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test | 001-142399 | ENG | TUR | CHAMBER | 2,014 | CASE OF ASALYA v. TURKEY | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award | András Sajó;Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Robert Spano | 5. The applicant was born in 1988 and lives in Istanbul. 6. The applicant is a Palestinian who lived in the Gaza Strip until March 2008. He claims to have lost approximately twenty-five relatives to Israeli attacks over the years, and to have personally suffered three missile attacks between 2000 and 2007. According to his allegations before the Court, he was directly and personally targeted in the most recent attack, in 2007, as the missile that struck near him on that day immediately followed an anonymous call on his mobile phone asking him to confirm his name, a ruse by the Israeli forces to identify his location. That attack left him severely injured and rendered him paraplegic. 7. On 25 March 2008 the applicant was taken to Turkey by a humanitarian organisation, the Foundation for Human Rights and Freedoms and Humanitarian Relief (İnsani Yardım Vakfı, “İHH”), along with fortynine other injured civilians from the Palestinian territories, to have access to better medical care. 8. In June 2008 the Ministry of the Interior (“the Ministry”) issued the group of Palestinians with short-term residence permits in view of their continuing medical treatment in Turkey. 9. On 30 April 2009 the applicant married a Turkish national, who was also his physiotherapist. Because he was married to a Turkish national, he was granted a long-term temporary residence permit valid until 17 May 2010. 10. On 12 August 2009, at approximately 11 a.m., two police officers from the Istanbul Police Headquarters arrived at the applicant’s house. They informed the applicant and his wife that his presence was required at the police headquarters for an interview and that he would be brought back afterwards. Once he was at the police headquarters, however, he was verbally informed that his temporary residence permit had been cancelled in accordance with orders received from the Ministry and that he would soon be deported from Turkey. Without being given any further information as to the reasons for the deportation order, when it would be carried out and where he would be deported to, the applicant was placed in the Kumkapı Foreigners’ Admission and Accommodation Centre attached to the Istanbul Police Headquarters. 11. According to the police record drawn up on the same day at 3.30 p.m., the Ministry had decided on 27 July 2009 to deport the applicant. This decision had been taken at the request of the National Intelligence Agency of Turkey, which had received intelligence regarding the applicant’s possible involvement in acts of international terrorism. Neither the Ministry’s deportation order nor the police record in question was served on the applicant. 12. Upon learning of the applicant’s detention, on 12 August 2009 his wife got in touch with a local human rights organisation, Mazlumder, which in turn contacted the UNHCR to seek assistance in securing the applicant’s release and halting his deportation. Mazlumder also informed the UNHCR of the poor conditions in which the applicant was being detained, including the fact that he had spent the night sleeping on a table, that he was not able to use the squat toilets at the detention centre, and that his medical treatment had been stopped on account of his detention. 13. On 14 August 2009 the applicant brought an action against the Ministry before the Ankara Administrative Court seeking the quashing of the deportation order, and also requested a stay of its execution until the matter had been examined by the administrative court. He maintained before the administrative court that the deportation order was unlawful, in view of his marriage to a Turkish citizen and possession of a residence permit valid until May 2010. The unlawful deportation order had moreover not been communicated to him at any point, nor had the Ministry sought his response prior to its delivery. The State authorities had similarly not put forward any concrete evidence to demonstrate why his continued presence in Turkey was perceived as a threat to national security. The applicant claimed that in the event of his deportation to Israel or elsewhere, his right to life and right to liberty and security would be put at risk, that he would face torture or even death at the hands of Israeli forces or their collaborators, and that the unity of his family would be destroyed. Furthermore, his medical treatment would be stopped, causing irreversible harm to his health. The applicant lastly complained that his detention was unlawful, and also maintained that the conditions of his detention at the Kumkapı Foreigners’ Admission and Accommodation Centre were highly degrading, in view of the lack of basic infrastructure to accommodate people with disabilities in his situation. As he was not able to use the squat toilet available at the place of detention, he had to be taken to a hotel nearby by police officers each time he had to relieve himself. It appears that his wife was occasionally able to accompany them to the hotel. His medical treatment was also stopped during his detention there, which was likely to result in the worsening of his condition. 14. In a decision delivered on the very same day, the Ankara Administrative Court asked the Ministry for a copy of its deportation order of 27 July 2009, as well as all the information and documents which formed the basis of that decision. Moreover, noting the irreversible nature of the harm that might be caused in the event of the applicant’s deportation, it ordered a stay of its execution until a further decision. 15. On the same date, the applicant’s lawyer applied for release from the Kumkapı Foreigners’ Admission and Accommodation Centre on the basis of the Ankara Administrative Court decision granting a stay of execution. 16. Following a decision of the Ministry on 18 August 2009, the applicant was released from the Kumkapı Foreigners’ Admission and Accommodation Centre. 17. On 9 September 2009 the Ministry submitted its replies to the Ankara Administrative Court in relation to the applicant’s request for the quashing of the deportation order. It stated that the decision to deport had been taken on the basis of a National Intelligence Agency report dated 16 July 2009. The report indicated that within the context of ongoing investigations in connection with international terrorism the applicant had been identified as having had contact with some telephone numbers registered in Israel on issues such as “procurement of arms, new recruits to the group, and measures to be taken to ensure the confidentiality of activities”. His presence in Turkey was therefore perceived as a risk to national security within the meaning of section 8 (5) of the Passport Act (Law no. 5682) and section 19 of the Act on the Residence and Travel of Foreigners in Turkey (Law no. 5683). It also submitted a number of supporting documents as an annex. These documents were not made available to the applicant, nor were they later submitted to the Court. 18. On 16 September 2009 the Ankara Administrative Court decided that there were no elements warranting the suspension of the applicant’s deportation. It thus reversed its previous decision of 14 August 2009. 19. On 30 September 2009 the applicant appealed against the decision of the Ankara Administrative Court lifting the stay of execution of his deportation. He submitted that the Ministry had not put forward any tangible evidence in support of its allegation that he posed a threat to national security such as to necessitate his deportation from Turkey. If the Ministry went through with its decision, his physical integrity would be irreparably damaged on account of the termination of the medical treatment he was undergoing in Istanbul. Furthermore, his deportation would disrupt the family life he had since established in Turkey, and would deprive him of the vital assistance and care undertaken by his wife. In addition, if deported he would most certainly be subjected to torture by Israeli forces and his life would be put at risk. Lastly, the applicant drew the administrative court’s attention to his pending application to the UNHCR for refugee status, and also complained of the conditions in which he had been detained between 12 and 18 August 2009 at the Kumkapı Foreigners’ Admission and Accommodation Centre, which had lacked basic amenities to accommodate people with disabilities, such as a non-squat toilet and a lift. 20. On 14 October 2009 the Ankara Regional Administrative Court rejected the applicant’s appeal against the Ankara Administrative Court’s decision of 16 September 2009, which had effectively lifted the stay of execution of his deportation, without providing any reasons. 21. In the meantime, on 25 September 2009 the applicant had applied to the UNHCR for refugee status. On 22 October 2009 he was interviewed by the Ankara office of the UNHCR as part of the refugee status determination process. 22. On 22 December 2009 the applicant’s lawyer was informed by the State authorities that, pursuant to the latest decision of the Ankara Regional Administrative Court, the applicant was requested to leave Turkey within fifteen days, and that if he refused to comply with that request he would be deported forcibly. 23. On 24 December 2009 the applicant claimed asylum in Turkey. He stated that he had been forced to leave Gaza because of the persecution he had faced there. Following an Israeli attack on his house in Gaza, which had left him severely injured, he had come to Turkey to seek medical treatment. This treatment was still ongoing, and in the meantime he had married a Turkish citizen. He claimed that although he had never been involved in any acts of violence, he was wanted by Israel as a terrorist. Returning to his country would entail a great risk to his life, if not from Israeli attacks then because of the termination of his treatment. He would also face torture if captured by the Israelis. 24. On the same date, the applicant’s lawyer also sent a letter to the Foreigners’ Department of the Istanbul Police Headquarters, reiterating the grounds of appeal against the applicant’s deportation. The lawyer emphasised in the letter that the Ministry’s deportation order had not been served on the applicant, and that the administrative proceedings for the annulment of the deportation order were still pending before the Ankara Administrative Court, which had not yet delivered a judgment on the merits. She referred in this regard to the National Action Plan on Asylum and Immigration, adopted by the Government of Turkey on 25 March 2005, which held that the execution of deportation decisions was to be suspended once administrative proceedings seeking to overturn them had been instituted. 25. On 28 December 2009 the applicant’s representative asked the Court, under Rule 39 of its Rules of Court, to adopt an interim measure to halt the applicant’s imminent deportation from Turkey. 26. On 4 January 2010 the President of the Chamber to which the case was allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Turkey, under Rule 39 of the Rules of Court, that the applicant should not be deported to Israel or the Gaza Strip until the delivery of a decision by the UNHCR in his regard. 27. In the light of the interim measure applied by the Court, on 6 January 2010 the Foreigners’ Department of the Istanbul Police Headquarters ordered that the applicant be granted a three-month temporary residence permit, renewable until further notice. 28. On 22 April 2010 the Ankara Administrative Court quashed the deportation decision of 27 July 2009, as the applicant’s deportation had become unfeasible in view of the interim measure applied by the Court, which was binding on the Turkish authorities. The Ministry appealed against this judgment. 29. On 31 December 2010 the Supreme Administrative Court upheld the judgment of the Ankara Administrative Court, and on 6 July 2012 it refused the Ministry’s rectification request. 30. In the meantime, following a number of interviews, on 27 October 2010 the General Security Directorate of the Ministry granted the applicant a temporary residence permit for six months, apparently renewable, in view of his status as an asylum seeker. 31. On 1 June 2011 the applicant informed the Turkish authorities that he wanted to withdraw his asylum claim, for reasons unknown to the Court. 32. On 18 March 2013 the General Security Directorate of the Ministry decided to grant the applicant a long-term residence permit, valid for one year, on the basis of evidence that he had established a genuine family life in Turkey. The decision also indicated that this permit would be extended in due course if further inquiries in respect of his marriage demonstrated that he was continuing to maintain a family life in Turkey. 33. In June 2013 the applicant withdrew his application to the UNHCR for refugee status in order to avoid being resettled to a safe third country as a result of the refugee status determination process, which might have entailed separation from his wife. | 1 |
test | 001-158803 | ENG | TUR | CHAMBER | 2,015 | CASE OF M. ÖZEL AND OTHERS v. TURKEY | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;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) | Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano | 6. The applicants, Mr. Mehmet Özel, Mr Ali Kılıç, Mr İsmail Erdoğan, Mr Salim Çakır, Mrs Betül Akan, Mrs Menekşe Kılıç, Mrs Güher Erdoğan and Mrs Şehriban Yüce (Ergüden), were born in 1974, 1955, 1938, 1954, 1960, 1956, 1927 and 1966 respectively. 7. The Çınarcık Municipal Council, meeting in October 1994, adopted a decision increasing to six storeys the authorised height of the blocks covered by the building permits which had been issued to property developers for the construction of apartment blocks in Kocadere, on allotment 987, plot 1, and allotment 1257, plot 1. Pages 7 and 8 of the minutes of that meeting, recording the Municipal Council’s discussions, comprise the following exchange: “H.D.: ... at the Municipal Council meeting of 17.10.1994 [the height of buildings in] the restricted zone was raised to six storeys in Kocadere, where, on the worksite belonging to K.P., [the blocks were already] six storeys high. [During] the on-site visit it was noted that there were two more six-storey buildings in Kocadere. I think the decision we took at the time was insufficient. I am therefore requesting a modification of the restricted zone for sites comprising six-storey blocks of flats... The Mayor: ... As I said at the 17.10.1994 meeting, our friend here is proposing legalising the six-storey buildings which have been completed, without bothering about the mistakes made in the past... I repeat what I said at the June meeting: let us correct, rather than mull over, our past mistakes. I acknowledge that mistakes have been made. But from now onwards no one will be able to add an extra storey, we will not allow it. And it was not us that made the mistake. That was already the situation when we arrived [in the municipality]. N.P.: Mr Mayor, three persons have built six-storey blocks in Kocadere. What a cheek! And we subsidise these builders.. V.G. has built six-storey blocks on the site ... Who was asked for authorisation? ... I don’t have to clean up his mess! In June we decided that he should coat [the buildings] in concrete. He should just bury them... the municipality should revise the plans for the whole Kocadere region and authorise six storeys ... Y.B.: The new Municipal Council has been in place for seven months now. Have we visited the site where K.P.’s and V.G.’s buildings stand to record our findings and impose a fine? What exactly have we done so far? The Mayor: They are standing trial. As things stand [their buildings] are not lawful. They have put up five- to six-storey buildings, which is against the law... We at no stage authorised their construction. There are two or three blocks. Either we authorise the six storeys or they will have to be demolished... If you ask me, I think that action should have been taken earlier on this situation ... we should now just leave this mess alone and issue a decision authorising the six storeys, thus correcting the mistake. After which we will not allow any more such buildings... Y.B.: Mr Mayor, you did not answer my questions. What has been done about these blocks over the last seven months? The Mayor: As I say, the builders are being prosecuted. Representatives of the housing department have inspected the site and the municipality has fined certain persons. Furthermore, we will not issue permits [for] these buildings before ... having imposed fines of two or three million Turkish lire ... ... M.P: Mr Mayor, the fine you mentioned is the second stage in proceedings. I would remind you that the first stage, [relating to] your responsibility as Mayor, is to implement section 32 of the Urban Planning Act (Law No. 3194). Pursuant to that legislative provision, apart from [cases of] constructions which are exempt from the permit requirement, where the authorities have determined that construction work has begun without a permit or the work is incompatible with the permit and its appendices, the Municipality or the Office of the Governor must immediately visit the site and work must stop forthwith. You have been in office for six months now: have you, or have you not, honoured that obligation? The Mayor: ... I repeat that I did not authorise the buildings in question... They had already been finished and roofed when I took up my duties. ...” 8. On 8 and 12 June 1995 a Çınarcık resident complained to the Directorate General for Research and Implementation of the Ministry of Housing and Public Works about the alleged unlawfulness of the buildings constructed in the Çınarcık municipality by the V.G. company. 9. The Çınarcık Municipal Council held a meeting on 13 October 1995, during which the Municipal Head of Technical Services informed the councillors of the criteria for amending the municipal urban planning scheme. The minutes of the deliberations of the Municipal Council read as follows: “The Municipal Head of Technical Services: Mr Mayor, I would like to remind you of the provisions of the urban planning scheme on the addition of extra storeys to buildings for which permits have been issued. According to these provisions, two conditions must be met for such work: the first relates to the width of the street, and the second concerns technical and social infrastructure. I would just inform the Council that neither of these conditions is fulfilled in the applications submitted for adding storeys to the buildings. ... Failure to comply with the conditions laid down in the regulations carries a criminal penalty ... The decision is yours ...” Following these discussions, the Municipal Council accepted several applications for amendments to the municipal urban planning scheme. 10. On 4 October 1996 the Ministry of Housing and Public Works (the “Housing Ministry”) invited the Office of the Governor of Yalova to order the municipality in question to take the requisite legal action on the buildings constructed in breach of urban planning regulations, to monitor the action taken by that municipality and to keep the Çınarcık resident who had complained to the aforementioned directorate informed of the situation. 11. On 7 October 1996 the Municipal Council agreed that the number of storeys authorised for the buildings already constructed could be increased from five to six. 12. On 30 May 1997 the Housing Ministry invited the Governor of Yalova to adopt the urgent measures set out in sections 32 and 42 of the Urban Planning Act (see Relevant Domestic Law, paragraph 134 below) in respect of the buildings and the real estate developers at issue. 13. On 18 August 1997 the Office of the Governor of Yalova informed the Housing Ministry that despite the transmission of the latter’s orders to the municipality in question, the latter had failed to take any action. 14. By letter of 15 September 1997 the Housing Ministry invited the Office of the Governor of Yalova to issue the municipality with a final warning on the need to comply with its orders, failing which action would be taken against all persons failing to comply with their obligations under the Urban Planning Act. 15. On 15 October 1998 the Housing Ministry reminded the Office of the Governor of Yalova that section 32 of the Urban Planning Action prohibited amendments to urban planning schemes geared to legalising buildings which failed to comply with their building permits, and in fact required the authorities to correct any incompatibility with those permits. 16. During the night of 17 August 1999 the Izmit region, located on the coast of the Marmara Sea, was hit by an earthquake of a magnitude of 7.4 on the Richter scale. The earthquake was one of the deadliest to hit Turkey in recent years. According to official statistics, it killed 17,480 persons and injured 43,953. 17. Seventeen buildings were destroyed in the municipality of Çınarcık, ten of them in the so-called Çamlık sitesi and Kocadere sitesi estates. On those estates 195 persons lost their lives and hundreds of others were injured as their dwellings collapsed. 18. Seher Özel, the mother of Mrs Akan and Mr Özel, Mehmet and Şadiye Yüce, the parents of Mrs Yüce (Ergüden), Hasan Kılıç, the son of Mr and Mrs Kılıç, Kazim Erdoğan, the son of Mr and Mrs Erdoğan, and Can Çakır, the son of Mr Çakır, were buried under the rubble of the blocks of flats in Çınarcık, where they had been when the earthquake struck. Mr Çakır was himself trapped beneath the rubble for about ten hours. Mrs Yüce (Ergüden) was injured, and personally rescued her daughter from the debris. Mrs Akan had also been trapped under the rubble for several hours. 19. According to a medical report of 18 August 1999 drawn up by a doctor working at the Bursa hospital, Mr Çakır had been placed under observation: he had suffered burns to various parts of his body and display whole-body trauma and respiratory problems. 20. On 24 August 1999 the Yalova public prosecutor visited Çınarcık together with technical experts and officers from the Directorate of Security. On the same day official inspection reports were drawn up on the Çamlık estate, covering allotment 1648/15-1, plot 7, sections C, D and E, allotment 1649/15-1, plot 3, and allotment 1927/15-1, plot 1, section E. It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted, in particular, that the concrete contained mussel shells, that the material used for the construction had been sea-sand based and that as a result the cement had lost its binding capacity. 21. On 25 August 1999 the Yalova public prosecutor and a group of technical experts visited the Kocadere estate. On the same day they drew up official reports on allotment 1258/3-2, plot 1, allotment 1256/32, plot 5, section D, and allotment 1257/3-2, plot 1. It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted, in particular, that the concrete contained mussel shells, that the concrete displayed a very poor granulometry, that the concrete had not been cured, that the metal brackets in the buildings had not been properly fastened to the columns, and that because of the corrosion of the brackets the iron had worked loose from the concrete. 22. Moreover, on 13 September 1999 Mrs Akan had requested that the Yalova Regional Court determine, on the basis of the evidence gathered, the causes of the collapse of building D2 on allotment 1649-15/1, plot 3, in the Çamlık estate, under whose rubble her mother had died, and establish the relevant responsibilities. An expert opinion was commissioned to that end on the same day. 23. On 13 October 1999 the expert opinion commissioned set out the following findings: “... (d) Defects noted upon examination of the collapsed building, the rubble and the construction blueprint. 1. The height of the building was increased by 2.80 m by raising the basement above ground level, thus transforming it into the ground floor. 2. The foundations of the building were raised to soft ground (topsoil) level, which had low stability in terms of ground safety stress; the stability calculations ... were at no point revised. 3. The overall weight of the building was increased by the addition of an extra storey as compared with the number of storeys set out in the blueprint... 4. Neither the basement included on the plan, whose existence would have greatly increased earthquake resistance, nor the reinforced concrete retaining walls, which, according to the plans, were to have surrounded the basement, were ever built. 5. The mussel shells found in the pieces of concrete in the rubble showed that the sea sand and gravel had been used without sifting or sorting, which had been a major factor in diminishing the concrete’s resistance. 6. It was noted that the reinforcing rods inside the concrete had rusted, suggesting that sea sand and gravel had been used unwashed and that the sea salt had corroded the metal. 7. The broken beams found in the rubble showed that the 20-cm distances between the brackets had not been respected, and in some places the interstices measured 30 cm... 8. ... The stress testing carried out on the samples showed that their stress resistance was only half what it should have been. In conclusion: ... The building was constructed without any kind of technical control; another storey in addition to the number of storeys mentioned in the blueprint was added at the owner’s request in order to increase the number of housing and commercial units. Furthermore, the fact that the municipality failed to stop the building work raises issues. It is therefore necessary to ascertain whether a permit was issued for the building’s shallow foundations, which were, in fact, incompatible with the blueprint as from the first storey. If such a permit was issued, it is necessary to identify the persons working for the municipality who approved that permit and whether or not an occupancy permit was granted by the Çınarcık municipality. If so, it is necessary to establish the identities of the signatories of that occupancy permit. It is possible that other blocks have been built without inspection by the Çınarcık municipality. The photographs taken show buildings with seven storeys above ground level and others with two storeys. It is therefore necessary to establish the reasons for this architectural disparity and the regulations applied to the construction.” 24. On 6 September 1999 the Yalova public prosecutor took statements by V.G., the real estate developer responsible for buildings which collapsed in Çınarcık. V.G. stated that he had been working in the real estate field for nine years and that he had constructed numerous buildings with his partnership, the company V.G., and with the company G. Arsa. He agreed to shoulder responsibility for the shortcomings in the buildings which he had erected himself, but not for the defects relating to other buildings in which individuals had died during the earthquake and which he had merely sold. He also submitted that the buildings located on allotment 1927/15-1, plot 1, section D, allotment 1649/15-1, section C, and allotment 1649/15-1, plot 3, section D, had been constructed by İ.K. and Z.C. He did not know who had constructed the buildings in the Çamlık estate which had collapsed. He added that he was neither a construction engineer nor an architect, and that was why he called on the services of persons with expert knowledge of these fields, who should, in his view, be held responsible. 25. V.G. was remanded in custody the same day. 26. On 14 September 1999 the Yalova public prosecutor charged five individuals: the partners in the company V.G. Arsa Ofisi, to wit V.G., C.G. and Z.C., and also the company’s scientific officers, to wit D.B. and İ.K. They were charged with having caused, through negligence and recklessness, the deaths of 166 persons, buried under the rubble of three buildings which they had constructed in breach of the relevant norms. It transpired from the indictment that several site sections – section E on allotment 1927, sections C and D on allotment 1649, and sections A, C, D and E on allotment 1648 – had been built in Çınarcık, on Çamlık square, and that three buildings, which had totally collapsed, had been erected in the Kocadere estate, on Hanburnu square, on allotments 1256 and 1258. It also transpired from the indictment that the experts who had taken samples from the collapsed buildings had, in particular, found as follows: in the buildings in question, the iron brackets had not been tightened at the interstice between the beams and the columns; mussel shells had been found in the concrete, resulting in low resistance owing to the use of sea sand and sea gravel; the distance between the columns and the beam brackets was 40 cm in places; and there was insufficient iron in some of the columns. 27. Criminal proceedings were commenced before the Yalova Criminal Court. 28. In September 1999 İ.K., D.B. and C.G. were remanded in custody in absentia by the Yalova Criminal Court. 29. On 30 September 1999 Z.C. was remanded in custody. 30. On 6 October 1999 the Yalova public prosecutor wrote to the General Directorate of Criminal Affairs of the Ministry of Justice to inform it of the following facts: a large number of articles had been published in the local and national press about V.G.; given the very large number of deaths involved, the trial would be attended by many journalists and also numerous relatives of the victims; there was likely to be a very tense atmosphere during the hearings; Yalova prison had been closed following the earthquake and the prisoners were therefore housed in the Bursa prison; the courtroom would be too small for the number of persons attending proceedings; there were credible risks of the accused being abducted or murdered; and any preventive measures which the security forces would be able to put in place would be insufficient, such that it would be better to transfer the case to a different court. 31. On 14 October 1999 the General Directorate of Criminal Affairs of the Ministry of Justice invited the State Prosecutor with the Court of Cassation to transfer the case from the Yalova Criminal Court to a different criminal court pursuant to Article 14 in fine of the Code of Criminal Procedure, in order to guarantee public security during the proceedings. 32. On 15 October 1999, before the start of proceedings before the Yalova Criminal Court, the Court of Cassation, to whom the matter had been referred, decided to transfer the case to the Konya Criminal Court for reasons of security during the proceedings and of the accused’s safety. 33. On 19 October 1999, therefore, the Yalova Criminal Court transferred the case file to Konya Criminal Court. 34. On 20 October 1999 Mr Çakır applied to join the proceedings as a third party. On the same day Mrs Akan and Mr Özel also applied to join the proceedings as third parties, and declared that they reserved their rights as potential civil parties. 35. On 29 October 1999 Mr and Mrs Erdoğan and Mr and Mrs Kılıç lodged similar applications, and Mr Çakır reiterated his request. 36. On 20 November 1999 Mr Çakır forwarded a memorial requesting the criminal conviction of V.G. and his partners and stating that he reserved his rights vis-à-vis claiming compensation for the pecuniary and nonpecuniary damage which he considered he had sustained. 37. On 29 November 1999, after the case had been transferred to the Konya Criminal Court, Mr Çakır once again applied to take part in proceedings as a third party, and declared that he reserved his rights as potential civil party to proceedings. Mrs Yüce (Ergüden) also applied to take part in the criminal proceedings as a third party. Similarly, counsel for Mrs Akan and Mr Özel submitted a third-party application on behalf of each of her clients. 38. On 29 December 1999 Mr and Mrs Erdoğan applied to participate in proceedings, reserving their rights as potential civil parties. They submitted that they had sustained serious mental suffering and also pecuniary damage as a result of the loss of their son. Mr and Mrs Kılıç also lodged a thirdparty application. Mr Çakır was heard as a victim, and he gave evidence against the accused. Counsel for Mr Çakır requested the admission of his client’s application to take part in proceedings. At the conclusion of the hearing held on the same day, the Konya Criminal Court admitted that thirdparty application. 39. On 28 January 2000 the Konya Criminal Court examined Mr and Mrs Erdoğan’s third-party application, and noted that their son’s name was not on the list of deceased victims set out in the indictment. The court therefore requested submissions from those two applicants, including fresh information on the deceased persons. In a memorial of the same day, Mr and Mrs Erdoğan requested that charges be pressed against the officials allegedly responsible for the impugned acts. 40. During the hearing of 21 February 2000 the Konya Criminal Court questioned the victims, the accused and their lawyers. Mr Çakır was examined in his capacity as a third party, and he requested the conviction of the accused and the commencement of proceedings the municipal officials in question. 41. According to the official record of the hearing held on 20 March 2000, Mrs Akan, Mrs Yüce (Ergüden) and Mr Çakır had been examined as third parties: Mrs Akan had demanded the conviction of the accused and also requested that charges be brought against the official in question in the framework of those proceedings; and counsel for Mr Çakır had also demanded the conviction of those officials. At the conclusion of the hearing, the State Prosecutor was asked for information on the measures adopted by his Office regarding the provincial officials, as well as those working in the Çınarcık municipality and the Housing Ministry. Furthermore, V.G. and Z.C. were released on parole. 42. On 21 April 2000 Mr Çakır once again requested the prosecution of the Mayor of Çınarcık and of the municipal Head of Technical Services and Architecture. Mr and Mrs Kılıç were granted third-party status in the proceedings. 43. On 30 June 2000 Mr Erdoğan was granted third-party status in the proceedings. Mr Çakır was heard as a third party, and he requested an additional indictment in order to involve in the proceedings the municipal officials who had authorised the construction of the buildings which had collapsed. Counsel for Mrs Akan reiterated a request previously submitted for provisional measures covering all of V.G.’s assets. 44. On 22 September 2000, during the proceedings, the Yalova public prosecutor once again charged the five accused persons with having caused the deaths of several other persons through negligence and recklessness. 45. On 12 October 2000 three experts from the Istanbul Technical University prepared a report on their inspection of ten buildings which had collapsed, seven of them in the Çamlık estate and three in the Kocadere estate. The conclusions of this expert report read as follows: “Tectonics and seismic activity in the region between Çınarcık et Yalova ... This region is one of the most dangerous in seismic terms, which is why it has been marked out as a major hazard area on the map of Turkish seismic regions. Impact of the Izmit earthquake of 17 August 1999 on the region between Çınarcık and Yalova The 17 August 1999 earthquake, which was of a magnitude of 7.4 on the Richter scale and whose epicentre was at Izmit, created a 120-km-long superficial fault from Gölcük to Akyazı ... The fault segment was interrupted at a distance of 50 km from Çınarcık ... The primary causes of the destruction were the nature of the soil and the quality of the construction methods. Conclusions The coastal zone between Çınarcık and Yalova is an extremely dangerous region in seismic terms ... The Çamlık estate, which collapsed, had been built on an active rockslide area and on particularly soft soil. In such a high seismic risk region there can be no valid reasons for issuing building permits for six- or seven-storey buildings on such soft soil. Moreover, the fact that six-storey building located 300 m away in the Çamlık estate which had been erected on soil with similar characteristics were not damaged and that people are still living in them support the hypothesis that the buildings in the Çamlık estate had building defects. ... Appraisal of the blueprints and the permits ... Assessment of the blueprints showed the absence of documents attesting that soil studies had been carried out on the land where the buildings were to be constructed... Expert reports included in the case file The expert appraisals commissioned by the Yalova public prosecutor ... highlighted the following shared defects: – Concrete resistance was unsatisfactory. The granulometric composition of the aggregates used for the concrete was inadequate and the concrete contained mussel shells. It was established that the cement dosage had been insufficient and that the sand had not been properly cleaned. – The metal brackets on the load-bearing parts had not been reinforced and the anti-rust fixtures [paspayı] were unsatisfactory... Incipient corrosion on some of the reinforcing rods had weakened their adherence to the concrete. – ... – The softness of the soil was established. Establishing the responsibility of the accused persons and conclusions The owner and developer of all the impugned buildings [which] collapsed during the 17 August earthquake is the “V.G. Arsa ofisi” partnership. The founding partners of that company are İ.K., Z.C., C.G. ... Assessment of the evidence and documents contained in the case file shows that V.G. was the actual organiser [of the project]... For this reason V.G.’s responsibility is estimated at 2/8. The responsibility of the public authorities which allowed the urban development of the Çamlık and Hanburnu neighbourhoods, authorised the multi-storey buildings there without commissioning the requisite prior geological studies, failed to provide for satisfactory supervision of the projects in the area, failed to request studies of the soil ..., failed to prevent the defective concrete-manufacturing procedures [and] failed to monitor the work of those responsible for the technical applications is estimated at 2/8. C.G.’s responsibility is set at 1.5/16 and Z.C.’s at 1.5/16... İ.K.’s responsibility is set at 3/16 on the grounds that he was a partner in the V.G. company, but also because he was responsible for the architectural and structural design of seven buildings and for the relevant technical applications... D.B.’s responsibility is set at 1/8 because he was responsible for the architectural and structural design of three buildings and for the relevant technical applications. ...” 46. On 23 October 2000 the Yalova Criminal Court, to which the case had been referred following the indictment of 22 September 2000 (see paragraph 44 above), found that a similar action against the accused was pending and therefore requested the joinder of the two sets of proceedings. 47. On 22 December 2000 the Konya Criminal Court declined jurisdiction to adjudicate the impugned acts in view of the nature of the offence in question; the case was then referred to the Konya Assize Court. 48. Between 16 April 2001 and 21 October 2004 the Konya Court Assize held twenty-three hearings. At the hearing on 16 April 2001 the State Prosecutor pointed out that transferring the case to Konya was against the procedural regulations and in breach of the rights of the third parties. He stated that the security grounds advanced for that transfer had lapsed and that the proceedings should therefore have continued in Yalova, where the offence had been committed. The applicants also applied for the setting aside of the transfer order in question, submitting that the security grounds advanced no longer applied. On the same day the Konya Assize Court rejected the application, pointing out that pursuant to the case-law of the Court of Cassation the case had to remain before the court to which it had been transferred even if the grounds for the transfer no longer applied. Counsel for Mr Özel, Mrs Akan, Mr and Mrs Kılıç, and Mr and Mrs Erdoğan presented their case during the hearing. 49. On 26 April 2001 the Istanbul Criminal Court remanded C.G. in custody. 50. On 3 May 2001 the Konya Assize Court wrote to the Konya public prosecutor requesting the preparation of a further expert report, complementing that of 12 October 2000, on the ruins of the buildings in question in order to establish whether their mode of construction had been in conformity with the original blueprints and whether the materials used had complied with the usual standards. 51. On 8 June 2001 Mrs Akan gave evidence. She stated that she had lost her mother during the earthquake and had dug her own child out of the rubble. She also submitted that the accused had not been the only parties criminally responsible for the impugned acts, as various municipal officials and members of the Chamber of Architects responsible for the technical oversight of the constructions in question had also been guilty. Counsel for that applicant stated that he had heard, through unofficial channels, that the decision had been taken to broaden the investigation in order to establish the municipal officials’ responsibility, and he requested information on whether a decision had been taken to prosecute the Mayor of Çınarcık and the official in question. During the 8 June 2001 hearing Mr Çakır also gave evidence as a third party, as did another person, who stated that the Council of State had adopted a decision on 4 October 2000 to the effect that the Mayor of Çınarcık could not be prosecuted (see paragraph 89 below). On the same day V.G. was once again remanded in custody. 52. On 11 June and 6 July 2001 the Konya Assize Court wrote to the Office of the Governor of Yalova , asking, in particular, whether any action had been taken against the Mayor of Çınarcık and the other officials liable to be held responsible for the consequences of the earthquake. 53. On 1 August 2001 V.G. and C.G. were released on parole. In a memorial of the same day, Mrs Akan and Mr Özel requested the indictment of the officials whose responsibility had been engaged for the impugned acts. Mr Çakır also submitted a memorial requesting the conviction of the accused and the prosecution, in the framework of the ongoing criminal proceedings, of the Mayor and the Head of Technical Service and Architecture of Çınarcık municipality. 54. At the hearing on 1 October 2001 Mr Çakır read out the minutes of meetings of the Çınarcık Municipal Council which, in his view, established that the buildings in the zone at issue had been constructed without prior authorisation. He once again submitted that the municipality and the officials had been responsible for what had happened. 55. On 11 April 2002 the Assize Court noted that the authorisation for a criminal investigation of the Mayor of Çınarcık and other officials (see paragraph 87 below) previously issued by the Interior Ministry had been set aside by the Council of State (see paragraph 89 below) and that the Inspectorate of Administration had adopted an opinion to the effect that there was no need to bring proceedings. 56. In a memorial of 16 July 2002 Mr Çakır requested the commencement of proceedings against the Mayor of Çınarcık and the Head of Technical Service and Architecture, suggesting that they should be tried in the framework of the criminal proceedings in hand on the ground that they had turned a blind eye to the construction of the impugned buildings. 57. On 24 July 2002 General Directorate of Local Administration of the Interior Ministry prepared a document for the Assize Court mentioning the following points: (a) the Interior Ministry’s 4 May 2000 decision to authorise a criminal investigation had been cancelled on 4 October 2000 by the Council of State, which meant that no action had been taken against the officials in question (see paragraph 89 below); (b) a report on an inquiry authorised by the Interior Ministry on 10 September 2001 had also concluded that there were no grounds for proceedings against the officials in question (see paragraph 91 below); and (c) another report on an inquiry authorised by the Interior Ministry on 25 January 2002 had concluded that there was no need to prosecute the officials in question (see paragraph 93 below). 58. At the hearing on 17 October 2002 the Assize Court noted that the document from the Directorate General of Local Administration of the Interior Ministry had been read and added to the case file. 59. In a claim submitted on 11 November 2003 Mr Çakır demanded a certain sum in respect of procedural expenses for the transfer of the case to Konya, and reserved his rights as regards that outlay. 60. On 18 November 2003 he repeated his request for the indictment of the officials whose responsibility had been engaged. 61. On 1 March 2004 Mrs Akan and Mr Özel submitted a memorial on the merits in which they relied on Article 6 of the Convention to complain of unfair proceedings and an infringement of the “natural judge” principle owing to the transfer of the case to Konya and a breach of the right of prosecution. They considered that their inability to obtain leave of prosecution under the Prosecution of Civil Servants and other Public Officials Act (“Law No. 4483”) with regard to the municipal officials in question was contrary to the principle of equality before the law, as well as Articles 6 and 13 of the Convention. 62. On 4 May 2004 the Konya Assize Court ordered the separation of the case in hand from that concerning D.B. and İ.K. on the ground that the latter two accused persons had been untraceable for almost three years, thus delaying the proceedings. 63. On the same day a joint memorial was lodged with the registry of the Konya Assize Court by Mr and Mrs Kılıç and Mr and Mrs Erdoğan, declaring that they reserved their rights to claim civil damages in the criminal proceedings. Mrs Yüce (Ergüden) lodged a third-party memorial stating that owing to the deficiencies and delays in the civil and criminal proceedings the shares held in the accused’s company had been sold off, which she considered as jeopardising the chances of success for any future action for damages. She also pointed out that the Mayor of Çınarcık had been given a thirty-five-month prison sentence for the architectural practices implemented in the Çamlık estate (see paragraph 85 below), and that he had been removed from office. 64. On 24 June 2004 İ.K. was remanded in custody. 65. On 5 July 2004 a fresh expert report was prepared at the Assize Court’s request. According to the report, V.G. had been issued with six different building permits, twenty-two blocks had been built in Çınarcık for which no occupancy permit was to be found in the assessment file, and 195 persons had died buried in the rubble of those buildings, 152 of them in the Çamlık estate, 12 in the Kocadere estate and 31 in the V.G. estate. It also transpired from that report that İ.K. had been responsible for the architectural project regarding the buildings in the Çamlık estate, on allotment 1927/15-1, plot 1, allotment 1649/15-1, plot 3 and allotment 1648/15-1, plot 7, and that D.B. had been in charge of the architectural project regarding the buildings in the Kocadere estate, on allotment 1258/32, plot 1, allotment 1257/3-2, plot 1, and allotment 1256/32, plot 5. The report also specified that the V.G. company, in which İ.K. and Z.C. had been partners, had been responsible for the construction of all those buildings. 66. On 14 October 2004 the State Prosecutor presented the prosecution case on the merits. He submitted that 195 persons had died in the estates built by V.G.: 115 persons had been killed on allotment 1925, plot 1, allotment 1648, plot 7, and allotment 1649, plot 3, and 80 other persons in other buildings. Those deaths had been caused not by the earthquake alone but also by the actions of the accused, who had used deficient materials with full knowledge of the risks involved. He demanded the conviction of the accused pursuant to Articles 383/2 and 40 of the Penal Code, insisting that the sentence should be delivered six times, one for each of the building permits issued. 67. On 21 October 2004 the Assize Court found the accused V.G., C.G. and Z.C. guilty of endangering the lives of others through negligence and recklessness and, pursuant to Article 383/2 of the Penal Code, sentenced each of them to twenty years’ imprisonment without parole and four years and twelve months’ imprisonment, and to a fine of 360,000,000 Turkish lire (TRL). The Assize Court gave the following reasons: “... The investigations conducted on the sites and the expert reports drawn up both during the preliminary investigation and during the criminal proceedings showed that the buildings which collapsed as a result of negligent, virtually intentional, acts had been built in breach of many current legal obligations. Even though the area in question had been classified as a major seismic hazard zone, no soil studies had been carried out on the worksites. The concrete, metal and other materials used lacked the necessary resistance. A large number of obligations set out in the blueprint were breached. The buildings thus constructed collapsed under the impact of the earthquake, and those holding responsibility for the collapse of the buildings had made no attempt to avert danger and [offset] the unlawful acts committed, such that a direct causal link was established between the negligent acts and the consequences of the collapse of the buildings. ... The provisions relating to the concurrence of offences are applicable to this case... The present proceedings concern six different building permits... Consequently, the accused were held responsible for six different events. Having regard to the lists drawn up by the Governor of Çınarcık district and by the Kocadere municipality... 11 persons lost their lives on plot no. 1, allotment 1927 (1st section), 28 on plot no. 3, allotment 1649 (2nd section), 76 on plot no. 7, allotment 1648 (3rd section) and 2 on plot no. 5, allotment 1256 (blocks A and B). It has not been established with certainty whether there were any deaths on the other plots. Where it was established that there were deaths, it was also established that buildings collapsed. Therefore, it must be acknowledged that in those buildings people’s lives had been jeopardised. Consequently ... the sentencing procedure must involve applying to each of the accused the final sentence of Article 383/2 of the Penal Code, multiplied by four, as regards the deaths which occurred in four zones covered by a permit. As regards the two zones covered by a permit where no loss of life could be established, the first section of Article 382/2 of the Penal Code, multiplied by two, must be applied. All the buildings were constructed by the real estate developer, that is to say the ‘V.G. Arsa Ofisi’ company ... At the material time the two accused persons V.G. and C.G. had been partners in that company. The accused person Z.C. had also been a partner in the company in respect of the buildings covered by permits. Z.C. had also been the owner of five buildings covered by permits. Insofar as Z.C. was involved in the construction of the buildings, he must be held responsible for all the relevant actions... Even though permits had indeed been issued for all the building lots, none of them was covered by an occupancy permit, that is to say a permit for utilisation. In this context, since at the time of the offence the company and its partners were still under the obligation to correct the shameful [defects] in the buildings, [they] are also criminally liable for the collapse of the latter owing to these disgraceful [defects] throughout the whole period... As already stated above, the consequences of the impugned acts amounted to a disaster. Solely because of those acts, 195 persons lost their lives and pecuniary damage was sustained to an extent which is difficult to quantify. The accused bear enormous responsibility for those consequences. As highlighted by the expert reports, using such construction methods in a 100% earthquake risk zone really was a recipe for disaster...” 68. On 4 November 2004 İ.K. was also found guilty of homicide and bodily harm through recklessness. He was sentenced to twenty years’ imprisonment without parole and four years and twelve months’ imprisonment, and to a fine of TRL 360,000,000. 69. The accused appealed on points on law. 70. By judgment of 27 June 2005 delivered on 6 July 2005 the Court of Cassation set aside the convictions of V.G., C.G. and Z.C. on the following grounds: the fact that a judge had failed to sign the minutes of the 20 March 2000 hearing; conviction for the collapse of a building on allotment 1257, plot 1, which was not mentioned in the indictment; the failure to read out the 22 September 2000 indictment before taking statements from the accused; and the entry into force of the new Penal Code. 71. By judgment of 18 July 2005 delivered on 20 July 2005 the Court of Cassation also set aside İ.K.’s conviction on the following grounds: the conviction for the collapse of a building on allotment 1257, plot no. 1 was not mentioned in the indictment; one judge had failed to sign the minutes of the 20 March 2000 hearing; the criminal prosecution of İ.K. should have been joined to that of the other accused persons; and the new Penal Code had come into force. 72. Between 18 June 2005 and 11 April 2006 the Konya Assize Court, to which the case had been referred back by the Court of Cassation after the setting aside of the 21 October 2004 judgment, held eleven hearings. The preparatory report for the 18 June 2005 hearing included the applicants’ names in the list of third parties to the proceedings. 73. On 17 August 2005 the Konya Assize Court ordered the joinder of the criminal proceedings against İ.K. with those pending against V.G., C.G. and Z.C. 74. On 31 January 2006 the Assize Court decided to separate the proceedings against the accused Z.C. and C.G. untile they were arrested. 75. On 11 April 2006 the Konya Assize Court sentenced V.G. and İ.K. to eighteen years and nine months’ imprisonment and to a fine of TRY 250. Mr Çakır, Mrs Yüce (Ergüden), Mrs Akan, Mr Özel and Mr and Mrs Erdoğan were mentioned as third parties to the proceedings. Mr and Mrs Kılıç were mentioned as complainants. In its statement of reasons the Assize Court pointed out that the buildings in Çınarcık had been destroyed by the earthquake, but that it had transpired from the inspections carried out both during the preliminary investigation and during the proceedings that the buildings which had collapsed had been constructed in breach of numerous legal obligations. The Assize Court further emphasised the following: even though the stricken zone was classified as a level-one earthquake hazard area, the buildings had been constructed without any prior soil testing; the construction material used had been low-quality and the concrete had not been solid; the buildings erected had been destroyed under the impact of the earthquake; the accused had acted negligently, which had contributed to the destructive events; and there was a direct causal link between the destruction and the loss of life. The Assize Court further held that the provisions relating to the concurrence of offences were applicable to the case, that each building project implemented in accordance with a building permit had constituted an offence and that the instant case concerned five permits, namely allotment 1927, plot 1, allotment 1649, plot 3, and allotment 1648, plot 7 in Çamlık, and allotment 1258, plot 1 and allotment 1256, plot 5 in Kocadere. It was also noted that no proceedings concerning allotment 1257, plot 1 had been brought before the Assize Court. As regards the lists drawn up by the Governor of Çınarcık District and Kocadere Municipality, the Assize Court explained that eleven persons had lost their lives on allotment 1927, plot 1 (1st section), twenty-eight on allotment 1649, plot 3 (2nd section), seventy-six on allotment 1648, plot 7 (3rd section) and two on allotment 1256, plot 5 (blocks A and B). It pointed out that it had been impossible to establish whether any deaths had occurred on the other plots, but that it had been established that the dwellings on those plots had been inhabited, thus placing the inhabitants in mortal danger. The Assize Court also noted the following: the V.G. Arsa Ofisi company had been responsible for all the buildings constructed on those plots; at the material time V.G. and C.G. had been partners in that company and Z.C. had been involved in obtaining the permits for the buildings; even though permits had been issued for the buildings in question, none of them had been covered by an occupancy permit, such that the building company and the various partners held criminal responsibility for the events. 76. The accused appealed on points of law. 77. On 16 April 2006 the Court of Cassation adopted a decision to transmit the case to the public prosecutor with the Court of Cassation so that he could submit his opinion on that appeal. The cover page of the decision bore the inscription “Detainees – statute limitation period expiring soon”. 78. In a memorial of 5 February 2007 Mr Çakır asked the Court of Cassation to confirm the first-instance conviction, under urgent procedure, on the ground that the offence would shortly be statute-barred. 79. On 6 February 2007 the Court of Cassation confirmed V.G.’s conviction. It also partly upheld İ.K.’s conviction, invalidating it as regards İ.K.’s responsibility for the destruction that had taken place on allotment 1258, plot no. 1, on the ground that it was unlawful to convict that accused person without having regard to the lack of evidence regarding his status as a technical officer or as a partner in the company responsible for erecting the building in question. 80. On 20 February 2007 the Konya Assize Court adopted two decisions discontinuing the criminal proceedings against D.B. and C.G. on the grounds that they had become statute-barred. The proceedings against Z.C. were also terminated, on an unknown date, on the same grounds. 81. On 15 March 2007 the Konya Assize Court, to which the case had been referred, discontinued the criminal proceedings against İ.K. as regards his responsibility for the destruction that had taken place on allotment 1258, plot 1, on the grounds that they had become statute-barred. The applicants’ names were included as third parties in the decision. 82. On 8 June 2007 the public prosecutor with the Court of Cassation, examining an appeal lodged by V.G. and İ.K. against the judgment of 6 February 2007, held that that appeal had been lodged unnecessarily. 83. Previously, on 7 May 1997, the Governor of Yalova had stated that the Mayor and the Head of Technical Services of Çınarcık should be prosecuted under Articles 230 and 240 of the Penal Code for failing in their duties and abusing their authority. The Governor accused them, in particular, of having, between 1995 and 1996, altered the urban planning schemes and turned a blind eye to the erection of illegal buildings, and of having failed to demolish the latter and to impose the relevant fines. 84. On 18 March 1999 the Council of State, having been applied to by the accused persons, transmitted the case file to the Yalova Criminal Court with a view to prosecuting the offence under Article 240 of the Penal Code. 85. On 28 February 2001, in the framework of the proceedings thus instigated, the Yalova Criminal Court found the accused guilty as charged. It was satisfied that the Mayor had authorised, under a decision taken by the Municipal Council on 13 October 1995, alterations to the urban planning schemes in a manner contrary to normal procedure – which action falls foul of Article 230 of the Penal Code – but that in view of the nature of the offence and the penalty incurred the imposition of a final penalty should be suspended, pursuant to section 1 [4] Law No. 4616 concerning release on parole and stay of proceedings and penalties for offences committed before 24 April 1999. The Criminal Court considered the 1997 adoption by the Municipal Council of a decision setting aside the aforementioned 13 October 1995 decision before it could be enforced as a mitigating circumstance: it changed the penalties imposed on the Mayor to six months’ imprisonment, under Article 240/2 of the Penal Code, and a TRL 300,000 fine. In view of the Mayor’s behaviour during the proceedings, those penalties were reduced to five months’ imprisonment and a fine of TRL 250,000. The Mayor was also found guilty of having abused his authority by once again altering the planning schemes in breach of procedure, under a Municipal Council decision of 14 February 1996, and he was therefore sentenced to one year’s imprisonment pursuant to Article 240 of the Penal Code and fined TRL 300,000, which penalties were then reduced to ten months’ imprisonment and a fine of TRL 250,000. He was also found guilty of having failed to enforce the fines imposed pursuant to Article 42 of Law No. 3194, as ordered by the Municipal Council on 22 May 1996. Furthermore, he was sentenced to one year’s imprisonment and fined TRL 420,000 for having failed to ensure the destruction of the unlawful worksites, which penalties were then reduced to ten months’ imprisonment and a fine of TRL 350,000. The court also found the two accused guilty of having failed to halt the works performed in a manner inconsistent with the corresponding building permits, of having failed to take action to ensure the demolition of the unlawfully erected constructions and of having abused their authority. Each of the accused was consequently sentenced to one year’s imprisonment and fined TRL 300,000, subsequently reduced to ten months’ imprisonment and a fine of TRL 250,000. In all, the Mayor of Çınarcık was sentenced to thirty-given months’ imprisonment and fined TRL 1,100,000, and the Head of Technical Services was sentenced to ten months’ imprisonment and fined TRL 250,000, which penalties were suspended. 86. On 5 May 2003 the Court of Cassation upheld that judgment. 87. On 4 May 2000 the Interior Ministry adopted a decision authorising the instigation of a criminal investigation under Article 230 of the Penal Code against the former and current Mayors of Çınarcık, the former and current municipal Heads of Applied Science, as well as the architect and an official working in Technical Services, the last two having admitted that they had at no stage inspected the worksite after the laying of the foundations of the buildings in Çamlık, allotment 1927/151, plot 1, block E, allotment 1649/15-1, plot 3, blocks C and D, and allotment 1648/15-1, plot 7, blocks A, C, D and E, and the buildings in Kocadere, allotment 1256/3-2, plot 5, block D, allotment 1257/3-2, plot 1, block D and allotment 1258/3-2, plot 1, block D. 88. On 14 July 2000 Mrs Akan and Mr Özel applied to the Interior Ministry’s Inspection Committee for identification of the officials who had failed in their duties of inspection and supervision of the impugned buildings. Relying on the conclusions of the expert report of 13 October 1999 (see paragraph 23 above), they also requested a prosecution order against them. They submitted that their aim was to shed light on the whole chain of responsibilities, emphasising that the Mayor of Çınarcık, the Municipal Council and the technical and administrative staff responsible for inspection and supervision should also be prosecuted and placed on trial pursuant to section 102 of the Local Authorities Act (Law No. 1580). The two applicants considered that the municipality had turned a blind eye to the construction of buildings that fell short of the legal requirements. They also reiterated that the construction area in question had been classified as a “major earthquake hazard zone”, and complained that the municipality had authorised excessively high buildings on unstable ground. Finally, it was necessary to establish the responsibility of the Büyükşehir municipality on the ground that the area at issue had been part of that municipality at the time of the construction of the buildings and the submission of the architectural plans. 89. On 4 October 2000 the Second Division of the Council of State, examining an appeal lodged by the individuals concerned by the authorisation of criminal investigation issued by the Interior Ministry (see paragraph 87 above) and acting under Section 9 of Law No. 4483 (see Relevant domestic law, paragraph 133 below), lifted the criminal investigation authorisation issued by the Interior Ministry. The Council of State held that responsibility should be attributed to the specialists who had planned the building project, emphasising that many of the buildings destroyed on 17 August 1999 had not been covered by occupancy permits. 