polish national, who was born in 1952 and lives in Straszęcin. He was represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw. 2. The Polish Government (“the Government”) were represented by their Agent, Ms J. Chrzanowska, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 5 October 2006 the applicant’s wife, J.K., lodged a request with the court to have the applicant deprived of his legal capacity. 5. In the course of the proceedings, the applicant was examined by two psychiatrists and a psychologist. The medical opinion issued by one of the psychiatrists on 22 November 2006 reads as follows: “...the applicant suffers from severe mental disorders (nasilone zaburzenia psychiczne)... progressive, gradual changes to the central nervous system have resulted in a significant deterioration in his insight into his own situation and social relations. They constitute a basis for impulsive behaviour and aggression towards others.” The psychiatrist concluded that there was a need to provide the applicant with help with everyday matters and therefore a partial deprivation of his legal capacity and the appointment of a guardian would be recommended. The expert saw no grounds to fully deprive him of his legal capacity. 6. On 20 December 2006 the Rzeszów Regional Court granted J.K.’s request and decided to fully deprive the applicant of his legal capacity on the grounds of mental illness. 7. After the expiry of the time-limit for appeal, the applicant appointed a lawyer, who on 22 January 2007, lodged an appeal against the decision of 20 December 2006 together with a request for leave to appeal out of time. 8. On 20 February 2007 the request was rejected because the applicant, being deprived of his legal capacity, could not effectively appoint a lawyer. The request and appeal had thus been lodged by someone who did not have the proper authorisation to act on the applicant’s behalf. 9. On 22 March 2007 the Strzyżów District Court appointed J.K. as the applicant’s guardian. 10. On 4 December 2007 an investigation into the alleged mental and physical mistreatment of the applicant’s wife and son, A.K., was opened. 11. On 28 January 2008, at the request of the prosecutor, the applicant was appointed a lawyer, B.L. 12. In the course of the criminal proceedings, the applicant was examined by two psychiatrists and a psychologist, who on 4 February 2008 issued their opinion. The relevant parts read as follows: “From the medical documentation available, it appears that the applicant has not continued ambulatory treatment, does not take [his] medication, abuses alcohol and displays aggressive behaviour towards his family... ...the applicant is mentally ill. He was also mentally ill at the time of commission of the prohibited acts in question; at that time, he was incapable of recognising the significance of his behaviour and controlling his conduct...he absolutely requires treatment within the confines of a psychiatric unit...because there is a high probability that he might commit another similar prohibited act.” 13. On 23 June 2008 a hearing before the Strzyżów District Court was held, at which the expert witnesses confirmed the conclusions reached in their opinion of 4 February 2008. 14. On 23 June 2008 the Strzyżów District Court, relying on Article 94 of the Criminal Code, discontinued the proceedings against the applicant. It found that at the time of commission of the prohibited acts in question, he could not recognise the significance of his behaviour because of his mental illness. It also found that there was a high probability that he would commit further similar prohibited acts because he had refused to undergo systematic treatment, did not take his medication, abused alcohol and was completely uncritical as regards the prohibited acts he had committed and his state of health. The court also decided to impose on the applicant a preventive measure, namely placement in a closed psychiatric facility where he would undergo the necessary psychiatric treatment. 15. The applicant’s lawyer appealed against this decision. 16. On 30 July 2008 the Rzeszów Regional Court upheld the challenged decision, agreeing with the reasoning of the District Court. It also held that since the applicant had been completely uncritical as regards the prohibited acts committed and had refused treatment, there was a high probability that he would commit similar prohibited acts in future. 17. On 13 August 2008 the Psychiatric Commission on Preventive Measures at the Ministry of Health decided to admit the applicant to a psychiatric hospital in J. The applicant requested to have this decision varied as he preferred to be placed in a hospital in D. 18. On 21 October 2008 the Strzyżów District Court granted the applicant’s request. 19. On 20 November 2008 the applicant was admitted to the psychiatric hospital in D. He has been detained there ever since, having had his detention extended by the Strzyżów District Court on a regular six-monthly basis on the following dates: 7 April, 23 June and 15 December 2009 (psychiatric opinions of 9 March, 3 June and 20 November 2009 respectively), 20 May and 28 October 2010 (psychiatric opinions of 27 April and 27 September 2010), 12 April and 22 September 2011 (psychiatric opinions of 9 March and 23 August 2011), 20 March and 18 September 2012 (psychiatric opinions of 20 February and 8 August 2012), 7 March, 26 July and 27 September 2013 (for the two first decisions, a psychiatric opinion of 31 January and for the latest, an opinion of 18 July 2013). On 13 December 2013, following an appeal by the applicant’s lawyer, the decision of 27 September 2013 was upheld by the Rzeszów’s detention in a psychiatric hospital was given on 30 January 2014 on the basis of a psychiatric opinion dated 8 January 2014. 20. Each time the court considered extending the preventive measure, it appointed a legal aid lawyer for the applicant. Both the applicant and his lawyer were informed of every hearing with one exception, a hearing which took place on 7 March 2013. The applicant’s lawyer appealed. He contested the court’s findings made in the decision of 7 March 2013 that there was a high probability that the applicant would commit a further prohibited act and that his state of health required his continued confinement in a psychiatric institution. On 19 June 2013 the Rzeszów Regional Court quashed the challenged decision however on other grounds than those which had been relied on by the applicant’s lawyer. It referred to a judgment of the Supreme Court of 27 February 2013, according to which a lawyer whose participation in the execution proceedings is mandatory must also be present at any hearings concerning the extension of a preventive measure imposed on his client. 21. The court’s decisions extending the applicant’s detention in the psychiatric hospital were reasoned in a similar way. The court stressed the fact that the experts had found that the applicant, due to the state of his mental health, required further confinement in a unit with reinforced security measures, because of the high probability that he might commit a similar prohibited act. 22. On 11 April 2008 the applicant requested the Rzeszów Regional Court to partially restore his legal capacity. 23. On 14 January 2009 it dismissed the request on the grounds that the applicant’s health had not improved to an extent that would justify such a decision being taken. 24. The applicant appealed. 25. On 14 May 2009 the Rzeszów Court of Appeal dismissed the appeal. It found, among other things, that the Regional Court had based its decision on complete psychiatric opinions, and that it had been unnecessary to appoint other medical experts to determine the applicant’s state of health. 26. On 11 August 2009 the applicant’s lawyer lodged a cassation appeal with the Supreme Court. 27. On 13 April 2010 the Supreme Court refused to examine the appeal. 28. On 12 March 2012 the applicant’s sister, A.G., requested the Strzyżów District Court to dismiss the applicant’s wife as guardian. She submitted that there had been a situation of extreme conflict between the applicant and his wife, who she alleged had had mental health problems in the past and had undergone psychiatric treatment. 29. On 26 June 2012 the Strzyżów District Court dismissed the request, finding that the applicant’s wife had properly fulfilled her obligations. As regards her alleged mental health problems, the court found that she had undergone some treatment for depression; however, this did not prevent her from acting as her husband’s guardian. 30. The applicant’s sister appealed against the first-instance decision and, since her appeal was lodged after the expiry of the time-limit, she requested the court for leave to appeal out of time. She submitted that the court’s correspondence had not been served on her because it had been stolen from her postbox. 31. On 10 May 2013 the Rzeszów Regional Court dismissed the request for leave to appeal out of time. It found that A.G.’s statements as regards the alleged theft of correspondence from her postbox had not been credible. The appeal was dismissed the same day. 32. The applicant’s sister regularly visited him in hospital. According to the director of the psychiatric unit, after each visit, the applicant would behave aggressively and refuse to take his medication. 