90. On 6 July 2001 the two aforementioned applicants applied to the Directorate General of Local Authorities of the Interior Ministry. On the basis of new evidence they reiterated their application for the prosecution of the officials in question. They submitted that, in the light of the new evidence in question, those officials could not be charged with mere negligence, and that their actions had amounted to abuse of authority. 91. On 10 September 2001 a review report was drawn up as authorised by the Interior Ministry on 15 August 2001, geared to ascertaining whether the failure to react to and verify the addition of extra storeys to several buildings – those located in Çamlık, allotment 1927/151, plot 1, block E; allotment 1649/15-1, plot 3, blocks C and D; and allotment 1648/151, plot 7, blocks A, C, D and E; and in Kocadere, allotment 1257/32, plot 1, block D – which had been effected in breach of the corresponding building permits, had amounted to a breach of professional duties by the former and current Mayors of Çınarcık, the former and current municipal Heads of Applied Science, as well as the architect and a member of the technical services staff. The report concluded that there had been no need to prosecute the actions in question as they had been in conformity with usual procedure; consequently, no proceedings were brought against the aforementioned persons. 92. On 5 November 2001 Mrs Akan and Mr Özel once again applied to the Directorate of Local Authorities of the Interior Ministry for information on the action taken on their various complaints, pointing out that their requests for the prosecution of the officials had been unsuccessful and that no preliminary inquiry had yet been launched into the facts of which they had complained. 93. On 25 January 2002 a further review report was prepared as authorised by the Interior Ministry on 2 January 2002. That report found that there had been no need to take action against the officials in question for having authorised six-storey buildings. 94. On 4 February 2002 the above-mentioned Directorate replied to the application of 5 November 2001 (see paragraph 92 above). It first of all reiterated that the decision taken by the Interior Ministry authorising an investigation had been cancelled by decision of the Council of State of 4 October 2000. It went on to explain that in reply, in particular, to the application of 6 July 2001 (see paragraph 90 above), a preliminary examination had been conducted as authorised by the Interior Ministry on 15 August 2001, concluding that the issue at stake had already been decided, that the Council of State had cancelled the authorisation of investigation and that there was therefore no need for action against the individuals in question. Finally, it pointed out that, having regard to the applicants’ new allegations, a further authorisation of examination had been adopted on 2 January 2002 (see paragraph 93 above). 95. On 20 August 2002, relying on section 53 of the Administrative Procedure Act (Law No. 2577) and pointing to the existence of new evidence, the applicants applied to the Council of State to set aside the decision of 4 October 2000 (see paragraph 89 above) and to reopen proceedings. 96. On 18 September 2002 the Second Division of the Council of State dismissed that application, without consideration of the merits, on the grounds that no appeal lay from the contested decision, referring in that regard to sections 3 (h) and 9 of Law No. 4483 (see Relevant domestic law, paragraph 133 below). 97. On 20 November 2002, the applicants once again applied to the Council of State, submitting that they had not appealed against the decision of 4 October 2000 cancelling the authorisation of a criminal investigation but had applied for the reopening of proceedings pursuant to the Administrative Procedure Act (Law No. 2577), which was a different remedy. They reiterated their request to that effect. 98. On 14 January 2003 the Council of State dismissed that request, having noted that the proceedings in question had been conducted pursuant to Law No. 4483, which did not provide for reopening proceedings. 99. On 8 April 2004, examining an appeal lodged by Mrs Akan and Mr Özel against the 25 January 2002 report (see paragraph 93 above), the Second Division of the Council of State dismissed that appeal, without considering the merits, on the grounds that it concerned a decision from which no appeal lay. 100. On 25 February 2004 Mrs Akan and Mr Özel applied to the Yalova Provincial Human Rights Committee (“the Yalova Committee”). They submitted that the transfer of the criminal proceedings from the scene of the earthquake (Yalova) to Konya was in breach of the “natural judge” principle and infringed the victims’ right of appeal. They also complained of shortcomings in the assessment of the applications for the prosecution of the officials involved in the case. 101. On 6 April 2004 the Yalova Committee noted that the Commission responsible for the investigation and appraisal of human rights violations had prepared a rapport on the impugned facts concluding that there had been compelling reasons for changing the trial venue, as provided for in Article 14 of the Code of Criminal Procedure, and had not breached any human rights. Similarly, according to the findings of the report, the cancellation by the Council of State of the authorisation of investigation against the official whose responsibility had been engaged and the refusal to reopen the proceedings had not been contrary to human rights. Furthermore, the Yalova Committee pointed out that according to the same report, the complainants could have lodged an application with the European Court of Human Rights. 102. The Yalova Committee also noted that a member of the Commission responsible for the investigation and appraisal of human rights violations had set out the following additional observations: “1. The increase in the number of storeys without the authorisation of the Municipal Council and the amendments to the architectural plans, as well as the failure to comply with the architectural plans concerning the ‘high-risk’ nature of the zone, amount to an infringement of the right to life; 2. The transfer, on security grounds, of the case to Konya rather than to a province closer to Yalova violated the victims’ right to a judge and their right of appeal. The Ministry of Justice has to provide financial assistance to the complainants so that they can follow the proceedings ... 3. The following constitute human rights violations: the inability, following the cancellation by the Council of State of the authorisation of investigation under Law No. 4483, to secure, [on the basis of] the new evidence submitted, the re-examination of the impugned facts [and] and the reopening of the proceedings... [The same applies to] the lack of a right of appeal for the complainants following the cancellation of the authorisation of prosecution of the officials.” 103. On 29 April 2004 the Office of the Governor of Yalova wrote to counsel for the applicants to inform her of that decision, transmitting a copy thereof. 104. On an unknown date Mrs Akan and Mr Özel had lodged with the Bursa Administrative Court an action for damages against the Interior Ministry, the Mayor of Çınarcık, the Housing Ministry and the Mayor of Büyükşehir (Istanbul), seeking compensation for the pecuniary and nonpecuniary damage which they had sustained. They had submitted that the administrative authorities charged in the proceedings had authorised building in major earthquake hazard zones, failing to use appropriate construction techniques, and that they had issued building and occupancy permits without adequate controls, thus committing a breach of their administrative duty. 105. On 30 October 2000 the Bursa Administrative Court dismissed that action as having been brought out of time, stating that the applicants should have brought their action within sixty days from the preparation of the expert report of 13 October 1999 (see paragraph 23 above), when they had been apprised of the alleged defects. 106. On 4 March 2003 the Bursa Regional Administrative Court dismissed an appeal against the latter decision and upheld the first-instance decision. 107. On 2 August 2004 Mr Çakır submitted a claim to the Ministry of Justice for the reimbursement and defrayal of his travel expenses to and from Konya in order to follow and take part in the criminal proceedings. 108. On 31 August 2004 the Ministry of Justice rejected that claim. 109. On 16 May 2006 the Ankara Administrative Court, to which the applicant had appealed against that decision, held that the decision to transfer the Yalova case to Konya had been a judicial rather than an administrative decision and that it accordingly could not engage the responsibility of the administrative authorities. 110. On 27 September 1999 Mrs Akan and Mr Özel had lodged with the Yalova Regional Court (“YRC”) an action for damages against the V.G. partnership, V.G. himself, İ.K., Z.C. and the Çınarcık municipality. 111. During the hearings held between 29 September 2004 and 17 September 2007, the YRC ordered the adjournment of the case until the conclusion of the criminal proceedings which were pending before the Konya Assize Court at the time. 112. On 17 September 2007 the YRC observed that the Konya Assize Court had convicted V.G. and İ.K. of five offences, one of which related to the collapse of three blocks on allotment 1256, and that that conviction had become final, having been adopted in the light of an expert report prepared by Istanbul Technical University on 12 October 2000 establishing the accused’s responsibility. That expert report had been added to the case file, and the YRC commissioned a further expert report in order to establish the pecuniary damage sustained by the complainants as a result of the loss of their apartment. 113. On 19 November 2007 an expert estimated the pecuniary damage sustained at TRY 5,015. 114. At the hearing on 14 January 2008 the complainants contested the conclusions of that expert opinion. 115. On 2 December 2008 the YRC, sitting as a consumer court, rejected the claims for compensation brought against V.G. and the Mayor of Çınarcık respectively on grounds of absence of evidence and lack of jurisdiction. It further held that the complainants’ claim for the moveable property lost should be considered as having been abandoned during the course of proceedings. Finally, the YRC partly acceded to the request for compensation by ordering the V.G. and Z.C. partnership to pay the applicants TRY 2,091.43 jointly in respect of pecuniary damage and TRY 2,000 each in respect of non-pecuniary damage. 116. On 13 March 2009 Mrs Akan and Mr Özel appealed against that judgment on points of law. In their memorial before the Court of Cassation they submitted that V.G.’s responsibility had been established by the Konya Assize Court and that, while civil courts were not bound by the conclusions of criminal courts, that did not apply to cases where the facts had established beyond doubt. They complained that the YRC had decided the case as a consumer court, even though it had involved a purely civil action. Finally, they submitted that the amounts awarded in compensation had been unsatisfactory, so that the YRC’s decision had been incompatible with Articles 2 and 13 of the Convention and had, moreover, infringed their property rights. 117. On 28 February 2010 the Court of Cassation set aside the YRC’s judgment. 118. On 28 June 2010 an expert report was drawn up, estimating the pecuniary damage sustained by the applicants, on the basis of the value of the apartment that had been destroyed during the earthquake, at TRY 2.750. 119. On 23 November 2010, the YRC, to which the case had been referred back by the Court of Cassation, again rejected the compensation claim against V.G. for lack of evidence, holding that the latter had been involved in neither the construction nor the sale of the building in question. The YRC also dismissed the compensation claim against the municipality, declining jurisdiction in favour of the administrative courts. It noted that the claim against İ.K. had been abandoned. Drawing on Article 409 of the Code of Civil Procedure, the YRC considered that the claim relating to moveable property should be deemed not to have been lodged. Lastly, it ordered the V.G. and Z.C. partnership to pay, jointly and severally, TRY 3,600 in respect of the pecuniary damage sustained, and a sum of TRY 2,000 to each claimant in respect of non-pecuniary damage. 120. On 15 November 2011 the Court of Cassation upheld that judgment. 121. On 11 November 1999 Mr Çakır and his wife had brought before the YRC an action for damages against the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm, the V.G. Arsa Ofisi partnership, V.G. and İ.K. They claimed TRL 15,000 each in respect of pecuniary damage, TRL 500,000 in respect of non-pecuniary damage and a further sum to be calculated in compensation for loss of support. 122. On 29 December 2008 the YRC stated that it was satisfied that the property developer responsible for the building in the ruins of which the applicant’s son had died was the V.G. Arsa Ofisi partnership and that the architectural blueprint had been prepared by İ.K., who had also acted as scientific officer for the project. Furthermore, in the light of the expert report prepared on 12 October 2000 at the request of the Konya Assize Court, the public authorities which had issued the permit had been responsible in a ratio of 2/8 and the persons in charge of construction had been responsible in a ratio of 6/8. The YRC considered that the V.G. Arsa Ofisi partnership and İ.K. had therefore been responsible in a ratio of 6/8. The YRC dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the grounds that they could not have been involved in the proceedings. It allowed in part the applicant’s and his wife’s compensation claims. The V.G. Arsa Ofisi partnership was accordingly ordered to pay the applicant TRY 1,170 in respect of the moveable property which they had lost, TRY 5,317.40 in respect of loss of financial support and TRY 4,500 in respect of nonpecuniary damage. 123. On 18 November 2009 the Court of Cassation set aside that judgment on the ground that the court which had jurisdiction to hear and determine the case had been the Consumer Court. 124. By judgment of 1 April 2010, the YRC, to which the case had been referred back, sitting as a consumer court, dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the grounds that they could not have been involved in the proceedings. It also dismissed the claim against İ.K. on the ground that when he had died, after the action had been brought, his heirs had not accepted the succession. Nevertheless, the YRC allowed in part the claim against the V.G. Arsa Ofisi partnership. In that connection it awarded Mr Çakır TRY 1,014 in respect of the moveable property which he had lost, TRY 4,607.85 in respect of loss of financial support and TRY 4,500 in respect of non-pecuniary damage. 125. On 9 March 2011 the Court of Cassation set aside that judgment. 126. On 13 November 2011 the Court of Cassation dismissed an application for rectification of its judgment. 127. On 29 December 2011 the YRC, to which the case had been referred back, dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the ground that they could not have been involved in the proceedings. It likewise dismissed the claim against İ.K. owing to the fact that when he had died, after the action had been brought, his heirs had not accepted the succession. Nevertheless, the YRC allowed in part the claim against the V.G. Arsa Ofisi partnership. In that connection it awarded Mr Çakır TRY 1,560 in respect of the moveable property which he had lost, TRY 7,089 in respect of loss of financial support and TRY 4,500 in respect of non-pecuniary damage. 128. On 16 February 2000 Mrs Yüce (Ergüden) and three members of her family had brought compensation proceedings before the YRC in respect of the damage suffered owing to the deaths of their parents, claiming TRL 1,000,000,000 in respect of non-pecuniary damage and TRL 9,000,000,000 in respect of pecuniary damage. The action for damages was directed against the V.G. Arsa Ofisi partnership. 129. On 26 December 2007 the YRC, hearing and determining as a consumer court, allowed in part the claim concerning the pecuniary damage suffered, awarding a sum of TRY 3,092.93 to be shared among the different complainants, in accordance with their respective places in their parents’ succession. The YRC also awarded a sum of TRY 1,000 in respect of the non-pecuniary damage caused by the death of the claimants’ mother and TRY 1,000 in respect of the non-pecuniary damage caused by their father’s death. 130. On 28 March 2008 the respondent party appealed on points of law. 131. On 20 November 2008 the Court of Cassation dismissed that appeal under a judgment which became final on 27 January 2009. | 1 |
test | 001-174399 | ENG | TUR | COMMITTEE | 2,017 | CASE OF TUNÇ v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal) | Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström | 5. The applicant was born in 1965 and lives in Ankara. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 13 April 2010 the applicant was dismissed from his post as an officer in the army due to non-compliance with disciplinary rules. 8. On 16 May 2010 the applicant brought an action before the Supreme Military Administrative Court and requested the annulment of his dismissal. On 21 October 2010 the chief public prosecutor submitted his observations to the Supreme Military Administrative Court. These observations were notified to the applicant and he replied to it in his petition of 24 January 2011. 9. On 15 February 2011 the Supreme Military Administrative Court dismissed the applicant’s action having regard to the “secret documents” submitted by the Ministry of Defence. These documents were not disclosed to the applicant. 10. On 3 May 2011 the applicant’s request for rectification of the above judgment was rejected by the same court. | 1 |
test | 001-161891 | ENG | GBR | ADMISSIBILITY | 2,016 | LE LIEVRE AND OTHERS v. THE UNITED KINGDOM | 4 | Inadmissible | Aleš Pejchal;Armen Harutyunyan;Ledi Bianku;Mirjana Lazarova Trajkovska;Paul Mahoney;Pauliine Koskelo;Robert Spano | 1. In 2008, the island of Sark, an autonomous part of the Bailiwick of Guernsey in the Channel Islands with a population of some 600 residents, enacted a new electoral system. 2. The applicants are three British nationals, Tony Eric Le Lievre, Peter Tonks and Robert Knight, who were born respectively in 1953, 1948 and 1983. They are residents of Sark and, although they bring this application in their individual capacities, they have formed an unincorporated association called “Sark First”, which seeks reform of the island’s new electoral system. Their principal complaint to the Court is that the system does not comply with the requirements of Article 3 of Protocol No. 1 to the Convention, the right to free elections. 3. Sark’s constitutional position, the history of the reforms which led to the new electoral system, and the conduct of recent elections under that system are summarised at paragraphs 4–18 below. That summary is taken from the facts as submitted by the applicants and from two judgments of the Supreme Court of the United Kingdom concerning Sark: R (Barclay) v. Lord Chancellor and Secretary of State for Justice (“Barclay (no. 1)”) and R (Barclay) v. Secretary of State for Justice (“Barclay (no. 2)”) (see relevant domestic law and practice at paragraphs 23–32 below). 4. The Channel Islands consist of the Bailiwicks of Jersey and Guernsey. The Bailiwicks are United Kingdom Crown Dependencies. The Bailiwick of Guernsey consists of the island Guernsey itself, the islands of Sark and Alderney, and several smaller islands. Sark and Alderney are autonomous from Guernsey. 5. The United Kingdom is responsible for the Bailiwick of Guernsey’s international obligations and has extended the application of the Convention and Protocol No. 1 to it through declarations under Article 56 of the Convention and Article 4 of Protocol No. 1. That responsibility is exercised primarily through the Privy Council. 6. Sark’s constitutional position can be traced back to the Anglo-French wars of 1202-14, when it came under the jurisdiction of the English Crown. Throughout its history Sark has, like the rest of the Channel Islands, retained its own customs, laws, courts and legislature. 7. Sark’s present constitutional position derives from letters patent issued by Queen Elizabeth I in 1565 which granted a perpetual lease of island to its first “Seigneur”. The lease has passed, either by sale or inheritance, down to the island’s current Seigneur, who still plays a role in the government of the island. 8. Guernsey, Alderney and Sark all have their own legislatures and, in general, the three islands legislate for themselves. 9. Sark’s legislature is called the Chief Pleas. The Chief Pleas legislates by two methods, Laws and Ordinances. In respect of Laws, after the Chief Pleas passes a Law, it is remitted as a Projet de Loi to officials in the Ministry of Justice, London. It is then remitted to the Committee for the Affairs of Jersey and Guernsey, a Committee of the Privy Council (“the Committee”). The Committee includes the Secretary of State for Justice, the member of the United Kingdom cabinet responsible for the Ministry of Justice. If the Committee recommends that Royal Assent be granted, the Projet de Loi is presented to the Privy Council for Royal Assent so that it may become law. Royal Assent will then be given through an Order in Council. The Projet de Loi will not be presented to the Privy Council if the Committee decides not to recommend it for Royal Assent (see the Supreme Court’s judgment in Barclay (no. 1) at paragraph 17). 10. In considering whether or not to recommend approval, the Committee will in general respect the decision of the Chief Pleas, and there would tend to be a presumption in favour of recommending Royal Assent. But consideration is given to the Crown’s responsibilities, so that if a Projet de Loi violates the Crown’s international obligations or any fundamental constitutional principle or if it is clearly not in the public interest for it to become law, then a recommendation may be made to withhold Royal Assent (see the Barclay (no. 1) judgment at paragraph 18). 11. Historically, Sark was divided into 40 plots of land or “tenements”. Anyone who owned one of the tenements (“a tenant”) was entitled to a seat in the Chief Pleas. In 1922 the tenants were joined in the Chief Pleas by twelve elected members. 12. In March 2006, the Chief Pleas voted for a reform which would have provided for a legislature to consist of 16 tenants elected by the tenants and 16 deputies elected by the rest of the population. In April the Chief Pleas withdrew its support for the reform, a position supported by the Secretary of State for Justice, who wrote to the Seigneur stating that he “would not have been able to recommend for Royal Assent legislation about which there are serious or substantial ECHR compliance issues” (quoted in Barclay (no. 1) at paragraph 26). He continued: “[a]ny option which falls short of a wholly democratic process would cause me serious difficulties. ... I am concerned that Sark should give itself, and the UK, the best protection it can from ECHR challenge and its possible consequences ... [i]t is the UK which is vulnerable to an ECHR challenge. The UK cannot stand by and give that situation its tacit approval by doing nothing.” 13. In April 2007, the Chief Pleas approved another version of a new law which would still reserve seats in the Chief Pleas for tenants, but with those tenants elected by universal suffrage. The Secretary of State decided not to submit that proposal to the Privy Council over doubts as to whether it complied with the United Kingdom’s international obligations (Barclay (no. 1) at paragraph 27). 14. In 2008, the Chief Pleas then passed a Projet de Loi which proposed removing tenants from the Chief Pleas and replacing them with twentyeight elected members or “conseillers”. The Seigneur was to be an ex officio member of Chief Pleas, with a voice but no vote. The Seigneur did not have the right to veto Laws passed by the Chief Pleas (and this is would not change in the Projet de Loi). He would, however, retain the right to veto an Ordinance. In that case, the Ordinance would be placed again before the Chief Pleas within twenty-one days for its decision on whether to override the veto. The Projet de Loi also provided that the Seigneur could not sit on executive committees of the Chief Pleas, the main means through which the executive government of the island is conducted. 15. The 2008 Projet de Loi created the following electoral system for the island. All persons who had been resident on the island for 24 months could vote. Conseillers would serve four-year terms, but those terms would be staggered so that, subject to special rules governing by-elections and unforeseen vacancies, only fourteen of the twenty-eight conseillers would be elected at any one general election (save for the first general election at which all twenty-eight seats would be contested). 16. For any election, the island would be a single constituency with all eligible voters able to vote for all candidates. A voter would receive a number of votes equal to the number of vacancies being contested at the election (normally fourteen vacancies unless there were additional vacancies). The fourteen candidates gaining the most votes would be elected. 17. The Committee of the Privy Council recommended that the Reform Law should receive Royal Assent, concluding that it would not violate any of the United Kingdom’s international obligations. Royal Assent was accordingly given on 9 April 2008 and the Projet de Loi entered into force as the Reform (Sark) Law 2008 (“the 2008 Reform Law”). 18. Once Royal Assent was given to the 2008 Reform Law, Sark’s first general election on took place on 10 December 2008. Since then there have been three further general elections and two by-elections. The applicants have provided the following summary of the results for those elections: 19. Traditionally, sessions of the Chief Pleas were chaired by the island’s “Seneschal” who also serves as the island’s resident judge. Subsequent reforms have separated the Seneschal’s judicial and legislative functions: he now holds purely judicial office, his presiding role in Chief Pleas has been taken by a President of Chief Pleas. 20. Sark’s court of first instance is the court of the Seneschal. His court has unlimited jurisdiction in civil matters and shares jurisdiction in criminal matters with the Royal Court of Guernsey. When civil and criminal matters are decided at first instance by the court of the Seneschal, there is a right of appeal to the Royal Court of Guernsey then to the Court of Appeal for Guernsey and, finally, the Judicial Committee of the Privy Council. 21. Sark’s laws can, under certain circumstances be challenged in the United Kingdom courts. This arises because, under the law of England and Wales, there is the possibility of bringing a legal challenge to the making of an Order in Council. This is done by way of judicial review in the High Court for England and Wales and, on appeal, to the Court of Appeal and, finally, the Supreme Court of the United Kingdom. Given that Royal Assent to legislation from the Bailiwick of Guernsey is given by an Order in Council (see paragraphs 9 and 10 above), it is, therefore, possible to challenge Guernsey legislation in the High Court through judicial review proceedings. This is, however, a limited jurisdiction, which the Supreme Court has made clear should not always be exercised: see Barclay (no. 2) at paragraphs 30–32 below. 22. The Human Rights (Bailiwick of Guernsey) Law 2000, a Law modelled on the United Kingdom Human Rights Act 1998, applies throughout the Bailiwick of Guernsey, including Sark. In summary, like the Human Rights Act, the Law constrains public authorities in the islands from acting contrary to Convention rights and requires the courts of the islands to take account of the case-law of the Convention bodies. It also requires the courts, so far as it is possible to do so, to read and give effect to primary legislation and subordinate legislation in a way which is compatible with the Convention rights. When it is not possible for them to do so, the islands’ courts, like their counterparts in the United Kingdom, may make a declaration that the legislation is not compatible with the Convention (a declaration of incompatibility). 23. In Barclay (no. 1) certain aspects of the Reform Law were challenged by way of judicial review in the High Court of England and Wales, including whether the continued presence of the Seigneur and (at that time, the Seneschal) in the Chief Pleas was compatible with Article 3 of Protocol No. 1. 24. That judicial review challenge ultimately reached the United Kingdom Supreme Court, which gave judgment on 1 December 2009 dismissing the challenge: [2009] UKSC 9. 25. Lord Collins gave the lead judgment for the unanimous court. After reviewing the general principles which emerged from this Court’s case law on Article 3 of Protocol No. 1 (including the need to consider electoral rules in the round and in the light of historical and political factors), Lord Collins observed that there was no breach of Article 3 of Protocol No 1 arising from the Seigneur and Seneschal’s continued membership of Chief Pleas. He observed (at paragraph 66 of the judgment): “The starting point is that only Conseillers are entitled to vote in the Chief Pleas, and therefore it is only Conseillers who determine whether legislation is to be enacted. The electorate of Sark consists of fewer than 500 voters, who choose 28 elected Conseillers by a process of casting 28 votes each and electing the 28 candidates with the largest number of votes. There is therefore one Conseiller for every 17-18 persons in the electorate. It is not easy to envisage, in the words of Article 3, conditions which are more likely to ensure the expression of the opinion of the people in the choice of the legislature.” 26. Lord Collins went on to find that there was nothing in the travaux préparatoires of the Convention or the case-law of this Court which established that all members of the legislature should be elected, irrespective of their powers and irrespective of the circumstances. Indeed, to the contrary, the travaux préparatoires indicated that Article 3 of Protocol No. 1 had been drafted to recognise that, in some States, part of the legislature was not elected. 27. Instead, the effect of this Court’s case-law under Article 3 of Protocol No. 1 was that all circumstances had to be considered. The presence of the Seigneur (and, at that time, the Seneschal) in the Chief Pleas did not contravene that Article. Even if their membership in the Chief Pleas was to be regarded as a limitation on the people’s right to choose the legislature, in light of the constitutional history and the political factors relevant to Sark, that limitation fell well within the margin of appreciation allowed by Article 3, not least given the long history of both positions and the difficulties that had occurred since 1922 in reforming the Chief Pleas (see paragraphs 11–17 above). 28. In respect of the Seigneur, his right to speak but not vote could not reasonably be said to frustrate the free expression of the opinion of the people in the choice of the legislature. Nor was that conclusion affected by the Seigneur’s other powers and responsibilities on the island. For instance, the present Seigneur had never exercised his right of temporary veto over Ordinances and he had stated that he only envisaged using it in very limited circumstances. The remainder of the Seigneur’s other powers, such as the limited power to appointment certain of the island’s executive officials, did not affect the democratic process. 29. Finally, Article 14 could not assist the claimants in the case: their complaint under Article 14 was essentially the same as that made under Article 3 of Protocol No. 1. 30. In Barclay (no. 2), the same claimants challenged Reform (Sark) (Amendment) (No. 2) Law 2010, which removed the Seneschal from the Chief Pleas and made new provisions for his or her appointment, removal, renewal and remuneration. They did so by way of judicial review proceedings, commenced in the High Court for England and Wales, alleging that the provisions were incompatible with Article 6 and thus that the decision of the Committee of the Privy Council to recommend that Royal Assent be given to the Law through an Order in Council was unlawful. 31. The High Court rejected the challenges to provisions on appointment, removal and renewal of the Seneschal. It found, however, that the power of the Chief Pleas to reduce the Seneschal’s remuneration was incompatible with Article 6. 32. The latter part of the judgment was appealed to the Supreme Court, which allowed the appeal: [2014] UKSC 54. The Supreme Court found that, although the High Court had jurisdiction to hear such a challenge, it should not have exercised its discretion to hear it. For the courts of England and Wales to entertain challenges to the compatibility of Channel Islands legislation with the Convention would be to subvert the islands’ own human rights legislation (see, for instance, the Human Rights (Bailiwick of Guernsey) Law 2000, set out at paragraph 22 above). The courts of the Bailiwick of Guernsey were infinitely better placed to assess the issues involved in human rights cases and there was the ultimate safeguard of an appeal to the Judicial Committee of the Privy Council. Unlike the courts of England and Wales, the Judicial Committee had the inestimable benefit of the considered judgment of the courts of first instance and appeal in the island jurisdictions, and the island authorities would have every opportunity to take part in the case. The courts of the Bailiwick were the appropriate forum in which challenges to island legislation on grounds of incompatibility with the Convention should be heard (Lady Hale at paragraphs 37 and 39 of the Supreme Court’s judgment). | 0 |
test | 001-156462 | ENG | HRV | ADMISSIBILITY | 2,015 | VULETIĆ v. CROATIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 1. The applicant, Ms Marina Vuletić, is a Croatian national, who was born in 1976 and lives in Zagreb. She was represented before the Court by Ms I. Bojić, 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. In December 1997, after a verbal altercation in a bar, A.B. attacked the applicant, causing a multiple fracture of her right arm. 5. The injury was characterised by a medical expert as grave bodily injury, and the applicant sought psychological help concerning the attack. 6. On 29 April 1998 the Zagreb Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Zagrebu) indicted A.B. in the Zagreb Municipal Criminal Court (Općinski kazneni sud u Zagrebu) on charges of causing serious bodily injury. 7. On 26 January 1999 the applicant submitted a civil claim for damages to the Zagreb Municipal Criminal Court. 8. In the period between 22 October 1998 and 21 February 2002 several hearings were held, at which the trial court heard the applicant, A.B. and several witnesses, and obtained the relevant medical evidence. During the proceedings, the applicant assumed the victim status and was represented by a lawyer. 9. On 18 March 2003 the Zagreb Municipal Criminal Court adopted a judgment which was quashed on appeal by the Zagreb County Court (Županijski sud u Zagrebu) on 8 July 2003, and a retrial was ordered. 10. In the resumed proceedings, on 3 February 2004 the Zagreb Municipal Criminal Court terminated the proceedings against A.B., on the ground that the prosecution had become statute-barred. This decision was not served on the applicant. It became final on 7 March 2004. 11. In November 2010 the case file was destroyed according to the internal court rules (see paragraph 16 below). Only the decision terminating the proceedings was kept in the archives of the Zagreb Municipal Criminal Court. 12. On 21 November 2012 the applicant inquired in the Zagreb Municipal Criminal Court about the status of her case and was then served with the decision of 3 April 2004 by which the proceedings had terminated. 13. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010 and 85/2010) read as follows: Article 23 “No one shall be subjected to any form of ill-treatment ...” 14. The relevant provisions of the Criminal Code (Kazneni zakon, Official Gazette nos. 110/1997, 27/1998, 50/2000, 129/2000, 51/2001, 111/2003 and 190/2003) provide: Article 19 “(1) Criminal prosecutions for the purposes of applying the criminal legislation of the Republic of Croatia, ..., may not be instituted after expiry of the following periods, calculated from the time the offence was committed: ... - three years if the case concerns a criminal offence punishable by a sentence of more than one year’s imprisonment ...” Article 20 (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.” “(1) Anyone who inflicts grievous bodily harm on another or seriously impairs another’s health shall be sentenced to imprisonment for a term from six months to three years.” 15. 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, 143/2002, 62/2003 and 115/2006) provided: “(1) The president of the trial panel shall terminate proceedings and shall serve his or her decision on the parties and the victim ... when ... 2) he has learned that the proceedings cannot be continued for the reasons provided for in Article 353 ... (6) ... of this Code. ... “ “A judgment dismissing the charges shall be issued if ... 6) the proceedings have become statute-barred ... “ 16. The relevant provision of the Courts’ Rules (Sudski poslovnik, Official Gazette nos. 158/2009, 03/2011, 34/2011, 100/2011, 123/2011, 138/2011, 38/2012, 111/2012, 39/2013 and 48/2013) provides: Section 278 “... After the expiry of the relevant time-limit ... the case files shall be transferred from the common archives to the archives, that is to say given [for recycling] or destroyed.” Section 280 “The case files shall be kept in the common archives: ... five years after the final termination of the [criminal] proceedings ...” | 0 |
test | 001-173300 | ENG | LTU | ADMISSIBILITY | 2,017 | LEŠČIUKAITIS v. LITHUANIA | 4 | Inadmissible | Egidijus Kūris;Ganna Yudkivska;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 1. The applicant, Mr Tomas Leščiukaitis, is a Lithuanian national who was born in 1976 and lives in Garliava. He was represented before the Court by Mr V. Sirvydis, a lawyer practising in Kaunas. 2. The Lithuanian Government (“the Government”) were represented by their Agent, Ms K. Bubnytė. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. In 1997 the applicant was appointed a junior inspector in the police. He was responsible for the investigation of economic crimes. 5. On 26 March 2003 a criminal investigation was started against the applicant. He was suspected of forging documents and appropriating value added tax. The applicant was arrested on the same day and placed under arrest for a month by the decision of the Vilnius City 1st District Court of 27 March 2003. 6. On 2 April 2003 the applicant was suspended from performing his official duties. 7. On 22 March 2006 the Kaunas Regional Court found the applicant guilty of fraud and abuse of office. The court stated that the applicant and several other people had established a fictitious company, forged documents and acquired property of high value. The court also noted that the applicant had been employed at the police division which investigated economic crimes, however, he had abused his position and had wilfully appropriated value added tax. The applicant was sentenced to four years and six months’ imprisonment. 8. The applicant appealed, complaining that the court of first instance had made mistakes in applying the provisions of the domestic law, and that there had been no information that he had in fact received half of the value added tax appropriated by the perpetrators as alleged. 9. On 28 March 2008 the Court of Appeal dismissed the applicant’s appeal, finding contradictions in his statements. The applicant had denied his guilt but at the same time he had acknowledged that he had known that other people had been engaged in illegal activities and had still acted as an intermediary. 10. On 1 April 2008 the applicant was dismissed from the police after the judgment of the Court of Appeal became enforceable (see paragraphs 29 and 30 below). 11. The applicant lodged an appeal on points of law against the Court of Appeal’s judgment of 28 March 2008 (see paragraph 9 above), and on 21 October 2008 the Supreme Court returned the case to the Court of Appeal for fresh examination. The Supreme Court held that the reasoning of the Court of Appeal had been insufficient in relation to the application of the provisions of the Criminal Code and the assessment of evidence. 12. On 23 September 2010 the Court of Appeal found that only one witness could confirm that the applicant had received half of the value added tax appropriated by the perpetrators, but that that witness had only presented his evidence as his own view and not as a fact (ne kaip faktą). The witness had also testified that there had been no discussion with the applicant about seizing the value added tax. The Court of Appeal therefore held that it had not been proved that the applicant had gained any personal benefit. On the other hand, the court stated that the applicant, as a police officer, had undoubtedly understood the illegality of his actions, despite arguing otherwise. He had also acted as an intermediary for two other people in an illegal exchange of money and documents. However, the Court of Appeal held that the applicant’s alleged crime fell under a different provision of the Criminal Code than the one he had originally been accused under, and that the court could not assess the applicant’s crime under that specific provision without overstepping the limits of the appeal. As for abuse of office, the court held that the applicant’s participation in the crime had not been proved and that he had communicated with the other people in a personal capacity rather than an official one. The applicant was therefore acquitted of that crime. 13. In October 2010 the applicant asked the police to annul their dismissal decision of 1 April 2008 (see paragraph 10 above) and to reinstate him to his former position. The police refused and stated that the Court of Appeal had not expressed itself in any way regarding his reinstatement to his former position or about his dismissal being illegal. 14. The applicant started court proceedings before the Kaunas Regional Administrative Court to be reinstated to his former position and have his salary paid from 2 April 2003, when he had been suspended (see paragraph 6 above), until the execution of the court’s judgment, i. e. until his reinstatement to his former position. The applicant also asked for a renewal of the time-limit for submitting his complaint because the timelimit to complain about being dismissed from work was one month under domestic law (see paragraph 24 below). The applicant had been dismissed on 1 April 2008 (see paragraph 10 above), however, the grounds to annul that decision had only arisen after the court proceedings had ended on 23 September 2010 and he had been acquitted (see paragraph 12 above). 15. On 3 February 2011 the Kaunas Regional Administrative Court decided that the applicant had become aware of the grounds to contest the dismissal order on 23 September 2010 at the latest. He had submitted the complaint to the Kaunas Regional Administrative Court on 22 October 2010 and had therefore not missed the prescribed time-limit. The court also annulled his dismissal from the police (see paragraph 10 above), and ordered that he be reinstated to his former position and paid his average salary for the period from 2 April 2003 to the date of the judgment on 3 February 2011. The total of the average salary for the period was 122,164 Lithuanian litai (LTL, approximately 35,381 euros (EUR)). 16. The police and the applicant both appealed, the latter asking to be awarded approximately LTL 407,600 (about EUR 118,050) for the period of his suspension and dismissal, up to the Kaunas Regional Administrative Court’s decision of 3 February 2011. He also asked to be awarded the payment of an average salary from 3 February 2011 until his reinstatement to his former position, as well as late-payment fees and payment for unused holidays. 17. On 7 June 2011 the Supreme Administrative Court dismissed the applicant’s appeal. The court noted that the applicant had complained about the dismissal order of 1 April 2008 but found that although he had submitted his first complaint on 22 October 2010, he had also submitted two clarifying complaints on 13 December 2010 and 18 January 2011. The Supreme Administrative Court thus held that the date of submission was 18 January 2011, as that was when the applicant had finally formulated his complaints. The Supreme Administrative Court held that the dismissal order had been an extremely important social issue for the applicant (pareiškėjui ypatingą socialinę reikšmę turintis klausimas), that he should have started court proceedings within a month of that order, and that therefore he had missed the time-limit to lodge a complaint. The court also observed that the Kaunas Regional Administrative Court had put too much weight (neteisingai sureikšmino) on the applicant’s acquittal. The court also considered that despite the fact that the applicant had missed the time-limit for submitting his complaint, it had to express itself on the merits of the applicant’s complaint about his dismissal and found that it had never been contested by the parties that at the time of the order to dismiss him there had been factual and legal grounds for such a decision because of the Kaunas Regional Court’s judgment of 22 March 2006 (see paragraph 7 above). Lastly, the court held that monetary claims under Article 6.272 § 1 of the Civil Code (see paragraph 27 below) had to be submitted to civil courts rather than administrative courts and it therefore rejected that claim too. 18. Shortly before the applicant applied to the Court on 25 October 2011 he started civil proceedings for damages for his unlawful conviction before the Kaunas Regional Court. The applicant asked to be awarded LTL 244,436 (approximately EUR 70,794) in respect of pecuniary damage and LTL 100,000 (approximately EUR 28,962) in respect of non-pecuniary damage. The applicant stated that he had never been reinstated to his former position after his acquittal, had lost his main source of income, and had experienced emotional problems, not only because of his unlawful conviction but also because of the lengthy criminal proceedings against him. 19. On 11 April 2012 the Kaunas Regional Court satisfied the applicant’s claim in part. The court held that in order for the State’s civil liability to arise, three conditions had to be met: an unlawful act, damage and a causal link between the two. The court held that the acquittal decision had not automatically meant that all acts related to the criminal prosecution had been unlawful. The court referred to the material of the criminal case and stated that the criminal proceedings had been started against the applicant because there had been enough evidence to suspect that he had committed a criminal offence. That circumstance was confirmed by the acquittal decision, which had stated that the applicant had undoubtedly understood the illegality of his acts (see paragraph 12 above). However, the court held that while the dismissal order had been lawful at the time it had been issued, the grounds for it had disappeared after the applicant’s acquittal. The court dismissed his claim in respect of pecuniary damage, observing that although his unlawful conviction had directly influenced his dismissal, the conviction itself had been influenced by the applicant’s illegal acts. The court further held that the applicant’s unlawful conviction had caused him mental suffering and emotional distress and decided to award him LTL 10,000 (approximately EUR 2,896) for non-pecuniary damage. The court also noted that the applicant had been arrested on 26 March 2003 (see paragraph 5 above) and acquitted on 23 September 2010 (see paragraph 12 above) and that therefore the criminal proceedings against him had lasted for seven years and six months. They had been unjustifiably long and so the court awarded him a further LTL 10,000 (approximately EUR 2,896) for nonpecuniary damage. 20. The applicant appealed, complaining that he had not been awarded anything in respect of pecuniary damage and asking the court to increase the amount in respect of non-pecuniary damage. 21. On 4 November 2013 the Court of Appeal upheld the applicant’s appeal in part. It held that the acquittal had not necessarily meant that the acts of the law enforcement institutions (teisėsaugos institucijų veiksmai) had been unlawful. The court further observed that the applicant had carried out certain acts that were unlawful under “civil law”, which meant that he could not have expected the same protection when deciding on damages as a person who had not carried out such illegal acts. The court considered that the amount of compensation could be reduced in such cases and awarded him LTL 15,000 (approximately EUR 4,344) in respect of pecuniary damage, counting it as unpaid salary from the date of the decision by which he had been convicted until the date of the decision he had been acquitted. The court also held that the criminal proceedings had been lengthy, but that around twenty hearings had been postponed for reasons related to the applicant and some of the other accused. It therefore decided to award the applicant LTL 4,000 (approximately EUR 1,158) in respect of nonpecuniary damage in that part. Lastly, the court found that the applicant’s conviction had lasted for six months but that he had not started serving a sentence and so it decided to reduce the amount awarded for nonpecuniary damage to LTL 3,000 (approximately EUR 869). 22. The applicant was paid his compensation award – totalling LTL 22,000 (approximately EUR 6,371) – on 24 March 2014. 23. At the material time, Article 53 § 1 (8) of the Statute on Interior Ministry Service (Vidaus tarnybos statutas) provided that an officer could be dismissed if he had been convicted of an intentional crime or criminal act by a final court judgment. 24. Article 33 § 1 of the Law on Administrative Proceedings (Administracinių bylų teisenos įstatymas) provided at the time that a complaint had to be brought before an administrative court within a month of the disputed act being carried out or served on an interested party. 25. Article 34 § 1 of the Law on Administrative Proceedings provided that if there was a good reason for not complying with the time-limit to lodge a complaint then an applicant could seek an order from an administrative court to renew the time-limit. 26. Article 6.253 § 5 of the Civil Code provided at the time of the events that the acts of a victim could be grounds to reduce or remove civil liability. Such acts were those that were the fault of the victim and which led to that person suffering greater damage. They could be a victim’s consent to damage or risk. Such consent could only be grounds for exemption from civil liability if it was not contrary to mandatory legal rules, public order, good morals, and the criteria of good faith, reasonableness and justice. 27. At the material time, Article 6.272 § 1 of the Civil Code allowed a civil claim to be brought in respect of pecuniary and non-pecuniary damage caused by the unlawful acts of the investigating authorities or the courts. The Article in question made provision for compensation for unlawful conviction, unlawful arrest or detention or for the application of unlawful procedural measures in enforcement proceedings. The relevant part of the provision read as follows: “1. Damage resulting either from unlawful conviction, unlawful arrest on remand, unlawful detention, the application of unlawful procedural measures in enforcement proceedings, or the unlawful imposition of an administrative penalty (arrest) shall give rise to full compensation by the State, irrespective of any fault by preliminary investigation officials, prosecution officials or courts...” 28. Article 6.282 § 1 of the Civil Code provided at the time that if a victim’s gross negligence had contributed to causing or increasing any damage, depending on the degree of the person’s fault, the amount of compensation could be reduced or the compensation dismissed unless the law provided otherwise. 29. Article 336 § 3 of the Code of Criminal Procedure provided that an appellate court judgment became enforceable from the date of issue. 30. Article 366 § 1 of the Code of Criminal Procedure provided that the Supreme Court had the power to examine appeals on points of law against judgments delivered by courts of first instance and appellate courts that had become final. 31. The Supreme Administrative Court has held that interpreting Article 53 § 1 (8) of the Statute on Interior Ministry Service (see paragraph 23 above) as precluding the reinstatement of an officer to his or her former position or an equivalent position after his or her acquittal would contradict the principles of justice, reasonableness and ex iniuria ius non oritur (decision of 5 November 2012, no. A662-2459/2012). | 0 |
test | 001-150781 | ENG | ROU | CHAMBER | 2,015 | CASE OF APOSTU v. ROMANIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Just satisfaction dismissed (out of time) (Article 41 - Just satisfaction) | Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 6. The applicant was born in 1968 and lives in Târgu Mureș. 7. The Anti-Corruption Department of the Prosecutor’s Office (“the DNA”) started a criminal investigation against the applicant, his wife and three businessmen on suspicion of repeated corruption offences committed in his capacity as mayor of Cluj Napoca. 8. The prosecutor sought authorisation for the interception of the applicant’s telephone calls. The transcripts of the intercepted telephone calls were admitted as evidence against the applicant. 9. On 9 November 2011 police officers belonging to the DNA carried out a search at the applicant’s home. They carried out another search at the applicant’s office at Cluj Napoca Town Hall. 10. The applicant was taken to the DNA’s Cluj headquarters on the basis of a summons to appear before the investigative body. 11. Newspaper and television crews were present and the events were given widespread media coverage. 12. At about 8.50 p.m. on the same day the prosecutor ordered the applicant’s remand in custody. 13. The applicant’s pre-trial detention was ordered by an interlocutory judgment delivered the next day by the Cluj Court of Appeal. The court reasoned that it was necessary to stop the criminal activity of the applicant, who was allegedly preparing to commit a new corruption offence. The court also referred to the seriousness and the continuous nature of the offences. It stressed that the applicant had acted in his capacity as mayor when he had allegedly committed the offences. It concluded that the public would be shocked if the applicant were to be released. In assessing the concrete danger to public order if the applicant were released from detention, the court stressed that the offences had allegedly been committed over a long period of time (starting in 2009, when he had been appointed mayor, until the time of his arrest), that they were repetitive and that the perpetrator was a mayor in charge of protecting legal order. The court pointed out that as the applicant’s wife was under investigation, the applicant having used her law firm to cash the money received as bribes, his release from prison would allow him to influence her position. It concluded that his release from detention would intimidate other persons in possession of information relevant for the investigation. 14. The applicant appealed. On 21 November 2011 the High Court of Cassation and Justice upheld the above judgment, holding that there were strong indications from the criminal investigation file that the accused had committed the crimes. 15. The applicant’s pre-trial detention was regularly extended by interlocutory judgments of the Cluj Court of Appeal. 16. The court reasoned that the extensions were justified on account of the nature and severity of the offences for which the applicant was under investigation, and the fact that he might obstruct the course of justice by intimidating possible witnesses and the persons who had lodged complaints against him. 17. The applicant lodged appeals against the interlocutory judgments; all the appeals were dismissed by final decisions of the High Court of Cassation and Justice. 18. The applicant lodged several applications for his release from prison under judicial supervision. He mainly emphasised that he had a stable family, two minor children and an unblemished reputation. He also pointed out that he had been accused of non-violent crimes and had no criminal record. 19. The Cluj Court of Appeal dismissed the applicant’s requests on the grounds that the evidence in the file pointed to a strong likelihood that he had committed the corruption-related offences. It held that such offences might attract a prison sentence longer than four years. It also held that releasing the applicant would give rise to a real danger to public order, given the circumstances in which the acts had been committed, and their consequences and social impact. 20. The applicant appealed, pointing out that his personal situation had changed, in that he was no longer the mayor of Cluj. The appeal court’s decisions were upheld by the High Court of Cassation and Justice. 21. On 30 November 2011 the investigation against the applicant was extended in connection with other offences allegedly committed by him, namely trading in influence, complicity in and incitement to money laundering, and complicity in and incitement to forgery. 22. On 22 December 2011 the prosecutor issued an indictment concerning five co-accused, including the applicant and his wife, and the case was registered with the Cluj Court of Appeal. The applicant was charged with passive corruption, and repeated complicity in and incitement to money laundering and forgery. 23. Following a request lodged by the applicant, the High Court of Cassation and Justice decided on 20 February 2012 to transfer the file to the Târgu Mureș Court of Appeal in order to avoid any possible partiality on the part of the judges. 24. According to the latest information, the criminal proceedings are still pending. 25. Excerpts from conversations between the applicant and other defendants or third parties, which had been obtained through telephone tapping during a criminal surveillance operation conducted prior to the criminal prosecution, were subsequently published in several newspapers before the applicant and his co-accused had been committed for trial. 26. Even the headlines of the articles published in the press during that period referred to the fact that they contained excerpts of the recorded conversations. Thus on 16 December 2011, the newspaper Evenimentul zilei published an article with the headline, “Exclusive: Shocking revelations in the Apostu file. The names of all the persons under investigation and new excerpts from the telephone conversations. Evidence that M. Apostu received clothes as a bribe” (Exclusiv: Dezvăluiri tari din Dosarul Apostu. Surprize mari: numele tuturor celor cercetați și interceptări noi. Dovada că M. Apostu lua șpagă în haine). 27. On 16 November 2011 the newspaper Cancan published an article with the headline, “Excerpts of intercepted phone conversations: Sorin Apostu, the mayor of Cluj, acknowledged that he had at home three telephones with pre-paid cards, in order not to be intercepted” (Stenograme: Sorin Apostu, primarul Clujului, recunoaște că avea în casă trei telefoane cu cartele preplătite, ca să nu poată fi interceptate). 28. On the same day another article containing excerpts of the applicant’s recorded telephone conversations was published on the website of the newspaper National. It started with the following statement: “Pure coincidence, the excerpts of the telephone conversations offered for publication in the investigation of mayor Sorin Apostu for corruptionrelated offences stops, with suspense, exactly when the Romanian Prime Minister enters the scene”. 29. The publication of excerpts from the applicant’s recorded telephone conversations continued after the applicant had been committed for trial. 30. Other pieces of evidence from the prosecution file were likewise published and commented on in the press. On 18 December 2011 the newspaper Ora de Cluj published an article with the headline, “Complete document. The reasoning of the interlocutory judgment ordering the pretrial detention of mayor Sorin Apostu and businessman C. S.” (Document integral. Motivarea sentinței de arestare a primarului Sorin Apostu și a omului de afaceri C. S.). 31. Several press articles contained excerpts of telephone conversations between the applicant and persons not involved in the criminal proceedings. On 5 February 2012 Ora de Cluj published an article with the headline, “Interception. Three-way conversation: businessman S. D., mayor Sorin Apostu and driver J.” 32. Many of the press articles referred to aspects of the applicant’s private life without any connection to the criminal proceedings instituted against him. They were based on information found in his criminal file. On 6 February 2012 the newspaper Cancan published an article with the headline, “Juicy details from the private life of mayor Sorin Apostu! The mayor of Cluj, romance with a subordinate”. Only a few days later, on 10 February 2012, the daily newspaper Evenimentul zilei published an article about a search carried out at the home of the mayor’s subordinate with the headline, “Bombshell in the ‘Apostu’ file: five-hour search at home of his supposed sweetheart”. 33. The applicant was detained in the detention facility of Cluj police station between 9 November 2011 and 6 January 2012, except for two short periods (from 8 to 9 December and from 28 to 29 December 2011) when he was detained in the Bucharest central remand facility on account of his presence before the High Court of Cassation and Justice. 34. The applicant claimed that he had been detained in a small cell measuring approximately five sq m with four tiers of bunk beds. Access to a toilet was very difficult as the toilets were in the corridor. The cell lacked natural light and ventilation and the smells from the sewage system were noxious. 35. The applicant was held in cell no. 2, which measured 6.97 sq m, and in cell no. 3, which measured 11.31 sq m. The first cell had two metal beds, foam mattresses, bedrolls, two metallic nightstands, a table and two chairs. The second cell had three metal beds and was similarly furnished. The applicant was detained alone in both cells. Moreover, he was allowed to keep a television set in the cell. 36. The cells had natural and artificial light, and the applicant was allowed to use an extra lamp to improve the lighting. The cells were ventilated through windows covered with wire netting. 37. The sanitary facilities and the showers were in the corridor. The applicant had permanent access to the sanitary facilities and to the showers during daylight hours, whenever he requested it. 38. The time spent outside the cells was one hour per day. 39. On 6 January 2012 the applicant was transferred to Gherla Prison. He was detained there for the following periods: between 6 and 12 January 2012; between 17 and 30 January 2012; between 16 February and 22 March 2012. 40. The applicant complained of overcrowding. However, he did not mention the number of detainees in the cell or the size of the cell. He merely claimed that there were eighteen beds in the cell. He also claimed that the temperature had been very low and the conditions of hygiene poor. He had been allowed to take only two showers per week. 41. On 9 January 2012 the applicant applied for protection as a vulnerable person under Article 7 § 5 of the Rules of Application of Law no. 275/2006. Subsequently, he carried out all activities separately from the other detainees. 42. The applicant was detained in four different cells: - on 6 January 2012 he was detained in cell EG 5.3 in the hospital wing, which measured 15.26 sq m, contained three beds and which he shared with only one detainee; - between 6 and 10 January 2012 he was detained in cell EG 1.7 in the quarantine wing, which measured 43.25 sq m, contained twenty-one beds and which he shared with two other detainees; - between 10 and 12 January and 17 and 27 January 2012 he was detained in cell EG 1.4 in the quarantine wing, which measured 16.24 sq m, contained four beds and which he shared with two other detainees; - between 27 and 30 January and 15 February and 22 March 2012 he was detained in cell EG 3.20, which measured 16.24 sq m, contained nine beds and which he shared with three other detainees. 43. The prison’s central heating system was in good working order and ensured an appropriate temperature inside the prison. There were no registered complaints by the detainees in this respect. 44. The prisoners were entitled to two showers per week and the hygiene conditions were adequate. 45. The applicant spent two hours per day outside the cell. 46. On 12 January 2012 the applicant was transported to Rahova Prison in order to attend a hearing of the High Court of Cassation and Justice in the appeal on points of law lodged by him against an interlocutory judgment. He spent five days in that prison. 47. The applicant complained of overcrowding and very low temperatures in the cell. He claimed that the cell had had no heating and that he had had nothing to eat for about three days because food had been thrown into the cell by other detainees, who had made death threats against him. 48. On 12 January 2012 the applicant was detained in cell no. 538, reserved for vulnerable persons, which measured 19.58 sq m and which he shared with seven other detainees. 49. Between 13 and 16 January 2012 the applicant was detained in cell no. 219, which measured 19.3 sq m and which he shared with only one other detainee. 50. The cells and sanitary facilities were ventilated through double windows. The heating of the cells was ensured by radiators connected to the prison’s thermal station. 51. Food was served in the cells as the prison had no dining hall designed for persons under pre-trial detention. Food distribution was supervised by the prison staff and coordinated by the section head. The Government underlined that by placing the applicant in a cell for vulnerable detainees (persons who had held official functions), the prison authorities had complied with their obligation to take proper measures to ensure the safety of those persons. 52. All daily activities concerning the vulnerable detainees, as well as their transfer to the court, were carried out separately from other categories of detainee. Additional security measures were taken in respect of those persons. 53. The Government contended that the applicant had not lodged any complaint with the delegated judge against the prison staff or in connection with conflicts with other detainees during his detention in Rahova Prison. 54. Between 30 January and 16 February 2012 the applicant was admitted to the hospital wing of Dej Prison. 55. On 22 March 2012 the applicant was transferred to Târgu Mureș Prison. He did not complain about the conditions of his detention in Târgu Mureș Prison. 56. On 12 January 2012 the applicant was transported from Gherla Prison to Rahova Prison. 57. The applicant complained of the inappropriate conditions in which he had been transported in a prison van for about seventeen hours on 12 January 2012. He claimed that the prison van had been overcrowded and that the natural ventilation of the van through the hatches had been insufficient. He also complained that the van had not been heated and had had no windows or internal lighting, and that he had had no opportunity to use the toilet during the journey. 58. The applicant also alleged that he had been deprived of food and water during transportation. 59. The applicant lodged a complaint with the prison authorities regarding the conditions in which he had been transported from Gherla Prison to Rahova Prison. In a letter of 22 February 2012 the National Administration of Prisons acknowledged that he had been transported in a small-capacity van belonging to Gherla Prison, as the prison did not have at its disposal another van. 60. According to the Government, a special journey was for the applicant and a co-defendant in order to ensure their attendance at the hearing scheduled by the High Court and Cassation for the following day. The vehicle left Gherla Prison at 5 p.m. on 12 January 2012 and arrived at Rahova Prison at 1.30 a.m. on 13 January 2012. The vehicle was fully equipped and adapted for detainees. On 12 January 2012 the applicant and his co-defendant were the sole detainees transported. 61. The vehicle disposed of a heating system. The applicant benefitted from space, light and an adequate temperature. He was provided with water and food in conformity with the applicable regulation and had been allowed to carry three pieces of personal luggage and an object of value. 62. Smoking was forbidden during the transportation. 63. On 26 January 2012 the applicant lodged a request with the Gherla Prison authorities, asking them to ensure that he had appropriate conditions for preparing his defence in the presence of his lawyer. He alleged that under the current conditions he had been unable to consult the file and have direct contact with his lawyer. In a letter submitted to the prison authorities the following day he asked for direct contact with his lawyer, since at that time he had been separated from his lawyer by a glass partition and had had to speak through a microphone. He lodged another similar request on 20 March 2012. 64. The prison authorities justified the applicant’s separation from his lawyer by a glass partition by citing the existing legal provisions. | 1 |
test | 001-161829 | ENG | SWE | GRANDCHAMBER | 2,016 | CASE OF F.G. v. SWEDEN | 1 | Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Iran);No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran);Violation of Article 2 - Right to life (Article 2 - Expulsion) (Conditional) (Iran);Violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Iran);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction) | Aleš Pejchal;András Sajó;André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Dmitry Dedov;Elisabeth Steiner;George Nicolaou;Guido Raimondi;Helena Jäderblom;Ineta Ziemele;Josep Casadevall;Julia Laffranque;Krzysztof Wojtyczek;Ledi Bianku;Linos-Alexandre Sicilianos;Mark Villiger;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano;Vincent A. De Gaetano | 10. The applicant was born in 1962 and lives in Sweden. 11. He entered Sweden on 16 November 2009 and applied for political asylum. 12. On 19 February 2010, counsel appointed the applicant made written submissions to the Migration Board (Migrationsverket) in which he developed the grounds for the applicant’s request for political asylum. 13. On 24 March 2010 the Migration Board held an oral interview with the applicant in the presence of his counsel and an interpreter. The applicant handed over a declaration of 15 March 2010 from a pastor in Sweden certifying that the applicant had been a member of his congregation since December 2009 and had been baptised. The Migration Board official therefore started the interview by asking about that matter. The applicant replied that it was a private matter “in [his] heart”, adding: “It has nothing to do with this but if you want to ask questions you may. All problems in my home country are caused by Islam entering Iran ...”. The Migration Board official explained that the reason why he was asking questions about it was that he had interpreted the certificate as though the applicant had relied on his conversion as a ground for asylum. The applicant stated: “no, it is not something I want to rely on. It is something private”. The Migration Board official then suggested a break in the interview in order for the applicant and his counsel to confer. After a ten-minute break, counsel stated: “the applicant wants to underline that he has not changed religion in order to enhance his chances of getting a residence permit but out of personal conviction”. When asked when he had converted, the applicant replied that this had happened after he had arrived in the Swedish town of X, where there were not many Iranians. He had got to know a person who went to church four times a week. This person knew that the applicant hated Islam. The applicant continued: “I do not regard Christianity as a religion”. When asked why that was so, the applicant replied: “if regarded as a religion it would be like Islam, but Christianity is about a kind of love you have for God”. He explained that he had been going to the congregation’s gatherings two to four times per week and that he read the Bible. The applicant gave examples of miracles and prophecies from the Bible which had attracted him to Christianity. The Migration Board official asked why, if the applicant did not wish to rely on his conversion as a ground for asylum, he had nevertheless handed in the certificate from the pastor, to which the applicant replied: “I don’t know. I never asked for it and I had not even considered handing it in, but you wanted it. They gave all converts a certificate like that”. 14. The rest of the interview dealt with the applicant’s political past. The applicant explained that in Iran he had worked with persons connected to different universities who were known to oppose the regime. He had mainly worked on creating and publishing web pages. He and one of the other persons had been arrested in April 2007. He had been released after 24 hours and then hospitalised for ten days due to high blood pressure. 15. Before the elections on 12 June 2009, the applicant had worked with the Green Movement, who had supported Mousavi for the presidential position, by spreading their message via the Internet. The day before the elections, he and his friends had been arrested, questioned and detained in the polling station overnight. 16. After the elections, the applicant had participated in demonstrations and other activities. He had been arrested once again in September 2009 and imprisoned for twenty days. He had been ill-treated in prison. In October 2009 he had been taken before the Revolutionary Court, which had released him after a day on condition that he cooperate with the authorities and spy on his friends. He had agreed to the demands and given his business premises as a guarantee. He had also assured them that he would not participate in any demonstrations and that he would respond to their summons. Following his release in a park, he had found that his business premises had been searched. He had kept politically sensitive material there, which the authorities must have noticed, and his passport and other documents were missing. 17. Subsequently, the applicant was summoned to appear on 2 November 2009 before the Revolutionary Court. He had contacted a friend who, in turn, had obtained the help of a smuggler to enable him to leave the country. The applicant submitted a summons from the Revolutionary Court dated 21 October 2009 stating that he should present himself at Evin prison in Teheran on 2 November 2009. 18. The interview before the Migration Board lasted approximately two hours and the record was subsequently sent to the applicant and his counsel for comment. Counsel commented that the applicant had not read the certificate from the congregation’s pastor before the interview as it had not been translated and that the applicant intended to submit the formal baptism certificate. 19. On 29 April 2010 the Migration Board rejected the applicant’s request for asylum. By way of introduction, it stated that while the applicant had not proven his identity or citizenship he had established the probability thereof. 20. As regards the request for political asylum, the Migration Board held that participation in demonstrations or affiliation with the Green Movement could not, of itself, give rise to a risk of persecution, ill-treatment or punishment on his return to Iran. The Migration Board noted that the applicant had changed his story in some parts during the proceedings, and in particular, he had changed his statements concerning the number of times he had been arrested. Furthermore, he had not been able to name the park where he had been released in October 2009. Thus, the Migration Board found reason to question whether he had been arrested at all. The Migration Board further considered that the applicant’s political activities had been limited. After the questioning in 2007 and until the elections in 2009, he had been able to continue working with the web pages that contained the critical material, even though, according to the applicant, already at that time the authorities had been aware of his activities. For these reasons, the Migration Board found that the applicant could not have been of interest to the authorities on account of his activities or the material he had in his possession. 21. As to the applicant’s conversion to Christianity, the Migration Board noted that the conversion and baptism had not taken place in the Church of Sweden and that the applicant had not handed in any proof of his baptism. The certificate from the congregation’s pastor could be regarded only as a plea to the Migration Board that the applicant should be granted asylum. The applicant had not initially wished to invoke his conversion as a ground for asylum and had stated that his new faith was a private matter. To pursue his faith in private was not found to be a plausible reason for believing that he would risk persecution upon return. In conclusion, the Migration Board found that the applicant had not shown that he was in need of protection in Sweden. 22. The applicant appealed to the Migration Court (Migrationsdomstolen), maintaining his claims and relying on both political and religious grounds for asylum. As regards the latter he handed in a baptism certificate of 31 January 2010. He reacted against the decision by the Migration Board, which in his view implied that a conversion within a “free church” was of less relevance than if it had been within the Church of Sweden. He explained that the reason why he had not initially wished to rely on his conversion was that he did not want to trivialise the seriousness of his beliefs. 23. On 16 February 2011 the Migration Court held an oral hearing in the presence of the applicant, his counsel, an interpreter and a representative of the Migration Board. 24. The Migration Board did not question the fact that the applicant, at the time, professed the Christian faith, but found that this, by itself, was not enough to consider him in need of protection. It referred to the British Home Office’s operational guidance note of January 2009. 25. The applicant stated that he did not wish to rely on his conversion as a reason for asylum but considered it something personal. He added that “it would, however, obviously cause [him] problems upon return”. 26. In respect of his political past he explained, inter alia, that he had had contact with the student movement and quite a lot of students and had helped them with their home pages. His computer had been taken from his business premises while he was in prison. Material that was critical of the regime was stored on his computer. While he had not personally criticised the regime, or President Ahmadinejad, or the highest leaders, the applicant had visited some websites and had received cartoons via email. Therefore, in his view, there was enough evidence to prove that he was an opponent of the system. It was much the same as the material he had had on his computer in 2007. 27. The summons to appear before the Revolutionary Court on 2 November 2009 was also submitted to the Migration Court. The applicant explained that the summons had been served at his home and that his sister had brought it to him. He had left the summons with a friend when he left Iran. Subsequently, the said friend had sent it to another friend, who was going to Ukraine, and who had made sure that the summons was sent to the applicant in Sweden. He had not been summoned again and his family had not been targeted. Something might have happened, though, that his family did not wish to burden him with. 28. On 9 March 2011 the Migration Court rejected the appeal. It observed that the applicant was no longer relying on his religious views as a ground for persecution and it did not refer further to this issue in its conclusions. 29. The Migration Court found that the applicant’s story in support of his request for political asylum had been coherent and trustworthy on the most essential points. It found that the uncertainties that had been pointed out by the Migration Board had been satisfactorily explained. However, as regards the summons to appear before the Revolutionary Court, the Migration Court found, regardless of the authenticity of the document, that it could not by itself substantiate a need for protection. The Migration Court pointed out in this respect that the document was merely a summons and that no reason had been given as to why the applicant should present himself at Evin prison. Moreover, the information concerning the applicant’s political activities had generally been vague and lacking in detail. The applicant had only stated that he had participated in the campaign for the opposition before the elections in 2009 by joining demonstrations and having contact with the student movement and students in order to help them with their web pages. Furthermore, the applicant had stated that the material he had had in his possession when he was questioned in 2007 had not differed from the material he had in 2009. These circumstances, together with the fact that he had not been summoned again to appear before the Revolutionary Court after November 2009 and that his family had not been targeted, made the Migration Court doubt that his political activities had been of such a nature and extent as to have resulted in the consequences alleged. The Migration Court found that the applicant had exaggerated the importance of his political activities and their consequences and therefore also the authorities’ interest in him. For these reasons, it considered that the applicant had not made out that the Iranian authorities had a special interest in him and that therefore he was in need of protection. 30. On 30 March and 19 April 2011 the applicant requested leave to appeal to the Migration Court of Appeal (Migrationsöverdomstolen). He maintained his need for political asylum. He also alleged that before the Migration Court he had relied on his conversion. He submitted that the latter issue had been sensitive for him, that he had considered it a private matter and that had not wanted to tarnish the seriousness of his belief. This was the reason why he, in response to a direct question by the Migration Court, had stated that he was no longer relying on his conversion as a ground for asylum. After the oral hearing before the Migration Court he had become a member of another Christian congregation and had taken part in an initiation ceremony broadcast on the Internet. His fear that his conversion had become known to the Iranian authorities had therefore increased. He enclosed a letter of 13 April 2011 from his new congregation which supported his explanation. In particular, it stated that the applicant had converted shortly after his arrival in Sweden, that he had shown with honest intent and interest that he was willing to learn more about Christianity, and that he took part in church services, prayer meetings and social activities. It also stated that he became a member of the congregation in February 2011 and that his Christian beliefs were no longer private as the services he attended were broadcast on the Internet. 31. On 8 June 2011 the Migration Court of Appeal refused the applicant’s request for leave to appeal. The removal order thus became enforceable. 32. On 6 July 2011 the applicant requested the Migration Board to stay the enforcement of his expulsion and to reconsider its previous decision in the light of new circumstances. He stated, inter alia, that the act of conversion from Islam to another religion was a taboo and punishable by death in Iran. The applicant submitted the above-mentioned letter of 13 April 2011 from his new congregation. 33. On 13 September 2011 the Migration Board refused to re-examine the applicant’s request for asylum based on his conversion. The Migration Board noted that in the original asylum proceedings the applicant had stated that he had been baptised and had converted to Christianity. He had also stated that his conversion was a personal matter which he did not wish to rely on as a ground for asylum. The Migration Board found it noteworthy that the applicant now raised the question of conversion, when he had been given the chance to elaborate on it during the oral hearing before the Migration Court but had declined to do so. It thus concluded that the applicant’s conversion could not be regarded as a new circumstance, which was a precondition for the Migration Board to re-examine the request. 34. The applicant appealed against the decision to the Migration Court, maintaining his claims. He submitted that since he had not previously relied on his conversion, it should be regarded as a new circumstance. 35. On 6 October 2011 the Migration Court rejected the appeal. It observed that the authorities had already been aware of the applicant’s conversion in the original proceeding leading to the decision to expel him. Therefore, the conversion could not be considered as a “new circumstance”. The fact that the applicant had previously chosen not to rely on his conversion as a ground for asylum did not change the court’s assessment in this regard. 36. The applicant’s request for leave to appeal was refused by the Migration Court of Appeal on 22 November 2011. 37. Since under Chapter 12, section 22 of the Aliens Act, the validity of a deportation order expires four years after the date on which it acquired legal force, in the present case the deportation at issue expired on 8 June 2015. | 1 |
test | 001-147477 | ENG | SVK | ADMISSIBILITY | 2,014 | BALÁŽ v. SLOVAKIA | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall | 1. The applicant, Mr Miroslav Baláž, is a Slovak national, who was born in 1960 and lives in Trenčianske Teplice. He was represented before the Court by Mr D. Chlapík, a lawyer practising in Žilina. 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. The applicant, who is a lawyer, ran a property business and became involved in a dispute with the tax authorities over his tax liability in the preceding years. That amount depended on the amount of deductible expenses in the relevant preceding years, these two types of amount being determined by separate decisions in separate sets of proceedings. 4. On 19 July 1997 the Trenčín tax office ordered him to pay the equivalent of some 112,500 euros (EUR) in outstanding tax for the year 1993. 5. On 1 December 1997 and 5 February 1998 respectively, the tax office ordered that the above amount be increased by 100% by way of a penalty and determined that the applicant’s overall tax liability was the equivalent of some EUR 225,000. 6. On 6 February 1998 the tax office decided to secure payment of the applicant’s outstanding tax by prohibiting him from selling or otherwise disposing of any of his real property. The decision became enforceable on 12 February 1998, despite the applicant lodging an appeal, which was dismissed on 21 July 1998. The decision was ultimately confirmed by the Central Tax Directorate on 8 February 1999. 7. The security established by the tax office had the legal form of a statutory lien and as such was registered in the Land Register. According to the applicant, the value of the encumbered property was the equivalent of some EUR 5,486,000. 8. The applicant also appealed against the tax order of 19 July 1997. Several tax audits followed. On 12 August 1998 a decision concerning the deductible expenses for the year 1992 was quashed by the Supreme Court (Najvyšší súd), which on 14 December 2000 dismissed a subsequent complaint regarding a fresh decision on the same matter. 9. The applicant’s tax liability for the year 1993 was recalculated and reduced several times. Eventually, on 18 March 2002, by a decision which became final on 13 September 2002, the tax office established that it was actually no more than the equivalent of some EUR 3,000. 10. On 7 May 2004 the tax office amended its decision of 6 February 1998 securing payment of the applicant’s outstanding tax and prohibited him from dealing with only one property. 11. On 2 June 2004 the applicant paid the outstanding tax owed. 12. Consequently, on 8 June 2004, the tax office cancelled the decision of 6 February 1998 in its entirety. 13. On 18 March 2005 the applicant, assisted by a lawyer then and throughout the subsequent proceedings, brought a claim for damages against the State, in the person of the Ministry of Finance. He relied on the 1969 State Liability Act (Law no. 58/1969 Coll. – “the SL Act”) and pointed out that by its decision of 6 February 1998, the tax office had encumbered his real property, which was worth twenty times more than his tax liability under the decision of 5 February 1998. Not only that, the decision had then turned out to be based on a completely inaccurate calculation. He claimed that because of the impugned lien, all of his real property had been encumbered for more than six years, which had actually prevented him from carrying out his business activities, causing him to lose profit equivalent to some EUR 330,000, an amount that he later increased to the equivalent of some EUR 5,544,000. The applicant also argued that the decision of 5 February 1998 had in fact been quashed by the decision of 8 June 2004, and that the entire calculation of his tax liability had been erroneous because it had been based on amounts of tax-deductible expenses that had been contested and had later turned out to be wrong. As to the damage allegedly caused, he calculated it as the interest he could have obtained from a bank for depositing the monetary value of the encumbered property, that value having been established by an expert. 14. The claim was examined and dismissed at first instance by the Trenčín District Court (Okresný súd) on 15 October 2008 and following an appeal (odvolanie) by the applicant, by the Trenčín Regional Court (Krajský súd) on 21 October 2009. 15. Both courts interpreted the applicant’s claim as being aimed at recovering damages in respect of a wrongful official decision (sections 1 et seq. of the SL Act) as opposed to wrongful official action (sections 18 et seq. of the SL Act). However, under the applicable statute (section 4 of the SL Act), the first prerequisite for that type of claim to be available was that the alleged damage had to have resulted from an enforceable official decision that had been quashed or amended for being unlawful (section 4 of the SL Act). The Regional Court explained that prerequisite in further detail, holding that the unlawfulness of the contested decision could not be examined as a preliminary issue in the proceedings in the claim for damages, and had to have been established by the body that had quashed the decision precisely on account of its unlawfulness. The courts noted that the damage asserted by the applicant had allegedly been sustained as a result of the tax office’s decision of 6 February 1998, and found that that decision had never been quashed or amended for being unlawful. It had been cancelled on 8 June 2004 for a different reason, namely because the applicant’s tax liability had been paid in full. 16. Both courts concluded that in the circumstances, the principal statutory requirement for the claim to be available had not been met. In addition, the District Court found the claim unfounded on several other grounds. These were, however, found by the Regional Court to be superfluous in view of the earlier finding. 17. An appeal on points of law (dovolanie) brought by the applicant made in reliance on alleged procedural irregularities was declared inadmissible by the Supreme Court on 30 November 2010. 18. He also brought a constitutional complaint alleging a violation of his rights under Article 6 § 1 of the Convention and Article 1 of Protocol No. 1 in the above proceedings, which was declared inadmissible on 13 April 2011. The Constitutional Court held that there was nothing to show that the ordinary courts had dealt with the case unfairly, or that their decisions had been arbitrary. As to the alleged breach of the applicant’s right to peaceful enjoyment of his possessions, it considered that it would only be entitled to examine that complaint if the ordinary courts had breached his rights under Article 6 § 1 of the Convention or its constitutional equivalent. | 0 |
test | 001-185278 | ENG | ESP | ADMISSIBILITY | 2,014 | A.M.B. AND OTHERS v. SPAIN - [English Translation] by European Roma Rights Centre "ERRC" | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria | 1. Mrs A.M.B, is a Spanish national who was born in 1988 and lives in Madrid. She is represented before the Court by C. Pinto Cañón, a lawyer practicing in Madrid. The Spanish Government ("the Government") is represented by its agent, F. de Sanz Gandasegui, State Attorney, Head of the Legal Department of Human Rights at the Ministry of Justice. 2. The applicant, a Spanish national, and her two minor children, have been living since July 2009 in a dwelling belonging to the Madrid Housing Institute (hereinafter IVIMA), an organization of the Autonomous Community of Madrid. She is unemployed (without benefits) and receives the minimum integration income of about 500 euros (EUR) monthly, plus 30 EUR per child as alimony. This financial allocation is granted by the Madrid region to meet the basic needs of families who may be at risk of social exclusion. 3. The applicant claims to have asked the Administration several times since 2007 to obtain accommodation for herself and for her children, without ever getting a response. The disputed flat being uninhabited, they settled there irregularly, the office of the census of the municipality of Madrid having officially registered them at this address since July 2009. 4. By a decision on 22 February 2011, the director of IVIMA discovered the illegal occupation of the building and ordered the building to be returned to the Administration within ten days, without offering alternative housing to the applicant. 5. For their failing to vacate the home within the prescribed time, on 25 May 2012, the legal services of the Autonomous Community of Madrid applied to the Madrid Administrative Disputes Judge for authorization to proceed with the expulsion. 6. On 3 October 2012, the applicant, represented by a public defender, objected to the measure by pointing out her and her children’s precarious situation of social exclusion, as well as their Roma ethnicity. 7. By a decision on 16 October 2012, the Administrative Disputes Judge No. 24 of Madrid ordered the expulsion, all while indicating that it would be appropriate to “adopt the necessary measures for the best protection of minors who would be found in the building” without specifying what these measures would be. Regarding the particular situation of the applicant, the judge noted that their situation was not distinguishable or distinct from that of many other families waiting for housing and that the illegal occupation could not find a justification. 8. The applicant appealed and requested the suspension of the expulsion order until the appeal was decided, the Spanish law finding that the appeal is not suspensive to this effect. The judge found that the appeal was filed but did not rule on the application for suspension. 9. On 20 November 2012, the IVIMA Housing Inspectorate notified the applicant that the execution of the expulsion was scheduled for 13 December 2012 at 10.00. 10. On 6 December 2012, the applicant lodged an application for interim measures on the basis of Article 39 of the Rules of the Court. 11. On 11 December 2012, the examination of the request of the application of Article 39 of the Rules of Court was postponed until the reception of certain information from the Government concerning the treatment of fundamental rights of the applicant and her kids. In particular, the Government was asked to specify what alternative accommodation solutions the applicant and her children would be offered in case of expulsion to prevent the alleged violation of Article 3 of the Convention and within what time frame. 12. In light of the received information, on 12 December 2012, the functioning president of the Section to which the request was assigned decided to inform the Spanish government, pursuant to the previously cited provision, not to continue with the expulsion of the applicant and her children from the home that they occupied. He decided in addition to communicate the request to the Government. 13. Furthermore, the president in office decided that the identity of the applicant would not be disclosed (Article 47 § 3 of the Rules of Court). 14. On 30 April 2013, IVIMA informed the applicant that, unless the home was vacated, her illegal occupation would result in the rejection of any application for housing on her part for two years from the date of the removal. 15. In a judgment of 26 April 2013, the Higher Court of Justice of Madrid dismissed the applicant’s appeal against the decision of 16 October 2012. The Tribunal noted that none of the constitutional rights relied upon by the applicant authorized the illegal occupation of the apartment, even if they were in a situation of need. In fact, it was up to them to apply to the official bodies responsible for social protection. 16. Relying on Articles 15 (prohibition of degrading treatment) and 18 (right to private and family life), the applicant lodged an amparo appeal with the Constitutional Court, which is to date. 17. The relevant provisions of the Constitution are as follows: « Everyone has the right to life and to physical and moral integrity (...) » « The home is inviolable. (...) » | 0 |
test | 001-173767 | ENG | UKR | CHAMBER | 2,017 | CASE OF TONYUK v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary | 5. The applicant was born in 1941 and lives in the small village of Yamna, which forms part of Yaremche, a resort town located in the Carpathian Mountains in the Ivano-Frankivsk Region of Ukraine. 6. On 16 July 1996 the Executive Committee of Yaremche Town Council (“the Executive Committee”) allotted a plot of land next to the applicant’s house to St John’s Church to build a new cemetery (“the new cemetery”). 7. As is evident from the photographs submitted by the applicant, as of the date when they were taken (which is not specified) her land was adjacent to the cemetery. The house where she and her family lived was located some ten metres from the cemetery boundary. The applicant’s yard was separated from the cemetery by a wire mesh fence. The nearest row of graves was about a metre from the fence (some eleven metres from the house) and was clearly visible from the applicant’s yard. The part of the cemetery captured on the pictures contained over fifty graves, some freshly decorated with wreaths. 8. According to the applicant’s statements, at the time, when she lodged the present application, her family was routinely disturbed in its daily life by the sight of funeral processions and the sound of people mourning by the graves. In hot weather unpleasant smells sometimes emanated from the cemetery. In addition, the well from which the applicant’s family drew water for drinking and other household needs was situated some twenty-five metres from the cemetery and they were worried it could become contaminated with the by-products of human decomposition. 9. The applicant contacted various authorities on numerous occasions, complaining that the distance between her house and the new cemetery was less than the 300 metres required by law as a sanitary “health protection” zone. 10. On 14 September 2000 Yaremche’s Sanitary Officer banned burials in the new cemetery as its location was in breach of applicable sanitary standards. 11. On 30 August 2001 the Executive Committee took a further decision proscribing burials in the new cemetery. 12. On an unspecified date in 2001 the applicant received authorisation from the municipality to bury her son in the old cemetery in Yamna (“the old cemetery”) in exchange for a promise not to contest the location of the new cemetery. 13. On 25 June 2002 the Executive Committee overturned its previous decision of 30 August 2001 (see paragraph 13 above) in response to complaints from St John’s congregation members and village residents that no other suitable burial ground was available. 14. On an unspecified date in 2002 the applicant instituted court proceedings seeking the revocation of the Executive Committee’s decision of 25 June 2002 and the prohibition of burials. She noted, in particular, that the distance between her house and the cemetery was less than twenty-five metres. That was in breach of applicable sanitary rules, which were justified by the fact that toxins from decomposing corpses could seep into the ground water and contaminate an area around the cemetery as large as 300 metres. Locating the cemetery so close to the applicant’s home had put her life and health at risk. The applicant also claimed non-pecuniary damages for her sufferings. 15. On 16 January 2003 the Yaremche Court found the decision of 25 June 2002 unlawful as the applicant’s house had been located within the sanitary health protection zone, which had been illegal. It ordered the Executive Committee to proscribe the burials. The judgment was not appealed against and became final. 16. On 3 March 2003 the Yaremche Bailiffs’ Service initiated enforcement proceedings, however, no steps preventing the burials were taken. 17. On 23 June 2003 the acting chief sanitary officer of the IvanoFrankivsk Region sent a letter to the mayor of Yaremche, demanding that he take urgent measures to bring the new cemetery in Yamna into conformity with the applicable law. He noted, in particular, that the 300metre sanitary health protection zone had been established to prevent water and soil pollution and the spread of infectious diseases. Allowing burials ten metres from the applicant’s house was not in conformity with sanitary rules. 18. On 24 July 2003 the Yaremche Court found that the Bailiffs’ Service had failed to act to enforce the judgment of 16 January 2003, but dismissed the applicant’s claim for non-pecuniary damages arising from the bailiffs’ inaction. 19. On 26 August 2003 the enforcement proceedings concerning the judgment of 16 January 2003 were terminated on the grounds that enforcement was impossible because the Executive Committee members refused to vote to proscribe the burials. 20. In the meantime, on 14 August 2003 the applicant instituted further proceedings against the Yaremche Council, seeking to compel it to stop burials and to pay her non-pecuniary damages for her suffering. 21. On 18 March 2004 the Yaremche Court found for the applicant in part. It noted that the Yaremche Council had failed to take all the necessary steps to prevent unlawful burials on the disputed land and ordered it to take the requisite measures. At the same time, the applicant’s claim for damages was rejected. The decision became final and enforcement proceedings were instituted. 22. At many of its meetings the Executive Committee discussed draft decisions banning burials, however, they were never approved by a vote as no suitable alternative location for the cemetery could be found. 23. On several occasions the Bailiffs’ Service imposed fines on the Yaremche Council for failure to comply with the judgments. 24. On 28 February 2005 the enforcement proceedings were terminated because of the impossibility of enforcement as members of the Council refused to vote against the burials. 25. On 26 July 2005 the Yaremche Council informed the applicant that it had been unable to relocate the cemetery in view of the unavailability of other suitable land. It was further noted that they were continuing to look for alternatives and, in particular, were negotiating to acquire a plot from the Yamna forestry authority. 26. On 9 August 2005 the applicant requested that the mayor of Yaremche consider resettling her family and proposed that the Town Council acquire another house for her. She suggested a specific house that was for sale at the material time, which, according to her, was comparable to her present house. 27. On 15 September 2005 the Executive Committee informed the applicant that the municipal authorities were ready to consider the applicant’s resettlement as an option. However, the town had no funds in its budget to buy the proposed house at that time. 28. On 9 August 2006 the Ivano-Frankivsk Regional Bailiffs’ Service refused to re-institute the enforcement proceedings in view of the impossibility of enforcement. 29. According to the Government, the municipality has not authorised any burials in the new cemetery since 2011 owing to the applicant’s continued protests and the old cemetery has been used instead. | 1 |
test | 001-169648 | ENG | RUS | CHAMBER | 2,016 | CASE OF BERDZENISHVILI AND OTHERS v. RUSSIA | 4 | No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);No violation of Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens-{general} (Article 4 of Protocol No. 4 - Prohibition of collective expulsion of aliens);No violation of Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens (Article 1 para. 1 of Protocol No. 7 - Lawfully resident);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 13+P7-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 7 - Lawfully resident;Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens);No violation of Article 14+P7-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 para. 1 of Protocol No. 7 - Lawfully resident;Article 1 of Protocol No. 7 - Procedural safeguards relating to expulsion of aliens) | Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 7. During the period from the end of September 2006 to the end of January 2007 identity checks of Georgian nationals residing in Russia were carried out in the streets, markets and other workplaces and at their homes. Many were subsequently arrested and taken to police stations. After a period of custody in police stations, they were grouped together and taken by bus to a court, which summarily imposed administrative penalties on them and gave decisions ordering their administrative expulsion from Russian territory. Subsequently, after sometimes undergoing a medical visit and a blood test, they were taken to detention centres for foreigners where they were detained for varying periods of time, and then taken by bus to various airports in Moscow, and expelled to Georgia by aeroplane. Some of the Georgian nationals against whom expulsion orders were issued left the territory of the Russian Federation by their own means (for further details as to the background of the case see Georgia v. Russia (I) [GC], no. 13255/07, § 45, ECHR 2014). 8. The applicant entered the territory of the Russian Federation on 1 June 2006 on a multiple entry business visa, valid until 27 May 2007. On 4 October 2006 immigration officers stopped the applicant on the street, checked his identity documents and brought him to the Department of the Interior in the Vykhino District of Moscow, where he was detained. On 5 October 2006 the Kuzminskiy District Court of Moscow fined the applicant (RUB 1,000) for failure to observe the applicable registration procedure and ordered his administrative expulsion from the Russian Federation. He was subsequently, around midday, released. On 8 October 2006 the applicant left the Russian Federation by his own means. 9. The applicant entered the territory of the Russian Federation on 12 August 2006 on a multiple entry business visa. Subsequently he registered at his place of residence with the competent authority and worked as a driver in Moscow. On 1 October 2006 the applicant was detained in the Cheremushkinskiy militia department. On 3 October 2006 the Cheremushkinskiy District Court of Moscow found the applicant liable under Article 18.10 § 2 of the Code of Administrative Offences, as he had not applied for a work permit. The court fined the applicant (RUB 1,000) and ordered his administrative expulsion from the Russian Federation. He was subsequently transferred to the Kankova militia department, where he was detained until the next day. On 4 October 2006 he was transferred to the Centre for Temporary Detention of Aliens no.1, where he stayed until his deportation. On 6 October 2006 the applicant was taken to a military airport and was flown to Georgia with a cargo plane. 10. The applicant entered the territory of the Russian Federation on 6 July 2000 under the visa-free regime and settled in the village of Mescheryakovka in the Arkadakskiy District of the Saratov Region. On 10 October 2006 the applicant was arrested by police officers during an identity check operation in the area of his residence. Later that same day the Arkadakskiy Disrtict Court of the Saratov Region found him guilty of staying in the country without the required residence permit. The court fined the applicant (RUB 1,000), ordered his detention and his expulsion. Subsequently the applicant was transferred to a detention centre for aliens. On 12 October 2006, after friends of the applicant had paid the administrative fine and bought him an aeroplane ticket to Armenia for the next day, the applicant was released. On 13 October 2006 the applicant left the territory of the Russian Federation, leaving behind his property and belongings. 11. The applicant entered the territory of the Russian Federation in 2004 and worked on a market in Moscow. On 4 October 2006 the market was raided by a special unit of the police and the applicant, together with around twenty other Georgian nationals, was arrested. The applicant was brought to the Department of the Interior in the Southern Orekhovo-Borisovo District of Moscow. On 5 October 2006 the Nagatinskiy District Court of Moscow found her guilty of staying in the country without the required residence permit. The court fined the applicant (RUB 1,000), ordered her detention and her expulsion. Subsequently the applicant was transferred to the Centre for Temporary Detention of Aliens no. 2. On 17 October 2006 the applicant was taken to a military airport and flown to Georgia with a cargo plane. 12. The applicants entered the territory of the Russian Federation in December 2002/January 2003 and lived there without the required visa, at the latest since 25 December 2003. On 6 October 2006 both applicants were apprehended by the police and brought to the Ivanovskoye police station of the Department of the Eastern Administrative District of Moscow. On the same day the Perovskiy District Court of Moscow fined both applicants (RUB 1,500 each) for staying in the country without the required registration and ordered their expulsion. Subsequently both applicants were released. On 16 October 2006 the applicants left the Russian Federation by their own means with their son, leaving behind most of their belongings. 13. An alleged detention of the applicants’ son and the fact whether the applicants owned a car, which they had to leave behind when leaving the Russian Federation, are matters of contention (see paragraphs 50-52 below). 14. The applicant entered the Russian Federation on an unknown date on a multi-entry business visa, valid until 15 August 2007. She had registered her place of residence through a private agency and received a certificate valid until 16 March 2007. On 11 October 2006 the applicant was apprehended by police officers for an inspection of her identity documents and was brought to the Vykhino police station in Moscow, where she was subsequently detained. On 12 October 2006 the Kuzminskiy District Court of Moscow fined the applicant (RUB 1,000) for not complying with the applicable registration obligation, ordered her detention and expulsion. On 13 October 2006 the applicant was transferred to the Centre for Temporary Detention of Aliens no. 2, where she was detained until her expulsion. On 17 October 2006 she was brought by bus to Demododova airport and was flown to Georgia. 15. The first applicant stayed in the Russian Federation on a multi-entry business visa, valid until 13 February 2007, and had registered his place of residence through a private agency. The second applicant had a temporary document issued by the Consulate of Georgia, authorising his residency in the Russian Federation until 5 November 2006. On 11 October 2006 the applicants were apprehended by police officers for an inspection of their documents and brought to the Vykhino police station in Moscow, where they were subsequently detained. On 12 October 2006 the Kuzminskiy District Court of Moscow fined the applicants (RUB 1,000 each) for not complying with the applicable registration obligation and ordered their detention and expulsion. On 12 October 2006 the applicants were transferred to the Centre for Temporary Detention of Aliens no. 1, where they were detained until their expulsion. On 28 October 2006 the applicants were brought by bus to Demododova airport and were flown to Georgia. 16. The applicant had lived in Russia since 2005 and had a visa and registration valid until 19 October 2006. On 18 October 2006 the applicant left the Russian Federation by her own means. 17. An alleged detention of the applicant in the beginning of October 2006 is a matter of contention (see paragraphs 53-55 below). 18. The applicant had lived in Moscow since 1992. He worked as an engineer, had a visa valid until 28 October 2006 and a registration certificate, issued by a private agency, valid until the same day. 19. It is a matter of contention, whether the applicant had been detained, whether his expulsion was ordered by a court and whether he was deported (see paragraphs 56-59 below). 20. The applicants had lived in the Russian Federation since 1993, most recently in Moscow. The first applicant had a visa valid from 8 May 2006 until 7 May 2007. The second applicant had a visa valid from 30 June 2006 until 19 June 2007. Both applicants were in possession of registration certificates, valid until respectively 8 November 2006 and 30 December 2006. The applicants left the Russian Federation on 19 October 2006 by their own means. 21. An alleged detention of both applicants is a matter of contention (see paragraphs 60-62 below). 22. The applicant had lived in the Russian Federation since 2001. He had a visa valid until 30 August 2007 and a registration certificate that had expired on 18 September 2006. On 11 October 2006 the applicant was arrested by police officers and was brought to the Department of the Interior in the Vykhino district of Moscow, where he was detained. On 12 October 2006 the Kuzminskiy District Court of Moscow fined the applicant (RUB 1,000), ordered his detention and subsequent expulsion. After the decision of the District Court the applicant was transferred to the Centre for Temporary Detention of Aliens no. 1, where he was detained until his expulsion. On 28 October 2006 the applicant was brought by bus to Demododova airport and was flown to Georgia. 23. The applicant had lived in Moscow since 1997. She had a valid visa and a registration, but no work permit. On 27 September 2006 she was apprehended by police officers in a grocery store, and, after her identity papers had been checked and an administrative report had been drawn up, the applicant was released. On 6 October 2006 the Simonovskiy Court of Moscow found the applicant guilty of working without the required work permit and fined her (RUB 1,000). In addition the court ordered her detention and subsequent expulsion. After the court hearing the applicant was detained and brought to the Centre for Temporary Detention of Aliens no. 2, where she was detained until her expulsion. On 10 October 2006 the applicant was brought to Demododova airport and was flown to Georgia. 24. The applicant entered the Russian Federation in May 2005 and settled in Moscow. He had a valid visa until 1 March 2007. On 3 October 2006 the applicant was apprehended by officers of the Department of the Interior of the Mozhayskiy district of Moscow and brought to their station, where he was detained. On the same day the Kuntsevskiy District Court of Moscow fined the applicant for not observing the applicable registration procedure and ordered his detention and expulsion. The applicant was brought to the Centre for Temporary Detention of Aliens no. 1, where he was detained until his expulsion. On 11 October 2006, after the applicant’s relatives had bought him an aeroplane ticket to Georgia, he was brought to the airport and released. The applicant left the Russian Federation on that day. 25. The applicant had arrived in Moscow for the first time in February 2002. Since then he had lived, with short interruptions, in the Russian Federation and worked as a driver. After the last interruption he entered the Russian Federation on 4 March 2006 on a one month visa. On 6 October 2006 the Litkarinskiy Town Court of Moscow Region discontinued proceedings against the applicant for not observing the applicable registration procedure. On 23 October 2006 the Kuzminskiy District Court of Moscow fined the applicant (RUB 1,000) for not observing the applicable registration procedure. The court also ordered his expulsion from the Russian Federation. On 24 October 2006 the applicant left Russia by aeroplane. 26. The arrests and detentions surrounding the two court decisions are matters of contention (see paragraphs 63-66 below). 27. The applicant arrived in the Russian Federation in 1993 for the first time. On 6 September 2004 she was expelled from the Russian Federation due to a violation of visa-related regulations. On 8 October 2004 the applicant returned to Moscow. For the relevant time the applicant had a visa and registration, valid until respectively 8 October 2006 and 28 February 2007. The Presnenskiy District Court of Moscow decided that the expulsion decision of 2004 had included a five year ban from entering the Russian Federation. Consequently it fined the applicant (RUB 1,500), ordered her detention and expulsion. After several days of detention the applicant was expelled from the Russian Federation. 28. The exact circumstances and dates of the applicant’s arrest, detention, court decision and expulsion are matters of contention (see paragraphs 67-70 below). 29. The applicant entered the territory of the Russian Federation on 12 August 2006 on a multiple entry business visa. Subsequently she registered at her place of residence with the competent authority through a private agency. On 11 October 2006 the Tverskoy District Court of Moscow fined the applicant (RUB 1,000) for not having a valid, but a counterfeited, registration certificate. The court also ordered her detention and expulsion. At the latest on 12 October 2012 the applicant was transferred to the Centre for Temporary Detention of Aliens no. 2, where she was held until her expulsion. On 17 October 2006 the applicant was taken to a military airport and was flown to Georgia with a cargo plane. 30. The date of the applicant’s arrest and her detention before 12 October 2006 are matters of contention (see paragraphs 71-73 below). 31. The conditions of detention in the different places of detention are a matter of contention (see paragraphs 111-112 below). 45. The Court reiterates that the proceedings before the Court are adversarial in nature. It is therefore for the parties to substantiate their factual arguments by providing the Court with the necessary evidence. Whereas the Court is responsible for establishing the facts, it is up to the parties to provide active assistance by supplying it with all the relevant information. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (Lisnyy and others v. Ukraine and Russia (dec.), nos. 5355/15, 44913/15, 50853/15, § 25, 5 July 2016, with further references). 46. In cases in which there are conflicting accounts of events, the Court is inevitably confronted with the same difficulties as those faced by any first-instance court when establishing the facts. As to facts in dispute, the Court reiterates its jurisprudence requiring a standard of proof “beyond reasonable doubt” in its assessment of evidence. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (Aslakhanova and Others v. Russia, nos. 2944/06, 8300/07, 50184/07, 332/08 and 42509/10, § 95, 18 December 2012, with further references). 47. Furthermore, it is to be recalled that Convention proceedings do not in all cases lend themselves to a strict application of the principle affirmanti incumbit probatio (El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 152, ECHR 2012). Under certain circumstances the Court has borne in mind the difficulties associated with obtaining evidence and the fact that often little evidence can be submitted by the applicants in support of their applications (Saydulkhanova v. Russia, no. 25521/10, § 56, 25 June 2015). According to the Court’s settled case-law, in these cases it is for the applicant to make only a prima facie case and to adduce appropriate evidence. If, in response to such allegations made by the applicants, the Government then fail to disclose crucial documents to establish the facts or otherwise provide a satisfactory and convincing explanation, strong inferences may be drawn. The prima facie threshold is reached primarily on the basis of witness statements, including the applicants’ submission to the Court and to domestic authorities, and other evidence (see Aslakhanova, cited above, §§ 97, 99, with further references). However, where the applicants fail to make a prima facie case, the burden of proof can not be reversed (see Saydulkhanova, cited above, § 56, with further references). 48. The Court has already found that these considerations apply to disappearances examined under Article 5 of the Convention, where, although it has not been proved that a person has been taken into custody by the authorities, it is possible to establish that he or she was officially summoned by the authorities, entered a place under their control and has not been seen since. In such circumstances, the onus is on the Government to provide a plausible and satisfactory explanation as to what happened on the premises and to show that the person concerned was not detained by the authorities, but left the premises without subsequently being deprived of his or her liberty. Furthermore, the Court reiterates that, again in the context of a complaint under Article 5 § 1 of the Convention, it has required proof in the form of concordant inferences before the burden of proof is shifted to the Government (see El-Masri, cited above, § 153, with further references). 49. The Court reiterates that it concluded in Georgia v. Russia (I) (cited above, § 159) that from October 2006 a coordinated policy of arresting, detaining and expelling Georgian nationals had been put in place in the Russian Federation, which had amounted to an administrative practice. While the Court does not suggest that at that time all Georgian nationals were arrested or detained in the Russian Federation, it nevertheless finds it appropriate to apply the principles concerning reversing the burden of proof to the present case. Nonetheless, where the applicants failed to make a prima facie case, no strong inferences will be drawn and proof “beyond reasonable doubt” would be required. 50. According to the applicants their then six year old son had been detained for five hours at the Ivanov district police department on 9 October 2006 and he was only released after the payment of a bribe. The applicants also indicated that their belongings, which they had to leave behind in Russia, included a car. 51. The Government objected to the allegation of the detention of the applicants’ son and stated that an inquiry by the prosecutor’s offices had not produced any proof for this allegation. The Government also indicated that no vehicle was registered in the name of the applicants in the database of the State Traffic Police Department. 52. The Court observes that the applicants’ submission was of a general nature and lacked several important details, such as the exact time of the detention, the amount of the paid bribe, the make, model or registration number of the car (see, a contrario, El-Masri, cited above, § 156). The Court also notes that the applicants did neither submit any documents or witness statements regarding the alleged detention of their son and the ownership of the car nor have they informed the Court of any attempts they may have made in order to obtain at least fragmentary documentary evidence to substantiate their allegations (see Lisnyy and others, cited above, § 30). Accordingly, the Court finds that the applicants have not made a prima facie case and that the information in the Court’s possession does not suffice to establish that the applicants’ son had been detained on 9 October 2006 or that the applicants had to leave behind their car (see, mutatis mutandis, Sargsyan v. Azerbaijan [GC], no. 40167/06, § 183, ECHR 2015). 53. The applicant alleged that on or around 28 to 30 September 2006 she was arrested by police officers and brought to the Department of the Interior, where she was detained for four days. Due to health issues, according to the applicant half her body had become paralysed, she was released on the evening of the fourth day. On 18 October 2006 she left the Russian Federation by aeroplane. 54. The Government submitted that neither the Federal Migration Service nor the Department of the Interior had any records or information about the placement of the applicant in any detention facility. 55. The Court observes that the applicant alleges a detention in a not closer specified police station. The Court also notes that the applicant was not able to provide the exact date of her arrest and that she did not submit any medical certificate regarding her paralysis, which was allegedly the reason for her release. Having regard to these uncertainties, the Court finds that the applicant has neither made a prima facie case nor that the applicant’s detention has been established beyond reasonable doubt (see, mutatis mutandis, Lisnyy and others, cited above, §§ 27, 28). 56. According to the applicant he was arrested on 10 October 2006 by officers of the migration authorities and was brought to the Department of the Interior for the Serpokhova district of Moscow, where he was kept for approximately one and a half hours. On the same day the applicant was taken to an unspecified District Court in Moscow, which ordered his detention and expulsion. Subsequently the applicant was transferred to the Serpokhova special detention centre, where he was detained until his expulsion. On 17 October 2006 the applicant was taken by bus to Domodedovo airport and he was flown, by cargo plane, to Georgia. 57. The Government submitted that neither the Federal Migration Service nor the Department of the Interior had any records or information about the placement of the applicant in any detention facility. It further indicated that a Serpukhovskiy temporary detention centre does not exist. 58. The Government provided several documents with regard to administrative proceedings concerning the applicant. These include an administrative offence report from the Leninskiy district dated 13 October 2006, indicating the applicant’s arrest on the same day at 10 o’clock and a decision of the Vidnoye Town Court of the Moscow Region, also dated 13 October 2006, fining the applicant (RUB 1,000) for not observing the applicable registration procedure, and ordering the applicant’s expulsion. The Court decision also indicates that the applicant shall be held at the Reception Centre of Serpukhov until his expulsion. Furthermore, the judgment shows a stamp of Domodova airport, dated 17 October 2006. 59. On the basis of the material in its possession, the Court finds it established that the applicant was arrested on 13 October 2006 and taken to the Leninskiy police station, where he was held for one and a half hours. Subsequently the applicant was brought before the Vidnoye Town Court, which fined the applicant and ordered his detention and expulsion. The applicant was then detained until 17 October 2006 in the Reception Centre of Serpukhov. On 17 October the applicant was taken by bus to Domodedovo airport and was then flown, by cargo plane, to Georgia. 60. The applicants submitted that on 2 October 2006 they were stopped by police officers in the street next to the Oktiaborskoe pole metro station in Moscow for identity checks. Subsequently they were taken to the Department of the Interior for the Shchukino district of Moscow. After two hours they were transferred to a special detention centre in the KhoroshevoMnevniki district. After eight days in the detention centre they were, for the first time, allowed to call their mother and were able to ask her to buy aeroplane tickets for them. After the applicants’ mother had done so and presented the aeroplane tickets to the officers of the detention centre, the applicants were released. On 19 October 2006 the applicants left the Russian Federation by aeroplane from Domodedova airport in Moscow. 61. The Government submitted that an inquiry into the alleged detention in the Department of the Interior for Shchukino and Khoroshevo-Mnevniki districts of Moscow did not confirm the applicants’ version of events. According to the Government the applicants had not been brought to the police station of the North-Western Administrative District of Moscow either, as that police station was closed for reconstruction at the relevant time. Lastly, the Government submitted that no criminal proceedings were instigated against the applicants. 62. The Court notes that the applicants have submitted copies of their passports, showing that they left Russian territory on 19 October 2006, in support of their application. However, the Court also observes that the applicants have not submitted any documents, such as the aeroplane tickets and the receipts of the purchase, or witness statements, such as from their mother, corroborating their submission regarding their detention and release. Under these circumstances the Court finds it unable to conclude that the applicants have made a prima face case. Consequently, the burden of proof can not be reversed and fully shifted to the Government (see Saydulkhanova, cited above, § 56, with further references). The Court considers it not established beyond reasonable doubt that the applicants had been detained between 2 and 10 October 2006. 63. According to the applicant’s submission, on 4 October 2006 four police officers of the Litkarenko Department of the Ministry of the Interior visited him at home and checked his identity documents. Owing to him being Georgian and under the pretence that he was suspected of theft, he was taken to the Litkarino police station, where he was identified in an identity parade by the theft victim. Subsequently he was detained and only after the intervention of one of the applicant’s friends, who worked for the Federal Security Service, his involvement in the alleged theft was cleared up and the investigation was dropped. The applicant was nonetheless not released but kept in a cell of the police station overnight. On 5 October 2006 he was transferred to the special detention centre in the Lubedtsi district in Moscow, where he was detained until 6 October 2006, when the Litkarinskiy Town Court of Moscow Region discontinued proceedings against the applicant for not observing the registration procedure. Approximately two weeks later the applicant was stopped by two men in plainclothes on the highway, who forced the applicant into their car and put a hood over his head. After a two hour drive, the applicant was led to an unspecified police station and placed in a cell. On the third day of detention in the police station the applicant was handed a decision of the Kuzminskiy District Court, ordering his expulsion and fining the applicant (RUB 1,000). The next day, 24 October 2006, the applicant was taken to the Sheremetevo airport by police officers and put on a flight to Gandja, Azerbaijan. 64. The Government submitted that the applicant was apprehended on 22 October 2006 by officers of the Department of the Interior of the Kuzminski district of Moscow and was brought before the Kuzminskiy District Court on 23 October 2006. The court fined the applicant for not observing the applicable registration procedure and ordered the applicant’s expulsion. The Government also stated that neither the Federal Migration Service nor the Department of the Ministry of the Interior had any records or information about any subsequent detention of the applicant and that the applicant was not forcibly removed from the Russian Federation, but left on his own on 24 October 2006. 65. The applicant submitted inter alia the decision of the Litkarinskiy Town Court of Moscow Region of 6 October 2006 and of the Kuzminskiy District Court of 23 October 2006. The Government submitted in addition to the decision of the Kuzminskiy District Court, reports concerning the arrest and detention of the applicant on 22 October 2006. 66. The Court observes that the applicant has not submitted any proof concerning his detention from 4 to 6 October 2006 and from 21 to 24 October 2006, and that his submission concerning the second alleged detention is partially fragmentary. The Court also notes that the Kuzminskiy District Court did not order the applicant’s subsequent detention in one of the Centres for Temporary Detention of Aliens, as the Russian courts did in other cases. Accordingly the Court considers the information submitted by the applicant insufficient to conclude that he has made a prima facie case. Therefore, the burden of proof can not be reversed and shifted to the Government (see Saydulkhanova, cited above, § 56, with further references). The Court considers it not established beyond reasonable doubt that the applicant had been detained between 4 and 7 October 2006. However, based on the information and documents provided by the Government, the Court concludes that the applicant had been detained in the Department of the Interior of the Kuzminski district of Moscow on 22 and 23 October 2006. 67. The applicant initially submitted that at the end of September 2006 she had submitted her passport and several other documents to her University, for the renewal of her registration. On 8 October 2006 she received a call from the University, informing her that there were problems with her passport and that she had to go to the Presninski Passport Department. When she went there the next day, she was notified about a decision to expel her, owing to her visa-related offence in 2004. On 11 October 2006 she returned to the passport department to prove that she was an internally deplaced person and had a right to stay in the Russian Federation. In the evening on the same day she was taken to the Presninski District Court, which confirmed her expulsion. Subsequently she was brought to the Police Department of the Presninski District, where she was detained until midnight. During the following hours the police attempted to bring her to several different detention centres, where she was not admitted as they were already full or only for men or for convicted persons. At around 6 o’clock in the morning of 11 October 2006 she was admitted to a Women’s Immigration Reception Centre, near Butirskaia prison, and was detained until her expulsion. On 17 October 2006 the applicant was brought to Domodedova airport and flown to Georgia by an aircraft belonging to the Ministry of Emergency Situations of the Russian Federation. 68. According to the Government the applicant was apprehended on 4 October 2006 by officers of the Federal Migration Service of the Presnenskiy District Division. On 5 October 2006 the Presnensky District Court of Moscow found the applicant guilty of not complying with a five year ban from entering the Russian Federation. The court fined the applicant (RUB 1,500) and ordered her expulsion and detention. Subsequently the applicant was placed in the Centre for Temporary Detention of Aliens no. 2 until her expulsion on 10 October 2006. 69. The applicant subsequently submitted a copy of her passport, showing a stamp leaving the Russian Federation on 10 October 2006 and entering Georgia over Tbilisi airport on the same date. The Government provided a copy of the decision of the Presnensky District Court of Moscow dated 5 October 2006. 70. On the basis of the material in its possession, provided by the applicant and the Government, the Court concludes the following: The applicant was arrested on 4 October 2006 by officers of the Federal Migration Service of the Presnenskiy District Division and detained until the next day. On 5 October 2006 the Presnensky District Court of Moscow fined the applicant (RUB 1,500) and ordered her expulsion and detention. From 5 until 10 October 2006 the applicant was detained in the Centre for Temporary Detention of Aliens no. 2. On 10 October 2006 the applicant was expelled from the Russian Federation. 71. The applicant submitted that on 7 October 2006, after her husband Tengiz Kbilashvili, who is also an applicant (application no. 14597/07), had been deported, she went to the local passport department, to arrange her departure from the Russian Federation. In the local passport department her passport was taken from her and she was transferred to a militia department for detention. Later that day, she was transferred to the Centre for Temporary Detention of Aliens no. 2, where she was detained until her expulsion on 17 October 2006. 72. According to the Government the applicant was arrested on 11 October 2006 and was subsequently brought before the Tverskoy District Court of Moscow, which inter alia ordered the applicant’s detention (see paragraph 29 above). On 12 October 2006 she was transferred to the Centre for Temporary Detention of Aliens no. 2, where she was detained until her expulsion on 17 October 20006. The Government submitted several documents in this regards, including a report of the applicant’s arrest, the court decision and reports from an initial medical examination in the detention centre, all dated 11 October 2006. 73. On the basis of the material in its possession, and noting that the alleged earlier detention is not only not corroborated by any other evidence but also contradicted by the documents submitted by the Government, the Court can not conclude that it has been established beyond reasonable doubt that the applicant had been detained prior to the 11 October 2006. It has been established, however, that the applicant was arrested on 11 October 2006 and fined by the Tverskoy District Court of Moscow, which also ordered her detention and expulsion until 17 October 2006 (see paragraph 29 above). | 1 |