33. On 31 August 2009 the director took the decision to ban the applicant’s sister from visiting him. She relied on Article 204c of the Code of Execution of Criminal Sentences and reasoned her decision by “repetitive incidents of internal rule breaking by A.G. and a risk of the applicant behaving dangerously”. 34. On the same day the applicant was served with a copy of that decision, which included a notice of his right to appeal to the director of the psychiatric unit and, subsequently, to the Penitentiary Court. The applicant failed to appeal. 35. Article 93 of the Criminal Code reads as follows: “The court may impose a preventive measure provided for in this chapter which involves committal to a closed medical institution only if necessary to prevent the repeated commission of a prohibited act by a perpetrator 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...” 36. Article 94 reads as follows: “ 1. If a perpetrator has committed a prohibited act causing significant harm to the community, in a state of insanity as specified in Article 31 § 1, 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 perpetrator from the institution if his stay there is no longer deemed necessary. 3. The court may reorder the committal of a perpetrator specified in paragraph 1 to a suitable psychiatric institution if it is advisable in the light of the circumstances specified in paragraph 1 or in Article 93; such an order may not be issued more than 5 years after release from the institution.” 37. Article 203 of the Code of Execution of Criminal Sentences reads, in so far as relevant, as follows: “ 1. The director of a closed institution in which a preventive measure is being executed shall send the court, no less than every six months, an opinion on the state of health of the perpetrator placed in the institution and the progress of his or her treatment or therapy. The opinion shall be sent immediately if, due to a change in the perpetrator’s state of health, the director finds that his or her further detention in the institution is unnecessary. 2. The court may request, at any time, an opinion on the state of health of the perpetrator placed in an institution referred to in paragraph 1, the treatment or therapy administered, and the results thereof.” 38. Article 204 reads as follows: “ 1. The court shall, no less than every six months, and in the event of receiving an opinion that further detention of the perpetrator in a closed 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. The decision as regards the further execution of a preventive measure may be appealed against.” 39. Article 204 c reads as follows: “Personal contact of a perpetrator detained in an institution referred to in [paragraphs 2 and 3 of] Article 200 § 2 and Article 200 § 3 [reinforced and maximum security psychiatric hospitals and drug rehabilitation institutions] with visitors may only take place with the approval of the director of the institution. Approval may be refused, particularly if such contact could cause an increased risk of dangerous behaviour.” | 0 |
test | 001-182745 | ENG | SVK | ADMISSIBILITY | 2,018 | DOMINKA v. SLOVAKIA | 4 | Inadmissible | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Pere Pastor Vilanova | 1. The applicant, Mr Peter Dominka, is a Slovak national who was born in 1988. At the time he lodged his application he was serving a sentence in Leopoldov Prison. He was represented before the Court by Mr P. Gračík, a lawyer practising in Nitra. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On the evening of 21 February 2009, while walking home together from the centre of the city of Nitra, two individuals, A and B, were assaulted by C and another person. The assailants pepper-sprayed A and B and unsuccessfully attempted to rob them. 4. On 12 June 2009 C was taken to an investigator for questioning. After he had been charged, the investigator questioned him again on 13 June 2009 while a remand judge examined him on 15 June 2009. 5. In the questionings of 13 and 15 June 2009 C was assisted by a lawyer. He confessed in all three of the questionings that he himself had attempted to rob B while the applicant had allegedly assaulted A. 6. C stated on the record each time he was questioned that he had not been subjected to any form of physical or psychological pressure by the authorities. The records of the questionings contain no mention of the influence of any drugs or any discussion on that matter. However, neither the applicant nor anybody on his behalf was present. 7. Following C’s allegations the police searched for the applicant on four occasions between 12 and 17 June 2009 but were unable to find him. 8. In a further questioning on 25 June 2009, C changed his account of events and denied any involvement in the incident by him or the applicant. He submitted that during his arrest on 12 June 2009 police officers had presented him with an account of the incident of 21 February 2009 that had stated that he and the applicant had been involved and that they had made his release dependant on his acceptance of that version of events. As he had wished to go home, he had simply responded by agreeing to it. The questioning of 25 June 2009 took place in the presence of C’s lawyer and a lawyer for the applicant, who had been charged in connection with the assault in the meantime. 9. In response to these allegations, on 26 June 2009 another investigator questioned two arresting officers and the investigator who had had contact with C on 12 and 13 June 2009. C’s lawyer was present, although the applicant’s was not, despite having been duly summoned. The arresting officers and the investigator denied putting any physical or psychological pressure on C, leading him in any other way to present any particular version of the events, or witnessing the use of any such pressure or influence. 10. Meanwhile, on 12 June 2009, the applicant himself had been charged with robbery in connection with the incident of 21 February 2009 and with another, unrelated offence. However, the charge sheet was served on him only on 22 June 2009 when he was arrested during a road traffic control. 11. On 30 June 2009 a face-to-face confrontation was carried out between C and a certain D, who stated that C had previously confessed to him that he had committed the attempted robbery of 21 February 2009 together with the applicant. C’s defence counsel was present at the confrontation while neither the applicant nor his counsel were, although the latter had been properly requested to attend. 12. On 25 August 2009 the applicant was indicted to stand trial on the charges along with C, who faced a charge of robbery in the same proceedings. 13. On 11 May 2010 the District Court found the applicant and C guilty and imposed prison sentences on them. The applicant was sentenced to ten years and four months’ imprisonment. The court observed that the applicant had at all times denied any involvement in the robbery, while C had denied his involvement from 25 June 2009 onwards. As for C, in particular, the court noted that he had maintained his allegation of police coercion into making his initial confession. In addition, he had stated that he had been intoxicated while making the confession and that he had confirmed the confession later as he had been concerned about changing his original statement. However, having heard the officers involved in C’s arrest, the court found that the allegation of coercion had not been confirmed. It did not find C’s changed version credible as his participation in the robbery had been proven by his statements of 12, 13 and 15 June 2009 and by B and D. As regards the applicant, the District Court noted that neither A nor B had identified him. However, he had been incriminated by the early statements of C and by D, as mentioned above. 14. The applicant challenged the judgment of 11 May 2010 by way of an appeal to the Nitra Regional Court. He argued that his conviction had been based on C’s initial statements, that those statements had been unlawful as evidence and that his conviction had accordingly been arbitrary. However, the District Court had completely ignored his arguments on that point. In particular, the applicant referred to a position taken by the criminal law bench of the Supreme Court (no. Tpj 63/2009 of 7 December 2009) that if witness evidence was the only or decisive incriminating evidence, the witness had to be heard or, as the case may be, re-heard after the accused had been charged in order to safeguard the accused’s rights of defence and to adversarial proceedings. He argued that, although formally speaking C was his co-accused and not a witness, mutatis mutandis, the precedent fully applied to his case. Accordingly, C’s initial statements had not been admissible as evidence and the only admissible submissions he had made about the applicant had been those of 25 June 2009 and afterwards. 15. The prosecution also appealed, alleging that the first-instance court had erred in the determination of the applicant’s sentence. 