test | 001-177697 | ENG | DEU | CHAMBER | 2,017 | CASE OF FUCHSMANN v. GERMANY | 4 | No 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;Nona Tsotsoria;Síofra O’Leary | 7. The applicant was born in 1947 and lives in Düsseldorf. He is an internationally active entrepreneur in the media sector and chief executive officer of the media company Innova Film GmbH. 8. He also holds the position of Vice-President of the World Jewish Congress and President of the Jewish Confederation of Ukraine. In 2010 the former mayor of New York, Michael Bloomberg, publicly honoured the applicant for his efforts to improve AmericanRussian relations. 9. On 12 June 2001, the daily newspaper The New York Times published an article about an investigation into corruption against R.L. A slightly changed version was also published on the newspaper’s website. The online version, which was the subject of the domestic proceedings (see paragraphs 12-20 below), reads, in so far as relevant, as follows (emphasis added and names abbreviated by the Court): “[L] Media Company Faces a Federal Inquiry By [R. B.] Published: June 12 2001 WASHINGTON, June 10— A company owned by [R.L.], the cosmetics heir and former New York City mayoral candidate, is under investigation by federal prosecutors over allegations that it paid at least $1 million in bribes to Ukrainian officials for a valuable television license, according to lawyers and Justice Department documents. The United States attorney in Manhattan, [M.W.], has empaneled a grand jury and issued subpoenas, and prosecutors are studying some 6,000 pages of documents from Central European Media enterprise, which [R.L.] founded in 1991 as part of a plan to build a media empire in Europe. It now owns television stations in several Central and Eastern European countries. In a Federal District Court filing in New York last year, [M.W.] sought the corporate documents, saying that they were needed for a criminal investigation into whether [R.L.]´s Central European Media had ‘made corrupt and unlawful payments to Ukrainian officials’ in violation of the Foreign Corrupt Practices Act, the federal law that prohibits American companies from paying bribes abroad. [R.L.] and the company did not challenge the request and turned over the documents, a lawyer said. The payments being examined took place in 1996 after Ukraine´s licencing body granted a potentially lucrative licence to [R.L.]´s company despite the fact that the Ukraine Parliament had imposed a ban on new licences. ... In Ukraine, Central European Media controls the most popular station through its majority-owned subsidiary Studio 1 + 1. Prosecutors are studying two transactions related to Central European Media’s Ukraine investment, according to documents and persons close to the investigation. In one, prosecutors are trying to determine if L’s company paid $1.2 million to two Lebanese businessmen living in Ukraine, who then distributed it to some members of Ukraine’s television licensing board. ... [R.L.]’s bid to gain the television license in Ukraine began in 1995. That year, he met in New York with [O.V.], a top adviser to Ukraine President [L.K.], to discuss business opportunities. The initial meetings between [R.L.] and his representatives and [O.V.] were not promising. ... [O.V.] suggested that [R.L.] team up with a new Ukrainian television broadcasting company, Studio 1 + 1, in Kiev, and he did. The principal owners were [V.R.] and Boris Fuchsmann, well known around Kiev for their influence and wealth. Less well known were their ties to Russian organized crime, according to reports by the F.B.I. and European law enforcement agencies. [V.R.], who no longer has an interest in 1 + 1, has denied any links to Russian organized crime. Mr. Fuchsmann did not respond to e-mail inquiries seeking comment on the licensing deal and the F.B.I.’s claim of his ties to organized crime, although an assistant confirmed that he had received the inquiries. A 1994 F.B.I. report on Russian organized crime in the United States described Mr. Fuchsmann as a gold smuggler and embezzler, whose company in Germany was part of an international organized crime network. He is barred from entering the United States. ... Besides Mr. Fuchsmann and [V.R.], there were other, silent owners of Studio 1 + 1. In one internal fax, in April 1996, [J] described the Studio 1 + 1 shareholders as ‘‘extremely powerful’ people whom, she added, ‘I will not mention on this fax.’ Central European Media now owns 60 percent of Studio 1 + 1, and Mr. Fuchsmann owns at least 30 percent, according to public statements. At the time it went into business with Mr. Fuchsmann and [V.R.], Central European Media did not conduct investigations into their backgrounds, according to a report by [R.L.]’s New York law firm, [D.&P.]. In their 20-page report, which the prosecutors now have, the firm’s lawyers said that [R.L.] had been justified in dealing with Mr. Fuchsmann and [V.R.] because they had been highly recommended by [O.V.], whom the lawyers described as ‘an ardent supporter of free-market business’. The lawyers also concluded that Central European Media had not engaged in any illegal or improper activities. They said they could not rule out the possibility that Studio 1 + 1 had made improper payments, though they did not believe it had. The Ukraine’s television licensing board issued a broadcast license to Studio 1 + 1 not only in spite of Parliament’s moratorium, but with only four of the board’s eight members present; the law required at least six members for a vote. A few days after the license was issued, Central European Media transferred $1.4 million to International Teleservices of Belize, according to a C.M.E. Wire Transfer Request. That is the second transaction being looked at by prosecutors. The Belize company was indirectly owned by ‘many high Ukrainian officials,’ according to a second C.M.E. document, which did not name them. A third document shows that International Teleservices had paid this amount to a company in Germany owned by Mr. Fuchsmann, Innova, and that Innova had paid the license fees on behalf of Studio 1 + 1. Innova is part of a Russian organized crime network, according to U.S. and German law enforcement reports. It is not clear why such a circuitous route was used, and a person involved in the transaction, with inside knowledge of the owners of International Teleservices, said the $1.4 million payment was not for a license fee. He would not say what it was for. Central European Media officials were nervous about the license they won, and sought the opinion of two law firms in Kiev. Both acknowledged ‘the potential weaknesses’ of the broadcasting license, according to a C.M.E. document. One week later, O.V. had secured a letter from the Ukrainian justice ministry stating that the license was valid. Federal prosecutors, who opened their case in the wake of a number of private lawsuits challenging the legitimacy of the license award, have been examining documents for nearly a year, and the exact status of the investigation is not clear.” 10. On 28 May 2001, before publication of the article, the journalist had notified the applicant, via an email to one of his employees, of the planned publication and had asked several questions. On 30 May 2001 the journalist had made a follow-up telephone call to the employee, who confirmed that the applicant had received the questions. However, the applicant refrained from answering the questions or commenting on the planned publication. 11. Since 12 June 2001 the article, showing the date of first publication, is retrievable from the website of The New York Times. It can also be found through online search engines such as “Google” or “Bing”. 12. On 31 July 2002 the applicant sought injunctions against certain parts of the article (highlighted in the article, see paragraph 9 above), published in the print and online versions. 13. On 9 January 2008 the Düsseldorf Regional Court declared the applicant’s action inadmissible due to lack of international jurisdiction on the part of the German courts. It found that, at the material time, the print version of The New York Times was not distributed in Germany and that the Internet version of the newspaper was not directed at a readership in Germany. The Düsseldorf Court of Appeal confirmed that decision by its judgment dated 30 December 2008. On 2 March 2010 the Federal Court of Justice quashed the part of the decision regarding the applicant’s claim for an injunction against the challenged statements in the online version of the article and referred that part of the action back to the Court of Appeal. The court held that the online version of the newspaper was accessible from Germany, and because it mentioned a German businessman in the article, the publication had a direct connection with Germany and German jurisdiction. It therefore affirmed the international jurisdiction of the German courts in that respect. 14. On 22 June 2011 the Court of Appeal decided on the part of the dispute which had been referred back to it by the Federal Court of Justice. It granted the injunction in so far as the article stated that the applicant had been banned from entering the United States, and dismissed the remainder of the applicant’s action for lack of merit. The Court of Appeal held that German law was applicable with regard to the online publication, as the article was accessible in Germany via the Internet and therefore the alleged violation of the applicant’s reputation had at least occurred in Germany. 15. The court accepted that the statements interfered with the applicant’s reputation and personality right (allgemeines Persönlichkeitsrecht) as protected by Article 2 § 1 and Article 1 § 1 of the Basic Law (Grundgesetz). However, as the statements had been made in the press, which was constitutionally protected pursuant to Article 5 § 1 of the Basic Law, it was necessary to balance both interests. Moreover, as the statements concerned a suspicion against the applicant, the presumption of innocence arising from Article 6 § 2 of the Convention and from German law also had to be taken into account. The court held that there was in principle a public interest in reporting on criminal offences, including the suspicion of their commission. On the other hand, continued the court, the interference with the rights of personality associated with such reporting required higher standards of care for newspaper reporting, because even if the investigation was later discontinued, “something of the accusation might stick to the person affected”. Therefore, concrete, provable connecting facts which go beyond a vague, intangible suspicion were required, the reporting must concern an incident of great weight and the suspicion must be identified as such. In addition, the reporting must be balanced, the journalist must not fail to report on exculpatory circumstances and the person concerned must, as a rule, be invited to make his own comments before publication. 16. As regards the statements at issue, the Court of Appeal held that there was a great informational interest on the part of the public in the reporting that the applicant, as a German businessman internationally active in the media sector, was suspected by the secret service of being involved in gold smuggling, embezzlement and organised crime. This assessment was not changed by the fact that the applicant had been mentioned by name in the article, or by the fact that when the article was published in 2001, the criminal offences mentioned therein had occurred more than sixteen years previously. Regarding the latter the court pointed out that the criminal offences had become relevant again, due to new suspicions regarding the involvement of a former mayoral candidate. For the understanding of these suspicions it had been necessary to elaborate on the companies and individuals, including the applicant, involved in the alleged corruption. Similarly, describing the suspected criminal backgrounds of some of the persons involved had been necessary for the readers’ comprehension of the allegation. The court also took into account that the article remained accessible in an online archive of the daily newspaper. It held that there was a recognised public interest not only in information on current events but also in being able to research events from recent history. 17. The court further considered that the reporting was free from polemic statements and insinuations, and made it sufficiently clear that only insights from FBI reports and the law-enforcement authorities were being reported. This was expressly pointed out in the challenged article with the words, "according to reports by the F.B.I. and European law enforcement agencies". The internal FBI report was confirmed by reports of several other law-enforcement agencies, and the applicant himself, while denying any criminal activities, confirmed certain facts mentioned in those reports during the proceedings. Furthermore, the author of the article had notified the applicant via email that the article would be published. In that context the court also considered that although the applicant had been aware of the defendant’s reporting even before the article had been published, he had waited for more than one year before applying for an injunction against the defendant. Therefore, the applicant had not perceived the interference with his personality right as intolerable. 18. In sum, the court concluded that the defendant had complied with the required journalistic duty of care and that the reporting had relied on sources and background information, which the journalist could reasonably consider reliable. Therefore, the informational interest of the public outweighed the concerns of protecting the applicant’s personality right, even taking into account that such reporting might seriously damage his private and professional reputation. Regarding the alleged entry ban, the court concluded that there had been no reliable sources and that the applicant had shown that he had recently travelled to the United States. 19. On 2 October 2012, the Federal Court of Justice rejected a complaint lodged by the applicant against the Court of Appeal’s refusal to grant leave to appeal on points of law. 20. On 26 April 2013 the Federal Constitutional Court declined to consider a constitutional complaint (no. 1 BvR 2387/12) lodged by the applicant, without providing reasons. | 0 |
test | 001-141434 | ENG | CHE | CHAMBER | 2,014 | CASE OF RUIZ RIVERA v. SWITZERLAND [Extracts] | 3 | Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Review of lawfulness of detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient | András Sajó;Guido Raimondi;Helen Keller;Paulo Pinto De Albuquerque;Peer Lorenzen | 7. The applicant was born in 1955 and lives in Cusco (Peru). At the material time he was living in Zurich. 1. Criminal proceedings against the applicant following the premeditated murder of his wife 8. On 6 April 1995 the applicant’s wife was found dead. The applicant who, according to the toxicological examinations that he subsequently underwent, was under the influence of alcohol and cocaine, had stabbed his wife 49 times. He had also cut off her head and thrown it out of the window of the flat where the incident had taken place. 9. At an unknown date the applicant was charged with his wife’s murder. 10. On 16 May 1995 the public prosecutor for the district of Zurich asked the psychiatric clinic of the University of Zurich (Psychiatrische Universitätsklinik Zürich) to carry out a psychiatric assessment of the applicant. 11. On 10 October 1995 Doctor R., a psychiatrist, issued his report. He found that the applicant had been suffering for several years from chronic paranoid schizophrenia and had a drug addiction. He took the view that the offence had been directly related to his illness and drug abuse. He concluded that at the material time the applicant had not been criminally responsible for his actions. In view of the serious danger he represented for public safety, Dr R. recommended his confinement. 12. On 31 May 1996 the District Court of Zurich found, having regard to the evidence before it, that the applicant had killed his wife and that he had been totally lacking in criminal responsibility for his actions at the material time. The court thus ordered his confinement within the meaning of Article 43 of the Criminal Code as then in force. 2. The applicant’s confinement and second psychiatric assessment 13. The applicant was placed in confinement from 29 August 1996 onwards at Pöschwies Prison in Regensdorf (Canton of Zurich). 14. His discharge was refused on 14 July 1997, 29 July 1998, 24 September 1999 and 17 August 2000. 15. On 7 June 2001, at the request of the Probation and Sentence-enforcement Service of the Canton of Zurich (Bewährungs- und Vollzugsdienste des Kantons Zürich), the applicant’s mental health was examined by a head doctor and an assistant doctor of the Cantonal Psychiatric Clinic of Rheinau (Kantonale Psychiatrische Klinik Rheinau), who drew up a second psychiatric report. 16. The expert psychiatrists observed that the applicant had not encountered any particular difficulties in the custodial facility where he had been held since 1997. In the prison he had successively worked as a bookbinder, in the dispensary, as a gardener and lastly as a cook. The experts took note of the fact that, according to a psychological report of 5 June 1998, the applicant had not displayed any awareness of his illness and no capacity for introspection. As regards his mental health, the experts concluded that he was suffering from chronic paranoid schizophrenia and that in the “not very stimulating” atmosphere of the prison, “the positive symptoms of the illness had become less noticeable”, even though he “still display[ed] a delirious interpretation of the details of his offence”. His situation had thus changed little since his psychiatric assessment in 1995. In view of the lack of treatment, the experts took the view that “no indication c[ould] be given as regards alternative arrangements for the enforcement of the measure or the possibility of discharge on probation”. 17. On 14 January 2002, 23 September 2002 and 21 August 2003, the Judicial Enforcements Office of the Canton of Zurich (Justizvollzug des Kantons Zurich) refused the applicant’s discharge on probation. The applicant challenged the decision of 23 September 2002 before the Administrative Court of the Canton of Zurich (Verwaltungsgericht des Kantons Zurich), which dismissed his appeal on 4 December 2002. 18. On 23 March 2004 the Psychiatry and Psychology Service of the Judicial Enforcements Office issued an annual therapy report, signed by two psychologists, one of whom had treated the applicant. The report confirmed the findings of the psychiatric assessment carried out in 2001 and indicated an unfavourable legal prognosis on account of the applicant’s personality and the impossibility of treating his residual psychotic symptoms. The applicant continued, in particular, to deny that he was ill and refused to follow the medical treatment that had been prescribed for him. The psychologists concluded that the conditions for his discharge on probation were not satisfied. At the end of their report they indicated that they had discussed the report with the applicant and had given him a copy. 3. Refusal to discharge the applicant and the proceedings before the domestic courts 19. On 24 June 2004, after hearing the applicant in person in an interview of 6 May 2004, the Judicial Enforcements Office of the Canton of Zurich refused his discharge on probation. It based its decision on a report of the Pöschwies Prison administration of 27 April 2004, on the annual report of 23 March 2004, and on the psychiatric assessment of 2001. 20. Assisted by a lawyer, the applicant appealed to the Directorate of Justice and Internal Affairs of the Canton of Zurich, arguing that a fresh expert’s assessment was necessary. He applied for legal aid. The Directorate of Justice and Internal Affairs dismissed his application in a decision of 28 September 2004. He was exempted from paying administrative costs, but was denied the free assistance of a lawyer, on the ground that his appeal was devoid of any prospect of success, as his discharge on probation had already been refused several times and there had been no change in the meantime. 21. The applicant lodged an appeal with the Administrative Tribunal of the Canton of Zurich. Once again, he submitted that the verification of the need for his confinement had to be based on a fresh psychiatric assessment by a neutral doctor. He also sought free legal assistance and requested a hearing, submitting as follows: “It is is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he [cannot be] ‘afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty’ (ECtHR judgment Winterwerp v. the Netherlands, 24 October 1979, Series A, no. 33, § 60). While the requirements of Article 5 § 4 ECHR [can be distinguished] from those laid down in Article 6 ECHR, which applies to civil and criminal proceedings, this provision dictates, according to legal science, that sufficient safeguards be afforded in order to guarantee effective judicial supervision. Should a fresh expert’s opinion not be ordered, it would at least be justified for the author of the report to give evidence at a hearing of the court and for [the applicant] to put questions to him. As already stated, European legal science guarantees in such cases an adversarial hearing and the examination of witnesses. It entails that a fresh expert’s opinion may prove necessary in order to uphold the rights of the person confined.” 22. The Administrative Court dismissed the applicant’s appeal by a decision of 19 January 2005. It found that in view of the circumstances, the expert’s report of 2001 was still valid. The doubts expressed by the applicant concerning that report had already given rise to a final judgment of the Administrative Court of 4 December 2002. Moreover, it was unnecessary for the expert to give evidence as he had already expressed his opinion clearly and comprehensively in his report. No new pertinent information could thus be expected of such a hearing. In addition, the applicant had not shown how his right of access to a court had actually been impaired. He had failed to indicate the reasons which led him to believe that the Administrative Court was not able to comply with the basic rules of procedure or to exercise sufficient supervision. Lastly, he had been denied legal assistance on the ground that his appeal appeared devoid of any prospect of success, two appeals in the same case already having been dismissed without any change in the meantime. 23. The applicant lodged an administrative-law appeal with the Federal Court. He reiterated the complaints he had submitted to the Administrative Court: the last expert’s report was now four years’ old, and the therapy report was not a neutral assessment and was insufficient. In addition, given that various findings of the expert’s report were based on misinterpretations it was necessary for a fresh expert’s report to be drawn up or for the expert to give evidence with the possibility of cross-examination. The applicant was, moreover, entitled to the holding of a public and adversarial hearing. Lastly, the denial of legal assistance by the court below had impaired his right of access to a court. As the applicant was entitled to regular scrutiny of the lawfulness of his detention, the fact that he was appealing again against a refusal could not constitute a ground for refusing legal aid. The applicant also sought free legal assistance in the proceedings before the Federal Court. 24. In a judgment of 19 October 2005 the Federal Court dismissed the applicant’s appeal. It declared inadmissible the complaint concerning the lack of a public hearing, on the ground that no formal application to that effect had been lodged with the cantonal authorities. As regards the need for a fresh assessment by a neutral expert, it first noted that Article 45 of the Criminal Code did not require one, even though case-law had found it necessary in particular circumstances. In the present case, the Federal Court found that a fresh psychiatric assessment was not necessary, because the initial diagnosis had been confirmed in subsequent therapy reports and “no change c[ould] be identified”. It concluded that no other measure of sentence enforcement could be considered, with the result that the maintaining of the applicant’s confinement was to be regarded as proportionate. As regards, lastly, the complaint about the refusal to grant the applicant legal aid, the Federal Court first observed that he had been able to use the remedies available to him. It then noted that Article 5 § 4 of the Convention required scrutiny of the lawfulness of detention only at reasonable intervals, and that such intervals were longer with regard to persons of unsound mind, where circumstances only changed in the medium term. The last decision to have been taken by a court in the present case dated from 4 December 2002. At the time of the annual assessment by the prison administration in 2004, it had been found that the circumstances had clearly not changed since that decision. The appeal thus appeared to be devoid of any prospects of success. In the Federal Court’s view, that constituted a legitimate ground on which to deny legal aid. In view of the foregoing, legal aid was also denied in respect of the proceedings before the Federal Court itself. ... | 1 |
test | 001-172545 | ENG | UKR | COMMITTEE | 2,017 | CASE OF DUDNIKOV AND OTHERS v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time) | Egidijus Kūris;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-142459 | ENG | GBR | ADMISSIBILITY | 2,014 | IGNAOUA AND OTHERS v. THE UNITED KINGDOM | 4 | Inadmissible | Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicants, Mr Habib Ignaoua (“the first applicant”), Mr Mohammed Salah Khemiri (“the second applicant”) and Mr Ali Ben Zidane Chehidi (“the third applicant”), are Tunisian nationals, who were born in 1960, 1954 and 1972 respectively. They were represented before the Court by Mr D. Guedalla of Birnberg Peirce & Partners, a firm of solicitors based in London. 2. s, may be summarised as follows. 3. The applicants arrived in the United Kingdom on unknown dates. The first and second applicants subsequently claimed asylum on the ground that they had previously been detained and tortured by the Tunisian authorities and feared being subjected to similar treatment if they returned. The second applicant was granted asylum in 2001. 4. On 4 June 2007, while the first applicant’s request for asylum was pending, an Italian court issued a European Arrest Warrant (“EAW”) in respect of the applicants, under a European Union Framework Decision (see paragraphs 41-43 below), seeking their surrender to Italy. They were accused of membership of a criminal organisation for the purposes of terrorism. They were subsequently arrested in the United Kingdom pursuant to the EAW. 5. By letter dated 28 June 2007, the Prosecutor to the Republic of Italy stated: “If the United Kingdom judicial authority agrees to extradite [Mr Ignaoua] to Italy, [Mr Ignaoua] will not be extradited to another state without the consent of the United Kingdom. The only purpose of this extradition request is to secure the surrender of [Mr Ignaoua] to Italy to stand trial for the offence alleged against him. I can confirm categorically that his extradition is not sought for the purpose of deporting him to Tunisia.” 6. On 20 May 2008 an extradition hearing took place at the City of Westminster Magistrates’ Court. It was accepted in the proceedings that if the applicants were returned to Tunisia there would be a real risk of a breach of their Article 3 rights, following this Court’s ruling in Saadi v. Italy [GC], no. 37201/06, ECHR 2008. The question was whether there were substantial grounds to believe that Italy would extradite, expel or deport the applicants to Tunisia. The judge explained: “9. I propose to deal very shortly with any further onward extradition request, or an order of expulsion from Italy that might be linked to a sentence of imprisonment following conviction ... [T]here are recognised routes of appeal that are available to a person subject to an extradition request (by Tunisia should there ever be one) or an expulsion order (to Tunisia) to enable the highest court in Italy to make a determination as to whether or not, if such an order were allowed to proceed, the defendant’s Article 3 rights would be prejudiced. That is, there is effective judicial oversight, with guaranteed rights of appeal, available to any defendant who might feel aggrieved by an order for his removal from Italy.” 7. The judge considered the provisions of the Italian “Pisanu Law” (see paragraphs 37-40 below) which governed deportation from Italy at the relevant time. He observed that notwithstanding the apparent inability under that law for a person whose expulsion had been ordered to obtain a stay of execution pending an appeal, expert evidence presented to the court had suggested that it was in practice possible to obtain a stay from the Court of Cassation. However, he accepted that there was potential for a person to be deported before being able to persuade a court to suspend the process. He accordingly found that the Pisanu Law failed to provide the necessary guarantees required by Article 13 of the Convention. However, he noted that Mr Saadi was not deported prior to this Court’s hearing in Saadi, cited above, nor had he been deported since. While some evidence from Italian lawyers showed a reluctance to accept that Italian courts were bound to ensure that the rulings they made were in accordance with the Convention, the judge rejected that aspect of their evidence. He observed that the lawyers had “a low opinion of the competence and integrity of the Italian judiciary” which he did not share, referring to the expert evidence submitted by the judicial authority which sought the applicants’ extradition. He therefore concluded: “20. (1) Since the 28th February 2008 there will have been many people in the Italian civil service giving anxious consideration to the decision in Saadi v Italy, all trying to devise a solution to the ‘dilemma’. (2) It is highly likely new provisions will shortly be in place, and that would make this whole discussion, based as it is on the Pisanu law, somewhat academic. (3) I am not surprised the Minister of Justice has declined to give an undertaking that the Pisanu law will not be applied to any of these three men. There are many reasons why it might not be appropriate to offer such a guarantee. The lack of it does not suggest that, if extradited, the Pisanu law would be applied to them. (4) I consider it unlikely, unless and until the circumstances allow it, the Minister of the Interior would make a deportation against any of these three men requiring their return to Tunisia. (5) ... I am confident, given all the activity these defendants have generated with the authorities in Italy and their situation being now so ‘high profile’ that they would have no difficulty accessing the Italian courts, should they wish to challenge any deportation order.” 8. He found no reason to suppose that any future deportation proceedings would not be in accordance with the Convention and the Saadi judgement. He did not consider that evidence of what had undoubtedly happened in the past was evidence that such an approach would be repeated in future, since Saadi would “cause the Italian authorities to rethink its approach to this issue.” The judge therefore held that there were no substantial grounds for believing that the applicants would be expelled from Italy to Tunisia. 9. He added that the Framework Decision on the European Arrest Warrant was based on mutual trust and confidence between EU Member States and that he was confident that the Italian authorities could be relied upon not to act contrary to the Convention. 10. The applicants appealed to a Divisional Court. They argued that, if returned to Italy, there was a real risk of their onward transmission to Tunisia, in breach of Article 3 of the ECHR. 11. In early June 2008, while the case was pending before the Divisional Court, an expulsion order was made by the Italian authorities against Mr Sami Essid Ben Khemais, ordering that he be expelled to Tunisia. He was then removed to Tunisia, despite Rule 39 having been applied by the Court on 29 March 2007 (see Ben Khemais v. Italy, no. 246/07, 24 February 2009). The applicants brought the matter to the attention of the Divisional Court as evidence of the inadequacy of judicial safeguards in the Italian deportation procedure. 12. On 28 July 2008 the Divisional Court handed down its judgment in the applicants’ case. Lord Justice Pill, delivering the judgment of the court, noted first that the applicants accepted that the EAW was a genuine exercise of the power conferred under the relevant Framework Decision with a view to bringing criminal proceedings against the applicants in Italy. It was not a device to achieve deportation to Tunisia. 13. Pill LJ examined in some detail a number of reports concerning the procedures in place in Italy, including a 2005 report by the Council of Europe’s Human Rights Commissioner and a 2007 report by the United Nations Committee Against Torture. He considered carefully the submissions of the applicants and those of the judicial authority. He accepted that the 2007 assurance by the Italian Prosecutor of the Republic (see paragraph 5 above) covered all three applicants. For essentially the same reasons as the District Judge, he did not consider the absence of an assurance that Italy would not seek to deport the applicants as an indication that it did not intend to fulfil its legal obligations. 14. Pill LJ concluded that a real risk of expulsion to Tunisia had not been established in the cases. He explained: “46. ... It is relevant that the extradition to Italy will be effected under the Framework Directive ... The Italian authorities are under Article 3 duties in any event, but the Framework Directive adds an additional dimension. It requires cooperation between judicial authorities on the basis of trust and a high level of confidence ... 47 ... [F]or better or worse we have committed ourselves to this system. Under the Framework Decision, we can assume that the trust placed in the Italian authorities will be justified. The Framework Decision provides a safeguard and a disincentive to the Italian authorities, as with the authorities of any Member State, not to act in breach of Article 3 of the Convention. Article 34 of the Treaty [on European Union] provides for sanctions against States failing to comply with the basic principles of the Treaty. Bilateral trust also arises. This is bilateral action premised on the existence of a high degree of confidence. Courts in a returning state would be likely to have a real sense of grievance, having regard to the contents of the Framework Directive, if a receiving state subsequently ignored its duty under Article 3 of the Convention. The Italian government had not hitherto deported in an Article 3 case a person received under the Framework Directive and had not deported in the case of Saadi. 15. He also noted that when the Italian authorities received a person under the Framework Directive, the entire judiciary was likely to be alerted to its duties under Article 3 of the Convention, which he said was “certainly so” in the applicants’ cases. He was not prepared to disagree with the District Judge’s assessment of the witnesses or his rejection of the applicants’ witnesses’ low opinion of the Italian judiciary. He continued: “50. It is disturbing if the evidence before the court is correct – and the court has to take it at face value – that the Italian executive in the case of [Ben Khemais] have apparently disregarded an interim direction of the ECtHR. I cannot regard that act, or the statement of a representative of the Ministry of Justice which is claimed also to have been made, as destroying the trust and confidence which is to be assumed in the context described. I am not prepared to hold, on the basis of a single post-Saadi case, that the Italian State will in the present cases ignore its duties under Article 3 of the Convention as confirmed in Saadi.” 16. On the risk of further deportation by the Italian authorities, he added: “51. ... The risk on return has to be assessed on present evidence, and there is no risk of deportation while the contemplated criminal proceedings and any resulting custodial sentence are extant. That being so, any risk is, to that extent, remote from the current situation. 52 The District Judge’s optimism about Italian legislation has not yet been justified by events in the post-election period. There are, however, clear limits, in my view, to the extent to which a court assessing current risk should speculate as to events in the long term or even medium term future ... Circumstances can change. The remoteness factor ... adds weight to a conclusion that the appellants have not established a real risk of being deported to Tunisia within the meaning of the authorities.” 17. An application for a certificate of a point of law of general public importance was dismissed by the Divisional Court on 30 September 2008. 18. On 9 and 10 October 2008 the applicants made an application to the Divisional Court for habeas corpus to reopen their appeals, based on fresh evidence. The fresh evidence in question largely consisted of documents in the proceedings before this Court in respect of Mr Ben Khemais. The applicants contended that the documents revealed an attitude on the part of the Italian authorities which was prepared to deport suspected terrorists irrespective of Article 3 risks, particularly where diplomatic assurances had been obtained from the receiving State. 19. On 30 October 2008 the application was refused. Lord Justice Keene, with whom Lord Justice Owen agreed, considered that the new evidence did not provided a reliable guide to Italy’s future conduct; that there had still been only one instance of Italy deporting a person in breach of interim measures or Article 3 since the Saadi judgment; that there was no evidence of any willingness to deport a person who had been extradited under an EAW so the mutual trust and confidence remained intact; and that nothing in the fresh evidence undermined the previous finding that the applicants were genuinely wanted for trial in Italy, which made any risk of further deportation remote in any case. 20. The House of Lords subsequently refused to grant permission to appeal. 21. Meanwhile, on 30 September 2008, the applicants made a request to this Court for interim measures pursuant to Rule 39 of the Rules of Court to prevent their extradition to Italy. The request was refused by the Fourth Section on 7 October 2008. The letter to the applicants explained: “The Section found that it would be open to your clients to make an application against Italy, including an application under Rule 39, if it appeared that they would be surrendered from Italy in breach of their rights under the Convention.” 22. The Italian Government was informed of the Court’s decision in the following terms: “I write to inform you that on 30 September 2008 the above applicants lodged a request for interim measures under Rule 39 of the Rules of Court to prevent their extradition from the United Kingdom to Italy. They argued that if extradited, they would be at real risk of onward removal to Tunisia where they would be subjected to ill-treatment contrary to Article 3 of the Convention. They relied on the Grand Chamber’s recent ruling in Saadi v. Italy [GC], no. 37201/06, ECHR 2008 ... and further relied on the fact that in the domestic proceedings in their case, both the District Court and the High Court accepted that Law 155 of 31 July 2005 (‘the Pisanu Law’) failed to provide the necessary guarantees that are required by Article 13 of the Convention. Finally, they relied on your Government’s decision to remove Mr Sami Essid Ben Khemais to Tunisia despite this Court’s Rule 39 indication in his case. On 7 October the Fourth Section decided to refuse their request. The decision to do so was based on the express understanding that Italy as a Contracting State would abide by its obligations under Articles 3, 13 and 34 of the Convention and in particular the obligation to respect the terms of any interim measure which the Court might indicate in respect of Italy at the request of the applicants. The Section also expressed its confidence that your Government would comply with their obligations under Council Framework Decision of 13 June 2002 (on the European arrest warrant and the surrender procedures between Member States) and in particular their obligation under Article 28(1) of the Framework Decision not to extradite to a third State a person who has been surrendered pursuant to a European Arrest Warrant without the consent of the competent authority of the Member State which surrendered the person.” 23. On 1 November 2008 the applicants were extradited to Italy. On three occasions between 13 December 2008 and 1 May 2010, the Italian authorities deported individuals to Tunisia, contrary to Rule 39 indications made by the President of the Second Section (see Trabelsi v. Italy, no. 50163/08, 13 April 2010; Toumi v. Italy, no. 25716/09, 5 April 2011; and Mannai v. Italy, no. 9961/10, 27 March 2012). 24. On 8 July 2010 the Milan Assize Court acquitted the applicants of the charges for which they had been extradited. The Italian authorities subsequently issued expulsion order against them. They were taken into immigration detention. The United Kingdom authorities issued decisions to exclude the applicants from returning to the United Kingdom and the second applicant’s refugee status was revoked. 25. On 9 July 2010 the Milan Magistrates’ Court authorised the expulsion of the applicants. 26. In July 2010 the acting President of the Second Section of the Court decided to apply Rule 39 of the Rules of Court and indicated to the Government of Italy that the applicants should not be deported to Tunisia until further notice. 27. The enforcement of the Italian expulsion orders was suspended pending the outcome of the applications before this Court. 28. By a decision of 6 August 2010, the second and third applicants were released from immigration detention in August 2011. They were instructed to leave Italy within five days. 29. The second applicant went to Switzerland. On 27 August 2010 he was deported from Switzerland to the United Kingdom. He was taken into immigration detention in the United Kingdom. 30. The third applicant went to France. Upon arrival he claimed asylum. 31. On 7 December 2010 the Second Section of the Court lifted the interim measures granted in favour of the second and third applicants since they were no longer at risk of expulsion to Tunisia. 32. On 21 February 2011 the second applicant was released on bail in the United Kingdom. His refugee status was subsequently reinstated. 33. On 14 April 2011 the United Kingdom lifted the exclusion decision in respect of the third applicant. He returned to the United Kingdom. 34. In December 2010 the first applicant was released from immigration custody in Italy to await the outcome of a prosecution appeal against his acquittal and a second trial. After obtaining legal advice, he made an asylum claim in Italy. His current situation is not known. 35. Extradition from the United Kingdom is governed by the Extradition Act 2003 (“the 2003 Act”). The Act implements the provisions of the EAW Framework Decision (see paragraphs 41-43 below). 36. Pursuant to section 21 of the 2003 Act the extradition judge must decide, before ordering extradition, whether the person’s extradition would be compatible with the Convention. If he decides that extradition would not be compatible with the Convention, he must order the person’s discharge. 37. Deportation from Italy was at the relevant time governed by the Pisanu Law (Law 155 of 31 July 2005). 38. Article 3(1) of the Pisanu Law stated that: “...[T]he Interior Minister or, if he so delegates, the prefect, may order the expulsion of a foreigner ... where there are well-grounded reasons to believe that his presence in Italy would in some way facilitate terrorist organisations or activity, including international organisations or activity.” 39. The order had to be approved by a Magistrates’ Court. 40. An appeal could be lodged against the order to the Regional Administrative Tribunal but the appeal did not suspend the enforcement of the deportation order. 41. On 13 June 2002 the Council of the European Union adopted Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States. The Framework Decision created a simplified extradition procedure between member States of the European Union. Member States are required to execute any EAW on the basis of the principle of mutual recognition and in accordance with the provisions of the Framework Decision. 42. Recital 13 of the preamble to the Framework Decision provides that no person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. Article 3(1) confirms that the Framework Decision does not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union. 43. Under Article 28(4) of the Framework Decision, where a person has been extradited pursuant to an EAW, the receiving State may not extradite the person to a third State with without the permission of the extraditing State which surrendered the person. | 0 |
test | 001-140239 | ENG | PRT | COMMITTEE | 2,014 | CASE OF VIEIRA GOMES BEZERRA v. PORTUGAL | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Helen Keller;Paulo Pinto De Albuquerque | 4. The applicant was born in Silves (Portugal) and lives in Bonn (Germany). 5. On 28 February 2007 the applicant started civil proceedings against two companies before the Court of Vila Nova de Gaia (Portugal). The proceedings concerned the occupation of a land which the applicant claimed to be her own (domestic proceedings no. 1908/07.8TBVNG). 6. The defendants contested the proceedings and the court ordered that the size of the land be analysed by an expertise. These procedural steps ended on 18 December 2007. 7. In the first trimester of 2008 an attempt of conciliation of the parties took place. 8. On 18 July 2008 the court ordered the suspension of the proceedings as the property was not registered in the name of the applicant, before the Land Registry Office (Conservatória do Registo Predial). 9. On 20 January 2010 the court ordered the interruption of the proceedings. 10. On 18 July 2010 the applicant joined an additional supporting document to the proceedings, informing the court of the registration of the land. The judge ordered the proceedings to be resumed. 11. According to the last information received by the Court on 3 May 2013, the proceedings are still pending. | 1 |
test | 001-168128 | ENG | HRV | ADMISSIBILITY | 2,016 | MARČAN v. CROATIA | 4 | Inadmissible | Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 1. The applicant, Mr Goran Marčan, is a Croatian national, who was born in 1967 and lives in Rijeka. 2. The applicant is a lawyer practising in Rijeka. 3. In the period between September 2002 and January 2004 the applicant acted as a privately-appointed defence lawyer for B.P., who was indicted in the Rijeka County Court (Županijski sud u Rijeci) on charges of abuse of power and authority and aiding and abetting the conclusion of onerous contracts. 4. The applicant in particular, together with another lawyer, assumed B.P.’s defence at the hearings before an investigating judge. He also lodged several appeals concerning the decisions on B.P.’s pre-trial detention and he lodged an objection against the indictment. In this period he also had a number of meetings and consultations with his client in detention. 5. During the trial B.P. retained the services of another lawyer, and the applicant was no longer representing him. On 18 April 2008 the Rijeka County Court acquitted B.P., and this was upheld on 16 October 2008 by the Supreme Court (Vrhovni sud Republike Hrvatske). 6. When acquitting B.P. the Rijeka County Court did not rule on the entirety of the costs and expenses of the proceedings, reserving its decision in respect of further possible claims. 7. On 26 February 2009 the applicant lodged a request with the Rijeka County Court seeking remuneration for his legal representation of B.P. during the period between September 2002 and January 2004. He relied on the 2004 Scale of Lawyers’ Fees (see paragraph 20 below) and claimed a total of 40,748 Croatian kunas (HRK; approximately EUR 5,500) as his fees in the proceedings, enumerated as follows: - HRK 7,600 for attending fifteen hearings before the investigating judge and four hearings before the three-judge panel (item 4 of the fee scale) between 9 September 2002 and 29 January 2004; - HRK 2,800 for drafting seven appeals lodged during the proceedings (item 5 of the fee scale); - HRK 300 for drafting an objection against the indictment (item 5 of the fee scale); - HRK 12,000 for 104 visits and consultations with his client in detention, amounting to some 120 hours, in the period between 9 September 2002 and 4 June 2003 (item 31 of the fee scale); - a special increase of 100 percent in respect of the complexity of the case for the first three amounts (item 37 of the fee scale); and - 22 percent VAT. 8. On 4 March 2009 the Rijeka County Court awarded the applicant HRK 5,100 (approximately EUR 700) for attending the fifteen hearings before the investigating judge and drafting the appeals and objection against the indictment, and dismissed the remainder of his claim. The relevant part of the decision reads: “... [item 48 of] the 2004 fee scale ... provides that the 1993 fee scale applies to any work carried out before the former scale entered into force... The fee scale applicable at the investigation stage did not provide that the lawyer was entitled to VAT, this [being] covered for the first time in the 2004 fee scale. Besides, according to the applicable 1993 fee scale ... item 3 provided that for preliminary proceedings lawyers were entitled to a single defence fee for the hearing under item 4.1, plus the hourly rate for every subsequent hour worked in the amount of 10 points, while under item 50 the value of one point was HRK 8 ... ... The hearings lasted a total of 28 hours and 55 minutes, and since the lawyer is entitled to a single defence fee of 40 points and the value of one point is HRK 8, the single defence fee amounts to HRK 320, while the hourly rate amounts to 280 points – 10 points per hour ... meaning that the lawyer is entitled to ... HRK 2,560 in total. As regards the part of the lawyer’s claim [for the four hearings before the three-judge panel] it is to be noted that these were hearings before the ... first-instance court, and for such hearings the lawyer was not entitled to remuneration according to the applicable fee scale. As regards ... the drafting of the seven appeals, the lawyer requests HRK 2,800 which is not entirely reasonable given that the value of one point at the relevant time was HRK 8, which means that the lawyer is entitled to HRK 2,240 and no VAT. The claim of HRK 300 for drafting the objection against the indictment is reasonable, but the claim of HRK 12,000 for the meetings with his client is [not]. The lawyer is relying on item 31 of the fee scale which provides that for conferences and meetings where factual and legal matters were discussed with the client, opposing party and other participants in the client’s case, the lawyer shall be remunerated 50 points for every hour. It is clear that the lawyer did not attend any conferences where factual and legal matters were discussed ‘with the client, opposing party and other participants in the client’s case’ and the requested amount cannot be awarded to [him]. In addition, the applicable fee scale did not anticipate remuneration for every conversation [he had] with the defendant in detention ... as it is provided under the Scale of Lawyers’ Fees (Official Gazette, nos. 91/2004, 37/2005, 59/2007) and therefore he cannot be remunerated on this ground either. As regards the lawyer’s claim under item 37 for a special increase in respect of the ‘complexity of the case’, such a claim is manifestly unreasonable ... as this particular case was not complex ... From all the above-mentioned considerations it is to be concluded that the lawyer is entitled to HRK 5,100 but no VAT, as it was not covered in the applicable fee scale.” 9. On 16 March 2009 the applicant lodged an appeal with a three-judge panel of the Rijeka County Court. He argued that he should have been awarded a single fee for each hearing before the investigating judge and that his claim should have been calculated on the basis of HRK 10 per point. Moreover, under item 42 of the fee scale he had been entitled to a lump sum increase of 25% on his remuneration. The applicant contended that the lengthy preparation of his client’s defence in detention which, in his view, had been crucial for a successful defence, had been unaccounted for. He also pointed out that the case file consisted of more than 10,000 pages, that the proceedings had lasted for more than seven years and that the trial court itself had released a public statement characterising the case as complex. Lastly, the applicant argued that he should be awarded VAT. 10. On 27 January 2010 a three-judge panel of the Rijeka County Court awarded the applicant an additional amount of HRK 1,122 (approximately EUR 150) in respect of VAT, and dismissed the remainder of his complaints. In particular, the three-judge panel explained that the applicant was not entitled to any remuneration for the visits to his client in detention under item 31 of the fee scale as it had not concerned conferences involving other participants in the proceedings. He was also not entitled to a lump sum increase of 25% as it was not clear for what ancillary actions he should be granted such an increase. 11. On 5 March 2010 the applicant lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske “... when a request for remuneration of costs by a defence lawyer is not recognised, the defence rights are breached. [B.P.’s] lawyer was a lawyer of his own choosing. A person of his confidence. In order for the defence to be on equal footing with the prosecution, the defence lawyer must be remunerated for his work. ... When the accused is acquitted the costs for all actions aimed at the defence of his innocence must be remunerated. Only then are the parties to the proceedings on an equal footing. Only then is there equality before the law. A refusal to remunerate the lawyer for his fees breaches Articles 14 § 2 and 29 §§ 1 and 2 of the Constitution. A trial where the lawyer is brought into a position that the costs of his work are not recognised is not and cannot be a fair trial. Perhaps it would be best if the lawyer would not even be there? By not recognising the lawyer’s costs according to the fee scale, Article 27 of the Constitution is breached. If the lawyer’s right to a fair remuneration is not recognised the autonomy and independence of the legal profession is disturbed. Autonomy and independence presuppose remuneration [of work]. The legal profession cannot be autonomous and independent if the court without any reasons or arguments refuses to recognise the lawyer’s right to remuneration for his work. How can the principle of autonomy and independence [of the legal profession] be secured when the court considers that such autonomy and independence should not be remunerated. And this all [occurs] in a situation where the defendant was acquitted. ...” 12. On 27 May 2010 the Constitutional Court declared the applicant’s constitutional complaint inadmissible on the ground that the contested decisions did not concern any of his civil rights or obligations or any criminal charge against him. The relevant part of the decision reads: “Article 62 of [the Constitutional Court Act] reads: ‘Anyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body ... concerning his or her rights and obligations, or a suspicion or an accusation of a criminal offence, has violated his or her human rights or fundamental freedoms ... guaranteed by the Constitution (hereinafter “a constitutional right”).’ It follows that only a decision by which the competent court decided on the merits of a legal matter, that is to say on the rights and obligations, or a suspicion or an accusation of a criminal offence, is an individual act within the meaning of section 62 § 1 of the Constitutional Court Act, in respect of which the Constitutional Court is obliged, upon a constitutional complaint, to protect the human rights or fundamental freedoms of an appellant guaranteed under the Constitution. In the proceedings before the Constitutional Court it was established that the impugned decisions are not individual acts within the meaning of section 62 § 1 of the Constitutional Court Act, in respect of which the Constitutional Court is obliged to provide constitutional protection. It was therefore decided, under section 72 of the Constitutional Court Act, as noted in the operative part of this decision.” 13. This decision was served on the applicant on 23 June 2010. | 0 |