16. On 31 August 2010 the Regional Court decided on the appeals by increasing the applicant’s sentence to eleven years and seven months. It held that C’s early statements were not excluded as evidence because two of them had been made in the presence of his lawyer and that one of those two had actually been made before a judge, which meant any coercion was excluded. The Regional Court also found that the statements had not been the only evidence against the applicant, that he had also been incriminated by D and by the fact that the general description of the incident by A and B had corresponded to that in C’s early testimony. 17. In a subsequent appeal on points of law and constitutional complaint the applicant raised similar arguments to those above. He added specifically that he was not relying on any coercion of C when the latter made his initial statements since any such coercion or lack of it was of relevance for the admissibility of those statements as evidence in relation to C, but was irrelevant in relation to the fact that he himself had been unable to exercise his rights of defence during those statements. 18. The appeal and constitutional complaint were dismissed on 29 June and 29 September 2011. In their respective decisions, the Supreme Court and the Constitutional Court referred to the reasoning behind the lower courts’ decisions, considered that the applicant had merely disagreed with their assessment of the evidence, and found no unlawfulness or arbitrariness in the decisions. 19. On 27 March 2013 the applicant applied to have his trial reopened, relying on a Constitutional Court judgment of 28 November 2012 which had declared unconstitutional some statutory provisions that had played a role in his sentencing. 20. A reopening of the trial was allowed and on 22 April 2014 the District Court reduced the applicant’s prison term to seven years. The ruling became final and the applicant finished serving his sentence on 22 July 2016. | 0 |
test | 001-146778 | ENG | UKR | CHAMBER | 2,014 | CASE OF CHANYEV v. UKRAINE | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 4. The applicant was born in 1983 and lives in Izmayil. 5. On 28 November 2012 the applicant was arrested by the police on suspicion of having murdered Mr S. earlier the same day. 6. On 30 November 2012 the investigating judge of the Reni Local Court of the Odessa Region ordered the applicant’s pre-trial detention until 27 January 2013. 7. On 25 January 2013 the investigating judge extended the applicant’s pre-trial detention until 27 February 2013. 8. On 26 February 2013 the indictment in the applicant’s case was approved. 9. On 27 February 2013 the indictment and the criminal case file were forwarded by the prosecutor to the court. 10. On 28 February 2013 the applicant’s lawyer requested the Head of the Izmail SIZO to release the applicant immediately given that the period of detention ordered by the court had expired on 27 February. By a letter of the same day, the Head of the Izmail SIZO replied to the applicant’s lawyer that, under the Code of Criminal Procedure, after the forwarding of the criminal case file to the trial court it was for that court to decide on the applicant’s continued detention. 11. The same day the lawyer complained to the prosecutor about the failure of the prison authorities to release the applicant. In reply to that letter, the Odessa Regional Prosecutor’s Office informed the applicant’s lawyer that the applicant’s pre-trial detention had been extended in January 2013 until 27 February 2013 and that on the latter date the criminal case file against the applicant had been forwarded to the trial court; the prosecutor’s office therefore considered that the applicant’s rights and interests had not been violated. 12. On 11 March 2013 the lawyer submitted a request to the investigating judge for the applicant’s release. He noted that the applicant’s pre-trial detention ordered by the judge had expired on 27 February 2013 and that no decision had been taken on the applicant’s continued detention. 13. On 14 March 2013 the investigating judge rejected the above request. With reference to Article 331 § 3 of the Code of Criminal Procedure (“the CCP”), the judge noted that on the last date of the applicant’s pre-trial detention, that is, on 27 February 2013, his criminal case had been referred to the trial court, which had two months to decide on his continued detention. The judge concluded that there had been no grounds for the applicant’s release on 28 February 2013. 14. On 25 March 2013 the Odessa Regional Court of Appeal upheld the decision of 14 March 2013. 15. On 15 April 2013 the Izmayil Local Court of the Odessa Region held a preliminary hearing in which it ordered the applicant’s continued detention. 16. On 5 November 2013 the applicant was found guilty of murder and sentenced to eleven years’ imprisonment. | 1 |
test | 001-178293 | ENG | SRB | ADMISSIBILITY | 2,017 | FEJZIĆ AND OTHERS v. SERBIA | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;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 Army of the Republic of Bosnia and Herzegovina (Armija Republike Bosne i Hercegovine, hereinafter ARBH), which was mostly made up of Bosniacs and loyal to the central authorities in Sarajevo, the Croatian Defence Council (Hrvatsko vijeće odbrane, hereinafter HVO), which was mostly made up of Croats, and the Army of the Republika Srpska (Vojska Republike Srpske, hereinafter VRS) which was 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 by 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 refused to surrender to VRS forces – managed to cross the border and flee to Serbia. The present applicants’ relatives were among them. 7. When Žepa was captured by the VRS, the applicants’ relatives (Mr Abid Agić, the brother of the first applicant; Mr Šećan Dizdarević, the son of the second applicant and brother of the third and the fourth applicant; Mr Edem Torlak, the father of the fifth applicant and the husband of the sixth applicant; and Mr Meho Jahić, the husband of the seventh applicant) crossed into Serbia from Bosnia and Herzegovina, hoping that they would be able to find refuge in a third country. They were discovered by a border guard patrol of the Yugoslav Army (Vojska Jugoslavije, hereinafter VJ) and taken to two detention camps. It would appear that more than 800 exiled individuals were brought to the camps between 29 July and 3 August 1995. The applicants claim that the men received notification that they had prisoner-of-war status; it is not clear whether all of them were indeed members of ARBH or some of them 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 Mitrovo Polje in a former children’s recreational facility. 8. Both camps were guarded by the Serbian police force and none of the applicants was allowed to leave them. According to the applicants, during their transportation to the camps or while interned in them, their relatives were either murdered or died as a result of torture and lack of medical assistance. 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. Following the entry into force of the Dayton Agreement, the UNHCR facilitated the transfer of the camp survivors into third countries and the camps were closed in February/April 1996. 11. The applicants maintained that Mr Agić, along with the other men, was captured by a border guard stationed at the Jagoštica watch-tower on 31 July or 1 August 1995. Upon capture and before being handed over to the competent police authorities, he was severely beaten by the soldiers and died there from the injuries sustained. 12. The Government maintained that nobody by the name of Abid Agić is mentioned in the relevant police or military records. 13. The applicants maintained that Mr Dizdarević, who was seventeen years old at the time, was captured along with the other men by a border guard stationed at the Jagoštica watch-tower on 31 July or 1 August 1995. Upon capture and before being handed to the competent police authorities, he was repeatedly kicked in the abdomen by the soldiers, sustaining internal injuries as a result. He was then transferred to an internment camp where, despite the deterioration of his health, he was not provided with medical care. He died of the inflicted injuries on the way to hospital on 9 September 1995. 14. The Government maintained that the autopsy report shows that Mr Dizdarević died of natural causes due to “heart failure and stay of breathing resulting from self-poisoning caused by deterioration of part of the small intestine, aggravated by breathing of stomach contents as a result of vomiting and acute inflammation of the stomach.” 15. The applicants made no comment on the Government’s submission. 16. Mr Torlak was detained at the Jagoštica watch-tower and transported to the Šljivovica camp on 1 August 1995. He was transported with another sixty detainees in a closed curtainside truck designed to transport a maximum of twenty people. He died apparently of suffocation during transportation. His body was taken out of the truck and buried on 11 August 1995 by the Muslim religious community in the Priboj cemetery. There is apparently a pathologist’s report of 10 August 1995, without post mortem examination, stating that he had died from heart attack. In June 2007 the Serbian Commission for missing persons ordered the exhumation of his corps, identified him and transported him to Bosnia and Herzegovina. The Commission stated in its request to a competent court that it did not have any information that the persons may have died by the cause of a crime. The autopsy could not determine the cause of death due to the corps’ state. 17. The applicants maintain that Mr Jahić was severely beaten by guards at the Šljivovica camp and that he died of the injuries inflicted in October 1995. 18. The Government maintained that the only person registered as a detainee under the name of Meho Jahić at the Šljivovica camp was transferred to the Office of the UN High Commissioner for Refugees in Belgrade on 7 December 1995 and had been scheduled for emigration to Ireland. They further claim that this person died on 25 January 2005 in Hrasnica, Ilidža, Bosnia and Herzegovina and was buried in Vlakovo, Ilidža, Bosnia and Herzegovina. 19. On 6 September 2011 the Humanitarian Law Centre (Fond za humanitarno pravo, hereinafter FHP), a Belgrade-based NGO, lodged a criminal complaint on behalf of the applicants and other individuals as victims with the Office of the War Crimes Prosecutor of Serbia (Tužilaštvo za ratne zločine, hereinafter OWCP) against more than fifty individuals for alleged war crimes (see paragraph 32 below). In its criminal complaint the FHP submitted statements from 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. They submitted an extensive list of potential witnesses and proposed other investigative steps. Among those alleged to have taken part in the killings, the Centre identified members of the State Security Agency of Serbia, police officers, and military servicemen of various ranks. It would appear that on 8 September 2011 the OWCP requested the FHP to provide evidence it referred to in the criminal complaint, but the FHP apparently failed to do so. 20. On 23 September 2011 the OWCP undertook a preliminary verification of the information submitted by the applicants and requested the Ministry of the Interior and the Ministry of Defence to submit information regarding the criminal complaint. 21. On 17 November 2011 and 2 December 2011 the Ministry of the Interior submitted two reports to the OWCP. 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”. This preliminary examination also revealed some inconsistencies and irregularities in the criminal complaint regarding the identity of the alleged victims and the circumstances of their death and burial. 22. On 1 March 2013 the OWCP notified the FHP that it decided, having regard to the FHP’s allegations and evidence collected by the OWCP, not to prosecute (da nema mesta krivičnom gonjenju, Ktrr. 134/11) on the ground that there had not been elements of the alleged war crime or any other crime within the OWCP’s jurisdiction in the acting of the suspects. A reasoned decision (rešenje o odbačaju), if it had been made in writing, has neither been sent to the applicants, nor to the FHP. 23. 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, finding that, given the legal nature and content of the OWCP’s decision, it could not be considered as an individual act which was decisive with respect to the applicants’ human rights, as required by Article 170 of the Constitution (da se ne radi o pojedinačnom aktu iz člana 170. Ustava; see paragraph 25 below). 24. The decision of the Constitutional Court was delivered to the applicants’ representative on 2 July 2014. 25. The relevant provisions of the Constitution read as follows: Article 170 “A constitutional appeal may be lodged against individual decisions or actions of State bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by the Constitution, if other legal remedies for their protection have already been exhausted or have not been prescribed.” 26. 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. 27. 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; ...” 28. 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.” 29. 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; ...” 30. 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.” 31. 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.” 32. 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.” 33. 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: 34. Article 47 – Murder “(1) Whoever causes the death of another shall be punished by not less than five years’ imprisonment. (2) No less than twelve years’ imprisonment or the death penalty shall be imposed on whoever: 1) causes the death of another in a cruel or insidious manner; 2) causes the death of another by callous, violent behaviour; 3) causes the death of a person and with premeditation endangers the life of (an)other person(s); 4) causes the death of another for the purpose of gain, or to commit or conceal another offence, or for callous revenge or other base motives; 5) causes the death of an official or serviceman during the discharge or related to the discharge of duties concerning the state or public security...; 6) with premeditation causes the death of several persons, where this is not a case of manslaughter committed in the heat of passion, or infanticide, or mercy killing. 35. Article 53 – Serious bodily harm “(1) Whoever causes serious injury to another, or serious impairment of another’s health, shall be punished by imprisonment of between six months and 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. (3) If the injured party dies as a consequence of sustained injuries according to paragraphs 1 and 2 of this Article, the perpetrator shall be punished by one to twelve years’ imprisonment.” 36. Article 113 - Murder Whoever causes the death of another shall be punished by imprisonment of between five and fifteen years. 37. Article 114 - Aggravated Murder Whoever: 1) causes the death of another in a cruel or insidious manner; 2) causes the death of another by callous violent behaviour; 3) causes the death of another and with premeditation endangers the life of another person; ... 5) causes the death of another for the purpose of gain, or to commit or conceal another offence, or for callous revenge or other base motives; ... 9) with premeditation causes the death of several people, where this is not a case of manslaughter committed in the heat of passion, or infanticide, or mercy killing; shall be punished by thirty to forty years’ imprisonment . 38. Article 121 – Serious bodily harm “(1) Whoever causes serious injury to another, or serious impairment of another’s health, shall be punished by imprisonment of between six months and 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 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 two to twelve years’ imprisonment. ...” 39. 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. ” 40. 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. ...” 41. 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.” 42. 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). 43. In a number of previous cases concerning war crimes, the OWCP has treated the war in Bosnia and Herzegovina between June 1992 and 1995 as an internal armed conflict (see the judgments in cases Škorpioni, Zvornik I, Bijeljina, Prijedor, Zvornik II and Stari Majdan). The majority of the indictments in these cases came into being before 2006. The final judgments in most of these cases had been adopted by the domestic courts by 2010. | 0 |
test | 001-164938 | ENG | NLD | ADMISSIBILITY | 2,016 | C.M.M. v. THE NETHERLANDS | 4 | Inadmissible | Alena Poláčková;Branko Lubarda;Georgios A. Serghides;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 1. The applicant, Mr C.M.M., is a national of the Democratic Republic of the Congo (“DRC”) who was born in 1962. He is currently living in the Netherlands. He was initially represented before the Court by Ms M. de Boer, a lawyer practising in Utrecht. She was succeeded by Mr W. Boelens, who is also a lawyer practising in Utrecht. 2. The Netherlands Government (“the Government”) were represented by their Agent, Mr R.A.A. Böcker, and Deputy Agent, Ms L. Egmond, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 3 August 2001 the applicant entered the Netherlands and applied for asylum, fearing persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Refugee Convention”). On 14 August 2001, the immigration authorities held a first interview (eerste gehoor) with the applicant concerning his identity, nationality and travel itinerary. A written record of this interview was prepared and the applicant, assisted by a lawyer, was given the opportunity to submit corrections and additions, which he did on 15 August 2001. On 16 August 2001 a second interview (nader gehoor) was held with the applicant about his reasons for seeking asylum. A written report was drawn up and the applicant, assisted by a lawyer, submitted corrections and additions on 17 August 2001. 5. On 16 August 2001 the Deputy Minister of Justice (Staatssecretaris van Justitie) issued a notice of her intention (voornemen) to reject the applicant’s asylum application. On 17 August 2001, assisted by a lawyer, the applicant submitted written comments (zienswijze) on the notice of intent. 6. On 20 September 2001, on the basis of his written comments of 17 August 2001, the immigration authorities held a supplementary interview (aanvullend gehoor) with the applicant. A written report of this interview was drawn up and the applicant, assisted by a lawyer, submitted corrections and additions on 22 October 2001. 