test | 001-166939 | ENG | POL | CHAMBER | 2,016 | CASE OF DOROTA KANIA v. POLAND (No. 2) | 4 | No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. The applicant was born in 1963 and lives in Warsaw. 6. On 30 March 2007 the applicant, who was at that time a journalist of the weekly magazine Wprost, contacted A.C., the then rector of the University of Gdańsk, in order to inform him that she considered him to be a long-term informant for the communist secret services in the past. She did not refer to any relevant documentary evidence in her possession. 7. On 2 April 2007 the applicant published an article in Wprost entitled “Agents Wearing Ermine”, alleging that during the communist times A.C. had been an informant for the communist secret police. The article had the subheading “Leaders of university anti-vetting revolt collaborated with communist secret services”. A photo showing A.C. in the course of his official duties alongside the article had the caption: “A.C., rector of the University of Gdańsk, used to be an informant for the communist secret services under the name Lek”. The article did not quote its sources, referring in general terms to unspecified documents. 8. The article was also published on the magazine’s website (www.wprost.pl), where it was available until 8 April 2007. 9. On 9 May 2007 the applicant obtained consent from the President of the Institute of National Remembrance (Instytut Pamięci Narodowej –“the IPN”) to access its files. The IPN’s tasks included, inter alia, storing and researching documents of the communist security services. On 10 May 2007 the applicant checked its files registered as Virginia no. 23461, IPN Gd 003/190. 10. On an unspecified date A. C. informed the prosecution authorities that he had been libelled by the author of the article. On 10 May 2007 the Regional Prosecutor in Warsaw refused to institute a criminal investigation and informed A.C. that the offence alleged could only be prosecuted by way of private prosecution. 11. A.C.’s lawyer requested Wprost to publish an apology rectifying the allegations against him and his reply to them. On 15 May 2007 the magazine refused to do so. 12. On 14 May 2007 the magazine published an article written by the applicant (but signed R.P.) entitled “The Party of Fear”. It was available on the magazine’s website until 20 May 2007. Its main thrust was that highsociety former informants opposed amendments to vetting legislation introduced in 2006 (see paragraphs 36 below) for fear that their past would come to light. It referred to A.C. as a former informant and contained his photo as rector of the University of Gdańsk. 13. On 15 May 2007 the Media Ethics Council (Rada Etyki Mediów), a body composed mainly of media representatives designated to observe whether journalists followed the applicable rules of professional ethics, sent a letter to the applicant. It criticised the articles in so far as they alleged A.C.’s involvement with the communist secret services, saying that the arguments presented by the applicant in the articles were not sufficiently convincing. It also criticised the applicant for her failure to refer to the precise sources of her allegations. It further referred to a previous public plea to the media requesting them to deal with allegations of collaboration with the communist secret services with the utmost diligence, seriousness and caution, so as not to cause detriment to anyone and to avoid a sensationalist approach to a very serious issue. It recommended that only thoughtful discussion should be held about themes of such importance as collaboration with the secret services and the manner in which vetting legislation should be applied, commensurate with the gravity of the issues involved. 14. On 12 August 2007 the same magazine published an article “New Documents about the Chancellor – Informant”. It was available on the magazine’s website until 19 August 2007. Its thrust was also that A.C. was a former informant. The article did not quote its sources and merely referred generally to unspecified documents. A photo of A.C. was again published alongside it. 15. On 14 August 2007 A.C. brought a private bill of indictment against the applicant and S.J., the editor-in-chief of the magazine at that time. It was argued that they had libelled him by publishing the articles and by disseminating untrue information alleging secret and conscious collaboration with the communist secret services. It was submitted that this publication could discredit him in the eyes of the public and result in him losing the confidence necessary to perform his duties as a public university rector, a criminal offence punishable under Article 212 of the Criminal Code. 16. Criminal proceedings were instituted against the applicant and S.J., but were subsequently stayed in May 2010 to obtain information about the result of the vetting process (procedura lustracyjna) in respect of A.C. which was pending at the time. 17. At a hearing on 15 March 2011 in the latter proceedings, the Gdańsk Regional Court held, referring to documents stored by the IPN, that A.C. had made a true vetting statement to the effect that he had not been an informant for the communist secret services. The court established that he had been registered as such, but without his consent or knowledge. It further noted that on 15 April 2003 A.C. had obtained the security certificate issued by the Internal Security Agency guaranteeing him access to classified information. He had therefore already been positively vetted for integrity by the authorities of a democratic State prior to the judgment. 18. The Gdańsk Court of Appeal upheld the first-instance judgment on 7 July 2011. 19. On 11 October 2011 the criminal proceedings against the applicant were resumed. 20. On 15 February 2012 the Warsaw District Court held that the applicant and editor were guilty of libel under Article 212 § 2 of the Criminal Code. 21. The court found that the plaintiff had been working at the University of Gdańsk since 1974. He had been questioned by the communist secret police on several occasions before 1989, when the communist system in Poland had collapsed. The applicant had contacted him, apparently by telephone, prior to publication of the first article of 2 April 2007 claiming to know that he had been an informant. She had neither informed him about any IPN documents on which she would be basing her allegations nor sought to meet him in person. 22. The applicant stated before the court that she had written the articles motivated by the public interest. A.C. was a well-known personality and society should be made aware of persons in positions of responsibility who were former informants for the communist secret police. 23. The court considered that while before it the applicant had referred to IPN documents, neither the documents she had submitted originating from these files nor the full file obtained by the court had supported the conclusion that A.C. had been an informant. Certain documents did not refer to him at all, while others did not indicate that he had been an informant. He had never declared willingness to become one. The court referred to a document in the IPN’s files which noted his reluctance to be involved with the services when urged by them to turn into an informant. In these files he was only referred to as being on the staff of the university in the 1970s. They also demonstrated that he had been questioned by the communist services after coming back to Poland following a scholarship in the United States. 24. The court concluded that the documents it had before it in evidence were manifestly insufficient to hold that the plaintiff had been an informant. 25. In the light of the documents available, the thesis advanced by the applicant was not only devoid of factual basis, but also incompatible with her obligation to show proper journalistic diligence. She had only obtained access to the full set of IPN files concerning A.C. after her first article had been published. She had only received a decision from the director of the IPN allowing her to access the documents on 9 May 2007, after the article had been published and created a considerable media stir. She had failed to contact A.C. prior to the publication to try to check the veracity of the information, apart from her telephone call to him whereby she had only informed him that she would be publishing the article. 26. The Warsaw District Court concluded that the applicant had failed to show the journalistic diligence required of her under section 12 of the 1984 Press Act. The impugned articles contained unreliable information, which she had assessed in a superficial manner. Being an informant for the communist secret police was perceived in society in an extremely negative manner. It was therefore not open to doubt that allegations made by the applicant could stigmatise A.C. and undermine public confidence in his capacity to hold office within the meaning of Article 212 of the Criminal Code. The mere fact that the court had gathered more material relevant to establishing the facts concerning A.C.’s past than the applicant had had at her disposal prior to the publication of the impugned articles demonstrated that she had formulated her allegations without a sound factual basis. In the light of that material, it had to be concluded that the statements made in the article were untrue, or at least unfounded. 27. The court referred to the Court’s case-law on Article 10 of the Convention on freedom of the press. It noted that that freedom carried duties and responsibilities on the part of journalists. It was limited by the criterion of truthfulness on the one hand, and the necessity to protect important values such as dignity, reputation, honour and the private life of individuals on the other. In the present case, the applicant had not had sufficient knowledge at her disposal to support the factual thesis she had advanced in the articles. She had therefore overstepped the limits of acceptable criticism, defamed the plaintiff and thereby committed a criminal offence. 28. The court imposed fines on the applicant and her co-defendant, the magazine’s editor-in-chief. It determined the amount of the applicant’s fine at 3,000 Polish zlotys (PLN - approximately 750 euros (EUR)) and ordered her to pay PLN 2,500 (approximately 625 EUR) to charity. The court observed that the amount of the fine had been determined with regard to the degree of the applicant’s guilt. The publication of the articles had been her idea and she had written them. However, the fine imposed on her was lower than that imposed on the editor, regard being had to the fact that her income was lower than his. The court further noted that the plaintiff had demanded that a custodial sentence be imposed on the applicant. However, the court was of the view that a non-custodial sentence was sufficient in the circumstances, commensurate with the gravity of the offence. It further ordered that the judgment be made public, having regard to a request submitted by the plaintiff and Article 215 of the Criminal Code, which obliged the court to allow such requests in cases involving convictions based on Article 212 of that Code. 29. The applicant and her co-accused appealed, raising many procedural arguments. 30. On 26 September 2012 the Warsaw Regional Court upheld the judgment, essentially sharing the findings and views of the first-instance court. The defendants’ appeals were considered by the court to be unfounded. The court ordered the applicant to pay PLN 300 (approximately EUR 85) in costs to the State Treasury. It further ordered her and her coaccused to pay jointly the plaintiff’s costs before the appellate court, amounting to PLN 3,100 (approximately EUR 775). | 0 |
test | 001-161149 | ENG | TUR | CHAMBER | 2,016 | CASE OF ÇAM v. TURKEY | 3 | Violation of Article 14+P1-2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2 of Protocol No. 1 - Right to education-{general};Right to education);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Jon Fridrik Kjølbro;Julia Laffranque;Paul Lemmens;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1989 and lives in Istanbul. 6. On 15 June 2004 she applied to take part in the entrance competition for the Turkish National Music Academy attached to İstanbul Technical University (“the Music Academy”) for the 2004-2005 academic year. 7. On 21 and 31 August 2004 she took the practical selection tests performing on the bağlama. 8. On 7 September 2004 the music section of the Academy administration published a list of successful candidates in the entrance examination, which included the applicant. 9. The applicant immediately applied to a medical board at Büyükçekmece Public Hospital for a medical report certifying her fitness to study at the Music Academy. 10. On 9 September 2004 that medical board drew up a report stating that the applicant had been diagnosed with hypermetropia with nystagmus and severe bilateral amblyopia. The Board concluded that the applicant should be referred to a higher medical authority. 11. On 16 September 2004 a medical board at the Bakɪrköy Research and Training Hospital (“Bakɪrköy Hospital”) prepared a medical report finding that the applicant could receive education and instruction in the sections of the Music Academy where eyesight was unecessary. 12. On the same day the Director of the Music Academy sent a letter to the applicant stating the following: “As we have explained on several occasions to your mother, your father and yourself, since you have failed to provide a report from a fully equipped public hospital (tam teşekküllü devlet hastanesi) confirming that you can study at the Music Academy ... we have been unable to enrol you ... We look forward to receiving your report from a public hospital mentioning your admission to the Music Academy as a student as soon as possible ...” 13. On 20 September 2004 the applicant’s father wrote to the Director of the Music Academy to inform him that the medical report had been forwarded to the Music Academy that same day, as requested. 14. Also on the same day, the Director of the Music Academy wrote to the Chief Medical Officer of Bakɪrköy Hospital. Referring to the report issued by that hospital’s Medical Board on 16 September 2004, he informed the Chief Medical Officer that none of the seven sections of the Music Academy could be deemed not to require eyesight. The letter stated that in order to be able to be educated in any section of the Academy, a student had to submit a medical report stating that he or she was fit for the task. The Director of the Music Academy asked the Chief Medical Officer to prepare a fresh medical report taking account of the fact that no section of the Music Academy could be considered as not necessitating eyesight, and accordingly to specify whether or not the applicant was capable of being educated in the Music Academy. 15. On an unspecified date the Music Academy rejected the applicant’s request for enrolment. 16. On 24 September 2004 the applicant’s parents, acting in her name and on her behalf, lodged with Istanbul Administrative Court (“the Administrative Court”) an action against the administration of Istanbul Technical University to set aside the Music Academy’s decision not to enrol their daughter. That action was accompanied by a request for a stay of execution of the impugned decision. In his pleadings, counsel for the applicant argued that his client had passed the entrance examination to the Music Academy on 21 August 2004, appearing before a panel of eight teachers, and that on 31 August 2004 she had passed the final entrance competition with full marks, appearing before a panel of twenty teachers. Quoting the criteria for admission to the Music Academy, that is to say being under the age of fifteen, holding a certificate of primary education, having the requisite physical abilities for playing the chosen instrument in respect of which enrolment has been requested, not having a physical disability such as to prevent her from receiving an education in the chosen section, and passing the talent and technical standard competition. Counsel for the applicant submitted that she had satisfied all those criteria. Her enrolment in the Music Academy had been refused on the sole ground that she was blind, which was contrary to law and the equality principle. In support of her application, counsel for the applicant relied on Article 42 of the Constitution, Articles 4, 7, 8 and 27 of Basic Law No. 1739 on national education (“Act No. 1739”) and Article 9 of Legislative Decree No. 573 on specialised education. He also cited the names of former blind students who had graduated from the same Music Academy. 17. In a statement of defence of 12 October 2004 the administration of Istanbul Technical University submitted that when filing her application for enrolment the applicant’s father had provided no document referring to her blindness. It contended that he had concealed that fact, had behaved as if his child were disability-free and had therefore attempted to deceive the enrolment office. It stated that Article 4 of the principles governing admissions and enrolment in the Music Academy set out the “no disability” criterion. Furthermore, the applicant had failed to provide a medical report certifying that she could study at the Music Academy, which requirement applied to all applicants for admission. The statement therefore affirmed that the refusal to enrol the applicant had not been due to her blindness but stemmed from her failure to submit all the requisite documents for her enrolment, within the stipulated time-limit. It added that even though the medical report submitted by the applicant had stated that she could study in the sections of the Academy where eyesight was unnecessary, there were in fact no such sections. Finally, it pointed out that in the absence of appropriate facilities and teaching staff with the requisite expertise, the Music Academy was not in a position to provide education for blind students, or indeed for persons with any kind of disability. In that connection it explained that in 1976, when it had opened, the Music Academy had hoped to introduce facilities for teaching blind students, but the lack of teachers with a command of braille had forced it to abandon those efforts. 18. On 14 October 2004 the Administrative Court dismissed the request for a stay of execution of the decision on the grounds that the conditions set out in section 27 § 2 of Act No. 2577 on Administrative Procedure (“Act No. 2577”) as amended by Act No. 4001 had not been met. 19. On 26 October 2004, acting in her name and on her behalf, the applicant’s parents appealed against that decision to the Istanbul Regional Administrative Court. They argued that pursuant to section 27 § 2 of Act No. 2577, there had been two preconditions for obtaining a stay of execution: the existence of damage which was irreparable or difficult to repair, and the apparent unlawfulness of the administrative Act in question. The parents stated that under the circumstances of the present case it was obvious that the refusal to enrol their daughter in the Music Academy would cause her damage which would be difficult to repair. They also submitted that such refusal was unlawful. Their memorial pointed out that the applicant held a primary school certificate and, apart from her blindness, had all the requisite physical capacities for playing the bağlama. Furthermore, she had passed the entrance examination for the Music Academy, and a medical report had established that she had no disability such as to prevent her from receiving education in the music department. They submitted that the merits of that medical report could not be contested, that other students had provided medical reports from institutions similar to that which had drawn up the applicant’s report, and that the Music Academy had accepted those reports. In their view, the fact that the report had not specifically mentioned that the applicant could study at the Academy could not invalidate it. Moreover, they argued that the respondent administration’s argument that the medical report had not been submitted in time was fallacious, as that report had been submitted to the Music Academy on Monday 20 September 2004, that is to say on the first working day after receipt of the letter from the Academy requesting the report. The parents further affirmed that the applicant had met all the conditions for enrolment and submitted the requested documents within the stipulated time-limits. The only reason for the refusal of enrolment had been her blindness. In reply to the respondent administration’s plea that the Music Academy had no sections where eyesight was not required, the applicant’s parents provided the names of four blind graduates of the Music Academy. Those former students had asserted that blindness was no obstacle to playing a musical instrument, that there were many blind musicians and that the Music Academy’s argument that none of the teachers knew braille was invalid in the light of advanced technology and computer systems capable of converting braille. Finally, the applicant’s parents submitted that the impugned measure was contrary to the constitutional principle of equality and all the relevant international legal instruments. 20. On 28 October 2004 the Istanbul Regional Court Administrative dismissed that appeal on the grounds that the conditions for a stay of execution set out in section 27 § 2 of Act No. 2577 had not been fulfilled since the execution of the impugned decision was not such as to cause damage which was irreparable or difficult to repair and was not unlawful. 21. On 29 November 2004 the Chief Medical Officer of Bakɪrköy Hospital wrote to the administration of the Music Academy to inform it that the medical report du 16 September 2004 had been revised. The original sentence “can receive education and instruction in the sections of the Music Academy where eyesight is unnecessary” had been replaced by: “cannot receive education or instruction”. 22. On 11 March 2005, acting in the applicant’s name and on her behalf, her parents submitted a complaint to the Bakɪrköy State Prosecutor against the Bakɪrköy Research and Training Hospital, its Chief Medical Officer and the other doctors who had amended the medical report of 16 September 2004, accusing them of abuse of office. They argued that the doctors had amended the medical report arbitrarily, without examining their daughter. They affirmed that the purpose of the amendments had been to ensure that the proceedings against the administration of Istanbul University concluded in the latter’s favour. 23. On the same day they applied to the Istanbul Medical Association for an inquiry into the events in question. 24. On 23 May 2005 the Health Department attached to the Istanbul Governor’s Office adopted a decision refusing to authorise the prosecution of the Chief Medical Officer in question. That decision mentioned that the findings of the report had been amended at the request of the administration of the Music Academy and that there had been no wrongdoing or abuse of office. 25. On 4 July 2005 the applicant’s parents, acting in her name and on her behalf, appealed to the Istanbul Regional Administrative Court to set aside that decision and authorise proceedings against the Chief Medical Officer in question. That appeal was unsuccessful. 26. On 18 July 2005 they lodged an appeal with the Istanbul Court Administrative requesting the setting aside of the decision not to enrol the applicant. They relied on section 15 of Act No. 5378 of 1 July 2005 on persons with disabilities (“Act No. 5378”), which had, in their view, put an end to all forms of discrimination in the educational sphere. 27. On 14 October 2005 the Administrative Court dismissed the applicant’s appeal. The relevant sections of the court’s reasoning read as follows: “... The principles governing entrance competitions and enrolments at the Turkish National Music Academy attached to Istanbul University were adopted by the University Senate ... at the request of the section assembly, after having been debated in the Music Academy assembly and deemed lawful by the University’s Educational Board. ... Those principles include the condition that applicants who have passed the competition for enrolment in the Music Academy should not suffer from any physical disability impeding education in the section [to which they have been admitted]. Furthermore, that condition is mentioned on the form distributed to applicants listing the documents required for final enrolment. The submission of a report drawn up by a fully equipped hospital and stating ‘is capable of studying at the Music Academy’ is mandatory. It transpired from the assessment of the application that [the applicant] passed the entrance examination and secured the right to be enrolled. However, whereas the report prepared by Büyükçekmece Public Hospital had concluded that a report should be requested from a higher medical board, she requested a report from an equivalent medical board, namely Bakɪrköy Research and Training Hospital. It transpires from the defence of the respondent administration that in the 1970s, when the Music Academy was set up, it had enrolled a number of blind students on a trial basis, but, in the absence of teaching staff conversant with the braille alphabet and having regard to the various difficulties encountered, that experiment was discontinued. No further blind students were admitted. It has been established that the administration wrote to the Chief Medical Officer of Bakɪrköy Hospital requesting information on the interpretation of the medical report which it had issued and that the conclusions of that report had subsequently been amended. The respondent administration’s decision to refuse to enrol the applicant was not unlawful as she had been unable to provide a report drawn up by a fully equipped public hospital and stating that she was capable of studying at the Music Academy. The applicant’s allegations to the contrary are ill-founded ...” 28. The Administrative Court adopted that decision on a majority vote, contrary to the recommendation of the President of the court, who adopted a dissenting opinion stating, with reference to Article 42 of the Constitution and Act No. 1739, that no one could be deprived of his or her right to education and instruction. In his view, it was beyond doubt that it was incumbent on government departments to put in place an environment conducive to education and instruction and meeting the needs of blind persons. Referring to the defence put forward by the respondent administration, which had attempted to incorporate blind students in 1976, he noted that it had been possible at the time to provide blind persons with musical education. He emphasised that there were many famous blind musicians. To deprive individuals of their right to education was incompatible with a social and democratic State governed by the rule of law. He consequently held that the impugned administrative measure had been unlawful. 29. On 9 November 2005 the Governing Board of the Istanbul Medical Association wrote a letter to the applicant’s father in reply to his request of 11 March 2005 (see paragraph 23 above). The relevant parts of the letter read as follows: “1. The two reports covered by the inquiry are similar in content. 2. However, the hospital administration’s failure to defend the initial report and its decision to make the requested amendments, on the instructions of the administration of the Music Academy ... cannot be considered as an appropriate attitude. 3. The letter of 22.10.2004 (no. 5821) sent by the administration of the Music Academy ... to the Chief Medical Officer of the hospital ... states that ‘inasmuch, moreover, as the teaching administered in those sections is intended for sighted students, we have no suitable educational environment for blind students (in terms of resources, equipment, technical facilities or teachers). For those reasons it is out of the question for sighted and blind students to follow common courses’. ... Having regard to the relevant international agreements and legislative provisions, the course of action expected of the administration was not to force through amendments to a report drawn up by a hospital, thus impeding a blind citizen’s right to education ... In conclusion, the Chief Medical Officer amended the form of the report, [but] its content remained the same, such that he cannot be accused of negligence. The available administrative and judicial remedies should be used to aasert the right in question ...” 30. On 18 April 2006 the applicant’s parents, acting in her name and on her behalf, lodged an appeal on points of law with the Council of State against the 14 October 2005 decision of the Administrative Court (see paragraph 27 above). They submitted that that decision was contrary to the Constitution, to Act No. 1739, to Act No. 5378 and to several international instruments and declarations. They submitted that the respondent administration’s defence plea that eyesight was required in all the sections of the Music Academy was fallacious, citing the names of blind former music students who held diplomas from the Academy. They requested the invalidation of the first-instance decision in accordance with the arguments set out in the opinion of the President of the Administrative Court. 31. On 4 January 2007 the administration of Istanbul Technical University filed its defence. It submitted that the applicant’s medical report had mentioned that she could study in the sections of the Music Academy which did not require eyesight, but that in fact the Academy had no such sections. Lastly, it affirmed that the applicant had not met all the requisite conditions for enrolment. 32. By judgment of 19 February 2008, served on counsel for the applicant on 28 April 2008, the Council of State dismissed the appeal on points of law and upheld the impugned decision, having found that the latter had fallen within the jurisdiction of the administrative court, had not been unlawful and had complied with the procedural rules. Moreover, it transpired from the judgment of the Council of State that the reporting judge had come down in favour of admitting the appeal on points of law. In his opinion on the appeal on points of law, the State Prosecutor with the Council of State, referring to Article 42 of the Constitution and sections 4, 7 and 8 of Act No. 1739, also stated that educational establishments were required to take into account persons who required specialist teaching and to adopt the necessary measures to guarantee their education. In the circumstances of the present case, he considered that the decision not to enrol the applicant – who had passed the entrance examination for the Music Academy and met all the legal conditions – flouted the relevant constitutional and legislative provisions and should therefore be set aside. 33. According to information transmitted to the Court by the applicant, after the rejection of her application to the Music Academy, she continued her education in an ordinary school before joining the Music Department of the Arts Faculty of Marmara University. ... | 1 |
test | 001-180832 | ENG | RUS | CHAMBER | 2,018 | CASE OF BUTKEVICH v. RUSSIA | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom to impart information);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 8. The applicant was born in 1977 and lives in Kiev, Ukraine. 9. In his application to the Court the applicant stated that at the relevant time he had been employed as a journalist by a Ukrainian television channel. In July 2006 he had volunteered to cover the G8 Summit, which was being held in the St Petersburg region, for Libertarian Information and News Collective (LINC), disseminating press-releases and information on the Internet about protests, connecting journalists and protesters, and providing coverage about the issues raised by activists. In his comments on the third-party submissions before the Court, the applicant added that at the time he had been “involved with” the Independent Media Centre (Indymedia); prior to the G8 summit, he had taken leave from his television assignments and had “focused on media work” in the framework of LINC. 10. According to the applicant, at 8.30 a.m. on 16 July 2006 he happened to “be around” when a so-called “anti-globalism” march was taking place in Nevskiy Avenue in St Petersburg (see also paragraphs 19 and 20 below). He was not wearing any distinctive clothing or insignia to designate him as a journalist. He did not take part in the protest; rather, his actions were limited to observing people and taking photographs, including when the police started to disperse the gathering and to arrest some of the participants. One of the police officers spotted him taking pictures and ordered him to switch off the camera. According to the applicant, he complied and no further order was given to him; he did not show any resistance to the police. In his observations before the Court the applicant said that he had presented his press-card issued by the International Federation of Journalists, and explained his presence at the venue. 11. It follows from the identical reports of two police officers that they approached the applicant and ordered him to cease his “unlawful actions”; despite several warnings, the applicant refused; he was then ordered to follow them to the police vehicle in order to be taken to the police station. Despite several warnings, he refused, grabbed their uniforms, behaved defiantly and shouted. He was then taken to the police vehicle by force. 12. A record of administrative escorting was drawn up under Article 27.2 of the Federal Code of Administrative Offences (hereinafter “the CAO”). The record contained no reasoning. 13. The applicant was then subjected to the procedure of administrative arrest under Article 27.3 of the CAO. The following pre-typed text was underlined in the record: “arrested in order to put an end to the offence, to compile the record of administrative offence, to examine the case and so on, as required by the CAO”. According to the record, the applicant was not subjected to the procedure involving a personal search or an examination of his belongings. 14. According to the Government, when the applicant was arrested and held in the police station, he was in possession of an immigration card indicating “a private visit” to Mr T. residing in Moscow as the aim of his presence in Russia, as well as photocopies of his Ukrainian passport and Shengen visa. The applicant was then interviewed and said that he was a journalist and worked as an editor for the Studio1+1 television channel. The Government pointed out, in this connection, that the administrative case file contained no photocopies of any document confirming the applicant’s status as a professional journalist. 15. Apparently, the applicant managed to contact a lawyer. In the applicant’s submission, the lawyer arrived at the police station at 9.15 a.m. but was not allowed to see him until 2 p.m. 16. At around that time, the applicant was allowed access to the administrative-offence record. The record compiled by Officer F. indicated that the applicant had been arrested because of his “participation in a nonauthorised demonstration in Nevskiy Avenue, thus creating a risk of accident threatening his own and others’ lives and limb”. The record also stated: “A police officer approached [the applicant], introduced himself and asked [the applicant] to cease his unlawful actions. Despite repeated and lawful orders to cease unlawful actions, [the applicant] refused. Despite repeated and lawful orders to get into the police vehicle, he also refused while grabbing the police officers’ clothes and shouting. Physical force had to be used against him to make him get into the vehicle.” The record also had the following pre-typed line with added handwritten text: “Witnesses, attesting witnesses, victims: Go., [address]; So., [address] ...” 17. Several hours later, a new administrative-offence record was compiled by Officer D. The applicant read and signed it at around 7 p.m. According to the record, the applicant was arrested because he had “disobeyed a lawful order from a police officer”. The record also had the following pre-typed line with added handwritten text: “Witnesses, attesting witnesses, victims: Bo., [address]; Ka., [address] ...” 18. At around 8.30 p.m. the applicant was brought before a justice of the peace. He was accused of disobeying two orders from the police: (i) to cease his participation in the non-authorised demonstration; and (ii) to get, “voluntarily”, into the police vehicle, as stated in the judgment of the justice of the peace. 19. The applicant stated before the court that while having a walk with his friend, Ms K., he had seen people running along Nevskiy Avenue with banners and posters; he had followed them to take some photographs. 20. The applicant’s lawyer pointed out that the second record drawn up by the police was substantially different from the initial one. His efforts to have it admitted to the file, however, were unsuccessful. The judge heard Ms K., who stated that she had been taking a walk together with the applicant at 8.30 a.m. on 16 July 2006 when they had seen people running along Nevskiy Avenue; the applicant had started to follow them; she had lost sight of him and had eventually caught up with him when he had been placed in a police vehicle; at that point, he had not been showing any resistance to the police. 21. According to the applicant, the court refused to hear the officers who had arrested him (“the arresting officers”), the officers who had compiled the initial and the amended administrative-offence records or anyone mentioned in the record (see paragraphs 16-17 above). According to the Government, the applicant made no request to have the arresting officers examined at the trial. 22. On the same evening, the justice of the peace convicted the applicant under Article 19.3 of the CAO and sentenced him to three days of detention, to be counted from 10 a.m. on the same day. 23. The court relied on (i) the (second) administrative-offence record, compiled by the authority initiating prosecution against the applicant, and (ii) the written statements made by the arresting officers prior to the trial. 24. The applicant was held in a police cell for a night and then transferred to a special detention facility to serve the sentence. 25. Although the trial judgment was amenable to appeal within ten days, the applicant chose to lodge an appeal without delay. He also made a written statement, which read: “Acting as a journalist, on 16 July 2006 I took photographs during a public event. I did not think I was breaching any law. If I did so unknowingly, I am sorry about that. On the same day I was sentenced to three days’ detention. I ask the appeal court, when examining my appeal, to grant it as regards my release. I would ask you to examine the appeal in my absence but with the participation of my counsel and a representative from the Ukrainian Consulate.” 26. On 18 July 2006 the applicant was visited by an official from the Ukrainian Consulate and signed a document authorising the Consul to represent him on appeal. 27. The Consul asked the appeal court to examine the appeal without delay. 28. On 18 July 2006 the Kuybyshevskiy District Court of St Petersburg heard the representative, upheld the conviction but reduced the sentence to two days’ detention. The appeal court held as follows: “[The applicant] argued in his statement of appeal that the trial court had not taken into account that as a journalist he had not taken part in the so-called “anti-globalist” protest; the trial court had not examined prosecution witnesses while the judgment was solely based on the written reports made by the police officers who had arrested him ... The trial judge gave a proper assessment of the officers’ reports and testimonies, including the testimony by K. who had been examined at the defendant’s request. It followed from K.’s statement that she had not observed the moment of the defendant’s arrest. This court has no reasons to doubt the officers’ reports because they had not been previously acquainted with the defendant and had no reason to commit perjury.” The appeal court indicated that its decision was “subject to immediate enforcement”. 29. According to the applicant, he was released at 4 p.m. on the same day. Referring to a logbook of detainees (a copy of the relevant extract from which has not been submitted to this Court), the Government submitted that the applicant had been released at 10 a.m. on 18 July 2006. 30. The applicant sought a supervisory review of the judgments before the City Court. He argued, inter alia, that he had been refused an opportunity to examine the arresting officers whose pre-trial reports had constituted the main adverse evidence. On 13 November 2006 the deputy President of the City Court upheld the conviction in a summary manner. | 1 |
test | 001-144107 | ENG | ROU | CHAMBER | 2,014 | CASE OF BINIŞAN v. ROMANIA | 4 | Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Procedural aspect) | Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 5. The applicant was born in 1974 and lives in Lugoj. 6. A private exporting company (“company E”) had concluded a contract with the Lugoj Merchandise Subsidiary of the National Railway Company (Stația CFR Marfă Lugoj) and another private company (company M). The contract provided that company E could use an industrial railway track for the five wagons put at its disposal by the National Railway Company in order to perform all the necessary operations, including customs inspections, for exporting its merchandise abroad. 7. On 20 September 2002, at about 9.30 a.m., S.V. went to Lugoj Railway Station with all the documents relating to the transportation of company E’s merchandise, in order to have the station’s stamp applied to them. When all the documents had been stamped, the manager of company E, together with S.V., went to the Lugoj Customs Office to ask for a customs inspector to carry out an inspection of the wagons and apply the required seals. The applicant was designated to carry out the customs inspection. 8. At about 1 p.m. the applicant went with the manager of company E and S.V. to Lugoj Railway Station. They firstly went to the station’s cash desk, where the manager of company E paid the taxes relating to the transportation of the merchandise and asked to have the consignment note (CIM) stamped. According to the statements of the manager of company E, S.V., and the applicant, an employee of the National Railway Company, M.M., went with them in order to show them where the wagons were. 9. At 1.19 p.m., while he was on top of a wagon trying to apply the customs seals, the applicant was electrocuted. As a result of the accident, the applicant needed 138 days of medical care. He suffered burns to 70% of his body. 10. In most of the official documents regarding the accident, such as the report of the investigation commission of 16 October 2002, the decisions of the courts and the prosecutors, and a medical report drafted on 16 February 2004, it was stated that the applicant’s life was at risk. For almost two months he was in a deep coma in a hospital in Hungary. Because of the severe burns he had serious breathing difficulties and had to undergo multiple skin grafts. 11. Following a decision by the National Pension Authority on 28 May 2004, the applicant was classed as permanently disabled. 12. Two police officers attended at the scene of the accident and drafted a preliminary on-the spot report on the same day. 13. A special commission composed of experts from the Timișoara Labour Inspectorate, the Timișoara Regional Customs Department (Direcția Regională Interjudețeană Timișoara) and the Timișoara Subsidiary of the National Railway Company was set up to investigate the accident. The commission started its investigation on 24 September 2002, four days after the accident. 14. According to the report drafted by the commission, which was completed on 16 October 2002, the accident had occurred because of the improper organisation of the procedure for inspecting the merchandise. It stated that there were several concurrent causes which had led to the applicant’s accident. 15. The report stated that the receipt of the wagons by company E from the National Railway Company had not been effected in accordance with the framework agreement signed on 24 June 2002 by the Lugoj Railway Station and company M, or with the document entitled “Declarație” signed by company M, company E and the National Railway Company. According to a final decision of 25 January 2006, delivered in criminal proceedings, this last document was signed after the accident occurred, but the manager of the National Railway Company back-dated it (see paragraph 36 below). 16. The report also stated that health and safety regulations had not been observed and the applicant’s employer had not ensured that he was properly trained for performing his duties on the railway tracks. 17. The report concluded that the following were responsible for the accident: (i) the manager of company E because he had not organised the customs inspection and had not complied with the above-mentioned agreement; (ii) the applicant because he had not complied with the rules for carrying out the inspection; (iii) the applicant’s superior for not training him on the applicable safety regulations, and (iv) company E, also for not training its employees properly. 18. The Timișoara Regional Customs Department raised certain objections in respect of the report. It insisted that the report mention that the applicant had gone up onto the wagon only after M.M., an employee of the National Railway Company, had assured him that there was no danger of an accident (a reference to the statements of S.V. and the manager of company E, who had been present when the accident occurred). 19. It also pointed out that the applicant had undergone training on 3 June 2002. 20. Finally, it contended that an analysis of the documents and the statements of the witnesses present at the incident showed that the accident had occurred because the National Railway Company had not observed Order no. 26 of 11 January 2000, which set out the health and safety regulations for the rail transport industry. 21. At the end of the investigation the special commission imposed administrative fines on company E and its manager for nonobservance of the applicable health and safety regulations. 22. Company E lodged a complaint seeking to have the fine cancelled, arguing that it had been under no legal obligation to train the applicant because he was not employed by them. 23. By a judgment of 16 September 2003 the Lugoj District Court allowed the complaint and held that the National Railway Company should be held liable for the accident. Its reasoning was as follows: “Demonstrating gross negligence, the representatives of the National Railway Company did not order the removal of the five freight wagons to the industrial track”. The industrial track was not electrified. The court continued its reasoning by stating that since the National Railway Company had agreed to transport the merchandise by presenting the necessary documents to the customs authority, it had become responsible for the operation. In accordance with decision T1 concerning the application to Romanian territory of the common transit system for rail freight transport, the National Railway Company was required, among other obligations, to ensure appropriate conditions for a safe customs inspection. The court concluded that by leaving the five freight wagons on high voltage railway tracks without informing all the persons involved in the customs inspection, the National Railway Company had failed to fulfil that obligation. 24. The special commission also imposed a fine on the manager of company E on the ground that he had not taken the necessary steps to ensure the safety of the customs inspection, and that although he had accompanied the applicant to the railway station he had not made a written request for the removal of the freight wagons from the electrified railway track. 25. The manager lodged a complaint against the fine and, by a final judgment rendered on 29 September 2003, the Lugoj District Court allowed the complaint, holding that the manager had not been obliged to request the removal of the wagons from the electrified railway tracks. It also held that he could not have known that the tracks were electrified. Further, it stated that according to the framework agreement signed on 24 June 2002, the wagons should have been at track no. 20, which was located outside the railway station, and that employees of the National Railway Company should have moved the wagons from the railway station to track no. 20. It concluded that the employee of the National Railway Company who had also been present at the customs inspection, M.M., had assured the applicant that he could perform his inspection even though the wagons were on an electrified track. 26. On 8 January 2003 the Timiș Labour Inspectorate asked the prosecutor’s office to start a criminal investigation into whether the manager of company E could be held responsible for the accident. Accordingly, the prosecutor’s office attached to the Lugoj District Court opened a preliminary investigation. 27. The applicant gave a statement before the prosecutor on 26 February 2003. He informed that he intended to claim compensation from the persons found responsible for the accident. 28. By a decision of 24 April 2003, the prosecutor decided not to initiate a criminal investigation on the ground that the accident had been caused through the applicant’s own fault. That decision was upheld by the chief prosecutor on 31 July 2003. 29. The applicant lodged a complaint against that decision with the prosecutor’s office attached to the Timiș County Court. He contended that the investigation body had not managed to clarify the circumstances under which the accident had occurred and therefore it was necessary to hold a confrontation between all the witnesses who had given contradictory statements, and that a reconstruction of the accident scene would be useful. As to the presence of M.M., the employee of the National Railway Company, at the scene of the accident, even the statements of her own colleagues were contradictory. The applicant further maintained that without M.M., who had accompanied them to track no. 7, he and the manager of company E would not have been able to find the wagons to be inspected. The applicant also claimed that the warning sign on the wagons to be inspected had not been there at the time of the accident but had been placed there after the accident. In this connection, he pointed out that such a sign could not be seen in the photographs taken by the police officers who had examined the scene immediately after the accident. The sign appeared only in the photographs taken by the Timiș Labour Inspectorate four days after the accident. 30. On 30 October 2003 the chief prosecutor dismissed the applicant’s complaint as unfounded. He held that the applicant alone was responsible for the accident because he had mounted the wagon while it was connected to live electricity without paying heed to the warning sign on the wagon and the framework agreement signed by the National Railway Station and the beneficiary (company E). He dismissed the applicant’s allegation that the warning sign had not been attached to the wagon on the day of the accident, stating that the sign could not be seen from the angle at which the photographs had been taken on that day. He also dismissed the applicant’s request to have the witnesses reheard on the ground that their statements were not relevant in so far as they could not make any difference to the final conclusion. 31. On 14 April 2004 the applicant lodged a complaint against that decision with the Lugoj District Court, alleging that the staff of the National Railway Company were responsible for the accident. By a judgment of 18 June 2004 the court allowed the complaint and sent the file back to the prosecutor’s office for an expert report to be drafted and for it to be determined whether M.M., the employee of the National Railway Company who the applicant claimed had accompanied him to the freight train, bore any responsibility. The experts were to establish whether the railway tracks had been electrified when the applicant climbed onto the freight train on the day of accident. 32. On 27 September 2004 the Timiș County Court allowed an appeal on points of law lodged by the prosecutor’s office and quashed the judgment of 18 June 2004 on the ground that on the basis of Article 278 (1) of the Code of Criminal Procedure, the first-instance court could not remit the case to the prosecutor’s office for further investigation. Consequently, the file was sent back to the District Court for fresh examination. 33. On 21 January 2005 the Lugoj District Court dismissed the applicant’s complaint and upheld the prosecutor’s decision not to initiate a criminal investigation. It held that none of the National Railway Company’s employees had been responsible for the applicant’s accident. In this connection, it found that according to the statements given by M.M.’s colleagues, she had not accompanied the applicant, S.V. and the manager of company E to the freight train. It also stated, however, that the customs inspection should have been carried out at track no. 20 and not at track no. 7. It concluded that the applicant alone was responsible for the accident because he had not paid heed to the warning sign on the wagon and the framework agreement signed by the National Railway Station and company E. 34. The applicant lodged a criminal complaint against the manager of the National Railway Company for forgery of a document called “Declarație”, submitted to the special commission while it was carrying out its investigation into the accident. The document was in fact an agreement signed by the National Railway Company, company E and company M stipulating that customs inspections of merchandise should be carried out only at track no. 20 (which was not electrified). The applicant stated that the manager had drafted it and asked the managers of the two other companies to sign it immediately after the applicant’s accident (on 21 September 2002), but had given 16 September 2002 as the date of signing. 35. After repeated decisions not to initiate criminal proceedings delivered on 28 September, 27 October and 17 December 2004, on 7 June 2005 the prosecutor’s office attached to the Lugoj District Court indicted the manager of the National Railway Company for abuse of office, forgery and the use of forged documents, and sent his file to the Lugoj District Court. 36. By a judgment of 25 January 2006, the Lugoj District Court found the manager guilty as charged. It held that he had drafted the agreement in order to protect his company from liability for the applicant’s accident. The subsequent appeal and appeal on points of law were dismissed as unfounded by the Timiș County Court and the Timișoara Court of Appeal on 17 April and 6 September 2006 respectively. 37. On 8 May 2006 the applicant lodged an application for judicial review of the criminal judgment rendered on 21 January 2005 by the Lugoj District Court. He claimed that there were new elements which could prove the guilt of the National Railway Company in respect of the events which had led to his accident. In this connection he relied on the final decision of the Lugoj District Court of 25 January 2006, by which the manager of the National Railway Company had been found guilty of the forgery of the document entitled “Declarație” which had been used as evidence in the criminal proceedings relating to the applicant’s accident. He also applied for three new witnesses to be heard on the question of whether M.M. had been present when the accident occurred. 38. The applicant argued that that document had played a decisive role in the conclusions of the investigation commission, as well as in the decisions of the prosecutors and judges, as to liability for the accident. 39. The Lugoj District Court dismissed the application as inadmissible as it concerned a decision in which the court had not examined the merits of the case, and as unfounded because the new evidence referred to by the applicant did not de facto affect the facts established in the decision. 40. On 18 October 2005 the applicant brought a civil action before the Lugoj District Court seeking compensation in respect of pecuniary and non-pecuniary damage. He claimed damages from the National Railway Company and M.M on account of their negligence in the organisation of the customs inspection. He stressed that because of the accident he had had to undergo expensive surgical interventions and had been classed as permanently disabled. 41. On 20 June 2006 the Lugoj District Court dismissed an objection of res judicata raised by the defendants. It held that the criminal decision of 21 January 2005 had not examined the civil liability of the defendants but only their criminal liability. The court noted that although the evidence concerning M.M.’s presence at the scene of the accident was not conclusive, the National Railway Company’s employee should nevertheless be held liable because she had not fulfilled her professional duties. The court further noted that, according to one of M.M.’s colleagues who had occupied the same position as M.M., and to her job description (“Fișa Postului”), it had been M.M.’s duty to handle the customs documentation for the customs agent and also to supervise the shunting of the relevant wagons in the railway station. The court also found that under the applicable law on the application of the common transit system in Romania, the National Railway Company had been obliged to be actively involved in the customs inspection of the wagons. However, the company had observed its obligations superficially through its employees. Thus, by applying the stamp to the CIM, the company employee had convinced the applicant and the manager of company E that everything was ready for inspection. The court partly allowed the applicant’s action, held that both the applicant, the National Railway Company and M.M. were equally responsible for the accident, and ordered the defendant company and M.M. to pay half the damages claimed. 42. The defendant company appealed and the appeal was allowed by the Timiș County Court on 19 February 2008. It quashed the judgment of the first-instance court, holding that the de facto situation had already been established by a final decision of a criminal court, and had thus acquired the authority of res judicata before the civil courts. 43. On 26 January 2009 the Timișoara Court of Appeal dismissed an appeal on points of law lodged by the applicant. 44. Order no. 26 of 11 January 2000 sets out the health and safety regulations for the rail transport industry. Article 3 provides that the regulations are compulsory and that they must be communicated to the interested persons by local labour inspectorates. They are not published in the Official Gazette. 45. Article 66 of the Order prohibits the inspection, application of seals or carrying out of any work on the upper parts of a wagon while the train is on electrified tracks. 46. Article 79 of the Order provides that all specified preventive steps must be taken when operations presenting a danger of electrocution are performed. 47. The CIM is a standardised document for the cross-border transport of cargo by rail, based on UN recommendations for uniform international rules and in use in the European Union (EU). CIM stands for Convention Internationale concernant le transport des Marchandises par chemin de fer, the French name for the Convention that governs its definitions and application. 48. The T1 procedure concerns the movement of non-EU goods when customs duties or other import taxes are involved. 49. According to Article 70 of the above-mentioned Convention, which sets out a common transit procedure, a railway company which accepts goods for carriage under cover of a CIM consignment note serving as a common transit declaration shall be the principal for that operation. 50. Criminal proceedings in Romania are regulated by the Code of Criminal Procedure and based on the principles of legality and officialness. Prosecution is mandatory when reasonable suspicion exists that a criminal offence subject to mandatory prosecution has been committed. | 1 |
test | 001-150217 | ENG | ROU | CHAMBER | 2,015 | CASE OF IUSTIN ROBERTINO MICU v. ROMANIA | 3 | Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);Violation of Article 13+5-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 5-1 - Procedure prescribed by law;Article 5 - Right to liberty and security);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage) | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos | 5. The applicant was born in 1969 and lives in Bucharest. 6. By orders of 5 and 8 March 2010 the National Anticorruption Department (“the N.A.D.”) instituted criminal proceedings against the applicant and three other co-accused, all of them border guard police officers, for bribe-taking and abetting bribe-taking. It held – on the basis of testimonial, documentary and surveillance evidence of phone conversations between one of the co-accused, his wife and a third party – that there was reasonable suspicion that on 6-7 September 2007 the applicant and his colleagues had asked seven Turkish nationals to pay them money in order to allow them to leave Romania. 7. On 8 March 2009 prosecutor G.B., who was attached to the N.A.D., authorised several police officers to enforce a warrant to appear (mandat de aducere) issued in the applicant’s name and the names of the three coaccused. According to the order to appear produced by the N.A.D., the applicant’s presence was required in order for him to be heard as an accused (ȋnvinuit) in the criminal investigation instituted against him in 2008. No other reasons or considerations were stated on the order. 8. On 9 March 2010 two police officers went to the applicant’s workplace to enforce the warrant to appear. According to the report produced by the police officers and signed by the applicant, he was shown the warrant to appear and was informed that he would be taken to the N.A.D.’s premises. He was also informed that he could contact and retain the services of a legal representative of his own choosing. He refused to do so because he considered that he did not need one. The applicant and the escorting police officers left the applicant’s workplace at 8.40 a.m. 9. On the same date, at 12 noon, G.B. informed the applicant in the presence of a publicly appointed legal representative that a criminal investigation had been opened against him for bribe-taking. According to the documents submitted before the Court, and signed by the applicant and his legal representative, he had refused to retain a legal representative of his own choosing and had accepted assistance from a publicly appointed lawyer. According to the statement made before the prosecutor, he notified the authorities that he suffered from diabetes and that he needed his insulin treatment, which would have to be brought from his workplace. In addition, he requested the authorities to notify his wife in the event of his placement in police custody. He also stated that he reaffirmed the statement he had made previously concerning the events in connection with which he was being investigated. According to the record of the applicant’s statement, he was heard as an accused by the prosecutor at N.A.D.’s offices from 12 noon to 9.34 p.m. 10. On the same date, at 7.36 p.m., the applicant was informed that at 7.08 p.m. he had been charged with bribe-taking. According to the report produced by the authorities and signed by the applicant and his legal representative he refused to make any statement as a defendant (inculpat) and reaffirmed the statement he had made as an accused. 11. By an order dated 9 March 2010 the N.A.D. placed the applicant in police custody for twenty-four hours commencing at 9.15 p.m. for bribetaking. The arrest order was signed by both the applicant and his legal representative. It stated that on the basis of the available evidence there was reasonable suspicion that the applicant had accepted money from Turkish nationals for the purpose of allowing them to return to Turkey. It also stated that the offence in question was punishable by over four years’ imprisonment and his release would constitute a danger to public order, bearing in mind that he was a border guard officer and had committed the offence at his workplace. 12. On 10 March 2010, relying on testimonial, documentary and audio surveillance evidence, the N.A.D. asked the domestic courts to detain the applicant pending trial. 13. By an interlocutory judgment of 10 March 2010 the Court of Cassation dismissed the N.A.D.’s request and ordered the applicant’s release on condition that he remain in the country. It held that the available evidence was plagued by inconsistencies which should have been resolved by the investigating authorities. In addition, except for the seriousness of the offence, none of the other legal requirements for detaining the applicant pending trial had been met. In particular, there was no evidence in the file that he had attempted to abscond or to obstruct justice. Also, it had not been proven that his release would be a danger to public order, given that the events in question had occurred in 2007 and that the applicant was not responsible for the length of the criminal investigation. Consequently, it considered that the implementation of an alternative measure was more appropriate in his case. 14. On 8 April 2010 the Court of Cassation, sitting as a second instance court, dismissed as ill-founded an appeal by the N.A.D. against the interlocutory judgment of 10 March 2010. 15. By a judgment of 17 March 2011 the Bucharest Court of Appeal convicted the applicant of bribe-taking and sentenced him to three years’ imprisonment. The applicant appealed on points of law (recurs) against the judgment. 16. On 11 February 2013 the Court of Cassation allowed the applicant’s appeal on points of law against the judgment of 17 March 2011 and acquitted him. It also noted that he had been held in police custody for twenty-four hours from 9 to 10 March 2010. 17. On 21 April 2010 the applicant instituted criminal proceedings with no civil claims against the prosecutors investigating his case – in particular G.B. – for, inter alia, abuse of office by restricting certain rights, perjury, unlawful arrest and improper investigation, torture and unlawful perversion of justice (represiune nedreaptă). He argued that the prosecutor had obtained testimonial evidence against him in breach of domestic and international criminal procedure rules and had detained him for thirty-seven hours instead of the twenty-four allowed by law. In addition, there had been no reasonable suspicion that he had committed the offence, nor had the other legally-required criteria for his detention been met. Also, he had been subjected to intense physical and psychological suffering because the order to appear issued by the prosecutor had been unjustified and devoid of grounds, in breach of Article 183 (2) of the Romanian Code of Criminal Procedure (“the C.C.P.”). Lastly, he had been refused a medical examination, medical treatment and food for the entire time he was under the authorities’ control, even though he had notified them of his medical condition. 18. On 10 May 2010 the applicant brought proceedings seeking to have prosecutor G.B. removed from the case on the grounds that he had instituted criminal proceedings against him in April 2010. 19. By a final order delivered on the same date, the hierarchically superior prosecutor attached to N.A.D., namely L.P., dismissed the applicant’s action of 10 May 2010 on the ground that there was no evidence in the file that G.B. had had a personal interest in the outcome of the case or that he had had a feud with one of the parties in the case. The fact that the applicant had instituted criminal proceedings against him was not an incompatibility ground provided for by law. 20. By a final order of 2 July 2010 the public prosecutor’s office attached to the Court of Cassation dismissed the applicant’s criminal complaint of 21 April 2010 against the prosecutor G.B. on the grounds that the offences cited by the applicant were inexistent and that his claims amounted to a complaint against the acts and measures carried out by the prosecutor during the investigation stage of the criminal proceedings instituted against him. The purpose of a criminal complaint was not, however, to censor the acts and measures carried out by a prosecutor. The lawfulness of such measures could only be examined within the framework of a complaint lodged with the hierarchically superior prosecutor against the acts and measures carried out by the investigating prosecutor. The applicant appealed against the order before the domestic courts. 21. By interlocutory judgments of 16 November 2010 and 18 January 2011 the Court of Cassation ordered that the investigation file be attached to the court’s file and that G.B. be summoned before the court. According to the applicant, neither the investigation file nor G.B. was ever presented to the court. 22. By a final judgment of 12 April 2011 the Court of Cassation dismissed the applicant’s complaint against the order of 2 July 2010. It held that the applicant’s complaints concerned investigative acts carried out by G.B. During ongoing criminal proceedings, other legal remedies are available to the accused or the defendant(s) by virtue of the criminal procedure rules, and these could have been used here to express dissatisfaction in respect of the alleged breaches of the procedural rules and of their lawful rights. In this connection, the court identified several complaints the applicant could have lodged within the framework of the criminal proceedings instituted against him, namely a complaint against the prosecutor’s orders for preventive measures and based on Article 51 et seq., Article 64 § 2, Article 67 et seq., and Articles 140 § 2, 172 § 6, 275-278, 320 and 332 of the Romanian Criminal Procedure Code. In addition to the aforementioned legal remedies, the defendants had other lawful means of lodging complaints against the person investigating or supervising the investigation of their case. However, a criminal complaint lodged against the prosecutor who had carried out the investigation in criminal proceedings that were still pending was not one of the legal means the applicant could have used, as it opened up the possibility of having aspects of legality regarding the pending criminal trial examined outside the framework expressly provided by the Criminal Procedure Code and of examining aspects of the criminal proceedings instituted against him. Moreover, the procedure allowing the prosecutor’s orders to be challenged before domestic courts did not allow the court to substitute its judgment for that of the judicial organs charged with the examination of the pending criminal proceedings instituted against him. The applicant appealed on points of law (recurs) against the judgment. 23. On 28 July 2011 the applicant brought proceedings against the Court of Cassation seeking an injunction to force that court to examine both the appeal on points of law lodged by him against the final judgment of 12 April 2011 and the unconstitutionality objections raised by him after the previously mentioned judgment was delivered. 24. On 12 September 2011, by a final judgment delivered in private, the Court of Cassation dismissed the applicant’s appeal on points of law against the judgment of 12 April 2011 as inadmissible. It held that, following recent law reforms, judgments delivered by the domestic courts in proceedings challenging the legality of a prosecutor’s decision not to institute criminal proceedings were no longer appealable before two levels of jurisdiction. 25. By a judgment of 28 November 2011 the Bucharest Court of Appeal dismissed the applicant’s action of 28 July 2011. It held that ordering the Court of Cassation to examine his appeal on points of law would breach the principle of legal certainty. In addition, an unconstitutionality objection had been raised by the applicant after the proceedings had ended on 12 April 2011 and there was no legal framework that would allow the Court of Appeal to force another court to examine them. The applicant appealed on points of law against the judgment of 28 November 2011 and according to him, the appeal was dismissed as ill-founded. 26. On 31 May 2010 the applicant brought criminal proceedings with no civil claims against the prosecutor L.P. for abuse of office against the public interest, incitement to the unlawful exercise of a profession and to perjury, incitement to unlawful perversion of justice, and incitement to the retention and destruction of documents. He claimed that, as G.B.’s hierarchically superior prosecutor, L.P. had approved the criminal-investigation measures undertaken by G.B., including the evidence dismissed and gathered by him, and had allowed G.B. to detain him and institute the criminal proceedings against him, even though he had been aware that he was innocent. 27. By a final order of 28 October 2010 the public prosecutor’s office attached to the Court of Cassation dismissed the applicant’s criminal complaint against L.P. on the grounds that the offences cited by the applicant were non-existent. It held that the complaints lodged by the applicant against L.P. were related to those lodged by him against G.B. In the latter’s case the public prosecutor’s office had already discontinued the criminal investigation for similar reasons. The applicant appealed against the order before the domestic courts. 28. By a final judgment of 28 March 2011 the Court of Cassation dismissed the applicant’s complaint against the order of 28 October 2010. It held that L.P. had neither investigated the applicant’s case nor undertaken any acts or measures in this respect. He had merely approved the proposal submitted by G.B. before the domestic courts to detain the applicant pending trial. The fact that he had examined and dismissed the applicant’s complaints in respect of the legality of the criminal proceedings instituted against him did not engage his criminal liability. In the absence of evidence to suggest that the prosecutor had acted unlawfully or that he had breached his duties, the applicant’s arguments in support of his complaint could not be assessed within the framework of a criminal investigation. Most of the applicant’s complaints were in fact arguments in his defence based on challenges to the way the evidence had been produced, the measures undertaken and the procedural flaws. According to the relevant criminal procedure rules, such complaints could be raised by the applicant before the domestic courts examining his case but could not be interpreted as constituting the elements of an offence. The applicant appealed on points of law against the judgment. 29. On 21 November 2011, by a final judgment delivered in private, the Court of Cassation dismissed the applicant’s appeal on points of law against the judgment of 28 March 2011 as inadmissible. It held that, following recent law reforms, judgments delivered by the domestic courts in proceedings challenging the legality of a prosecutor’s decision not to institute criminal proceedings were no longer appealable before two degrees of jurisdiction. 30. On 4 August 2011 the applicant brought criminal proceedings with no civil claims against prosecutors G.B. and L.P. for breach of the secrecy of his correspondence, amongst other things. He argued that the two prosecutors had unlawfully monitored his electronic mail correspondence during the spring of 2010 and in June 2010 had publicly presented the content of one of his electronic mails in court. 31. By a final judgment of 12 June 2012 the Court of Cassation dismissed the criminal proceedings with no civil claims that had been brought by the applicant against prosecutor G.B. for forgery and use of forged documents during the course of the criminal proceedings conducted by the said prosecutor against him. It held that the offences alleged by him were in fact allegations of breaches of procedural rules by the prosecutor investigating his case, which could have been examined by the appellate courts over the course of the criminal proceedings instituted against him, particularly since the proceedings in question were still pending before the domestic courts. 32. By a final order of 26 June 2012 the Prosecutor’s Office attached to the Court of Cassation dismissed criminal proceedings that had been instituted by the applicant against prosecutors G.B. and L.P. on 4 August 2011 on the grounds that no unlawful act had been committed. The applicant did not appeal against the order before the domestic courts. 33. By a final order of 12 September 2012, the public prosecutor’s office attached to the Court of Cassation dismissed criminal proceedings that had been instituted by the applicant against, inter alia, prosecutors G.B. and L.P. for slanderous denunciation, unlawful arrest and abusive investigation, and forgery on the grounds that, amongst other things, the available evidence did not suggest the existence of any offence committed by the aforementioned prosecutors. The applicant did not challenge the decision before the domestic courts. 34. According to the applicant’s medical papers he has been suffering from type-two diabetes since 1997 and has been treated with insulin since 2009. 35. On 9 March 2010 at 10.30 p.m., prior to being placed in a detention cell, the applicant was examined by the detention center’s medical nurse. According to the report produced on that day, the applicant’s general condition was relatively good. He informed the medical nurse that he required insulin treatment twice a day, in the morning and in the evening. He said that he had tested his own blood sugar level using his own tester at 9 p.m. and that his blood sugar level was high. 36. On 10 March 2010 the applicant was examined by a doctor specialising in diabetes and nutrition. According to the medical certificate produced on the same day, the applicant was following a programme of treatment involving two insulin injections per day, one in the morning and one in the evening. 37. Between 12 March 2010 and 16 May 2012 the applicant was examined by specialist doctors and was tested ten times. According to the medical certificates produced on those dates, he continued to receive two injections of insulin per day until November 2011, but the dosage was increased twice. In addition, doctors recommended that he take sick leave on six occasions. Furthermore, on 11 February 2011 it was recommended that he take his evening insulin dosage no earlier than 8 p.m. In November 2011 he was advised to administer three insulin injections per day. 38. In his initial submission to the Court on 22 June 2011 the applicant stated that on 9 March 2010 at about 7.30 a.m. the two police officers holding the warrant to appear had taken him to the N.A.D.’s office. At the N.A.D.’s office he had been left waiting in a room until 12 noon, when the police officers informed him that he needed to retain the services of a legal representative. Afterwards, he had again been left waiting for hours. 39. At about 7 p.m. a publicly appointed legal representative had arrived and the applicant had been questioned by prosecutor G.B. in her presence. He had been asked two short questions and afterwards he had once more been left waiting. 40. At about 9 p.m. prosecutor G.B. had informed the applicant that he had been placed in police custody for twenty-four hours. 41. At about 10 p.m. he had been handcuffed and taken to the detention center. At the detention center the police guards had taken away from him the syringe, the insulin and the device for measuring blood sugar levels he had had on him. The applicant had informed the police guards that he was suffering from diabetes and retinopathy and that he had not eaten the entire day. His request for a medical test to be carried out by a doctor had been dismissed and he had been visited by a nurse. 42. In his submission before the Court on 16 August 2012 the applicant stated that on 9 March 2010 after being taken to the N.A.D.’s office, he had been locked in a room and guarded by armed guards. Although he had informed the prosecutor investigating his case that he had been suffering from diabetes requiring insulin treatment and retinopathy, the latter had refused to allow him to eat for the purposes of being able to take his insulin treatment. 43. On the same date, according to the applicant, his two mobile phones had been confiscated by the police officers who accompanied him to the N.A.D.’s office without producing a report attesting to this confiscation measure. Also, he had been denied contact with his family and had not been allowed to retain the services of a legal representative of his own choosing. During his placement in police custody he had not been provided with food appropriate to his condition or with plates, glasses or cutlery to be able to eat the food. 44. On 11 April 2013 the N.A.D. informed the Government that as soon as the applicant had informed the prosecutor investigating his case that he suffered from diabetes and needed his insulin treatment ‒ which would have to be brought from his workplace ‒ steps had been taken to retrieve the applicant’s treatment from his workplace. Within thirty minutes the applicant had had access to his treatment kit and had been allowed to use it without any restriction. In addition, the police officer who had brought the treatment kit from the applicant’s workplace had also bought food for the applicant using his own money and had allowed him to eat. 45. On the same date the N.A.D. informed the Government that the applicant had been questioned by the prosecutor as an accused from 12 noon to 12.34 p.m. The fact that the record of the applicant’s statement mentioned 9.34 p.m. (21.34) as the time when the hearing had ended had been an error, given that the next procedural act carried out by the prosecutor had started at 12.45 p.m. In addition, the N.A.D. stated and provided evidence that for the rest of the time the prosecutor had not been hearing or carrying out procedural acts in relation to the applicant, but rather had been working on procedural acts and measures undertaken in relation to the three remaining co-accused and the available witnesses. | 1 |
test | 001-163450 | ENG | GEO | COMMITTEE | 2,016 | CASE OF LASHA TCHITCHINADZE v. GEORGIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention) | Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer | 6. The applicant was born in 1975 and lives in Tbilisi. 7. At 3.50 p.m. on 19 February 2005 the applicant was arrested as a suspect in a criminal case. On 21 February 2005 he was charged with multiple episodes of fraud. 8. On 22 February 2005 the First-Instance Panel of the Supreme Court of Georgia, rejecting the prosecutor’s request to place the applicant in pre-trial detention, ordered the applicant’s release under police supervision. The applicant was released at 4.00 p.m. on the same day. 9. On 25 February 2005 the Appeals Chamber of the Supreme Court of Georgia, reversing the lower-instance decision, placed the applicant in pre-trial detention for three months. It justified its decision solely by noting that the applicant had been charged with a serious crime carrying a possible penalty of more than five years’ imprisonment. This fact in itself, in the Supreme Court’s view, substantiated the risk of the applicant absconding, given that Article 151 § 3 of the Code of Criminal Procedure (“the CCP”), as in force at the material time, provided that the seriousness of an offence could constitute grounds for the imposition of pre-trial detention. 10. On 25 March 2005 amendments were introduced to Article 151 §§ 1 and 4 of the CCP; those amendments, inter alia, provided that, subject to assessment by the national courts, pre-trial detention should in principle only be the last resort in cases where 11. On 18 May 2005 the Investigative Panel of the Tbilisi District Court, having heard the prosecutor’s argument that more time was needed to finalise the investigation, extended the applicant’s pre-trial detention for another two months, until 22 July 2005. The court did not address the question of whether the required investigative actions could be conducted without the applicant’s continued detention. The applicant’s reasons for his objection to any prolongation (his good reputation and family situation; the absence of previous convictions; and formal assurances from several public persons, including a member of parliament) were dismissed by the court. The court also refused an offer made by the Georgian Labour Union to post bail for the applicant in the form of bonds with an approximate value of 680,000 Georgian laris (GEL, approximately 248,300 euros (EUR)), reasoning that, under Article 168 § 3 of the CCP, persons being charged with serious offences were not subject to release on bail. 12. On 23 May 2005 the Appeals Chamber of the Tbilisi District Court upheld the order of 18 May 2005. Like the lower-instance court, the appellate court did not address the possibility of imposing a more lenient measure of restraint in order to ensure the aims of the investigation. 13. On 15 June 2005 the applicant requested that his pre-trial detention be replaced by a more lenient measure of restraint. The prosecutor agreed to the applicant’s request. 14. On 9 July 2005 the Tbilisi District Court released the applicant on bail on payment of a security of GEL 5,000 (approximately EUR 1,800). When ordering his release, the court took into consideration the applicant’s good references and the fact that he had fully compensated the injured party for the damage caused by his allegedly fraudulent activities. 15. At the time of submission of the present application, while the applicant contended that he was unable to have certain unspecified witnesses examined and to obtain expert opinions pertinent to his case, the criminal proceedings against him were still pending. | 1 |
test | 001-164679 | ENG | LTU | CHAMBER | 2,016 | CASE OF GEDRIMAS v. LITHUANIA | 3 | Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1950 and lives in Jonava. 6. On 23 April 2008, around 2.45 a.m., two officers of the Jonava Police Department, V.B. and J.D., received an alert that there had been a break-in and robbery in a jewellery store. They called a dog handler, N.B., from the Kaunas Police Department who, with the help of a police dog, followed traces from the store to a garage complex on a nearby street and informed V.B. and J.D., who then went to the garage complex. 7. The applicant worked as a guard in that garage complex and on the night of 23 April 2008 he was on duty. It appears that no other employees were present in the garage complex at that time. 8. The officers V.B. and J.D. arrested the applicant and took him to Jonava police station. According to the official police record, the applicant was placed in detention at 4.55 a.m. on 23 April 2008 and released at 7.40 a.m. the same day. 9. Subsequently the applicant and the police officers presented different accounts of the circumstances surrounding the applicant’s arrest. 10. On 23 April 2008 the officer V.B. submitted the following report to his superior: “On 23 April 2008 I was on duty in Jonava together with officer J.D. At 4.25 a.m. we arrived at the entrance to the garage complex ... where an officer of the Kaunas Police Department, N.B., was waiting for us. He said that a police dog had followed traces to [a car] ... the car was identified as belonging to [the applicant]. We called the guard of the garage and asked him whose car it was, and he said that the car was his. When he was asked to state his name, surname and place of residence, the guard refused and began shouting and jostling (pradėjo rėkti ir stumdytis). He said that he did not have to tell us anything about himself. We explained that a crime had been committed and that he was under an obligation to comply with our lawful orders. The guard refused to comply and kept shouting and jostling. A restrictive measure handcuffs – was used against him. After the man was taken to the Jonava police station, it was identified that he was [the applicant].” The officer J.D. submitted an identically worded report the same day. 11. That same day the applicant submitted the following statement to the Jonava District Prosecutor (hereinafter “the prosecutor”): “On the night of 22-23 April 2008 I was on duty at the garage complex ... Around 4.30 a.m. three police officers came onto the premises. One of them asked me why I had driven drunk and fled. I explained that I was at my workplace, that I had not been drinking and had not gone anywhere (I had arrived at work at 9 p.m.). They checked the car and again began accusing me of being drunk and driving drunk. I told them that I was not drunk and that I had a medium-level disability (antros grupės neįgalumas). Then they dragged me into the administrative area, handcuffed me, pushed me to the floor and held me down, and twisted my arms behind my back (laužė rankas), it hurt a lot (my hands were handcuffed behind my back); one of them kicked me in the stomach four or five times, and they kept telling me to confess. Since I kept denying it, they took me to the police station and gave me an alcohol test, which gave a reading of zero ...” 12. That same day the applicant was examined by a doctor at a local hospital. The doctor found that the applicant’s entire abdominal area was sensitive when touched, although there were no external signs of contusion, and that there was limited and painful movement in the applicant’s shoulder joints. The final diagnosis read: “a contusion of the abdomen and a sprain of the shoulder joints” (pilvo sumušimas, pečių sąnarių raiščių patempimas). 13. On 23 April 2008 the prosecutor opened a pre-trial investigation concerning the applicant’s allegations of ill-treatment by the police officers. The prosecutor requested an additional medical examination of the applicant in order to determine whether there were any injuries on his body, and if so their nature, gravity and possible causes. 14. On 24 April 2008 the applicant was examined by a court medical expert. The report on the results of that examination, issued in June 2008, found a contusion on the applicant’s abdomen and indicated that it could have been caused by one blow from a hard blunt object (vienu trauminiu poveikiu). It also detected bruised skin on the applicant’s left wrist and a sprain of his shoulder joints, noting that they could have resulted from the circumstances described by the applicant, namely from being handcuffed and having his arms twisted behind his back, thus two separate traumas (dviem trauminiais poveikiais). The report concluded that the applicant’s injuries constituted negligible health impairment (nežymus sveikatos sutrikdymas). It also indicated that the applicant’s injuries were unlikely to have been caused by deliberate self-harming actions (nebūdingi tyčiniam savęs žalojimui) and that they could have resulted from fighting or selfdefence. 15. On 30 April 2008 police officer V.B. was questioned as a witness in the investigation. The written record of his interview was almost identical to his initial report (see paragraph 10 above), and added: “[The applicant] approached us and said that the car was his. After we asked him to state his name, surname and place of residence, he refused and began shouting and jostling ... After a while [the applicant] said that his documents were in the car and he went to the guard booth to get the car keys. After taking the keys, he turned to me and tried to punch me in the face. At that moment I was standing near the door. The punch missed because I managed to step back. Since he was resisting, I took him by one arm, the officer J.D. took him by the other, and we both handcuffed him. Physical force was used only when putting the handcuffs on him, other forcible actions were not used against him. We called the senior investigating officer L.B. to the scene of the event. He examined [the applicant’s car] and did not find any suspicious objects ...” 16. On 2 June 2008 police officer J.D. was questioned as a witness in the investigation; the written record of his interview was almost identical to that of V.B. (see paragraph 15 above). 17. On 17 July 2008 the police dog handler N.B. was questioned as a witness. He stated: “On the night of 23 April 2008 ... I went to the jewellery shop in Jonava ... A police dog followed traces to [the garage complex] and lost them by the car ... The car was examined by officers of the Jonava Police Department. It was identified as belonging to [the applicant] who, it emerged later, was a security guard at the garage complex ... He refused to give any statements and refused to go to the police station, so the officers asked him to identify himself, which he also refused to do, and therefore the officers tried to take him into custody and put him into the police car ... [The applicant] resisted the officers, punched one of them in the face, pushed and jostled them to try to avoid being apprehended, used various Russian swear words ... and threatened the officers ... He mentioned that he had friends in high-level positions. The police officers used combat wrestling methods (kovinių imtynių veiksmus) and [the applicant] was apprehended, handcuffed and taken to the Jonava police station to clarify the circumstances of the incident.” 18. On 30 July 2008 the applicant was granted victim status in the investigation and questioned. He stated: “On the night of 22-23 April 2008 ... [soon after 4 a.m.] two police officers entered the premises; they were wearing uniforms; one of them was taller than the other. They asked me if I was the guard. I told them I was. Then they told me to go outside ... The officers pointed to my car and asked me whose it was. I told them it was mine. Then both the officers came closer to me, one from the right and the other from the left, and without saying anything they twisted my arms behind my back (užlaužė rankas) ... Then they asked me why I had tried to escape from them and had not obeyed their order to stop. I told them that I had been at my workplace, that I had not gone anywhere and had not tried to escape from anyone. Then the officers started pulling my twisted arms upwards (užlaužtas rankas kėlė į viršų) and telling me to confess that I had fled. My arms were hurting ... I told the officers that I could go to the administrative area and get my car keys, so that they could check if my car’s engine was hot. The officers stopped twisting my arms, but did not release them and led me inside the premises. The car keys were on the table and the officers picked them up, I told them that my documents were in the car and they could check them ... When we were leaving the premises, I felt the officers handcuff me behind my back. Once I was handcuffed, the shorter officer walked in front of me and the taller officer behind me; and he was pulling up my handcuffed arms. I crouched down because of that and the shorter officer kneed me in the stomach about four times. I started feeling weak and dizzy. I kept asking the officers to release me and to stop torturing me. Then the shorter officer said that they would take me to the police station ... I told them that my documents were in the car, that my identity was known to them, and that I could not leave my workplace. Then the taller officer, who was behind me, took me outside while repeatedly twisting and pulling up my arms ... In about five minutes another officer in a uniform arrived, took my car keys, and tried to open the boot of my car ... The officers examined my car ... Then the shorter and the taller officers put me into their car, still twisting my arms. At the police station I was searched and given an alcohol test ... [W]hen the officers arrived at my workplace they did not identify themselves; I knew they were police officers only from their uniforms. They did not tell me why they were there, and did not ask me to identify myself; they only asked me if I worked there and if I was the guard. Before being handcuffed I did not jostle. I did not intend to punch the officers ...” 19. On 5 September 2008 the prosecutor arranged a confrontation between the applicant and police officer J.D. They both essentially reiterated their previous statements (see paragraphs 10, 11, 16 and 18 above). In addition, J.D. stated that the applicant had sworn at the officers when he had been asked to identify himself. J.D. also stated that after the applicant had gone to the guard booth to get his car keys he had attempted to lock himself inside the booth, but the officers had prevented the door from closing and had entered the booth as well. In the booth V.B. had been standing on the applicant’s right side and J.D. on his left. The door was on J.D.’s other side. After taking the car keys, the applicant had attempted to punch V.B. After that J.D. had taken the applicant by one arm and V.B. by the other, and they had cuffed his hands behind his back. The applicant disagreed with J.D.’s statements. He insisted that the officers had not asked him to identify himself, and that he had answered all their questions. The applicant also stated that J.D. and V.B. had been the only officers present at the scene and that there had not been a third officer with a dog. He denied swearing at the officers. J.D. replied that the dog handler, whose name he did not know, had been present during the entire incident, that he had also asked the applicant some questions, and that it was impossible for the applicant not to have noticed him. 20. On 15 September 2008 senior investigating officer L.B. was questioned as a witness. He stated: “I don’t remember the exact date but it could have been 23 April 2008 ... I was called to the garage complex ... When I arrived, there were two police officers, a dog handler with a dog, and another man – as I later found out, it was [the applicant]. The officers told me that the dog had followed traces to one of the cars, so I examined that car. I don’t remember if [the applicant] was handcuffed at the time when I examined the car, I wasn’t paying attention. I don’t remember if [the applicant] was swearing at or insulting the police officers, I didn’t notice whether he was actively resisting. After examining the car I didn’t find anything suspicious. Then I immediately left, whereas the officers, the dog handler and [the applicant] stayed there ... I can confirm that the handler with the dog was present when I arrived, it was impossible for [the applicant] not to have seen him. When I was examining the car, [the applicant] was nearby, I don’t remember if he was saying or doing anything. The officers were also standing nearby, I don’t remember what exactly they were doing.” 21. On 30 September 2008 the prosecutor arranged a confrontation between the applicant and the dog handler N.B. The applicant stated that he had never seen N.B. before and that neither N.B. nor any dog had been present at the time of his arrest. Meanwhile N.B. insisted that he had been present: “I was at the scene of the incident, I was with a dog, I saw [the applicant’s] arrest and I helped two police officers to twist [the applicant’s] arms (padėjau užlaužti rankas) ... I went to the guard booth with the officers. The applicant opened the door of the booth and stepped outside. We explained to him why we were there – that a crime had been committed and that the dog had led us to the cars which were parked nearby. We asked the applicant to identify himself and to tell us whose cars were parked there. The applicant refused, began swearing and insulting us, and said that it was none of our business. Then we explained to him that if he didn’t identify himself he would be forcibly taken to the police station. At some point the applicant raised his hand against one of the officers, I don’t remember which one, and I didn’t see if he hit him or not. Then the officers and I took him by the arms; I don’t remember if we twisted them (suėmėme jam už rankų, ar užlaužėm, neatsimenu). Then my dog ran towards us; it had been fifteen metres away by the fence or the wall of the garage, I don’t remember exactly. I caught the dog and tied it up, possibly to the fence, and then I returned to the officers and the applicant. I helped the officers to hold the applicant’s hands and one of them put on handcuffs. I don’t remember what time we went to the guard booth. Nothing happened inside the booth.” N.B. further specified that “probably not more than a minute” had passed from the moment the applicant was handcuffed until the moment he was put into the police car. He also stated that he had not seen whether the applicant had been beaten or kicked by the officers. He stated that although the incident had happened during the night, everything was clearly visible. 22. On 30 September 2008 the prosecutor arranged a confrontation between the applicant and police officer V.B. The applicant stated that V.B. and J.D. had twisted his arms outside, next to the guard booth, that they had handcuffed him inside the booth, and that J.D. had then forcibly pulled up his arms, while V.B. had kneed him in the stomach three or four times. V.B. disagreed with the applicant’s statements and denied kneeing him. He stated: “When we arrived at the garage complex, the dog handler told us that the dog had followed the traces of the possible criminal to the car. Then I identified whose car it was. Afterwards the applicant came towards me: I didn’t see how he got there because at that time I was talking on the portable radio ... After being told that a crime had been committed, the applicant said that he “didn’t give a damn” and that he “didn’t have to explain anything”. When we told the applicant that if he refused to identify himself he would be taken to the police station, he started jostling me and J.D. Then I grabbed him by the wrist and bent it back, and once again told him to identify himself. When a wrist is bent, it doesn’t hurt if the person himself doesn’t move. Besides, before grabbing the applicant I warned him that if he kept jostling us physical force would be used against him. Then the applicant identified himself to us. Then he said that he would go to the guard booth to get the car keys and documents. He walked to the booth and I, J.D. and the dog handler followed, I don’t remember in which order. In the booth the applicant went to the table and I stood by the door. He picked up the documents and then turned round and punched me in the face. His fist barely touched my mouth but didn’t cut it (jo kumštis vos palietė mano lūpą, jos neprakirto) because I managed to step back. Then I grabbed his arm and twisted it behind his back. J.D. twisted the other arm and the dog handler also helped. Then either I or J.D. handcuffed the applicant. Then I led him outside the booth ... During the arrest the applicant was swearing; he did not insult me personally and I did not pay attention to the swear words he used.” V.B. further specified that when they went into the guard booth, he was standing closest to the applicant inside the booth, near the door, while J.D. and N.B. were standing behind V.B.’s back. 23. On 4 November 2008 the prosecutor discontinued the pre-trial investigation. The prosecutor held that the applicant had obstructed the police officers in the performance of their duties, had refused to comply with their lawful orders, had jostled and used swear words, had actively resisted the officers, and had attempted to punch V.B. The prosecutor found no grounds to doubt the statements of the officers V.B., J.D. and N.B., because those statements had been “consistent and logical”; the applicant’s statements could not however be considered reliable, because he had claimed that he had not seen the dog handler N.B. at the scene of the incident, although it had been established that N.B. was there. The prosecutor further held that the injury to the applicant’s abdomen was not sufficient to find that V.B. had kneed him in the stomach, because such an injury could have occurred while the applicant was resisting the officers, as seen from the statements of V.B., J.D. and N.B. In such circumstances, the prosecutor considered that the officers had been justified in using physical force against the applicant, and that they had acted in line with the applicable domestic law. 24. The applicant appealed against the prosecutor’s decision. He submitted that V.B. had admitted to having bent his wrist back (see paragraph 22 above) but that that detail had been disregarded during the investigation. He also submitted that the results of the medical examination had clearly indicated injuries on his abdomen which could not have been caused by the officers’ lawful actions. The applicant noted that the Police Activity Act allowed the use of physical force in order to prevent crime, arrest individuals who had committed crimes, or in other situations when justified by the public interest (see paragraph 49 below), but not in order to establish a person’s identity. He submitted that he was of advanced age (fifty-eight years old at the time of the incident) and had a medium-level disability, so it was illogical that he could have violently resisted two police officers. The applicant also pointed out several discrepancies between the officers’ statements: (a) V.B. had stated that the applicant had attempted to punch him inside the guard booth (see paragraph 15 above), whereas N.B. had said that nothing had happened inside the booth (see paragraph 21 above). (b) J.D. had stated that he and V.B. had approached the guard booth and the applicant had stepped outside, and that physical force had been used against the applicant only when handcuffing him and only inside the booth (see paragraph 19 above). However, V.B. had stated that he had been examining the applicant’s car when the applicant had approached him, and that the applicant’s arms had been twisted when he was outside in order to make him identify himself (see paragraph 22 above). Meanwhile N.B. had presented yet another version of events: that the applicant had attempted to punch one of the officers outside, then he had been handcuffed, and only then had everybody gone inside the guard booth, where nothing had happened (see paragraph 21 above). Lastly, the senior investigator L.B. had not noticed any active resistance by the applicant (see paragraph 20 above). (c) J.D. had stated that the applicant had attempted to lock himself inside the booth (see paragraph 19 above), but the booth did not have any mechanism which would allow it to be locked from the inside. Accordingly, the applicant complained that the pre-trial investigation had not been thorough and had not objectively established the circumstances of his arrest and injury. 25. On 20 March 2009 a senior prosecutor upheld the applicant’s appeal and reopened the investigation. 26. In April 2009, at the prosecutor’s request, a court medical expert carried out an additional examination of the applicant’s medical file. The report on the results of that examination confirmed the findings of the previous medical examination (see paragraph 14 above). The report also specified that the bruises on the applicant’s left wrist and the sprain of his shoulder joints could have been caused during a fight (grumtynių metu) or by handcuffing or twisting of his arms, and that the contusion on the abdomen could have resulted from a direct blow (suduodant tiesioginį smūgį). The report concluded that the applicant’s injuries constituted negligible health impairment, and that even though he had subsequently required medical treatment, this had been caused by his defective heart valve and not by the injuries. 27. In April 2009 the prosecutor questioned two other witnesses as requested by the applicant – his acquaintances A. and V. They both stated that they had seen the applicant soon after his arrest and that they had noticed his injuries. 28. On 16 April 2009, at the applicant’s request, the Jonava District Court changed the prosecutor in charge of the pre-trial investigation. The court upheld the applicant’s arguments that the previous prosecutor, who had decided to discontinue the investigation, could not be seen as impartial, and ordered the Jonava District Prosecutor’s office to appoint a different prosecutor. 29. In April and May 2009 the new prosecutor inspected the location of the incident. 30. On 4 May 2009 another witness requested by the applicant, his acquaintance V.V., was questioned. V.V. stated: “Around 23 April 2008, I don’t remember the exact date, around 4 a.m. I went to [the applicant’s] workplace ... to ask him to give me a lift home. At that time it was still dark. Then I saw two officers approach [the applicant] from both sides and twist his arms. I heard [the applicant] scream and ask who they were and why they were twisting his arms. After twisting his arms the officers led him to [the guard booth]. I heard [the applicant] screaming inside the booth and asking why they were hitting him. Then I saw the two officers lead him outside handcuffed and with twisted arms. Before [the applicant] was taken inside the booth, his hands had not been handcuffed. I didn’t see whether [the applicant] had been hit, I only heard him ask why they were hitting him. Then I went to [the applicant’s son’s house] to inform him about what had happened but nobody answered the door, so I came back alone [to the garage complex] but I didn’t find anyone there. I didn’t see what happened afterwards. I spoke to [the applicant] a few months later, around January-February 2009, and he mentioned the incident with the officers ...” 31. On 21 May 2009 the prosecutor arranged a confrontation between the officers V.B. and N.B. They were both asked about the place where the applicant had allegedly attempted to punch V.B., and gave the following responses: “V.B.: [The applicant] punched me inside the premises, that is in the guard booth. N.B.: I didn’t see if [the applicant] had attempted to punch the officer in the booth ... When I was outside, I saw jostling between the officers and [the applicant] (įvyko susistumdymas). [The applicant] was jostling the officers, but I can’t say exactly if he punched an officer. It was dark, I could have been mistaken.” 32. On 1 June 2009 the prosecutor discontinued the pre-trial investigation, relying on essentially the same grounds as the previous prosecutor in his decision (see paragraph 23 above), and a senior prosecutor upheld that decision. However, on 28 August 2009 the Jonava District Court upheld the applicant’s appeal and reopened the investigation. The court held that the investigation had not been thorough because it had not determined whether the use of force by the police officers had been within the limits provided by the Police Activity Act (see paragraph 49 below), and it had not established the circumstances surrounding the injury to the applicant’s abdomen. 33. In September 2009, at the prosecutor’s request, a court medical expert carried out an additional assessment of the applicant’s medical file. The report on the results of that assessment confirmed the findings of the previous medical reports (see paragraphs 14 and 26 above). In addition, the report specified that the contusion on the applicant’s abdomen could have been caused either by a blow from an object or by bumping into an object (tiek suduodant, tiek atsimušant), and that the injuries to the applicant’s left wrist and shoulder joints could have resulted from his offering resistance while being apprehended. The report also concluded that the injuries to the applicant’s wrist, shoulder joints and abdominal area were not likely to have been caused by falling down (nebūdingi sužalojimams, padarytiems nugriuvus). The examination could not determine the exact sequence of the injuries, but noted that they could have all been caused at the same time and that at that time the applicant could have been in various positions. 34. On 28 October 2009 L.B. was questioned again. He confirmed his earlier statements (see paragraph 20 above), and added that on 23 April 2008 he had arrived at the garage complex alone and that he had not been wearing a police uniform at the time. He also stated that at the time of his arrival the handler with a dog had been present at the scene and that it would have been impossible for the applicant not to see them. 35. On 12 November 2009 the prosecutor discontinued the pretrial investigation. The prosecutor held that officers V.B., J.D. and N.B. had given consistent statements about the incident and there were no grounds to doubt them. On the other hand, the prosecutor considered that the applicant’s statements had been inconsistent: during one questioning he had said that the officers had hit him inside the guard booth and during another he had said that they had hit him outside; he had also stated that officer L.B., who had arrived on the scene later, had been wearing a uniform, but L.B. had denied this; lastly, the applicant had claimed that neither N.B. nor a police dog had been present during the incident, but the contrary had been proven by N.B.’s official report and consistent statements of all the officers. The prosecutor also noted that the witness V.V. had not seen the officers hit the applicant. Lastly, the prosecutor held that the injury to the applicant’s abdomen was not sufficient to find that he had been kneed by the officers, because the medical examination had shown that such an injury could have been caused either by being hit with an object or by bumping into an object. Accordingly, the prosecutor concluded that the use of physical force by the police officers had been a lawful and proportionate response to the applicant’s violent resistance, and to his refusal to comply with their lawful orders. 36. The applicant appealed against the prosecutor’s decision. He submitted that the investigation had still not clarified the contradictions between the officers’ statements (see paragraph 24 above). He further submitted that V.B.’s and J.D.’s first reports had not mentioned that the applicant had been swearing at the officers or had attempted to punch one of them, and that those allegations had been made only much later, well after the incident. The applicant also noted that, contrary to N.B.’s statements (see paragraph 21 above), he could not have tied his dog to a fence because there was no fence at the garage complex, nor was it possible to tie the dog to the brick wall of the garage. 37. On 2 December 2009 a senior prosecutor dismissed the applicant’s appeal, but on 24 December 2009 the Jonava District Court quashed the prosecutor’s decision and reopened the investigation. 38. On 28 January 2010 witness V.V. was questioned again. He stated: “[W]hen I was on my way to the garage complex, fifteen to twenty metres from the guard booth, I saw a police car and stopped by the corner of the garage wall ... Next to [the applicant’s] car there were two officers in police uniforms and [the applicant] ... I heard one of the officers ask [the applicant] to whom the car belonged ... [The applicant] said that the car was his and that he would get the keys so that the officers could examine the car ... I saw [the applicant] turn round to go to the guard booth and then the larger police officer with a moustache grabbed him by the shoulder ... twisted his arm ... and the other officer twisted his other arm. Everything happened right next to [the car]. The two officers led the applicant, with his arms twisted, to the guard booth. Outside, the officers still held his arms twisted behind his back, but didn’t handcuff him ... [the applicant] was not saying anything offensive and was not resisting. When [the applicant’s] arms were twisted, he started shouting, “Guys, why are you twisting my arms?”. But the officers, without any explanation, led him to the booth with his arms twisted behind his back. At that moment another man got out of the same police car, but I don’t know if he was an officer or not because he was in plain clothes. He also went to the booth and was standing in the doorway because the door was open. I heard [the applicant] scream inside the booth, “Guys, why are you hitting me?”. The third man did not enter the booth; he stood in the doorway the whole time. I think [the applicant] and the officers were inside the booth about ten or fifteen minutes. Then I saw the man who had been standing in the doorway step aside and the same two officers lead [the applicant] from the booth with his hands handcuffed and twisted behind his back. I think both the officers were pulling up his handcuffed arms. Outside [the applicant] asked the officers, “Guys, why did you hit me in the stomach?”... I didn’t see the officers hit [the applicant], I only heard him scream inside the booth ... I saw everything well because the area around the booth was lit. It was still before dawn then. I didn’t see a dog near the booth ...” 39. On 8 March 2010 the prosecutor discontinued the pre-trial investigation, relying on essentially the same grounds as in the previous decisions (see paragraphs 23 and 35 above). The applicant appealed against that decision, and on 6 April 2010 a senior prosecutor reopened the investigation. 40. On 21 April 2010 V.B. was questioned again. He essentially repeated his previous statements (see paragraphs 10, 15 and 22 above), but did not mention bending back the applicant’s wrist outside. V.B. also stated that when he and J.D. had followed the applicant to the guard booth, N.B. had probably followed them, but V.B. could not remember the exact order in which they had walked. J.D. was also questioned the same day and the written record of his testimony was almost identical to that of V.B. 41. On 6 May 2010 N.B. was questioned again. He essentially repeated his previous statements (see paragraphs 17 and 21 above), and added: “I didn’t go inside the guard booth, I stayed near the door, and that’s why during previous questioning I said that nothing happened inside the booth and that I didn’t see if there had been an attempt to punch an officer in the booth, because I couldn’t see it from the outside. When [the applicant] was led out of the booth, he was handcuffed ... My dog was further away the whole time, tied to the garage wall ... As for the punch ... I can only say that it appeared to me that [the applicant] had attempted to punch an officer. During the first questioning I said that he had punched an officer, but I may have been wrong because I didn’t consider this an important circumstance; also, during that questioning I wasn’t asked exactly whether there had been a punch or just an attempt to punch – as I said before, [the applicant] was jostling the officers, so it seemed to me that he had punched an officer.” 42. On 7 June 2010 the prosecutor discontinued the pretrial investigation, relying on essentially the same grounds as in the previous decisions (see paragraphs 23, 35 and 39 above), and a senior prosecutor dismissed the applicant’s appeal. However, on 29 July 2010 the Jonava District Court reopened the investigation. The court held that although the investigation concerned criminal activity allegedly committed by V.B. and J.D., these two officers had been questioned as regular witnesses, in violation of the Code of Criminal Procedure (see paragraph 50 below). The court considered that there had been a grave breach of V.B. and J.D.’s defence rights, as they had been denied the special rights of persons who may testify about their own possibly criminal activity – such as the right to have a representative, the right to request to be granted the status of a suspect, and exemption from responsibility for refusing to testify or providing wrongful testimony. As a result, all the procedural actions carried out in their respect – such as interviews and confrontations – had to be declared void. Accordingly, the court concluded that essential investigative actions had not been carried out. On 6 September 2010 the Kaunas Regional Court upheld that judgment. 43. On 2 November 2010, at the applicant’s request, the pre-trial investigation was transferred to the Kaunas District Prosecutor. 44. In May 2011 V.B. and J.D. were questioned as special witnesses who were testifying about their own alleged criminal activity (see paragraph 50 below). They both essentially repeated their earlier statements (see paragraphs 10, 15, 16, 19, 22 and 40 above), emphasising that they could no longer exactly remember all the details, because of the passage of time. 45. On 30 June 2011 the Kaunas District Prosecutor discontinued the investigation. The prosecutor relied on essentially the same grounds as the Jonava District Prosecutor in its earlier decisions (see paragraphs 23, 35, 39 and 42 above), and concluded that the applicant’s statements had been inconsistent, whereas the consistent statements of all the police officers had shown that the use of force had been a lawful and proportionate response to the applicant’s resistance and his refusal to comply with the officers’ lawful orders. On 29 July 2011 a senior prosecutor upheld that decision. 46. On 7 September 2011 the Kaunas District Court and on 25 October 2011 the Kaunas Regional Court dismissed the applicant’s appeals. Both courts concluded that the pre-trial investigation had been thorough and its discontinuation had been justified. 47. On 23 April 2008 the Jonava Police Department charged the applicant with the administrative offence of refusing to comply with lawful orders of police officers and resisting them (Article 187 § 1 of the Code of Administrative Offences). On 9 May 2008 the administrative proceedings against the applicant were adjourned, pending the results of the pretrial investigation into his allegations of ill-treatment by the police, and were subsequently discontinued as time-barred. 48. According to the material submitted to the Court, the applicant was never suspected or accused, nor did he hold any other status in the proceedings, in the criminal case concerning the robbery of the jewellery shop (see paragraph 6 above). A report by the Jonava Police Department of 8 July 2008 indicated that the applicant’s sons E. and A. were being investigated in connection with the robbery, but it appears that neither of them was charged. In 2009 the investigation was suspended without identifying those responsible for the robbery. | 1 |
test | 001-165952 | ENG | MDA | CHAMBER | 2,016 | CASE OF IGOR PASCARI v. THE REPUBLIC OF MOLDOVA | 3 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Criminal charge;Fair hearing);Pecuniary damage - reserved (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 1983 and lives in Chisinau. 6. The applicant is a bus driver. On 14 August 2009 he was involved in an accident with a car in which no one was injured. According to the findings of the police, the driver of the other vehicle involved in the accident, P.C., had changed lanes without paying attention to the applicant’s bus, which had been overtaking it in the other lane. The applicant had not had enough time to brake and had hit P.C.’s car on the rear left side. On the same date the chief inspector of the traffic police issued a decision finding P.C. responsible for the accident under Article 242 § 1 of the Traffic Code (see paragraph 12 below), fined him 800 Moldovan lei (MDL) (the equivalent of 50 euros (EUR)) and gave him five penalty points. 7. On an unspecified date P.C. contested that decision. 8. By a judgment of 29 September 2009 the Anenii Noi District Court dismissed P.C.’s objection and upheld the decision of the chief inspector of the traffic police. The applicant was not involved in the proceedings. Only P.C. and the police officer who had been present at the site of the accident were present and the latter opposed P.C.’s objection. P.C. challenged the District Court’s decision. 9. On 19 November 2009, the Bender Court of Appeal reversed the decision of the first-instance court, finding the applicant guilty of causing the accident. The court found that the applicant had not kept a safe distance between his bus and the vehicle in front of him and stated as follows: “... according to article 49 of the Route Code, the driver of a vehicle shall keep a safe distance between his vehicle and the vehicle in front of him, in such a manner as to avoid collision in case of sudden braking by the foregoing vehicle. These rules were not observed by the driver of the vehicle which was behind, namely by the driver of the bus [...], Mr Igor Pascani, and by no means by Mr P.C.” The applicant was again not involved in the proceedings and only found out about them at a later date. Under domestic law he was not able to challenge the Court of Appeal’s decision. 10. As a result of the above judgment and based on its conclusions, on 22 January 2010 the chief inspector of the traffic police issued a new decision by which he found the applicant guilty of the breach of Article 49 of the Traffic Code causing the accident of 14 August 2009. The operative part of the decision stated as follows: “...Pascari Igor is declared guilty of having committed the offence provided by Article 242 § 1 of the Code of Administrative Offences (CAO), however, according to Article 30 § 3 of the CAO no sanction shall be applied in view of the statutory limitation period.” 11. It appears from the documents submitted by the parties that following the accident the owner of the bus recovered the cost of its repairs from P.C.’s insurance company. After the judicial proceedings in which the applicant was found responsible, P.C. attempted to recover the cost of the repairs of his car from the other party’s insurance company. However, it appears from the case file that the company suspended payment until the case has been finally determined by the Court. | 1 |
test | 001-180653 | ENG | RUS | COMMITTEE | 2,018 | CASE OF KLEMENKOV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment) | Dmitry Dedov;Luis López Guerra | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of detention during their transport. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-177430 | ENG | RUS | COMMITTEE | 2,017 | CASE OF BAYKINA 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 or delayed enforcement of domestic decisions and of the lack of any effective remedy in domestic law. | 1 |
test | 001-145014 | ENG | UKR | CHAMBER | 2,014 | CASE OF SUKHANOV AND ILCHENKO v. UKRAINE | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano | 5. Both applicants were born in 1938 and live in the city of Lugansk and in the town of Zhovti Vody, Ukraine, respectively. 6. Both applicants have the special status of “a child of war” (see paragraph 17 below). From 1 January 2006 they were entitled to a special supplement to their pensions in the amount of 30% of the minimum pension in accordance with section 6 of the Children of War Social Protection Act (Закон України “Про соціальний захист дітей війни”). 7. In May 2008 the first applicant instituted court proceedings against the Artemovskyy District Department of the Pension Fund of Ukraine and the Lugansk Regional Main Department of the State Treasury of Ukraine, asking them to recalculate his pension for 2006-08, to determine the amount of and to pay him the outstanding indexed debt, and to pay his pension in the recalculated amount in the future. The first applicant also claimed compensation for pecuniary and non-pecuniary damage, and legal expenses. 8. On 22 July 2008 the Lugansk Regional Administrative Court held that in 2006 section 6 of the Children of War Social Protection Act had been suspended by the State Budget Act 2006. In return the State Budget Act had empowered the Cabinet of Ministers to set up a mechanism for a pension increase. However, because in 2006 no such mechanism had been set up, the first applicant’s claims relating to 2006 had to be rejected. 9. The court further found that in 2007 section 6 had again been suspended, and in 2008 it had been modified by the State Budget Acts for the relevant years. However, this modification was found to be unconstitutional by the Constitutional Court on 9 July 2007 and 22 May 2008. The court consequently held that the State Pension Fund should recalculate the first applicant’s pension for the periods between 9 July and 31 December 2007 and as of 22 May 2008. 10. On 19 December 2008 the Donetsk Administrative Court of Appeal upheld that decision. 11. On 28 July 2010 the Higher Administrative Court dismissed the applicant’s appeal on points of law. 12. In December 2009 the second applicant instituted proceedings in the Zhovtovodsky Town Court against the Pension Fund, asking for recalculation of his pension from January 2006. 13. On 2 March 2010 the court found in part for the second applicant. It held that the second applicant was entitled to the supplement from the date of the decision of the Constitutional Court (9 July 2007) and not from 1 January 2006. The court further held that the Pension Fund should recalculate the second applicant’s pension for the periods between 9 July and 31 December 2007 and between 22 May 2008 and 2 March 2010. 14. On 10 August 2010 the Dnipropetrovsk Regional Court of Appeal upheld this decision. The decision of the Court of Appeal was final. 15. On 14 February 2011 the second applicant instituted a second set of proceedings in the Zhovtovodsky Town Court claiming payment of the above-mentioned supplement to his pension starting from 3 March 2010. 16. On 17 May 2011 the court found for the second applicant and held that the Pension Fund should recalculate the applicant’s pension from 3 March 2010. On 14 October 2011 the Dnipropetrovsk Administrative Court of Appeal upheld this decision. | 1 |