7. During these three interviews, the applicant gave the following statement. He was a national of the DRC. His parents had died. He was married but his wife had remained in the DRC together with their six children, who were born between 1988 and 1999. He also had two brothers and one sister, all of whom were living in the DRC. He gave the address of his home (N. street no. ... in the N’djili borough of Kinshasa) and described the surroundings of the house where he had lived for the previous two years. He stated that it was near to a nameless football field located at M. or K. street, and that there was a protestant school on the opposite side of the street. Behind this school there was a street without a name and he had lived in a side street of this nameless street. For identification purposes, he provided the Netherlands authorities with a formal declaration of loss of identity documents (attestation de perte des pièces d’identité) bearing the number 6436/POP/2000, which had been issued on 31 August 2000 by the mayor of one of the Kinshasa boroughs and contained the applicant’s particulars − including his personal address − but no specification of the nature of the identity documents lost. For the same purpose, he submitted a work pass issued by the “Service de l’Aéronautique Civile du Zaire” on 19 February 1998 and valid until 15 February 2001 and attesting that the applicant was working as a loadmaster in the employment of Nigeria Airways. Although the street name of the applicant’s personal address in this work pass was the same as that on the declaration of loss of documents, the house number was not the same. 8. The applicant also stated that, since 2000, he had been a sympathiser of the Movement for the Liberation of the Congo (Mouvement de Libération du Congo; hereafter “MLC”). He often read MLC information material but never participated in public events such as demonstrations or party meetings. Between 1988 and 1996 he had worked as a ticket agent for Air Zaire. From 1996 until leaving the Congo, he had worked as a ground handling manager/loadmaster for Nigeria Airways, which entailed checking in and boarding passengers, carrying out ground-crew tasks and drawing up flight manifests. 9. In October or November 1998 the applicant and his Nigerian superior had been arrested by three officers of the DRC national police on a charge of allowing passengers with false papers onto a departing aircraft. After being held for three days in the civilian prison in the Gombe borough of Kinshasa, near to the Mamayeno Hospital, and following intervention by his employer, he had been released unconditionally. He had been beaten whilst in detention. 10. On 18 February 2001 the applicant had been arrested for a second time by two men who showed him passes identifying them as officers of the DRC military intelligence service (Détection militaire des activités anti-patrie; hereafter “DEMIAP”). He was accused of helping two passengers ‒ who were believed to have been involved in an attack on President Laurent Kabila ‒ to flee the country rather than reporting them to the immigration service. The applicant had denied the accusation; it had not been his task to guide passengers to or through immigration checks. He had been detained in a military subterranean prison which, he believed, was located in the Gombe borough of Kinshasa. On the third day of his detention, the applicant’s home had been searched, during which two MLC pamphlets had been found. His passport had also been found and seized during this search. As a result of the severe maltreatment he had suffered during his detention, in mid-March 2001 the applicant had been admitted to the Gombe military hospital for treatment. His wife had been allowed to visit him in hospital once at the end of March 2001. On that occasion she had given him a Bible in which some money and his identity papers had been concealed. With the help of a friend of his brother-in-law’s, the applicant had managed to escape at the end of June 2001. Three soldiers had taken him from the hospital to a house in a place near Kinshasa. On 2 August 2001 he had been taken to Kinshasa airport and on the same day had managed to flee the DRC by plane. 11. On 15 November 2001 the Deputy Minister of Justice issued a fresh notice of her intention to reject the applicant’s asylum application. On 11 December 2001, assisted by a lawyer, the applicant submitted written comments on the new notice of intent. 12. In a decision of 17 January 2002, the Deputy Minister rejected the applicant’s asylum application. On 11 February 2002, the applicant filed an appeal against this decision with the Regional Court of The Hague. 13. On 3 October 2003 the applicant submitted, as additional grounds of appeal, a copy of a summons which he had received only on that date, although it had been issued on 2 November 2001 by the DRC judicial police (police judiciaire des parquets) of the Prosecution Service of the DRC State Security Court (Parquet général près la Cour de sûreté de l’Etat). It ordered the applicant to present himself on 3 November 2001 before a named inspector of the judicial police in order to be questioned about “facts of which he would be informed”. 14. The applicant also submitted on 3 October 2003 a report commissioned by “Docu Congo”, a non-governmental organisation (NGO) in the Netherlands, which had been compiled by another NGO, namely the International Society for Human Rights (hereafter the “ISHR”). The author of the ISHR report was the president of the Congo Section of the ISHR, Reverend Placide Tshisumpa Tshiakatumba. For the purposes of this report the researcher(s) had visited the applicant’s address in Kinshasa − as given in the record of his first interview and on the declaration of loss of identity documents (see paragraphs 4 and 7 above) − and N’djili (Kinshasa) International Airport. They had interviewed a former secretary at Nigeria Airways, amongst others, and had sought information from two people working for the Prosecution Service of the State Security Court. The report confirmed, in its relevant part, that the applicant had worked for Nigeria Airways at Kinshasa airport, that he had been arrested by the DEMIAP on the grounds stated, and that he had lived at the address he had provided. The report also stated that Nigeria Airways had had to cease its activities at Kinshasa airport for various reasons including the failure to respect airport rules and procedures, fraudulently embarking passengers, and “above all for that manifesto matter” (“surtout pour cette affaire de manifeste”). It also states that the applicant’s wife had left for an unknown destination. Through their sources at the State Security Court, the researcher(s) confirmed that the applicant was wanted for endangering state security (“Monsieur [C.M.M.] est recherché par les services de sécurité pour des motifs grâves d’attente [sic] à la sécurité de l’état”), that the person who signed the summons was indeed an inspector for the State Security Court and that the applicant would be immediately arrested and detained if found. 15. On 14 October 2003, the applicant was informed that the impugned decision of 17 January 2002 had been withdrawn and a fresh decision would be taken. 16. On 14 January 2004 the applicant was informed that the Netherlands Ministry of Foreign Affairs was initiating an investigation in the DRC in response to the material the applicant had submitted in support of his asylum request. 17. On 22 December 2004 the Ministry of Foreign Affairs released a person-specific official report (individueel ambtsbericht) based on an investigation carried out in the DRC. It had been found, inter alia, that – contrary to the ISHR report – the street name given by the applicant as his home address during his first interview as also on his declaration of loss of identity documents did not exist in the Kinshasa borough where he had allegedly been living during his last two years in the DRC and that, for this reason, it had not been possible to verify whether the applicant’s spouse and/or other relatives were still living there. It had also become apparent that the declaration of loss of identity documents no. 6436/POP/2000 and the summons submitted by the applicant (see paragraphs 7 and 13 above) were forgeries, and it had not been possible to verify the authenticity of the work pass submitted by the applicant (see paragraph 7 above). Moreover, in so far as known, there was no subterranean prison attached to the DEMIAP office in the Gombe borough in Kinshasa and no military hospital existed in Gombe. 18. On 25 February 2005 the Minister for Immigration and Integration (Minister voor Vreemdelingenzaken en Integratie; hereafter “the Minister”) issued a fresh notice of intent rejecting the applicant’s asylum request. Observing that the applicant had not submitted any evidential material (such as a boarding pass, a luggage label, an in-flight magazine or other in-flight item bearing the name of the airline) attesting to his journey, that he had not submitted any documents in support of his asylum application and that he had provided only very cursory information about his periods of detention and hospitalisation, and having noted the content of the personspecific official report of 22 December 2004, the Minister concluded that there were sufficiently persuasive arguments for attaching no credence to the applicant’s asylum statement. 19. On 2 March 2005, under the provisions of the Government Information (Public Access) Act (Wet Openbaarheid van Bestuur), the applicant requested that the documents underlying the person-specific official report of 22 December 2004 be disclosed. This request was transmitted to the Minister of Foreign Affairs on 14 March 2005. 20. On 25 March 2005, assisted by a lawyer, the applicant submitted written comments on the fresh notice of intent of 25 February 2005. He contested the findings set out in the person-specific official report, whilst pointing out that the non-disclosure of the documents underlying that report and of the working methods employed by the person(s) involved in the inquiry meant that he could do so to only a limited extent. The applicant also requested a reasonable extension to the four-week period allowed for the submission of additional written comments, as he had requested Docu Congo to commission a new expert report to counter the Ministry of Foreign Affairs’ person-specific official report. He therefore asked the Minister to stay her decision pending submission of this counter-report. 21. On 31 March 2005 the Minister of Foreign Affairs provided the applicant with the documents on which the person-specific official report had been based, at the same time restricting his access to certain parts of the documents containing information about the identity of agents or informants who had assisted in the investigation, information about investigation methods and techniques used, and information about their level of knowledge (so as to avoid facilitating an improvement in the quality of forgeries). 22. In her decision of 16 December 2005 the Minister rejected the applicant’s asylum application. She noted that on 25 March 2005 the applicant had requested an extension in order to allow Docu Congo to produce a report to counter the person-specific official report and that this request had been granted on 1 April 2005. She also noted that, by letters dated 20 June, 18 July, 16 August, 28 October and 25 November 2005, the applicant had been asked to indicate when submission of the counter-report could be expected and that neither the applicant nor his lawyer had been able to answer this question. Finding that the applicant had had ample time to submit his comments on the person-specific official report, the Minister decided to proceed with her decision. The Minister took into account the fact that the Ministry of Foreign Affairs’ inquiry had been based on the applicant’s submissions, including the ISHR report (see paragraph 14 above), and that – following the so-called “REK check” (see D.T. v. the Netherlands and Georgia (dec.), no. 28199/12, §§ 25-26, 15 September 2015) – it had been found that the person-specific official report had been drawn up with due care, both substantively and procedurally, and was comprehensible. The Minister also found that the applicant had submitted no evidence capable of casting doubt on the finding that the declaration of loss of identity documents no. 6436/POP/2000 and the summons submitted by the applicant (see paragraphs 7 and 13 above) were forgeries and once again concluded that no credence could be attached to the applicant’s asylum statement. 23. On 11 January 2006, the applicant filed an appeal against this decision with the Regional Court of The Hague and, on 10 March 2006, submitted a report commissioned by Docu Congo which had been published on 27 January 2006 by the NGO Comité pour la Democratie et les Droits de l’Homme (hereafter the “CDDH”). The author of the CDDH report was its Secretary-General, Mr René Kabala Mushiya. For the purposes of compiling the report, he had managed to contact the applicant’s spouse as well as some people working at N’djili Airport who had known the applicant when he was an employee of Nigeria Airways. 24. The applicant’s spouse had explained that the street address given by the applicant was in fact a path across a cemetery. According to information provided by the N’djili Borough Population Service (Service de la Population de la Commune de N’djili), illegal dwellings had been built around the cemetery and that was where the applicant and his spouse had lived. When visiting the cemetery in November 2005, the applicant’s spouse had been unable to orientate herself as a result of major rebuilding work carried out in the neighbourhood after 2003, when the local authorities had decided to transform the cemetery into a residential area. This transformation was confirmed in an appended written statement by the local neighbourhood leader (chef de quartier). The applicant’s spouse had also stated that, together with some Nigeria Airways employees, she had visited the applicant in the Gombe medical centre at about 8 p.m. one evening in mid-March 2001. For his part, the applicant submitted written statements by three individuals working in the airline industry, who all declared that they had personally known the applicant, confirmed that he had worked for Nigeria Airways and described the nature of his work for the airline. The report drawn up by the CDDH does not contain any information about the declaration of loss of identity documents or the summons of 2 November 2001 (see paragraphs 7 and 13 above). 25. The Regional Court of The Hague sitting in ‘s-Hertogenbosch found on 11 April 2006 that the restrictions applied to the applicant’s access to the underlying documents (see paragraph 21 above) were justified under section 8:29 of the General Administrative Law Act (Algemene Wet Bestuursrecht). This decision was communicated to the applicant on the same day, with a request to indicate whether or not he had given his consent for the Regional Court to take into account these underlying documents in determining his appeal on 11 January 2006 without their being disclosed to the parties. 26. In its judgment of 7 December 2006, the Regional Court of The Hague sitting in ‘s-Hertogenbosch rejected the applicant’s appeal of 11 January 2006. It noted that the parties had given their consent under the terms of section 8:29 § 5 of the General Administrative Law Act to take into account the documents underlying the person-specific official report of 22 December 2004. It held, inter alia, that the Minister could reasonably find that the applicant had failed to demonstrate that the absence of documents supporting his asylum statement was not a shortcoming for which he was to blame, and that the Minister could reasonably held against the applicant the fact that he had not provided a detailed and verifiable statement about his purported travel itinerary and that this detracted from the reliability and credibility of the applicant’s asylum statement. As regards the two reports commissioned by Docu Congo, and relied upon by the applicant, and the person-specific official report of 22 December 2004, the Regional Court held: “18. It appears from the investigation carried out by the CDDH that the neighbourhood where the appellant claims to have lived changed in 2003 into a residential area after improvised (illegal) buildings were erected around an old cemetery. The appellant has argued that, since it has been demonstrated that the investigation of the address [by the Minister of Foreign Affairs] was incomplete, the reason for believing that the ‘attestation de perte des pièces d’identité’ he submitted is forged has become groundless. 19. The court does not agree with this conclusion by the appellant. The findings of the CDDH do not alter the conclusion that the ‘attestation de perte des pièces d’identité’ is a forgery. The court reaches this conclusion after having studying the documents underlying the person-specific official report, in particular the additional statement of 28 October 2004 [containing a detailed explanation as to why it was clear that this document was a forgery]. It appears therefrom that the document concerned – irrespective of the correctness of the street name indicated – contains deletions as a result of which it can no longer be regarded as authentic. It follows that the appellant, by relying on the findings in the CDDH report, has not adduced concrete evidence calling into doubt the correctness of the conclusions in the person-specific official report. 20. Unlike the appellant, the court does not find that the investigation lacked due care. ... 21. In so far as the appellant has expressed doubts as regards the objectivity and reliability of the confidential contact person [who carried out the investigation in the DRC], the court points out that the appellant has not submitted any concrete evidence to suggest that this confidential contact person might have been untrustworthy and acted carelessly. The claim that the confidential contact person acted out of resentment has likewise not been substantiated by the appellant. Moreover, contrary to the appellant’s submissions, it is not apparent from the underlying documents that the ISHR report was found to be inaccurate. ... 22. In assessing whether the Minister acted in a reasonable manner, the court finds that, in referring to the person-specific official report, [the Minister] adduced sufficient arguments to support the finding that the appellant’s asylum statement is not credible. 