test | 001-166732 | ENG | RUS | COMMITTEE | 2,016 | CASE OF SERGEY ZAYTSEV v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Public hearing;Exclusion of public) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 4. The applicant was born in 1984 and lives in Volgograd. 5. On 26 October 2002 the applicant was arrested on a charge of murder. On 28 October 2002 the Traktorozavodskiy District Court of Volgograd authorised his pre-trial detention. The applicant remained in custody during the investigation and pending the trial. 6. On 24 November 2003 the Volgograd Regional Court scheduled the trial of the applicant and seven other defendants for 24 December 2003. The court also ruled that the trial was to be held in camera. 7. On 26 April 2005 the Volgograd Regional Court convicted the applicant of murder committed out of national hatred and sentenced him to nine years’ imprisonment. The applicant appealed. 8. On 22 February 2006 the Supreme Court of the Russian Federation upheld the applicant’s conviction on appeal. The court decided to hear the applicant’s case in his absence. His lawyer was present and made submissions to the court. 9. On 30 August 2010 the applicant was released on parole. 10. On 8 December 2010 the Presidium of the Supreme Court quashed the judgment of 22 February 2006 by way of supervisory review and remitted the matter for fresh consideration. 11. On 1 February 2011 the Supreme Court held a new appeal hearing. The court found that the case had become time-barred under the statute of limitations and discharged the applicant from serving a prison sentence. The applicant’s lawyer was present and made submissions to the court. The applicant did not attend the hearing. | 1 |
test | 001-171210 | ENG | BIH | ADMISSIBILITY | 2,017 | STEVANČEVIĆ v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Síofra O’Leary | 1. The applicant, Mr Stevan Stevančević, is a Bosnian and Serbian national, who was born in 1945 and lives in Igalo, Montenegro. He was represented before the Court by Mr G. Latinović, a lawyer practising in Igalo. 2. The Government of Bosnia and Herzegovina (“the Government”) were represented by their Agent at the time, Ms M. Mijić. 3. The Serbian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right. 4. The applicant was an officer of the JNA, the armed forces of the former Socialist Federal Republic of Yugoslavia. The present case concerns his attempt to regain possession of his pre-war flat in Sarajevo. 5. The detailed background concerning socially owned flats, military flats and the involvement of foreign armed forces in the 1992-95 war in Bosnia and Herzegovina is provided in Đokić v. Bosnia and Herzegovina, no. 6518/04, §§ 5-17, 27 May 2010 and Mago and Others v. Bosnia and Herzegovina, nos. 12959/05 et al., §§ 5-8, 3 May 2012. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. In 1984 the applicant was allocated an occupancy right to a military flat in Sarajevo. 8. On 13 February 1992 he bought that flat under the terms of the Military Flats Act 1990 and paid the full purchase price in the amount of 595,066 Yugoslav dinars (approximately 7,067 German marks (DEM) at the time). 9. When the JNA formally withdrew from Bosnia and Herzegovina on 19 May 1992, the applicant continued his military career in the VJ forces and left Sarajevo. His military service was terminated in 1999. 10. During the 1992-95 war in Bosnia and Herzegovina the flats of those who had fled were declared “abandoned” and allocated to new occupants (see Mago and Others, cited above, § 53). On 7 September 1998 the applicant applied for the restitution of his flat to the competent administrative authority in the Sarajevo Canton. 11. Following one remittal on procedural grounds, on 14 November 2002 his application was rejected pursuant to section 3a of the Restitution of Flats Act 1998. On 28 July 2003 the competent Ministry of the Sarajevo Canton upheld that decision. 12. On 25 September 2006 the Sarajevo Cantonal Court (“the Cantonal Court”), following an application for judicial review, upheld the second-instance decision of 28 July 2003. 13. On 10 June 2009 the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”) rejected the applicant’s constitutional appeal and upheld the impugned decisions. 14. On 11 February 2001 the applicant complained to the Human Rights Chamber (a domestic human-rights body set up under Annex 6 to the Dayton Peace Agreement) about his inability to repossess his pre-war flat. He relied on Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention. 15. On 12 May 2005 the Human Rights Commission (the legal successor of the Human Rights Chamber) found a violation of Article 6 of the Convention on account of the length of the restitution proceedings and awarded the applicant 1,000 convertible marks (BAM; approximately 500 euros (EUR)) for non-pecuniary damage in this connection. As regards the complaint under Article 1 of Protocol No. 1, the Commission concluded that the interference with the applicant’s right to the peaceful enjoyment of his possessions had been justified. However, it ordered the Government of the Federation of Bosnia and Herzegovina to secure the applicant’s right to compensation for his pre-war flat envisaged under section 39e of the Privatisation of Flats Act 1997, without further delay and at the latest within three months from the delivery of that decision. 16. On 5 July 2005 the government of the Federation of Bosnia and Herzegovina requested the applicant to provide his contact and bank account details in order to pay the awarded compensation. The applicant provided those details. 17. On 28 January 2006 the applicant appealed to the Constitutional Court against the decision of the Human Rights Commission of 12 May 2005. On 14 March 2006 the Constitutional Court declared that it lacked jurisdiction to examine the case. 18. On 5 July 2004 the applicant initiated proceedings before the Sarajevo Municipal Court (“the Municipal Court”) seeking to establish the validity of the purchase contract of 13 February 1992 (see paragraph 8 above) and to register his title to the flat in the land register. 19. On 19 June 2005 the Municipal Court declared the purchase contract legally valid. However, it rejected the applicant’s claim to have his title registered. Under the Privatisation of Flats Act 1997 those who served in foreign armed forces after the 1992-95 war, like the applicant, were not entitled to repossess their pre-war military flats and to register their title, but were entitled to compensation. On 19 November 2008 the Cantonal Court upheld that judgment. 20. The Government did not dispute the facts submitted by the applicant. However, they provided additional information as follows. 21. On 20 April 2007 the applicant received BAM 42,085.04 (approximately EUR 21,496.24) in compensation for his pre-war flat in accordance with section 39e of the Privatisation of Flats Act 1997 as ordered by the Human Rights Commission (see paragraph 15 above). The amount was transferred to his bank account in Montenegro. 22. The relevant domestic law and practice were outlined in Aleksić v. Bosnia and Herzegovina (no. 38233/05, §§ 16-18, 3 February 2015). | 0 |
test | 001-140769 | ENG | LVA | CHAMBER | 2,014 | CASE OF CĒSNIEKS v. LATVIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) | Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Robert Spano;Vincent A. De Gaetano | 6. The applicant was born in 1975 and is detained currently in Matīsa Prison. The relevant facts of the case, as submitted by the parties, may be summarised as follows. 7. On 21 March 2002 the State Police telephoned the applicant and asked him to appear at their station. According to the applicant, at the State Police station, prior to any formal charges being laid against him, he was accused of murdering Ģ.Č. The police officers used physical force against him in order to obtain a confession to the crime. As a result of the duress brought to bear upon him, the applicant made a written confession. 8. On 23 March 2002 the applicant was transferred to a short-term detention facility. 9. On 23 May 2002 the police opened an investigation into the alleged misconduct of police officers at the time of the applicant’s questioning. On 25 June 2005 a prosecutor concluded that the complaint was no longer subject to the prosecutor’s review. The prosecutor referred to the judgment of the Supreme Court of 26 April 2005 (see paragraph 40 below) dismissing the allegation of ill-treatment. 10. Further details in relation to the events following the applicant’s appearance on 21 March 2002 at the State Police station are set out in the decision in Cesnieks (cited above), where the Government acknowledged, inter alia, that the applicant had been ill-treated while in police custody and there had been a lack of effective investigation of the applicant’s complaint of a violation of Article 3 of the Convention (ibid., §§ 30, 32 and 36). 11. The typewritten transcript of the applicant’s questioning as a witness dated 21 March 2002 from 5.20 p.m. to 6.40 p.m. recorded the applicant’s statement to the police. 12. The applicant declared that he had given Ģ.Č. documents concerning his late father’s company, T.S.C., because Ģ.Č. had been looking for a company to carry out the leasing of motor vehicles. Later, Ģ.Č. had asked the applicant whether he knew anyone who could make withdrawals at the bank. The applicant had suggested his acquaintance Z.K. Occasionally Z.K. had sent Ģ.Č. sums of money that he had withdrawn from the bank via the applicant. 13. On the applicant’s evidence at the end of January 2002 he travelled to Moscow. While there Ģ.Č. had called him looking for Z.K., because Ģ.Č. had needed Z.K. to collect money at the bank. 14. The applicant gave further information in his police statement about meeting Z.K. in Riga upon his return from Moscow and Z.K. telling him about a withdrawal of the funds and their handover to Ģ.Č. 15. The applicant stated that he had learnt of Ģ.Č.’s murder from the police officers on the day the police had contacted him. 16. In the applicant’s handwritten confession dated 22 March 2002, he stated that in October 2001 he had borrowed the sum of 4,500 Latvian lati (LVL), which he had been unable to pay back. 17. On 25 January 2002 the applicant together with his acquaintance O.O. had travelled to Moscow hoping to obtain money there, but they were unsuccessful. 18. The applicant had told O.O. about the transfers of money to Ģ.Č. by Z.K. and himself. O.O. had also learnt that the sum of LVL 17,000 would arrive in the coming days in the bank account, to be sent on to Ģ.Č., and had told the applicant that he could resolve the issue of the debt if the applicant gave him full information. 19. On 1 February 2002 they had left Moscow and had arrived the next day in Riga. At around 2 p.m. the applicant had phoned Z.K., who later gave him LVL 5,600 and told him that the remaining amount would be withdrawn on Monday. On Sunday O.O. called the applicant, saying that everything was in order. Later the applicant realised that something terrible had occurred. 20. The same handwritten confession contained an addendum to the effect that O.O. had said that he would murder Ģ.Č. 21. According to the typewritten transcript of the applicant’s questioning as a suspect dated 22 March 2002 from 11 a.m. to 12.30 p.m., the applicant confirmed the truthfulness of his confession. 22. He added that he had concealed the circumstances and the purpose of his travel to Moscow. 23. He declared that he had borrowed a sum of money from his acquaintance O.O. which he had failed to return. O.O. had demanded to be repaid in a threating manner and to go with the applicant to Moscow. O.O. had insisted that the applicant keep the money intended for Ģ.Č. and give him some of it in repayment of the debt instead. O.O. had told the applicant to forget about Ģ.Č., meaning that O.O. had decided to kill him. 24. After their return to Riga, on 3 February 2002 O.O. had told the applicant over the phone that he could now forget about Ģ.Č. and that nobody would ever find him. The applicant had understood him to mean that Ģ.Č. had been murdered. 25. A typewritten transcript of a further interview of the applicant as a suspect dated 22 March 2002 from 11.30 p.m. to 12.50 a.m. indicated that the applicant wished to supplement his previous statement. 26. The applicant stated that he had concealed the fact that he had sought the killing of Ģ.Č. in order to obtain the LVL 17,000 belonging to Ģ.Č. He had wanted Ģ.Č.’s money because he had been experiencing serious financial difficulties. He had ordered parts for his sports car from Japan but did not have the means to pay for them. 27. The applicant added that while in Moscow Ģ.Č. had phoned him, looking for Z.K. The applicant then had learnt that Z.K. was to withdraw the sum of LVL 17,000 for Ģ.Č. On 31 January 2002 the applicant had asked O.O. to kill Ģ.Č. That same day, using the applicant’s phone, O.O. had called an acquaintance in Riga about the job and told his acquaintance that he would give details later. In the evening they had again phoned the same person from a hotel. That person had been Latvian and had had difficulty understanding Russian. O.O. had passed the phone over to the applicant, who had provided more information about Ģ.Č. On 1 February 2002, while on a bus to Riga, O.O. had again called the same person. 28. Both transcripts of the applicant’s questioning recorded that he had wished to give a statement in the absence of a lawyer. 29. The applicant and three co-accused O.O., V.Z. and J.G. were brought before the Riga Regional Court (Rīgas apgabaltiesa) to stand trial on charges related to the murder of Ģ.Č. 30. On 11 October 2004 the Riga Regional Court found V.Z. and J.G. guilty of aggravated murder. The Regional Court established that V.Z. and J.G. had murdered Ģ.Č. on 2 February 2002, which they had partly admitted in the course of the trial. 31. The Regional Court was unable to establish the guilt of the applicant and O.O. 32. With reference to the applicant, the Regional Court reasoned that at trial he had pleaded not guilty to the criminal offences he was charged with and recanted the statements he had given to the police. According to the applicant, he had provided these statements as a result of ill-treatment by police officers, who had beaten him and broken his nose. In this regard the Regional Court reasoned: “In assessing the [applicant’s] explanation the court does not have a reason to not believe it, because, as is evident from the case materials, on 21 March 2002 from 5.20 p.m. to 6.40 p.m. [the applicant] was questioned as a witness ... however ... he was taken into custody on 21 March at 8 p.m. ... [but] he was not transferred to a detention facility until 1 a.m. on 23 March, remaining in the premises of the Riga police station (Rīgas rajona policijas pārvalde)... The fact that [the applicant] had been asked at around 11 a.m. on the morning [of 21 March] to attend the police station was confirmed by the witness [S.R.], an employee of the Department for the Combat of Organised Crime (Organizētās noziedzības apkarošanas pārvalde)... The foregoing was also confirmed by witnesses [A.B.], a police employee, and [I.K.], an inspector, who were unable to explain to the court why [the applicant] had not been released from the police station after having been questioned as a witness. The fact that [the applicant] ... suffered bodily injuries while in custody is confirmed by the expert reports contained in the file...” 33. In that light, the Regional Court found that Article 3 of the Convention had been violated with respect to the applicant, irrespective of the fact that the criminal case against the police employees had been terminated. 34. The Regional Court also added that the applicant’s statements of 22 March 2002 had been contradictory. It deemed unreliable an expert report finding that there were no signs that the applicant had written the confession “in the circumstances of anxiety, fear or physical ill-treatment”. The Regional Court reasoned that the expert report did not contain “a study section” (izpētes daļa) that would allow it to understand how the expert had arrived at her conclusion. 35. Accordingly, the Regional Court ruled that the applicant’s statements of 22 March 2002 could not be used in the applicant’s conviction. 36. It further held that no other evidence had been obtained to the effect that the applicant had in any way organised, assisted or incited another person to commit Ģ.Č.’s murder. The evidence established that transactions involving money transfers had taken place between the applicant, Z.K. and Ģ.Č. This was corroborated by the evidence of witness I.Š., a police inspector who testified about an ongoing criminal investigation into illegal transactions involving all three individuals. 37. The Regional Court in its judgment referred to telephone call records admitted in evidence. On 1 February 2002 at 5.27 p.m. a phone call had been made from the applicant’s mobile number to V.Z.’s mobile number. At the same time, it reasoned that V.Z. had never testified having spoken on the phone to the applicant or having previously known him. In addition, the Regional Court considered that it had no reason to conclude that O.O.’s testimony that he had used the applicant’s phone in order to contact V.Z. about a vehicle had been false. It was evident from the telephone call records that on several occasions between 20 January and 18 March V.Z. had been contacted from a number which according to O.O. was his. 38. The first-instance judgment was appealed against to the Criminal Cases Chamber of the Supreme Court (Augstākās tiesas Krimināllietu tiesu palāta) on behalf of the prosecution, the victim and both co-accused convicted at first instance. 39. On 26 April 2005 the Supreme Court overturned the applicant’s acquittal and found him guilty of the aggravated murder of Ģ.Č. 40. The judgment of the Supreme Court noted that in the appeal proceedings the applicant had continued to deny his initial statements and maintain that he had given them as a result of ill-treatment by police employees. In that regard, the Supreme Court reasoned as follows: “The Regional Court groundlessly (nepamatoti) accepted that [the applicant’s] statements and [his] confession given during the pre-trial investigation were not truthful. The file does not contain impartial evidence affirming [the applicant’s] assertion that he gave these statements as a result of physical and psychological ill-treatment by police employees, [and] that police employees dictated the testimonies [to him]. That it was merely a coincidence that during the commission of the crime [the applicant] was together with [O.O.] ... [and] that a call was made from his phone at that time to [V.Z.]. The criminal case ... against police employees that they possibly had exceeded their powers and inflicted injuries on [the applicant] has been terminated and [the applicant’s] defence has not disputed this decision... The Regional Court groundlessly rejected the expert report ... which concluded that the confession had been written by [the applicant] and [that there was] no indication ... of it being written in the circumstances of anxiety, fear or physical ill-treatment ... because the said expert report provides answers to the questions put to the expert. The expert report contains a study section providing the manner in which the expert reached the conclusion. Furthermore ... in comparing [the applicant’s] complaint of 25 March 2002 ... and the confession written on 22 March 2002 ... [there can be] no doubt ... that it is [the applicant’s] free style (brīvais stils) [of handwriting].” 41. The Supreme Court allowed the applicant’s statement of 22 March 2002 to be admitted in evidence and relied on it in its judgment. 42. The applicant was sentenced to eleven years’ imprisonment, with confiscation of property and police control for two years. The applicant was immediately taken into custody. 43. The defence lodged an appeal on points of law with the Criminal Cases Department of the Senate of the Supreme Court (Augstākās tiesas Senāta Krimināllietu departaments), arguing that the Supreme Court had convicted the applicant in violation of Articles 3 and 6 of the Convention because he had given the pre-trial confession and other statements relied upon by the court as a result of ill-treatment by police employees. The defence presented an extensive volume of evidence and pointed out that the applicant had been injured while in police custody and the circumstances of the injuries had not been explained. They submitted that there had been no other evidence in the file attesting to the applicant’s guilt. The court had been under an obligation to assess the material in the criminal case against the police employees and not merely to rely on the fact that the case against them had been terminated. In the defence’s submission, on 7 April 2004 they had appealed against the decision terminating that criminal case. Pursuing appeal had subsequently become impracticable “because the criminal case regarding the [applicant’s] beating had been joined, as evidence, to the criminal case concerning [Ģ.Č.’s] murder”. 44. On 26 August 2005 the Senate of the Supreme Court decided to dismiss the appeal without holding a hearing. 45. The decision of the Senate of the Supreme Court in its relevant part read as follows: “... contrary to the [requirements of the] Criminal Procedure Code, the appeals filed ... are not substantiated with [submissions as to] a violation of the said provisions of the law, but [rather] factual submissions are put forward [with the aim of obtaining] a re-evaluation of the evidence on which the appeals court’s guilty verdict is based. ... Pursuant to the Criminal Procedure Code ... the re-evaluation of evidence and establishment of new facts ... is not within the competence of the cassation court. The reference in the appeal on points of law to a violation of ... the relevant international Convention in the course of [the lower court’s] adjudication is not based on the materials of this case and is therefore [purely] formal in nature.” 46. The decision of the Senate of the Supreme Court was not subject to appeal. | 1 |
test | 001-170655 | ENG | RUS | CHAMBER | 2,017 | CASE OF NAVALNYY v. RUSSIA | 3 | Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);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 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1976 and lives in Moscow. 6. The applicant is a political activist, opposition leader, anticorruption campaigner and popular blogger. These five applications concern his arrests on seven occasions at different public events. 7. The facts of the case, as submitted by the parties, may be summarised as follows. 8. On 5 March 2012 the applicant took part in a meeting at Pushkinskaya Square, Moscow, which began at 7 p.m. It was devoted to the allegedly rigged presidential elections in Russia and had been approved by the municipal authorities. 9. At the end of the meeting, at 9 p.m., State Duma deputy Mr P. addressed the participants, inviting the public to stay after the meeting for informal consultations, which began at about 9.30 p.m. and were attended by some 500 people. According to the applicant, he stayed among others at Pushkinskaya Square for a meeting with the deputy; they remained peacefully within the pedestrian area of the square and did not obstruct the traffic or access. According to the Government, the applicant was holding an irregular gathering without prior notification and was shouting political slogans. 10. At 10.45 p.m. the police arrived and arrested the applicant, among many others. He was taken to the Tverskoy District police station. 11. On the same evening two policemen drew up a report on the administrative offence, stating that the applicant had been arrested at 10.45 p.m. “in a fountain” at Pushkinskaya Square; that he had taken part in an irregular public gathering and that he had ignored police orders to disperse. The applicant was charged with a breach of the established procedure for conducting public events, an offence under Article 20.2 of the Code of Administrative Offences. The applicant was released at 12.15 a.m. on 6 March 2012. 12. On 15 March 2012 the Justice of the Peace of Circuit no. 369 of the Tverskoy District examined the administrative charges against the applicant. The applicant challenged the authenticity of the police reports and the witness statement of the two police officers on the grounds that he had been arrested by different police officers, but his objection was dismissed. On the basis of the written statements and testimony of two police officers the Justice of the Peace found the applicant guilty of taking part in an irregular public gathering conducted without prior notification and fined the applicant under Article 20.2 of the Code of Administrative Offences 1,000 Russian roubles (RUB), at the material time equivalent to about 25 euros (EUR). 13. On 10 April 2012 the Tverskoy District court of Moscow examined the applicant’s appeal. The applicant was absent, but he was represented by a lawyer. The court examined one more eyewitness, a journalist, who testified that before being arrested the applicant was standing “in a fountain, holding hands with others” and chanting political slogans. He also testified that the police officers who had placed the applicant in the police bus were the same officers who had signed the report and who had appeared at the first-instance hearing. The court examined two video recordings submitted by the applicant. It found that the State Duma deputy had indeed called a public meeting, but concluded that at the time of his arrest the applicant was not meeting the deputy but was participating in a protest assembly. It upheld the judgment of 15 March 2012. 14. On 8 May 2012 the applicant took part in an overnight “walkabout”, an informal gathering whereby activists met at a public venue to discuss current affairs. On this occasion, several dozen activists met up to discuss the inauguration of Mr Putin as President of Russia the previous day. On 8 May 2012 some areas of central Moscow were restricted for traffic and pedestrians due to the presidential inauguration and the Victory Day festivities. 15. At 4.30 a.m., according to the applicant, or at 4 a.m., according to the Government, the applicant was walking down Lubyanskiy Proyezd, accompanied by about 170 people. The group stopped on the stairs of a public building for a group photograph. While the applicant was taking the photograph he was arrested by the riot police. At 8 a.m. he was taken to a police station where an administrative offence report was drawn up. The applicant was charged with a breach of the established procedure for conducting public events, an offence under Article 20.2 of the Code of Administrative Offences. The applicant was released at 10.50 a.m. on that day. 16. On the same day, at 11.55 p.m., according to the Government, or at 11 p.m., according to the applicant, the applicant was walking down Bolshaya Nikitskaya Street in a cluster of about fifty people. According to the applicant, they stayed on the pavement, had no banners or sound equipment, and were causing no nuisance. They were surrounded by the riot police and the applicant was arrested without any order or warning. 17. At 11.58 p.m. on the same day the applicant was taken to a police station where an administrative offence report was drawn up. He was charged with a breach of the established procedure for conducting public events, an offence under Articles 20.2 § 2 of the Code of Administrative Offences. The applicant was released at 2.50 a.m. on 9 May 2012. 18. On 30 May 2012 the Justice of the Peace of Circuit no. 387 of the Basmannyy District examined the charges concerning the applicant’s administrative offence at Lubyanskiy Proyezd. The applicant was absent from the proceedings, but he was represented by his legal counsel, who contested the applicant’s participation in an irregular assembly and claimed that the latter had not chanted any slogans. He asked the Justice of the Peace to admit video evidence and to examine certain eyewitnesses, but she refused to do so. On the basis of written statements by two police officers the Justice of the Peace found the applicant guilty of taking part in a meeting conducted before 7 a.m., in breach of regulations, and fined him under Article 20.2 of the Code of Administrative Offences RUB 1,000. This judgment was delivered in full on 1 June 2012. It was upheld on 6 July 2012 by the Basmannyy District Court of Moscow. 19. On 1 June 2012 the Justice of the Peace of Circuit no. 380 of the Presnenskiy District examined the administrative charges concerning the applicant’s administrative offence at Bolshaya Nikitskaya Street. The applicant was absent from the proceedings, but he was represented by his legal counsel, who contested the applicant’s participation in an irregular assembly and claimed that the latter had not chanted any slogans. The Justice of the Peace questioned the police officer who had arrested the applicant and three eyewitnesses. The police officer testified that he had arrested the applicant because he was walking in a big group of people, obstructing traffic and chanting political slogans. The eyewitnesses testified that the applicant was walking down the street among about fifty or sixty people, and that the police had blocked their way and had arrested them without any warning; they denied hearing any slogans or amplified sound. The Justice of the Peace refused to admit video evidence and dismissed the eyewitness statements on the grounds that they were likely to be the applicant’s supporters and were therefore biased. The applicant was found guilty of taking part in a meeting conducted in breach of regulations and was fined under Article 20.2 of the Code of Administrative Offences RUB 1,000. This judgment was upheld on 25 June 2012 by the Presnenskiy District Court of Moscow. 20. On 9 May 2012 the applicant arrived at 5 a.m. at Kudrinskaya Square in Moscow to take part in an informal meeting with a State Duma deputy and to attend the Victory Day festivities. He was among 50 to 100 people “walking about” and discussing current affairs. According to the applicant, this gathering was not a demonstration: there had been no banners, no noise, and no one was chanting any slogans or giving speeches. 21. At 6 a.m. riot police arrived at the site of the meeting and arrested the applicant without any orders or warning. The applicant submitted a video recording of his arrest. 22. At 8.50 a.m. on the same day the applicant was taken to the Strogino District police station. At 11.50 a.m. the applicant was searched and then an administrative offence report was drawn up. According to the applicant, he was detained at the police station for more than three hours before he was brought before a Justice of the Peace. The Government confirmed that the applicant had been detained pending trial, but did not specify the time. 23. At an unidentified time on the same day the applicant was brought before the Justice of the Peace of Circuit no. 375 of the Presnenskiy District of Moscow. The Justice of the Peace refused the applicant’s requests for the police officers who had arrested him to be called and examined, and for video evidence to be admitted, but granted his request for three eyewitnesses to be examined. The witnesses testified that there had been a public meeting with a State Duma deputy to discuss current political developments; that no one had chanted slogans or made noise or obstructed traffic; and that the police had not given any orders or warnings before arresting the applicant. On the basis of the written statements of two police officers the court established that the applicant had taken part in an irregular public meeting and had disobeyed a lawful order from the police to disperse. It also found that the applicant had chanted the slogans “Russia without Putin!” and “Putin is a thief!” and had refused to leave the square, which needed to be cleared for the Victory Day festivities. The Justice of the Peace has rejected the statements of three eyewitnesses, on the grounds that they had different estimates of the number of people present at the venue, the number of police officers who arrested the applicant, and the time of his arrival at the meeting. The applicant was found guilty of disobeying the lawful order of the police, in breach of Article 19.3 of the Code of Administrative Offences, and was sentenced to fifteen days’ administrative detention. 24. On 10 May 2012 the applicant lodged an appeal. 25. On 12 December 2012 the Presnenskiy District Court of Moscow examined the appeal. The applicant asked for the police officers on whose reports and statements the Justice of the Peace had based the judgment to be cross-examined, as well as eight eyewitnesses, and for the video recording of the arrest to be admitted as evidence. The court dismissed these requests and upheld the judgment of 9 May 2012. 26. On 27 October 2012 the applicant held a static demonstration (“picket”, пикетирование), which was a part of series of pickets held in Moscow in front of the Russian Investigation Committee to protest “against repressions and torture”. According to the applicant, his demonstration was a solo picket (одиночное пикетирование) which was not subject to a prior notification to the competent public authority. In total, about thirty people consecutively took part in this event. 27. At 3.30 p.m. the police arrested the applicant. According to the applicant, at the moment of arrest he had finished picketing and was walking down the street on the pavement; he was not chanting or carrying any banners, but he was being followed by some people including journalists whose number he estimated as “two dozen”. According to the Government, the applicant had organised an irregular march without prior notification. The applicant was taken to the police station at 4.10 p.m. He was charged with a breach of the established procedure for conducting public events, an offence under Article 20.2 of the Code of Administrative Offences. He was released at 7.17 p.m. the same day. 28. On 30 October 2012 the Justice of the Peace of Circuit no. 387 of Basmannyy District examined the charges. She examined three eyewitnesses called at the applicant’s request, but his request for the police officers who had arrested him to be called and examined was refused. The applicant’s request for a video recording of the relevant events to be admitted as evidence was also refused, as was the request for a written report from an NGO that had observed the pickets to be admitted in evidence. At the applicant’s request the Justice of the Peace examined three eyewitnesses, who testified that the applicant, after he ended his picket, walked down the street while speaking with a fellow activist, surrounded by journalists; he remained on the pavement, did not chant slogans, and carried no banners; several other participants in the picket remained standing with their banners, at a certain distance from each other; the police arrested the applicant without any warning or explanation. On the basis of the written reports by two police officers the Justice of the Peace found the applicant guilty of taking part in a march which had not been duly notified to the authorities and fined him under Article 20.2 of the Code of Administrative Offences RUB 30,000 (at the material time equivalent to about EUR 740). She dismissed the witness statements in the applicant’s favour on the grounds that they contradicted the evidence in the case file. 29. On 7 December 2012 the Basmannyy District Court upheld the judgment of 30 October 2012. 30. On 24 February 2014 at 12 noon the applicant went to the Zamoskvoretskiy District Court of Moscow to attend the hearing of the activists on trial for participation in mass disorders at Bolotnaya Square in Moscow on 6 May 2012. On that day the judgment was to be delivered at a public hearing. The court-house was cordoned off by the police, and the applicant could not get in. He therefore remained outside among other members of the public wishing to attend the hearing. According to the applicant he was standing there silently, but the police suddenly rushed into the crowd and arrested him, without any order, warning or pretext. According to the official version, he was holding an irregular gathering and was chanting political slogans. 31. At 12.50 p.m. on the same day the applicant was taken to the police station. He was charged with a breach of the established procedure for conducting public events, an offence under Article 20.2 of the Code of Administrative Offences. The applicant was released at 3 p.m. the same day. 32. Later that day, at about 7.45 p.m., the applicant took part in a public gathering following the pronouncement of the judgment concerning mass disorders at Bolotnaya Square in which several activists had been sentenced to prison terms. The gathering of about 150 participants took place at Tverskaya Street. The applicant was arrested while he was standing on the pavement talking to a journalist. According to the applicant he had received no order or warning, and he did not resist the police. According to the police report, when the applicant was being seated in the police vehicle he was waving at the crowd trying to attract media attention, thus demonstrating refusal to comply with the police order and resisting the officers in the performance of their duties. 33. At 8.20 p.m. the applicant was taken to the Tverskoy District police station, where an administrative offence report was drawn up. The applicant was charged with disobeying a lawful order of the police, an offence under Article 19.3 of the Code of Administrative Offences. He was remanded in custody. 34. On the following day, 25 February 2014, at an unidentified time, the applicant was brought before the judge of the Tverskoy District Court, who examined the charges under Article 19.3 of the Code of Administrative Offences. The applicant’s request for two eyewitnesses to be examined was granted. They testified that the police had not given the applicant any orders or warnings before proceeding to his arrest. The court admitted and examined the video recording of the contested events and questioned the two police officers on whose reports the charges were based. The court established that the applicant had taken part in an irregular meeting and had disobeyed the lawful order of the police to disperse. The applicant was found guilty of disobeying a lawful order of the police, in breach of Article 19.3 of the Code of Administrative Offences, and was sentenced to seven days’ administrative detention. 35. On 7 March 2014 the Zamoskvoretskiy District Court examined the charges relating to the applicant’s alleged participation on 24 February 2014 in an unauthorised public gathering in front of the Zamoskvoretskiy District Court. The applicant requested that two eyewitnesses present at the court-house and the two policemen on whose reports the charges were based be examined. These requests were dismissed. The court admitted a video recording of the contested events, but decided not to take cognisance of its content because it had no date and because it had not reproduced a full sequence of events. On the basis of the written reports by two police officers the judge found the applicant guilty of taking part in a meeting which had not been notified to the competent authority in accordance with the procedure provided by law, and fined him under Article 20.2 of the Code of Administrative Offences RUB 10,000 (equivalent to about EUR 200). 36. On 24 March 2014 the Moscow City Court upheld the judgment of 25 February 2014. 37. On 22 May 2014 the Moscow City Court upheld the judgment of 7 March 2014. | 1 |
test | 001-149016 | ENG | CZE | CHAMBER | 2,014 | CASE OF HANZELKOVI v. THE CZECH REPUBLIC [Extracts] | 3 | Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - finding of violation sufficient | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano | 5. The applicants were born in 1977 and 2007 respectively and live in Svinaře. 6. The first applicant is the mother of the second applicant. During her pregnancy she had regular check-ups with a doctor and attended ante-natal classes at Hořovice Hospital. Prior to giving birth she had expressed, among other things, her wish to leave the maternity ward as soon as possible provided that there were no complications. 7. On 24 October 2007 the first applicant contacted a pediatrician, S., who agreed to take charge of her future child and to come and see them both at their home as soon as they were discharged from the maternity ward. She informed the first applicant that she would, however, be away the following weekend. The applicant then told her that she intended to leave the hospital “earlier”, without enlarging on that statement. S. subsequently stated that it had not been her understanding that the applicant wanted to leave the hospital a few hours after the birth. 8. The second applicant was born on Friday 26 October 2007 at Hořovice Hospital. It was a natural and spontaneous delivery with no complications. The applicants were found to have no health problems, the Apgar score for newborns (recording the pulse rate, respiration, complexion, muscular activity and reflex irritability) was the highest possible, according to the medical team’s assessment. In these circumstances, the first applicant decided to leave the hospital the same day, which she did at about noon despite meeting opposition from the medical team. 9. According to a statement issued by the hospital on 29 October 2007 following extensive media coverage of the case, the hospital staff had suggested that the applicants remain at the hospital for at least 48 hours and had warned the first applicant of the possible risks to the child’s health, but the first applicant had indicated that a pediatrician would be taking charge of the child. After the applicants had left, the hospital staff informed the police, which was standard practice in situations where a patient left hospital prematurely without the doctor’s consent and this could have repercussions on his or her health. The social welfare authority was not informed until after the pediatrician S. had contacted the hospital (see below). The hospital found it regrettable that the first applicant had not expressed her wish to leave the hospital only hours after the birth during the ante-natal classes. Had she done so, the staff would have recommended that she obtain a personal care plan for the newborn baby and secure written agreement from the pediatrician (who would thus have had proper advance notice), whereupon her decision would have been accepted. The first applicant had accepted, moreover, that the events in question might have arisen as a result of a misunderstanding regarding the care arrangements for her newborn baby. 10. According to the explanations given by the pediatrician S., on 26 October 2007 at about 2 p.m. she had been informed by the nurse from her surgery, who had received a call from the first applicant, that the latter had given birth that very morning and returned home. As it was an unusual situation, the pediatrician, who had been preparing to leave for the weekend and could not visit the applicants until Monday afternoon, informed the staff at Hořovice Hospital accordingly. D., the hospital doctor, decided to contact the social welfare authority, namely, the Černošice municipal office. In the meantime S. had informed the first applicant by telephone that she would be able to see her and her child until Monday afternoon, which the applicant had accepted. Shortly afterwards the pediatrician was contacted by a social worker. She told her about the situation and gave her the first applicant’s telephone number. 11. According to the note sent by the Černošice Municipal Office to the Beroun Municipal Office (hereafter “the social welfare authority”), on 26 October 2007 the first applicant had left the hospital at noon on that day without informing the doctors; she had not been living at the address she had given the hospital for three years and the village where she was staying and her telephone number had been provided by the pediatrician contacted by the Černošice authority. The social worker had succeeded in contacting the child’s father on that number. Although he had been informed that an interim measure under Article 76a of the Code of Civil Procedure might be applied, he had stated that the applicants would not return to the hospital and had refused to provide the family’s exact address. 12. At the request of the social welfare authority, Dr D. drew up a note observing that “given the short period of time since the birth, the health and potentially the actual life of the child [would] be at risk if he [were] deprived of hospital care”. 13. Also on 26 October 2007 the social welfare authority requested the Beroun District Court to apply an interim measure pursuant to Article 76a of the Code of Civil Procedure, with a view to entrusting the second applicant to the care of the gynaecology-obstetrics department of Hořovice Hospital. The above-mentioned notes drawn up by the Černošice Municipal Office and Dr D. were annexed to the request. 14. On the same day the court granted the request, reiterating the terms of the note drawn up by Dr D. The decision stated that any interim measure was served on the parties at the time of execution, which had to be immediate. 15. At 4.30 p.m. on 26 October 2007 a court bailiff and a social worker, accompanied by police officers, went to the applicants’ house. Although they explained to the child’s father that the first applicant could go to the hospital with the second applicant, he refused to take them to there of his own free will. An emergency medical team was therefore summoned. After examining the newborn baby, the doctor present observed that he had no health problems but agreed with the others that for the purposes of implementing the interim measure the mother and child would be taken back to the hospital in the ambulance. The father, police officers, social worker and court bailiff followed the ambulance. Once at the hospital, the second applicant was examined again and found not to have any health problems. 16. The applicants were made to remain at the hospital for two days and allege that no medical act was carried out during that time. According to the hospital report, the first applicant had refused neonatal screening and vaccination of the second applicant. At the express request of the first applicant, who accordingly signed the form refusing further medical treatment (negativní revers), the applicants were discharged from the hospital on 28 October 2007, approximately 50 hours after the birth. ... | 1 |
test | 001-163253 | ENG | BIH | ADMISSIBILITY | 2,016 | KONGRESNA NARODNA STRANKA AND OTHERS v. BOSNIA AND HERZEGOVINA | 4 | Inadmissible | Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary | 1. The applicants are the National Congress Party for the Protection of the Human Rights of War Veterans and Citizens, and of Justice and Morals in Bosnia and Herzegovina (Kongresna narodna stranka zaštite ljudskih prava boraca i građana, pravde i morala Bosne i Hercegovine; “the Party“) and 45 citizens of Bosnia and Herzegovina (“the applicants“). A list of the applicants is set out in the appendix. 2. The applicants were granted leave by the President to be represented by the president of the Party and one of the applicants, Mr. E. Imširović (Rule 36 § 2 of the Rules of Court). The Government of Bosnia and Herzegovina (“the Government”) were represented by their Deputy Agent, Ms Z. Ibrahimović. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The Party was established on 25 December 1997 under the laws of Bosnia and Herzegovina. The applicants are members of the Party. 5. The Party participated in the 2006 elections for the House of Representatives of the Parliamentary Assembly of Bosnia and Herzegovina. Almost all of its candidates declared themselves Bosniacs. 6. On 30 June 2010 the Party’s registration for the 2010 elections was refused because it was submitted out of time. The Party failed to lodge an appeal against that decision. 7. On 11 June 2014 the Party’s registration for the 2014 elections was refused for failure to comply with the procedural requirements (a failure to pay a required deposit and to submit a list of signatures in support of its candidacy). On 18 June 2014 that decision was upheld by the Court of Bosnia and Herzegovina (“the State Court”). 8. The applicants claim that they do not declare affiliation with any of the “constituent peoples” (namely, Bosniacs, Croats and Serbs). They describe themselves as “a person from Tuzla”, “a Muslim”, “a Catholic”, “a person from Sarajevo”, “a person from Krajina”, “a person from Herzegovina”, “a refugee”, “a war veteran” and the like; while three of them describe themselves as belonging to the Roma and Albanian ethnic minorities respectively. 9. The relevant domestic law and practice and international documents were outlined in Sejdić and Finci v. Bosnia and Herzegovina ([GC], nos. 27996/06 and 34836/06, ECHR 2009) and Zornić v. Bosnia and Herzegovina (no. 3681/06, 15 July 2014). Notably, the Constitution of Bosnia and Herzegovina makes a distinction between members of “constituent peoples” (persons who declare affiliation with Bosniacs, Croats and Serbs) and “others” (members of ethnic minorities and persons who do not declare affiliation with any particular group because of intermarriage, mixed parenthood or other reasons). 10. In the former Socialist Federal Republic of Yugoslavia, a person’s ethnic affiliation was decided solely by that person, through a system of self-classification. Thus, no objective criteria such as knowledge of a certain language or belonging to a specific religion existed. Moreover, there was no requirement of acceptance by other members of the ethnic group in question. Since the Constitution contains no provisions regarding the determination of one’s ethnicity it appears that it was assumed that the traditional self-classification would suffice. 11. In accordance with the 1995 Constitution (Articles IV § 1 and V), only persons declaring affiliation with a “constituent people” are entitled to stand for election to the House of Peoples of the Parliamentary Assembly and the Presidency of Bosnia and Herzegovina. | 0 |
test | 001-183395 | ENG | IRL | CHAMBER | 2,018 | CASE OF O'SULLIVAN McCARTHY MUSSEL DEVELOPMENT LTD v. IRELAND | 3 | Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev | 5. The applicant company is engaged in the cultivation of mussels in Castlemaine harbour in Co. Kerry, one of several sites in Ireland where this commercial activity is exercised. Its business involves fishing for mussel seed (i.e. immature mussels) within the harbour each year and transporting them for cultivation in another part of the harbour. It has conducted this activity at Castlemaine harbour since the late 1970s. 6. In Ireland, mussel seed fishing takes place during the summer period, the exact dates being determined each year by statutory instrument. This activity is subject to obtaining the relevant leases, licences, authorisations and permits (see under “Relevant domestic law” below). The competent authority in this respect is the Minister for Agriculture, Food and the Marine (hereinafter “the Minister”, and “the Department” for the corresponding Government Department). In order to engage in this activity, operators must be in possession of an aquaculture licence, which has a validity of ten years. A sea-fishing boat licence is required, and the boat used must be entered in the Register of Fishing Boats. Operators must also hold an authorisation to fish for mussel seed, issued annually by the Minister (see under “Relevant domestic law” below). 7. Subsequent to the facts giving rise to this application, an additional requirement was introduced pursuant to EU law. Where mussel fishing is carried out in an environmentally protected area, a “Natura permit” must also be obtained (see paragraph 20 below). 8. According to the Government, a total of 41 authorisations were issued in 2008 to Irish sea-fishing boats to fish for mussel seed, four of which operated in Castlemaine harbour on behalf of six mussel aquaculture operators. 9. In 1993, the competent authorities published a notice in the national press announcing the intention to classify twelve sites, including Castlemaine harbour, as a special protection area (SPA) within the meaning of the domestic legislation transposing Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds (“the Birds Directive”, OJ 1979 L 103, p. 1). The notice indicated that it was not envisaged that this would change the usage of the sites concerned. The harbour’s SPA classification took effect in 1994. The applicant company continued its activities each year, obtaining the necessary licences and permits. 10. In 2000, the domestic authorities designated Castlemaine harbour a special area of conservation (SAC) within the meaning of the domestic legislation transposing Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (“the Habitats Directive”, OJ 1992 L 206, p. 7). As it was now subject to the two EU directives, it had the status of a “Natura 2000” site. 11. Dating back to the late 1990s, the European Commission was of the view that Ireland and several other then EC Member States were not fulfilling their obligations under EC environmental law, and specifically in relation to the two directives referred to above (references hereafter will generally be to EU and not EC law). Between 11 November 1998 and 18 April 2002, it addressed to the Irish authorities four letters of formal notice warning that Ireland had failed to correctly transpose and apply those two directives. Following three reasoned opinions issued in October 2001 and July 2003, the Commission brought infringement proceedings against Ireland in September 2004, pursuant to Article 226 EC (now Article 258 TFEU). It sought a declaration that Ireland had failed to fulfil its obligations under several provisions of the directives, namely Articles 4(1), (2) and (4), and 10 of the Birds Directive, and Article 6(2) to (4) of the Habitats Directive. One specific aspect of these proceedings concerned the authorisation of aquaculture in protected areas without the requisite prior assessment of the environmental impact of such activities. 12. On 13 December 2007 the Court of Justice of the European Union (hereinafter “the CJEU”) delivered its judgment in Commission v. Ireland (C418/04, EU:C:2007:780), declaring that Ireland had failed to fulfil its obligations under the aforementioned directives in a number of respects. It held, insofar as relevant to the present case: “236. ... [R]egarding the aquaculture programmes, the Commission relies, essentially, on the Review of the Aquaculture Licensing System in Ireland carried out in 2000 by BirdWatch Ireland as the basis for its view that Ireland has systematically failed to carry out a proper assessment of those projects situated in SPAs or likely to have effects on SPAs, contrary to Article 6(3) and (4) of the Habitats Directive. In that context, it emphasises the importance of a prior assessment for the purpose of weighing the implications of a project with the conservation objectives fixed for the SPA concerned. 237. The Court notes that that study covered 271 authorisations for aquaculture programmes issued by the Department of Communications, Marine and Natural Resources during the period from June 1998 to December 1999 and 46 applications yet to be decided on. Moreover, 72 licences and nine pending applications concerned aquaculture programmes situated inside or near an SPA. The authorisations issued concern, in 84% of the activities authorised in SPAs, oyster and clam farms. 238. It should also be borne in mind that, under the first sentence of Article 6(3) of the Habitats Directive, any plan or project not directly connected with or necessary to the management of the site is to be made subject to an appropriate assessment of its implications for the site in view of the site’s conservation objectives if it cannot be excluded, on the basis of objective information, that it will have a significant effect on that site, either individually or in combination with other plans or projects (Case C127/02 Waddenvereniging and Vogelbeschermingsvereniging [2004] ECR I7405, paragraph 45). 239. The study carried out by BirdWatch Ireland refers to a number of potential negative effects of shellfish farming, including the loss of feeding areas and disturbances caused by increased human activity and states that, even when an aquaculture programme is inside an SPA, very little protection is provided for bird habitats. Ireland, for its part, does not allege that no aquaculture programmes have any effects on SPAs. 240. It follows that the authorisation procedure ought to have included an appropriate assessment of the implications of each specific project. It is clear that Ireland merely stated, without offering further explanation, that the Irish scheme for authorising mollusc farms, including the provisions on consultation, does in fact provide for detailed consideration of all aspects of an aquaculture development project before a decision is taken on authorisation. 241. Accordingly, the Court finds that Ireland fails to ensure systematically that aquaculture programmes likely to have a significant effect on SPAs, either individually or in combination with other projects, are made subject to an appropriate prior assessment. 242. This finding is supported by the fact that Ireland has not put forward any specific scientific studies showing that a prior, detailed ornithological study was carried out, in order to challenge the failure to fulfil obligations alleged by the Commission. 243. Under Article 6(3) of the Habitats Directive, an appropriate assessment of the implications for the site concerned of the plan or project implies that, prior to its approval, all aspects of the plan or project which can, by themselves or in combination with other plans or projects, affect the site’s conservation objectives must be identified in the light of the best scientific knowledge in the field. The competent national authorities are to authorise an activity on the protected site only if they have made certain that it will not adversely affect the integrity of that site. That is the case where no reasonable scientific doubt remains as to the absence of such effects (see Waddenvereniging and Vogelbeschermingsvereniging, paragraph 61).” 13. At or around the same time, the CJEU found that the Netherlands, France, Finland, Italy, Spain, Greece and Portugal had similarly violated their EU obligations. 14. In view of the judgment, the Minister considered that it was not legally possible to permit commercial activity in the sites concerned until the necessary assessments had been completed. Accordingly, when granting authorisation for mussel seed fishing for the period 9 June to 1 July 2008, he prohibited it in 24 locations around the Irish coast, including Castlemaine harbour (Statutory Instrument No. 176 of 2008, adopted on 6 June 2008). The applicant company was informed of the situation by an official of the Department on 6 June 2008. It wrote to the Taoiseach (Prime Minister) that same day to underline the threat to the livelihood of those affected. It recalled the terms of the notice published in 1993 (see paragraph 9 above), and explained that it had just purchased a new boat at a cost of 1 million euros. The applicant company received a reply from the Department dated 2 July 2008. This explained that baseline data for the area had to be gathered in order to perform the assessment required by the Habitats Directive, as interpreted by the CJEU. It indicated that Castlemaine harbour had been given priority for the exercise and that work had already begun to collect the necessary data. It added that the authorities would be seeking the agreement of the European Commission to allow aquaculture to resume on an interim basis. 15. The following month the applicant company was issued an authorisation to fish for mussel seed in the harbour, with a starting date of 23 August 2008. The authorisation was subject to a number of conditions, including that it did not allow the holder to fish for mussel seed in an area or areas where this activity had been prohibited. On that same date, the temporary prohibition on mussel seed fishing at Castlemaine harbour, and at 21 other locations around the State, was maintained in force by Statutory Instrument No. 347 of 2008. The temporary prohibition only applied to mussel seed fishing; it did not prevent the harvesting of mussels previously fished and laid on farms for cultivation. 16. The applicant company wrote to the Department on 28 August 2008, warning that the supply of mussel seed in the harbour was being consumed by predators and that it would hold the Department responsible for all losses incurred. It requested a satisfactory resolution within ten days, failing which it would take advice about legal action. 17. On 3 October 2008, following successful negotiations between the Department and the Commission (see further below), the Minister issued Statutory Instrument No. 395 of 2008 removing Castlemaine harbour from the list of locations where mussel seed fishing was prohibited. The applicant company was therefore able to commence mussel seed fishing on the date the instrument came into operation, namely 5 October 2008. By that stage, however, natural predators had decimated the mussel seed. Since mussels need two years to grow to maturity, the financial consequences of the temporary prohibition on mussel seed fishing in Castlemaine harbour in 2008 were only felt in 2010. That year, the applicant had no mussels for sale, representing a loss of profit that it estimated at 289,599 euros. 18. According to the applicant company, there was no viable replacement for local mussel seed. Previous attempts to bring in mussel seed from other sites had not proved successful due to the high mortality of the seed and to the transport costs involved. It argued that it was therefore wholly dependent on the use of local resources. The applicant company further explained that if there had been any forewarning of the restriction on mussel seed fishing in 2008, it would not have made such a major investment in a new boat purchased in May of that year. 19. In 2009, the harbour was opened for mussel seed fishing from 30 April to 14 May, and from 15 September to 23 December. The applicant company was able to gather the usual amount of mussel seed. 20. In August 2009, in accordance with EU law, the Minister introduced an additional requirement for fishing in SACs or SPAs, a fisheries Natura permit. 21. In 2010, the periods authorised for mussel seed fishing in the harbour were from 29 April to 25 May, and from 30 August to 2 December. The applicant company was not able to operate during the first period, as it had not yet obtained such a fisheries Natura permit. When it eventually recommenced fishing at the end of August, the mussel seed had once again been depleted by predators, although the applicant company acquired some tonnage. It estimated its loss of profits for that year at 119,941 euros. 22. The Government provided the following explanations of the action taken following the CJEU judgment, which the applicant company did not dispute. They indicated that even before the delivery of the CJEU’s judgment they had commenced a process to determine how fisheries should be assessed in compliance with the relevant EU directives. Following that judgment, the Department immediately began the process of ensuring compliance with EU law in the fisheries sector. This process involved the domestic bodies with responsibilities for fisheries (Bord Iascaigh Mhara – BIM), marine research (Marine Institute) and nature conservation (National Parks and Wildlife Service – NPWS). Within one month of the judgment being handed down, BIM prepared a paper in January 2008 on the distribution of bi-valve (dredge) fisheries with the potential to lead to disturbance or significant disturbance of habitat, including the fishing of mussels. 