23. In the appeal proceedings the appellant also submitted that, if returned to the DRC, he would be exposed to a real risk of being subjected to treatment within the meaning of Article 3 of the Convention. ... 26. Since the court has held, in the light of the above, that [the Minister] had good reasons for finding that the asylum statement was not credible, it cannot be concluded therefrom that the applicant would be exposed to a real and foreseeable risk of being subjected to treatment prohibited by Article 3 if he were removed to the DRC. ...” 27. The applicant’s further appeal was rejected on the basis of a summary reasoning issued on 30 May 2007 by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). It found that the further appeal did not provide grounds for quashing the impugned rulings. Pursuant to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was required as the arguments submitted did not raise any questions requiring a determination in the interests of legal unity, legal development or legal protection in the general sense. No further appeal lay against that ruling. 28. To date, the applicant has not been removed from the Netherlands nor has he filed a fresh asylum application in the Netherlands. 29. The relevant domestic law and practice as regards asylum proceedings and the enforcement of removals are set out in K. v. the Netherlands ((dec.), no. 33403/11, §§ 16-19 and §§ 25-32, 25 September 2012). 30. Details concerning the preparation of person-specific official reports (individuele ambtsberichten) and their use in asylum-related proceedings have been set out in D.T. v. the Netherlands and Georgia (cited above, §§ 24-27). 31. On 27 September 2007 the Netherlands National Ombudsman (Nationale Ombudsman) – an independent institute charged with protecting individuals against improper government conduct by conducting investigations of its own motion or on the basis of an individual’s complaint, and making non-binding recommendations to government agencies – released report no. 2007/200 on the manner in which personspecific official reports are compiled and used in asylum proceedings. The report was entitled “The credibility of official reports. How asylum statements are confirmed or confuted.” (“De geloofwaardigheid van ambtsberichten. Hoe asielverhalen worden bevestigd of ontkracht.”). In this report, the Ombudsman formulated a number of recommendations addressed to the Minister of Foreign Affairs and the Minister of Justice seeking to reinforce the position of asylum seekers in asylum proceedings and thus the compliance of such proceedings with the common standards of propriety. 32. In a letter of 19 September 2008 to the President of the Lower House of Parliament (Tweede Kamer) about the follow-up generated as a result of this report, the Ombudsman stated that, although it had led to a number of laudable improvements, the Ministers had not accepted two important recommendations concerning the degree of disclosure of documents underlying person-specific official reports to the decisionmaking civil servant and the asylum seeker concerned. 33. In March 2009, the Ombudsman filed comments on the consolidated seventeenth to eighteenth periodic reports on compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, which had been submitted by the Netherlands Government to the United Nations Committee on the Elimination of Racial Discrimination. The Ombudsman’s comments contain the following observations in respect of general country assessment and person-specific official reports as used by the Netherlands immigration authorities in their decision-making process: “Feedback from interest groups indicated a great deal of dissatisfaction with the quality of these official country reports. They allegedly contained information that was insufficiently relevant, insufficiently current, and incomplete, or sometimes even incorrect. One of the key problems was the fact that official country reports do not provide an overview of the available facts but rather a conclusion concerning certain facts. The underlying facts are often not available to the asylum seekers and their representatives, which makes it essentially impossible to enter into a discussion concerning the substance of the conclusions drawn. The IND [Immigration and Naturalisation Department] employee who makes the decision is thus not able, in preparing the decision, to consult this file to assess whether the contents of the individual official country report are supported by the underlying documents. Only a more highly-qualified IND employee is allowed to do so. This more highly-qualified IND employee will subsequently pass on his findings to the employee who makes the decision. Neither the asylum seeker nor his representative is able to inspect this file [Footnote 41: Subject to application of Article 8:29 General Administrative Law Act]. The Ombudsman found that this working method fails to recognise the responsibility of the state to present sufficient valid facts during the asylum procedure and to facilitate a fair hearing on the basis thereof [Footnote 42: National Ombudsman, The credibility of person-specific official reports, report 2007/200]. The Ombudsman made several recommendations to improve the position of foreign national/asylum seekers during the asylum procedure, but not all of these were implemented.” 34. The Committee on the Elimination of Racial Discrimination considered the consolidated seventeenth to eighteenth reports of the Netherlands at its 1986th and 1987th meetings, held on 23 and 24 February 2010. At its 2003rd meeting, held on 5 March 2010, it adopted its concluding observations on these reports, which did not address the quality of general country assessment reports and/or person-specific official reports. 35. Section 8:29 of the General Administrative Law Act reads as follows: “1. Parties who are obliged to provide information or submit documents may, if there are substantial reasons (gewichtige redenen) to do so, refuse to provide such information or submit such documents, or may inform the administrative tribunal that it alone shall be allowed to inspect the information or the documents. 2. In the case of an administrative body, there can exist no such substantial reasons since there is an obligation, pursuant to the Government Information (Public Access) Act, to accede to any request for information contained in the documents to be submitted. 3. The administrative tribunal shall decide whether the refusal or restriction of inspection referred to in the first paragraph is justified. 4. If the administrative tribunal has decided that the refusal is justified, the obligation shall no longer exist. 5. If the administrative tribunal has decided that the restriction of inspection is justified, it may give judgment based on that information or those documents only with the permission of the other parties. If such permission is refused, the case shall be remitted to another chamber.” 36. According to the most recent official country assessment report on the DRC, published in December 2014 by the Ministry of Foreign Affairs, the general situation in the eastern provinces of North-Kivu, South-Kivu, Haut-Uele and Bas-Uele has continued to be unsettled and unpredictable and the general security situation in the province of Katanga has deteriorated due to actions by armed factions. In the other provinces of the DRC the general security situation has remained stable, apart from some isolated incidents. As to the general situation in Kinshasa, the report states: “On 30 December 2013 in Kinshasa, three separate groups simultaneously attacked the headquarters of the Congolese army, the National Radio and N’Djili international airport. Since then no major security incidents have taken place. In instances where the police and the Agence Nationale de Renseignements (ANR) used violence, this was not directed against specific (population) groups. The rate of street crime in Kinshasa remains high. Armed gangs, kuluna, commit burglaries, extortion, threats and kidnappings. On 7 December 2013 the police in Kinshasa arrested ten such gangs as part of an operation called “Likofi” (the word for “punch” in Lingala). On 14 December 2013 operation Likofi II started, focussing on kuluna in uniform. The latter allegedly killed ten people within one month in shootings in the neighbourhoods of Ma Campagne and Binza Ozone in Ngaliema borough. On 25 February 2014 the Minister of the Interior announced that operation Likofi would be expanded to tackle armed bandits at national level. In the operations Likofi I − against the Kuluna in Kinshasa − and Likofi II − against undisciplined soldiers and police in Kinshasa − a total of 925 individuals have been apprehended and 593 brought before an investigating judge. Two police officers have been sentenced to death, three military and two civilian accused have been sentenced to 15 years’ imprisonment, one policeman to 20 years’ and one civilian to 10 years’ imprisonment for illegal possession of weapons. New police force On 6 April 2014, during a parade in the Kintambo cycle stadium in Kinshasa, General Célestin Kanyama – the chief police commissioner of Kinshasa in charge of the Likofi operation – presented the “new” police force, comprising law-abiding, disciplined officers who are immune to corruption. The police asked for a salary increase and better working conditions. On 1 October 2014 Prime Minister Matata Ponyo opened the national criminal investigation centre of the police, which has been built with funding from the British development aid and the EU. As from that date, the general population could use the toll-free emergency number 112.” 37. The official report of December 2014 does not deal specifically with people who have been involved with the MLC, mentioning only that an Amnesty Law approved by the DRC legislature on 3 February 2014 and signed by President Kabila on 11 February 2014 granted amnesty for acts of insurgency, acts of war and political offences committed between 18 February 2006 and 20 December 2013 by, amongst others, military personnel who had participated in the armed MLC uprising. 38. The Democratic Republic of Congo assessment of April 2001, compiled by the Immigration and Nationality Directorate (Country Information and Policy Unit) of the United Kingdom (UK) Home Office, observed: “2.7 Most sectors of the economy are in a serious state of decline. Production and incomes continue to fall. The infrastructure of the country is also in a serious state of decline. Financial institutions have collapsed and the public health and education system have seriously deteriorated. The economy is characterised by subsistence activities, a large informal sector and widespread bartering. The public sector cannot provide basic public services and public sector employees are not paid on a regular basis. ... 3.14 ... In November 1998, a new rebel group emerged called the Mouvement pour la Liberation du Congo led by Jean-Pierre Bemba. The MLC based itself in the Equateur Province and has large numbers of former Zairean soldiers in its ranks. The MLC developed close ties with the Ugandan Government. In January 2001, the RCD-ML rebel group merged with Jean-Pierre Bemba’s MLC rebel group to form the Congo Liberation Front (CLF). Bemba is the leader of this newly formed group. The area under the control of the CLF corresponds with the areas that were under the control of the MLC and RCD-ML. 3.15 Intensive diplomatic efforts to promote a ceasefire and a negotiated settlement which meets the security concerns of neighbouring countries resulted in a ceasefire agreement by all belligerent countries on 10 July [1999]. The rebel groups - MLC and RCD - signed up to the ceasefire agreement in August 1999. The ceasefire agreement, called the Lusaka Peace Accord, sets out arrangements for an end to the fighting and the start of a national dialogue. 3.16 Despite the ceasefire agreement, numerous violations of the ceasefire have been reported in different parts of the country with each of the warring factions blaming one another for them. ... The civilian population have been adversely affected by the ongoing fighting. The Health Minister, Dr Mashako Mamba, has recently reported that there has been an upsurge in cases of war-related stress among the country’s civilian population. ... 3.20 On 16 January 2001, President Laurent Kabila was assassinated in the Presidential Palace in Kinshasa, reportedly by one of his soldiers. A government public announcement was made on 18 January confirming that Laurent Kabila had been assassinated. The country’s airports and borders were temporarily closed for security reasons but were soon re-opened. There were no reports of widespread civil unrest. Laurent Kabila’s funeral took place a few days later and his son, Joseph Kabila, was sworn in as President of the DRC on 26 January 2001. ... 5.17 The law allows for freedom of movement but the Government restricts freedom of movement in practice. ... 5.19 In Kinshasa, police and soldiers commonly erected roadblocks in order to extract bribes from taxibus drivers and passengers. On 18 January 2000, in the Gombe district of Kinshasa, there were unconfirmed reports that security forces forced passengers who allegedly were riding in excess of the capacity of a taxibus to pay bribes. There has reportedly been no investigation into this case. Also in January 2000, FAC (government) soldiers and police erected roadblocks in various districts of Kinshasa in order to extort money from each minibus passenger who crossed the roadblocks. 5.20 The Government requires exit visas for all foreign travel. Security forces occasionally hinder foreign travel by citizens, including journalists. There have been cases where political leaders have been denied exit visas. ...” 39. The report “Country Information and Guidance, Democratic Republic of Congo: treatment on return” published by the UK Home Office in September 2015 includes the following observations: “2.1 Is a FAS [failed asylum seeker] and/or FNO [foreign national offender] who is to return to the DRC (voluntarily or by force) at risk of mistreatment or harm by virtue of having claimed asylum in the UK and/or having been convicted of an offence in the UK ? 2.1.1 In the country guidance case of BM and Others (returnees – criminal and non-criminal) DRC CG [2015] 293 (IAC) heard in March and April 2015 and promulgated on 2 June 2015, the Upper Tribunal (UT) of the Immigration and Asylum Chamber found, based on the evidence put before it which included statistics indicating that there have been approximately 700 documented returns of asylum and non-asylum cases from European states plus the USA, Canada and New Zealand between 2012 and 2014 (paragraph 80), that ‘... there is no substantiated allegation of arbitrary arrest or ill treatment of any DRC national who is a failed asylum seeker or a foreign national offender returning to his or her country of origin.’ (paragraph 76) 2.1.2 The Tribunal went on to find that: ‘i) Those who have been convicted of offences in the United Kingdom are not at real risk of being persecuted for a Refugee Convention reason or serious harm or treatment proscribed by Article 3 ECHR. ‘ii) Those who have unsuccessfully claimed asylum in the United Kingdom are not at real risk of persecution for a Refugee Convention reason or serious harm or treatment proscribed by Article 3 ECHR.’ (paragraph 88) 2.1.3 However, the UT did find those persons who are wanted / suspected by the DRC authorities for criminal activity in the DRC are likely to be at risk of harm: ‘The DRC authorities have an interest in certain types of convicted or suspected offenders, namely those who have unexecuted prison sentences in DRC or in respect of whom there are unexecuted arrest warrants or who supposedly committed an offence, such as document fraud, when departing DRC. Such persons are at risk of imprisonment for lengthy periods and, hence, treatment proscribed by Article 3 ECHR.’ (paragraph 88) 2.1.4 The Upper Tribunal clarified its findings made in paragraph 119(iv) of BM and Others with regard to the risk of using a false passport (or other document) in the case of BM (false passport) [2015] UKUT 467 (IAC) (12 August 2015). The Upper Tribunal found that: ‘The mere fact that an asylum claimant utilised a false passport or kindred document in departing the DRC will not without more engage the risk category specified in [119(iv)] of BM and Others (Returnees: Criminal and Non-Criminal) DRC CG [2015] 293 (IAC). The application of this guidance will be dependent upon the fact sensitive context of the individual case. The Tribunal will consider, inter alia, the likely state of knowledge of the DRC authorities pertaining to the person in question. A person claiming to belong to any of the risk categories will not be at risk of persecution unless likely to come to the attention of the DRC authorities. Thus in every case there will be an intense focus on matters such as publicity, individual prominence, possession of a passport, the standard emergency travel document arrangements (where these apply) and how these matters impact on the individual claimant. 2.1.5 Decision makers will therefore need to determine whether a person is of interest to the authorities for criminal activity in the DRC. The onus will be on the person to demonstrate that they are of interest to the authorities, including with relevant documentary evidence. ... 2.1.7 Decision makers should note that the Upper Tribunal in BM & Others also provided country guidance on treatment of members of the political group, Alliance de Patriotes pour la Refondation du Congo (Alliance of Patriots for the Re-establishment of the Congo; APARECO), see paragraph 88(iii) of the judgement. 2.1.8 For guidance and information on categories of persons who may be at risk of serious harm or persecution, including political activists (other than members of APARECO), see OGN [Operational Guidance Note] of May 2012. 2.2 If refused is the claim likely to be certifiable as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002? 2.2.1 Given the absence of substantiated evidence of mistreatment or harm on return, where a claim falls to be refused (and the fear is based on being a FAS and / or FNO) it is likely to be certifiable as ‘clearly unfounded’ under section 94 of the Nationality, Immigration and Asylum Act 2002.” | 0 |
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