23. At a meeting in February 2008 between the NPWS and the EU Commission, the latter underlined the need to comply with the judgment by conducting the requisite assessments for aquaculture, and in so doing addressing the cumulative effects of other activities that could adversely affect Natura 2000 sites. While the Commission recognised the need for some flexibility, and the small scale of much of Irish aquaculture, it considered that the onus was on Ireland to initiate a robust, proportionate and scientific process. 24. In April 2008, the relevant domestic bodies agreed on the need for an alternative approach to assess inshore fisheries on an interim basis, pending the collection of baseline data allowing the appropriate assessment required by EU law. To this end, a series of steps was proposed. The following month, BIM prepared a working document on fisheries in Natura 2000 sites, which included a case study of Castlemaine harbour. The study considered that the consequences of mussel seed fishing on the site were negligible. According to the applicant company, this assessment was consistent with that set out in a draft consultation document which had previously been prepared in 2000 by the Government Department with responsibility for heritage, of which the NPWS was then part. 25. On 30 July 2008 Ireland sent to the Commission its official response to the CJEU judgment. It acknowledged that assessments were required in relation to fisheries, and that the necessary baseline data had to be collected at the sites in question. The response also indicated that the Irish authorities would seek the Commission’s approval for an interim approach. 26. In early September 2008, the Marine Institute submitted to the Department a finalised study entitled “Fisheries in Natura 2000”. The Department was hopeful that the Commission would tolerate an interim approach to the activities in Castlemaine harbour, where the situation was time critical. The same month, the NPWS warned that in the absence of sufficient funding and staff it could not provide the necessary assurances to the Commission. It informed the Department that the assessments available to date were not adequate, and that the Commission shared this view. Additional studies were needed. The Commission’s stance was that it was prepared to give its temporary agreement to fishing at Castlemaine harbour if the additional studies were submitted and if Ireland gave an undertaking to meet the terms of the judgment over a three-year period. 27. On 2 October 2008 the NPWS sent to the Commission an interim assessment of mussel seed fishing in Castlemaine harbour, indicating that on the basis of its assessment this activity was not likely to have a significant impact on the site. The Commission agreed that, on the basis of this interim assessment, fishing could be allowed in the harbour for 2008 only, on condition that Ireland submit more detailed assessment procedures with a view to allowing fishing there in future. The Commission sought confirmation that there was an adequate basis in domestic law to ensure fishing activities remained in compliance with the directives. It requested amendments to certain aspects of the assessment, and it also requested a monitoring report. From that point it was considered legally possible to open Castlemaine harbour. The Minister signed the Statutory Instrument (No. 395 of 2009) the next day, 3 October 2008, allowing mussel seed fishing to recommence on 5 October 2008 (see paragraph 17 above). 28. In late 2008 and early 2009 the Commission maintained its robust stance, requiring a long-term plan to achieve compliance in order for the interim approach to continue. The NPWS indicated the likelihood of a negative assessment due to a decline in several bird populations, and pointed to the need for additional surveys of the site. 29. In January 2009 the Irish authorities assured the Commission of its commitment to a verifiable three-year plan to achieve compliance with the directives as regards fisheries and aquaculture. They indicated an allocation of 2 million euros over the period 2009-2010 for a wide-ranging exercise to collect baseline data. In March 2009, Ireland submitted its “roadmap to compliance” with the judgment to the Commission. The latter approved an interim approach to assessment, based on best available data and the collection of limited additional data in the time available, and subject to stringent management and control arrangements. 30. There was further engagement between the Irish authorities and the Commission during 2009 and 2010 regarding compliance with the CJEU judgment and the relevant directives. Public consultation was also required in relation to the regulatory changes that had to be made. 31. The appropriate assessment of Castlemaine harbour was completed in April 2011 by the Marine Institute. Running to over 130 pages, it assessed the effects on the site of the different types of aquaculture carried out there and concluded that there was no reason to anticipate any environmental disturbance from mussel fishing. This was one of multiple assessments which the respondent State had to undertake in light of the CJEU judgment. 32. Along with another local company, which was not directly involved in the cultivation of mussels but was a downstream retailer and exporter, the applicant company instituted proceedings in the High Court in February 2009 against the State. It relied on a series of grounds, notably breach of legitimate expectation, operational negligence and breach of the constitutional right to earn a livelihood. 33. In view of the State’s delay in delivering a defence to the claim, the applicant company brought a motion for judgment in default of defence, which was heard and concluded on 13 July 2009. The State delivered its defence on 6 August 2009. 34. In October 2009 the applicant company sought discovery of documents on a voluntary basis. It then applied to the Master of the High Court, on 14 December 2009, for an order of discovery, pursuing the matter before him in April, May and July 2010. The Master gave his ruling on 7 July 2010, which the applicant company appealed against to the High Court. It was granted an order of discovery on 18 October 2010, directing the State to provide a variety of documents within eight weeks. The State swore an affidavit of discovery on 7 January 2011. It swore a supplemental affidavit of discovery the following year, on 17 October 2012. 35. The applicant company issued an amended statement of claim on 19 August 2011, which referred to the restrictions applied in 2009 and 2010 as well. 36. On 1 September 2011 the applicant company set the action down for trial and certified it ready for hearing. Over the following months there were some exchanges of correspondence between the applicant company’s solicitor and the Chief State Solicitor in relation to the hearing of the action. On 9 May 2012 the applicant company requested a hearing date. 37. The hearing took place over eight days in November 2012. Judgment was given on 31 May 2013. 38. The High Court ruled in favour of the plaintiffs. The trial judge accepted their evidence that it would not have been viable for the applicant company to purchase mussel seed from operators based in other locations. He first found that there had been a breach of legitimate expectation, stating: “[T]here was a representation made to the plaintiffs in both the government notice and the newspaper notice of 1993. There was comfort given. What happened from then onwards, the annual allocation of seed collection authorisations and the constant refurbishing of the plaintiffs business gave rise to a pattern of events where the plaintiffs had good reason to rely upon the comfort given to them that there would not be a summary closure of their business without some good scientific reasons or without some consultation process before doing so.” 39. The High Court also found that there had been “operational negligence” due to the failure of the authorities to carry out the necessary scientific tests or monitoring that would have provided the data required by EU law. It considered that the failure to undertake these steps was a mistake of law by the Minister, which led to the denial of the applicant company’s access to the harbour for a period in 2008, causing financial loss. The trial judge accepted the evidence presented by the applicant company that it would have been possible to conduct the requisite analysis within two months. Had that been done, there would not have been any disruption of the applicant company’s activities. 40. The applicant company claimed compensation for lost profits caused by the restrictions in 2008 and 2010, which it estimated at 289,599 euros and 119,941 euros respectively, making a total claim of 409,450 euros. The State challenged both the basis for the applicant company’s calculations and the quantum of damages sought. The High Court decided that the applicant company’s claim should be reduced by roughly one third. This resulted in an award of 275,000 euros for its losses over the two years in question. It awarded the other local company 125,000 euros. 41. The State appealed both on the issues of liability and the quantum of damages awarded. It filed its notice of appeal with the Supreme Court on 16 July 2013. The applicant company brought a cross appeal in relation to the estimation of damages. A stay issue was ultimately resolved by the Supreme Court on 4 October 2013. On 21 July 2014 the State certified that the appeal was ready for hearing. The appeal was granted priority by the Chief Justice on 31 July 2014. The hearing took place on 29-30 April 2015, and judgment was given on 22 February 2016. 42. The Supreme Court was unanimous in overturning the High Court’s ruling on legitimate expectation. Addressing this issue, Clarke J, with whom the other members of the court agreed, stated: “10.7 ... [T]he only representation which it can be said was expressly made by the Minister ... was to the effect that “it is not envisaged” that there would be any restriction on traditional activities. That statement was made in April 1993, and was in the context both of developing European environmental legislation and also in the context of the process leading to the identification of areas within Ireland which would be designated for the purposes of that European legislation. It could not be said to amount to a clear commitment on the part of the Minister that there could never be any adverse consequences. What the consequences were going to be of the designation of an area for European environmental purposes was a matter of European law. 10.8 As events unfolded, it became clear that the Minister did not have the legal authority, as a matter of European law, to allow for the uninterrupted continuance of traditional activities in protected areas unless and until an appropriate assessment had been carried out. ... The Minister could give no greater assurance than that, in the then view of the Minister, it was not envisaged that there would be problems for traditional activities. ... 10.10 Next, reliance is placed on the fact that, as found by the trial judge, the ongoing activities of [the applicant company] were carried out to the knowledge of the Minister and on the basis of annual legal measures put in place by the Minister which facilitated the so-called opening of the harbour. However ... the fact that there may have been an error in the past cannot create a legitimate expectation that that error will be continued into the future. The fact that the Minister was mistaken in his view that traditional activities, of which the Minister undoubtedly knew, could continue provided that the Minister put in place the appropriate legal measures, and was also in error about the fact that those legal measures could be put in place in conformity with European law without carrying out an appropriate assessment, cannot create a legitimate expectation to the effect that that situation would continue. 10.11 While there undoubtedly was significant expenditure, and while the incurrence of expenditure on foot of a representation may form part of the Court’s assessment in determining whether it would be appropriate to allow a public authority to resile from a representation made, expenditure will not be relevant if there was no legitimate expectation in the first place. 10.12 ... As interpreted by the [CJEU], a permission for activity in a protected area can only be given when there is an appropriate assessment. An appropriate assessment requires that, on a scientific assessment, risk be excluded. The Minister was required, therefore, as a matter of European law, to be concerned not with unproven risk but rather with proven absence of risk.” 43. On the issue of operational negligence, three of the five judges upheld the State’s appeal. Two members of the majority gave judgment. 44. MacMenamin J observed that strong policy considerations arose in the case. The question of how to afford redress to individuals who had suffered the detrimental effects of wrongful actions by the executive was a legitimate concern. Yet changes in the law of negligence and reformulations of State liability must be carefully and incrementally approached with a clear view as to their long-term consequences. While there undoubtedly was a strong public interest in ensuring a proper balance between private and public rights and duties, there was a stronger public interest in ensuring that government can actually function, and that administrators were not impeded in making decisions through fear of a morass of litigation. The courts should not become a form of surrogate unelected government, second guessing prima facie lawful government actions in areas of discretion that did not raise questions of exceeding statutory powers. Reviewing the established domestic jurisprudence, he concluded that operational negligence had not been accepted in Irish law. He considered that in the present case the High Court had identified a tort with such broad headings lasting over so many years that it was questionable whether there was a justiciable controversy at all. It was impossible to say whether it was a tort committed by act or by omission. It was unclear at what point in time the Minister had acted wrongfully in relation to the plaintiffs. It might be said that, by allowing aquaculture to continue prior to 2008, the Minister had actually had regard to the applicant company’s interests, even at the cost of failed adherence to EU law. He further observed: “36. There then arises a further unavoidable question, that is, whether, if the Minister had, in fact, acted between 2000 and 2008, the respondents would inevitably have incurred significant losses, by a similar necessary suspension of activity in Castlemaine Harbour, as occurred from 2008 onwards, in order to obtain appropriate baseline data? If the detailed surveys complained of were necessary to establish the baseline, one is only left to speculate as to how these surveys could have been carried out without exactly the same or similar cessation of activity in the harbour, albeit in earlier years.” 45Francovich breach of EU law (C-6/90 and C9/90, EU:C:1991:428) but rather from the damage allegedly caused by the implementation of EU law after a breach thereof was identified by the CJEU. The fallacy in the case was to seek to isolate some private duty owed to the plaintiffs by the Minister from his overarching public duty to comply with and implement EU environmental law. 46. Charleton J, concurring, noted that under Article 6 of the Habitats Directive, the Minister had no discretion at all. He underlined three salient facts. First, many of the approximately 140 sites designated under the Habitats and Birds Directives were places of commercial activity of some sort. Following the ruling of the CJEU, emergency measures had to be taken to allow economic operators some latitude for the continuation of even limited business activity within the sites. This was done essentially by Irish public servants negotiating with the Commission. There were about forty sea-based sites, including Castlemaine harbour. Second, the State had not given a firm undertaking that the new environmental classification of Castlemaine harbour would not affect the applicant company’s activities. Third, the closing and opening of the harbour was done by valid statutory instruments. He considered that this ruled out any question of liability in negligence. 47. He then referred to the primary legislation governing fishing, the main objective of which was the conservation and rational management of the national fish reserves. This point was central to where any duty of care might lie. The starting point in the tort analysis had to be whether the Minister had owed a duty of care to the applicant company. There was a need for caution in holding that the public authorities owed a duty of care in particular circumstances, since it could greatly hinder their normal functioning. There were other means to deal with improper conduct by a public body, such as judicial review and the tort of misfeasance in public office. He reiterated that the authorities had not had any choice; the Minister had acted as prescribed by EU law. At most, it might be said that there was some choice to be made about whether to give priority to some of the affected sites over the others. Yet it was hard to argue that Castlemaine harbour was more deserving than the other locations. Concentrating resources on some sites would have left operators in other sites waiting longer. The State had instead adopted a strategy of vigorous negotiation with the Commission to attempt to salvage whatever could be recovered for the benefit of users of all of the sites concerned. 48. The concept of operational negligence had not yet been accepted as part of domestic law. It would mean a lack of certainty in the law, and make public decision-making subsidiary to the views of experts at several removes from the pressures of government. It would mean arrogating broader functions to the courts than provided for in the Constitution. The Minister had exercised powers based on statute and each decision had been correctly expressed through a statutory instrument. Given the general conservationist aims of the primary legislation, there was no statutory duty in favour of the applicant company. There was no discretion vested in the Minister to exempt any economic actor from EU rules. There was no duty of care towards the applicant company that could found an action in negligence. Instead, the duty of care was towards the wider community, expressed as the protection of the environment. 49. Writing for the minority, Clarke J considered that the High Court judgment, insofar as it concerned negligence, should be upheld as regards the events of 2008. Concerning the events of 2010, he noted that the applicant company had not provided evidence allowing a causal link to be established between the alleged failure on the part of the Minister and its inability to conduct its business that year. It therefore had no cause of action against the State in this respect. 50. Applying the relevant principles to the case, Clarke J clarified that there could not have been a duty on the Minister in 2008 to refrain from closing the harbour until an appropriate assessment had been carried out, as this would have been contrary to EU law. To the extent the harbour could be opened, this was only permissible in accordance with the interim measures agreed with the Commission. The real question was therefore: “15.4 ... In the light of developments in European law, did the Minister owe a duty of care to those who, to his knowledge (and up to then with his permission), were carrying out activities in protected areas, to ensure that he had appropriate survey(s) and other scientific evidence available to enable a decision to be made for the purposes of considering whether to permit the continuance of traditional activities and, should appropriate evidence be found to be present, to allow those activities to be authorised?” 51. He considered that on the facts of the case the necessary elements of foreseeability and proximity were present. The Minister was well aware of the activities taking place in Castlemaine harbour. He was also aware, in light of the statement published in 1993, that there was a potential issue that might arise in relation to such activities. Therefore, the Minister had been fully aware that any failure to place himself in a position to make a sustainable decision about the continuance of traditional activities in the sites concerned could have a significant effect on those involved in them. A private party in an analogous position would undoubtedly have been held to have a duty of care towards such persons. He further noted that it must have been clear to the Minister for some time prior to the CJEU judgment that there was a risk that the position taken by the Commission would be upheld over that of the State. In that eventuality, there would be an immediate problem due to the absence of the necessary scientific data for the appropriate assessment to be made, leading to at least the temporary interruption of the activities of the applicant company and others operating in protected areas. These formed a small and defined group of persons that, to a large extent, were actually known to the Minister and the Department. 52. As to the presence of any countervailing policy factor, he reiterated that the case did not concern matters of policy, discretion or adjudication. It did not touch upon the allocation of resources or the making of statutory decisions. It was about the purported duty of the Minister to take reasonable steps to ensure that he would be in a proper position to make a decision under European law and any relevant Irish measures. He clarified that he did not necessarily disagree with the view of MacMenamin J that no specific duty of care on the Minister had arisen in the period after the CJEU judgment. At that stage, the authorities had found themselves on the back foot, with many decisions to be made about the allocation of the resources needed to conduct appropriate assessments at the sites concerned. But the actions and decisions in 2008 and later were not relevant to the duty of care as he had defined it: “15.31 ... [T]he Minister got it wrong by failing to put in place measures to secure the appropriate scientific data to enable an appropriate assessment to be carried out long after it had become clear, by reason of the position adopted by the Commission, that there was, to put it at its mildest, a significant doubt as to whether the Minister’s position was correct. ... 15.33 ... [I]t seems to me that the duty of care which I suggest should be held to lie on the Minister does not derive from any balancing exercise at all and does not involve any aspect of the undoubted over-arching public duty which the Minister was obliged to perform. Against what can it be said that the Minister was balancing when he decided not to assemble the necessary scientific information and data (despite the Commission’s reasoned opinion) prior to the decision of the ECJ? What over-arching public duty would have been in any way impaired by the collection of such data? There is no evidence to suggest that the failure to assemble the necessary data was based on any decision involving policy, discretion or adjudication.” 53. Finally, he did not agree with the majority that the applicant company’s business would have been interrupted in any event if the Habitats Directive had been correctly implemented at an earlier point in time. According to Clarke J, the evidence accepted by the High Court was that the necessary data could have been collected and analysed in a relatively short period of time, avoiding any interruption of the applicant company’s usual activities. There was thus a causal link between the failure to assemble the relevant data and conduct the assessment at an earlier point in time, and the interruption of the applicant company’s activities in 2008. 54. In relation to damages, Clarke J noted that there were many points of disagreement between the applicant company and the State over the manner in which the former’s losses should be properly assessed. He considered that the difficulties with the evidence and the figures would have made it impossible for the Supreme Court to conduct a fair and just calculation. Had the State’s appeal been rejected, the proper course would have been to remit the question of damages to the High Court for reassessment. | 0 |
test | 001-140779 | ENG | MLT | CHAMBER | 2,014 | CASE OF VELLA v. MALTA | 3 | Preliminary objection dismissed (Article 35-3 - Ratione materiae);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence) | Geoffrey Valenzia;George Nicolaou;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva | 6. The applicant was born in 1939 and lives in Paola. 7. On an unspecified date the applicant was charged with multiple counts of theft (burglaries dating from 1976 to 1983) and/or receiving stolen goods. 8. By a judgment of 26 October 1992 the Court of Magistrates (as a court of criminal judicature) found the applicant guilty of a series of offences of receiving stolen goods, but acquitted him of the theft of those goods, holding that it was clear that he had had nothing to do with the thefts. The court found it curious that the applicant had given a detailed explanation as to the origin of each item, and yet a number of the victims of the thefts had identified the objects as belonging to them. During the investigation stage the applicant had admitted to the police that because of his fascination with antiques, he would purchase items even though he would have been aware that they had been stolen. During the proceedings, other than declaring that such statements were false, the applicant did not contest the statements or explain why he had made them in such detail and precision, and why he eventually showed the police where the items were kept. The police also confirmed that such statements had been made. Moreover, the court observed that, even though the applicant was a coin collector, the fact that he had been found in possession of tools for melting down metals such as silver and of a number of pieces of silver bullion did not favour his credibility. Furthermore, although not all the items stolen had been found in the applicant’s possession, in the court’s view it was curious that all the items found had been connected with specific, well-organised thefts, where it was clear that the robbers knew what they were looking for and were well aware of where they would place the merchandise. Indeed, the court had no doubt that the applicant had been aware of the illicit origins of the items in his possession. It sentenced him to five years’ imprisonment. 9. On 3 November 1992 the applicant appealed on various grounds and complained that he had not been able to prove the origins of all the items because the police had raided his house, seizing all the relevant documents and receipts, which had then gone missing in their custody. 10. By a judgment of 30 October 2001, the Criminal Court of Appeal modified the judgment in part. It affirmed the applicant’s innocence in respect of the theft charges, as there had not been a shred of evidence in that respect, and it reversed the part of the judgment concerning the majority of the remaining charges of receiving stolen goods (see below for detail). It disagreed with the first-instance court’s conclusion that the applicant could not but have been a receiver of stolen goods on the ground that since a number of people had recognised the items they could not all have been lying, and therefore it must have been the applicant who was wrong and was therefore responsible. The Criminal Court of Appeal observed that the applicant was a collector of and dealer in antiques, who appeared to purchase any item of interest without enquiring in detail into its legitimate origins. It appeared, from both the case file and the fact that certain items had been hidden, that the applicant was aware that some items had previously been stolen. However, the appeal court considered that the applicant should not suffer prejudice as a result of his inability to prove the origins of certain items, since this was a result of negligence on the part of the police, who had lost the relevant documentation (and some of the items). Moreover, no inferences could be drawn from the fact that he possessed certain tools, as it was normal for a coin collector to melt down coins which had become worthless. Examining the records of the proceedings, the court concluded that the crime of receiving stolen goods had only been proved in respect of objects of antiquarian value stolen from three specific venues, A., B., and C., (during two burglaries) and found in the applicant’s possession. His sentence was in consequence reduced to a two-year suspended sentence. 11. Pending the criminal proceedings against the applicant, a number of individuals alleging that they owned the items referred to in the list of charges against the applicant (also alleged victims of the relevant thefts) instituted civil proceedings to vindicate their ownership of the items. They requested that the items be returned to them and, where necessary, in the event that they could not be returned, that the applicant be held liable for damages. The relevant decisions on appeal were delivered subsequent to the Criminal Court of Appeal’s judgment finding the applicant innocent of the charges of receiving stolen goods in relation to a majority of the items. 12. Proceedings were instituted against the applicant on 4 May 1997 in relation to items stolen in 1983 from venue P. The items had been found in his possession and seized by the police. The claimants asked the court to find that they were the owners and to order their return. All were items in relation to which the applicant had eventually been acquitted of charges of theft and receiving stolen goods. The applicant argued that he had acquired the items in accordance with the law and in good faith. 13. By a judgment of 26 January 2001, having heard the parties’ addresses and having assessed the evidence, the Civil Court found that the claimants were the owners of the items at issue in the case (except for five items, the ownership of which had been claimed by other third parties). Costs were to be divided accordingly. The court found, however, without prejudice to any further action, that it would be premature to order the return of the said items. 14. The court observed that the applicant had declared that he did not know the claimant, but that she had recognised the applicant as a person who had gate-crashed a party she had once given at venue P. Moreover, G., a police officer, had testified that during the criminal investigations the applicant had admitted that “a number of items seized by the police had not been purchased honestly (bis-sewwa)”. Thus, contrary to the applicant’s testimony, it could be inferred that certain objects had not come into the applicant’s possession by proper means. Although the court was convinced that the applicant had been involved in the antiques trade for a number of years, he had not been able to put forward any evidence in relation to the items at issue or any detail as to his trade. By contrast, the claimants had identified as theirs the items which had previously been stolen. The court thus, having to choose between the two versions, opted for that of the claimants. The court considered that the fact that numerous people had been to the police station and identified various objects of which they claimed to be the owners and which had been seized from the applicant’s house was enough evidence to discredit the applicant’s testimony. 15. By a judgment of 16 April 2004 the Court of Appeal (civil jurisdiction) upheld the first-instance judgment. From the evidence submitted it appeared that the claimants had suffered two burglaries at venue P. and that the police had seized some of the stolen items from the applicant, amongst many other items identified by various third parties as theirs. While the applicant was able to show that he had been a collector since his youth, he had not managed to prove ownership of the relevant items. As to their origin, he vaguely mentioned names of individuals, some of whom were deceased. He referred to receipts which were currently with the police and which could not be exhibited to the court. The applicant submitted declarations by individuals with whom he had traded. As to his trading, however, it appeared that the applicant had not hesitated to purchase items with dubious or suspicious, if not illicit, origins. Indeed, the applicant had been investigated and various items found in his possession had been seized. The origins of the items gave rise to more than a simple suspicion that they had not been acquired legitimately. According to police officer G., the applicant had even admitted this. During the criminal proceedings G. had been asked whether the applicant had admitted to the theft and the police officer had replied “yes”. G. further stated that the applicant had referred to the dishonest purchase of a sofa (“Dan mhux bis-sewwa”) and had only shown receipts in respect of certain items in connection with which the applicant had been charged, but not all of them. In that light, the court was not satisfied that the applicant had submitted sufficient proof to show that he was the owner of the said items. Moreover, the fact that numerous people, apart from the applicant, had claimed to be the owners of the items did not suffice to support the view that the applicant was the owner. 16. Proceedings were instituted against the applicant on 26 May 1994 in relation to items stolen in 1983 from venue BC, which had been found in his possession and seized by the police. The claimants asked the court to find that they were the owners of the items and to order their return. All were items in relation to which the applicant had eventually been acquitted of charges of theft and receiving stolen goods. The applicant argued that he had acquired the items in accordance with the law and in good faith. 17. By a judgment of 29 January 2001 the Civil Court found in favour of the claimants. It held, however, without prejudice to any further action, that an order for the return of the said items would be premature. 18. The Civil Court noted that there was a certain disagreement in respect of the list of objects identified by the original claimant (the deceased ancestor of the current claimants), in that certain items had been added later. However, the claimant had produced a number of witnesses who had confirmed his declarations as to which items had been stolen. The applicant declared under oath that all the items referred to by the claimants, as well as all the other items seized, were owned by him, as he had bought them over the years. In his testimony he gave the names of people from whom he had purchased each item. He also submitted a receipt dated 1983, the year of the burglary, which indicated that he had bought a number of objects for the sum of 8,800 Maltese liri (MTL, approximately 20,500 euros (EUR)) from a certain S.A. Nevertheless, the court considered the claimants’ version to be more reliable, as it was corroborated by photos and other witnesses. Moreover, police officer G. had testified that the applicant had stated that various items seized from his house “had not been purchased honestly” and this could not but weaken the applicant’s testimony. Therefore the court had no other option but to find in favour of the claimants, at least in respect of those items that were not being claimed by other third persons. 19. By a judgment of 16 April 2004, the Court of Appeal (civil jurisdiction) upheld the first-instance judgment. It considered that the Civil Court had properly assessed the evidence and delivered a reasoned judgment. In any case, the Court of Appeal considered that the applicant had not provided a reliable explanation in respect of the origin and purchase of the relevant items. Indeed, during the criminal proceedings G. had testified, inter alia, that “at no time had the applicant stated that he had stolen the items from here or there, but he had mentioned that he had bought certain items from T., and that he knew about their dubious origins (kienu ġejjin bil-ħazin)”. The Court of Appeal considered that had the Civil Court based its decision solely on that testimony and stopped there, the relevant burden of proof might not have been satisfied. However, all the evidence advanced indicated the probability that the relevant items belonged to the claimant’s heirs – they had been stolen from venue BC, and had been identified by the claimants, even though third parties had also claimed ownership of some of the items. Although the applicant had testified under oath that he had purchased the items legally, his testimony had not been consistent and had lacked veracity. In particular, he had given the impression that he was a trader in antiques and that he had traded with various lawyers, but when questioned in respect of each of them, it transpired that he had not bought any of the items relevant to the case. The other people mentioned by the applicant were deceased and could not testify. Neither could the applicant submit receipts for those purchases, giving as the reason for this that they had been seized by the police and were being held as evidence in the criminal proceedings against him. Even if that were so, the applicant had not provided proof. By contrast, the claimants had submitted photographs of the relevant items taken before they had been stolen. 20. Proceedings were instituted against the applicant on 4 September 1992 in relation to items stolen from venue B. (including items allegedly transformed into silver bullion), which had been found in his possession and seized by the police. All were items in relation to which the applicant had eventually been acquitted of theft but found guilty of receiving stolen goods. The claimants requested that the applicant be found responsible for the theft or receiving of the stolen goods and therefore liable for damages. They asked the court to quantify such damages and to order the applicant to pay them. The applicant argued that he had acquired the items in accordance with the law and in good faith. 21. By a judgment of 22 June 2001 the court found that the claimants were the owners of the relevant items, ordered the applicant to return the said items, and held the applicant liable for damages for holding the relevant items in bad faith. 22. The court noted the expert evidence, which found that there was sufficient proof that the items were owned by the claimants. Indeed, the applicant had not denied that the items could have been previously owned by the claimants. During the criminal investigations the applicant had admitted that he had previously purchased stolen items. The declarations used in the criminal proceedings were exhibited before the court and the applicant only contended that police officer G. had invented certain things. Having re-read the witness statements, the experts took the view that the applicant rarely acquired items lawfully and in good faith. He actually was perfectly well aware of their dubious origins, as he was told by the sellers that the items had been stolen. This could not be ignored, especially as the applicant never stated that he had sale receipts for the relevant items. The items were found in his possession, he did not remember from whom he had bought them and he had no receipts. In consequence, it could not be said that he had purchased them in good faith. The court held that the applicant’s statements used in the criminal proceedings were admissible evidence (Article 632 (1) of the Code of Organisation and Criminal Procedure (“the COCP” – see Relevant Domestic Law below)). Officer G. presented five statements made by the applicant during the investigation, and the applicant explained which parts of those statements he agreed with and which parts he contested. The court considered that in doing so the applicant was picking and choosing, and yet there existed contradictions. For example, in one statement the applicant said that he had purchased two chalices from a taxi driver, and he subsequently confirmed that statement. In another statement he repeated this in more detail and subsequently stated that he had never made such a statement. At a later date he repeated the story, but differently, saying that he had bought more items. The court noted that the taxi driver had not been called as a witness to corroborate the applicant’s version. While the applicant stated that he had purchased the items from various persons, only one of those persons had been called as a witness and the latter only testified to the effect that the applicant had an interest in antiques. Another witness confirmed that the applicant was also a moneylender. Indeed, the applicant submitted a number of documents in evidence of this, but did not submit any evidence in relation to the origins of the items at issue. The court therefore concluded from the totality of the evidence that the claimants had been burgled, that they had identified the stolen items, and that the applicant had not proved that he had acquired the items in good faith. The court found it of particular relevance that in one of the applicant’s statements, which he did not contradict, he had said “when I see an antique, whatever it may be ... I go blind. I want it for myself in order to be able to take pleasure in looking at it”. Thus, the court considered that any other comment would be superfluous. The court found in the applicant the very image of a receiver of stolen goods (ricettatur). 23. As to the claim for damages, the court accepted and shared the expert’s conclusions: as had emerged from the evidence, not all the stolen items were found in the applicant’s possession, but a quantity of silver bullion was found which the claimants argued was the product of melted-down silver statues which had been stolen from them. Indeed, it had been shown that the bullion seized from the applicant was home-made and not pure. Thus, although there was no proof that the applicant had stolen the items, there was sufficient proof to hold that the claimants were indeed the owners of the relevant items, that those items had been in the applicant’s possession in bad faith and that the applicant had previously melted down silver. Indeed, both the bullion and the tools for making it had been found in his possession. The applicant gave an explanation about the bullion, but it was not corroborated by any witness statement. The applicant gave no credible explanation for the clearly home-made bullion. It was therefore very probable that objects stolen from the claimants and acquired in bad faith had, together with other items, been melted down to hide their identity. The court further highlighted, of its own accord, the absence of corroboration as regards the bullion, and the presence of tools used to melt down silver. Thus, the claimants’ case had been made out on the balance of probabilities. The applicant was therefore liable for damages because he had been in possession of stolen goods and because of the damage he had caused by melting down such items. The amount of damages was fixed at MTL 64,870 (approximately EUR 151,100). 24. The applicant appealed, arguing, inter alia, that the legal expert whose conclusions had been endorsed by the court had relied on evidence (the applicant’s statements during the criminal investigation) which should not be given any weight in civil proceedings, and that the first-instance court had erred in finding him guilty in respect of items which were never found by the police, referring to the items that had allegedly been melted down. 25. By a judgment of 9 November 2004 the Court of Appeal (civil jurisdiction) upheld the first-instance judgment (in so far as relevant). It held, however, that the applicant could not be ordered to return items which were no longer in his possession. It further considered that Article 632 (1) of the COCP (see Relevant Domestic Law below) applied to the statements made by the applicant during the criminal investigation, even though they had not been signed by him. It sufficed that officer G. had witnessed those statements being made by the applicant for them to be admissible in evidence. It was for the first-instance court to assess them and reach its conclusions. Moreover, Article 6 of the Criminal Code (see Relevant Domestic Law below) did not imply that evidence used in criminal proceedings could not be used in analogous civil proceedings. Furthermore, the applicant had not objected to the use of that evidence before the firstinstance court. Having examined in detail the evidence produced, the Court of Appeal further considered that the first-instance court had not made an incorrect assessment and that it would therefore not interfere with its finding. It found it pertinent to point out that the fact that only eleven silver bars had been found in the applicant’s possession, despite the fact that the items melted down should have amounted to many more bars, was not a thesis favourable to the applicant. Indeed, the applicant could easily have disposed of the other bars resulting from the melted-down items before the police found the bars. He was, thus, responsible for the damage caused by the melting down of the items, in accordance with the estimates provided by the expert. Any difficulties in evaluating the original items were of the applicant’s own making, as it had been his choice to melt them down. 26. On 22 January 2008 the applicant instituted constitutional redress proceedings, complaining that the three judgments of the Court of Appeal (civil jurisdiction) referred to above and another still pending set of proceedings had violated, inter alia, his right to be presumed innocent. 27. By a judgment of 29 September 2009, the Civil Court (First Hall), in its constitutional jurisdiction, rejected claims lodged by the applicant. In the context of the applicant’s various complaints, it held that the civil proceedings against the applicant had not amounted to a repetition of the criminal proceedings, as the intention of the civil proceedings had not been to find whether the applicant was guilty of any charge, but solely to secure the return of the property to its owners and, where that was not possible, to determine the level of compensation due. Moreover, the different proceedings were not comparable in relation to the burden of proof required. Indeed, each of the proceedings was capable of resulting in different findings of responsibility, including findings which conflicted with each other. The court noted that in the civil proceedings the applicant had not been found guilty of any crime. The civil courts had assessed the evidence in relation to the complainants’ ownership rights to the property against the applicant’s explanation as to how the items had been found in his possession, within the relevant parameters of civil proceedings of that nature. Considering the applicant’s complaint under Article 6 § 2 of the Convention, it held that the provision could not be applicable, since the applicant was no longer accused of a criminal offence, and his complaints were directed against civil proceedings which, save for one, had also been concluded. At a later stage, in relation to Article 6 § 2, the court also considered that the conclusions reached by the civil courts were based on a proper assessment of evidence which did not violate the applicant’s presumption of innocence. Those conclusions were based on the principle of juxta allegata et probata (delivering a judgment on the basis of what has been alleged and proved), as expected in this type of proceedings. The court considered that the applicant’s case could not be compared to any of the cases cited by him under Article 6 § 2 concerning the request of acquitted applicants for compensation for detention, and therefore the principles enunciated therein did not apply. 28. By a judgment of 25 May 2010, the Constitutional Court rejected an appeal lodged by the applicant and upheld the first-instance judgment. It considered that there had been no breach of the applicant’s rights since criminal and civil proceedings were separate and distinct: one was brought by the State, had a specific set of rules and aimed at the imposition of a punishment, whereas the other was brought by an interested individual for the restitution of his or her property rights. During criminal proceedings various rules played in favour of the accused, who might be found innocent simply because there was not sufficient evidence. This should not deny any third party the possibility of access to court to obtain relevant redress on the basis of a different burden of proof. The applicant had been cleared of all charges except those of receiving certain goods stolen from certain properties. However, that did not mean that the items in question, found in the applicant’s possession, were his own. The civil proceedings instituted by individuals claiming certain items against the possessor were independent of the defendant’s good or bad faith. The Court of Appeal had in each case found for the claimants, after considering that the latter had proved that they were the owners of the stolen items and that the applicant had not proved his ownership. The cases had dealt solely with the establishment of the ownership of the items, and nothing more, and if the outcome was that the items were not his own, then he was bound to give them back to their rightful owners, regardless of how they came to be in his possession. | 0 |
test | 001-183371 | ENG | MDA | COMMITTEE | 2,018 | CASE OF CEAICOVSCHI v. THE REPUBLIC OF MOLDOVA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Paul Lemmens;Stéphanie Mourou-Vikström | 6. The applicant was born in 1966 and lives in Chișinău. 7. The applicant is the chief executive officer of a large Moldovan company specialised in the importation of medical equipement. 8. On 8 April 2015 he was arrested by the National Anti-Corruption Center (NAC) in connection with a crimial investigation opened in November 2014. He was charged with bribery in the context of public auctions. Searches were conducted at the applicant’s home and at the headquarters of his company and numerous documents, computers and mobile phones were seized by the investigators. 9. More than twenty persons were accused in the same criminal case. Among them were the former Minister of Health and hospital directors. Many of them were apprehended and later released by the NAC or by the courts. As of July 2015, the applicant was the only accused who was kept in custody. 10. After arrest the applicant was placed in the NAC detention facility. Between 8 April and 8 October 2015 the applicant was detained in custody. Between 8 October and 4 November 2015 he was detained under house arrest. 11. The need for the applicant’s detention was justified by the prosecutors in the following way: that the applicant could abscond; he could influence witnesses; he could collude with other co-accused persons; and because the offence imputed to him was sanctioned with imprisonment of up to ten years. All of the prosecutors’ applications for the prolongation of the applicant’s detention were identical. 12. The applicant argued every time that he was ready to give up his passport and that there were no reasons to believe that he would attempt influencing witnesses or hindering the investigation. The reasons relied upon by the prosecutors in favour of detention were stereotyped and there was no evidence that he intended to abscond or do other things imputed to him. He also argued that he had a family, children, a permanent employment and a permanent abode. 13. On 10 April 2015 the Buiucani District Court issued a detention order for a period of thirty days arguing that the applicant did not produce guarantees in favour of an undertaking not to hinder the good unfolding of the investigation if no detention was applied. That decision was later upheld by the Chișinău Court of Appeal, which added that there was also a risk of the applicant’s reoffending. 14. On 7 May 2015 the Buiucani District Court prolonged the applicant’s detention by twenty-five days relying on the same grounds as before. The applicant’s appeal was rejected by the Court of Appeal on 14 May 2015. The Court of Appeal used the same arguments as the first time and added that one of the reaosons to hold the applicant in custody was to protect other persons involved in the proceedings from his violent actions. 15. By decisions dated 1 and 26 June, 21 July 2015 and 15 August 2015 the Buiucani District Court prolonged the applicant’s detention for twentyfive days each time. The court relied on similar reasons as before. The Court of Appeal dismissed the applicant’s appeals arguing that the applicant’s defence did not prove the fact that the applicant did not intend to abscond or hinder the investigation. In a decision of 11 June 2015 the Court of Appeal held for the first time that there was a risk of the applicant’s absconding. 16. On 15 and 29 September 2015 the Buiucani District Court prolonged again the applicant’s detention by twenty and eight days, respectively. It argued that the risk of absconding was justified by the gravity of the offence and that the prosecutor had presented evidence in support of the claim that the applicant may hinder the investigation. The court did not state what that evidence was. On 6 October 2015 the Buiucani District Court prolonged again the applicant’s detention by ninety days. 17. On 8 October 2015 the Court of Appeal examined the appeals lodged by the applicant against the decisions of 29 September 2015 and 6 October 2015. In its first judgment it dismissed the applicant’s appeal after finding that all the risks enumerated by the first-instance court persisted. However, when examining the appeal against the second decision, the same panel of judges considered that the risk of the applicant’s absconding was no longer justified and that there were no new reasons to consider necessary the applicant’s continued detention. Therefore, the Court of Appeal ordered the applicant’s house arrest. 18. On 4 November 2015 the applicant lodged a habeas corpus request and asked for the revocation of the house arrest. On the same date the Buiucani District Court accepted the applicant’s request and ordered his release from house arrest. 19. On 9 April 2015, on the second day of his detention, the applicant felt an accute pain in the region of his lower back. At 10.46 p.m. an ambulance was called for the applicant. The doctors diagnosed the applicant with “lumbar radicular syndorme with pronounced algic syndrome” and prescribed him hospitalisation. However, the prison administration refused to follow the doctors’ prescription. 20. Several hours later, on 10 April 2015 between 3 and 4 a.m. the applicant started experiencing again pain and asked for an ambulance to be called. An ambulance was called only at 9.27 a.m. The doctors repeated the same diagnosis and prescribed again hospitalisation. However, the prison administration refused to follow the doctors’ prescription. 21. At 10.10 a.m. an ambulance was called again for the applicant. This time the doctors diagnosed the applicant with “artherial hypertension of third degree”, “discopathie with agravated algic syndrome” and “lumbar radiculopathy” (sensory and/or motor deficit). Hospitalisation was again prescribed, but the prison administration refused to follow the doctors’ prescription. 22. At 11.44 a.m. an ambulance was called again for the applicant. The doctors diagnosed again “lumbar radiculopathy” and discopathie with a possible lesion of the nerve. The doctors reiterated the urgent need for hospitalisation, but the administration refused again. 23. At 2 p.m. the administration invited several doctors from the Institute of Neurology and Neurosurgery who confirmed the initial diagnosis and the urgent need for hospitalisation. Only after that, the prison administration allowed the applicant’s transfer to a hospital. 24. On 11 April 2015 the applicant was operated on his spine at the Institute of Neurology and Neurosurgery. He remained in hospital until 21 April 2015, when he was moved to a prison hospital. 25. On 22 June 2015 the applicant was examined by a commission of five doctors who diagnosed him with cholecystitis and fequent biliary colic. They recommended him surgical removal of his gall bladder within maximum seven days. 26. After that date the applicant and his lawyers submitted numerous requests and complaints to different authorities seeking the approval of his surgery. It was only on 3 August 2015, after the applicant’s condition drastically deteriorated, that his transportation to a normal hospital was approved. He had high fever and presented a swelling. After three days of preparations, he was subjected to surgery on 6 August 2015 and remained in intensive care for another week. | 1 |
test | 001-167177 | ENG | LTU | ADMISSIBILITY | 2,016 | LAZAUSKAI v. LITHUANIA | 4 | Inadmissible | András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 1. The applicants, Mr Audrius Lazauskas and Mr Darius Lazauskas, are Lithuanian nationals who were born in 1970 and 1966 respectively and live in Panevėžys, Lithuania and Vicar, Spain. They are represented before the Court by Mr S. Zabita, a lawyer practising in Vilnius. 2. 3. The applicants are brothers. After their mother’s death in 2006, they requested a notary to issue them with a document confirming their right to inherit their late mother’s property. They were issued with the document on 17 July 2006. The document stated that they had the right to inherit the money that their mother had deposited in several banks. On 17 November 2006 a bailiff drew up a factual circumstances statement record (faktinių aplinkybių konstatavimo protokolas) which indicated that 1,043,970 Lithuanian litai (LTL, approximately 302,354 euros (EUR)) had been found in a safe in a bank. On the basis of this document, on 22 November 2006 the applicants were issued with another document that stated that they had inherited LTL 1,043,970 in cash that had been found in a safe in a bank. 4. In 2006 a pre-trial investigation was instituted in order to determine the origin of the money found in that safe. On 21 November 2006 the prosecutor decided to restrict the applicants’ property rights to the money found in the safe and to the money in the deposit accounts. 5. On 22 November 2006 the Panevėžys District Court authorised a search to be conducted in the apartment of the applicants’ mother; the search was performed on 27 November 2006. The first applicant was present during the search and did not have any objections to it; he signed the search report. 6. The national tax authority was informed about the pre-trial investigation and started its own inspection. On 15 June 2007 it determined that no documents confirming the origin of the money in the safe existed. The national tax authority calculated the personal income tax on the money found in the safe; together with late-payment interest, it amounted to LTL 320,533 (approximately EUR 92,833). 7. On 19 July 2007 the Panevėžys Regional Court decided to apply interim measures and seized the immovable property of the applicants’ mother, as well as LTL 320,533 of the money deposited in the bank. These measures were never complained against. 8. On 18 July 2007 the prosecutor and the national tax authority instituted court proceedings seeking to extend the time-limit for their lodging a complaint with the Panevėžys Regional Court about the applicants’ failure to pay the tax due and to oblige the applicants to pay LTL 320,533 in tax surcharges. The domestic law provided that creditors of a deceased person could declare their claims to that person’s heirs or to the court within three months of the date on which the inheritance of the heirs was declared. The prosecutor and the national tax authority stated that they had only found out about the unpaid tax when the national tax authority had inspected tax declarations dated 15 June 2007 submitted by the applicants’ mother. On 31 January 2008 the Panevėžys Regional Court extended the timelimit for lodging the above-mentioned complaint. The court also held that the claims against the deceased should automatically pass to the heirs and that they should become personally liable for the deceased’s debts. The court ruled that each applicant had to pay an equal part of the income tax (plus late-payment interest) in respect of the money belonging to their mother found in the safe of the bank. 9. On 16 December 2008 the Court of Appeal upheld the decision of the court of first instance. 10. On 6 May 2009 the Supreme Court held that the lower courts had not respected the principle of equality of arms because one applicant had lived in Spain and his request for the hearing of 16 December 2008 before the Court of Appeal to be postponed had been refused one day before the start of that hearing. Consequently, the case was remitted for re-examination by the Court of Appeal. 11. On 30 March 2010 the Court of Appeal held that income declarations submitted by the applicants’ mother had been examined and that no proof of the origin of the money in the safe had been found; therefore, her heirs were liable to pay income tax on their inheritance. The applicants asked the court to summon the manager of the bank where the money was found in the safe, but this request was refused. The court considered that the manager had no knowledge about the contents of the safe and that to hear him would have been excessive and unnecessary. The applicants also, without providing any details, complained that the lowerinstance court had been biased as it had been discussed in the media that one of the applicants had allegedly been a member of an organised criminal group. However, the Court of Appeal stated that there was no evidence that discussion of that information in the media had influenced the decisions of the domestic courts; moreover, the applicant had not provided any details regarding that alleged bias. The applicants lodged a cassation appeal with the Supreme Court, which dismissed it on 7 July 2010 as not raising important legal issues. 12. Article 92 of the Law on Tax Administration provides that tax surcharges that have not been paid by a deceased person shall be paid by his heirs, in accordance with the procedure laid down in the Civil Code. 13. Article 5.50 § 1 of the Civil Code provides that acceptance of an inheritance may not be partial or subject to conditions or exceptions. Article 5.50 § 3 and Article 5.60 § 1 provide that heirs must either accept their inheritance or renounce it within three months of the day on which the inheritance procedure commences. Article 5.63 § 1 provides that the creditors of a deceased person shall have the right, within three months of the day of the opening of succession, to make claims against the heirs who have accepted the succession or the executor of the will or administrator of the inheritance, or to bring an action in respect of the inheritable property. Article 5.63 § 4 provides that the court may extend the time-limit specified in § 1 of this Article, where the time-limit was missed for important reasons and the time lapse from the opening of the inheritance does not exceed three years. 14. Article 5.52 of the Civil Code at the material time provided that if an estate was accepted by several heirs, all those heirs were to be liable for the debts of the deceased to the extent of their entire respective property. 15. The relevant parts of Article 145 of the Code of Criminal Procedure provide that in cases where there are grounds for assuming that there are, on particular premises or in any other place or in the possession of some person, instruments used in a crime, tangible objects and valuables obtained through criminal activity, or items or documents that might be relevant for the investigation of a crime, a pre-trial investigator or a prosecutor may conduct a search in order to locate and seize them. Such a search is carried out on the basis of a reasoned approval issued by a pre-trial investigation judge. This approval must specify what objects are to be searched for. In cases of utmost urgency, a search may be carried out with the authorisation of a pre-trial investigation officer or a prosecutor; however, in such a case approval of the legitimacy of the search in question must be obtained from a pre-trial investigation judge within three days of the time at which the search was conducted. The search must be carried out in the presence of the owner, tenant, or manager of the flat, house or any other premises in which the search is being conducted, or an adult member of their family or a close relative. Article 149 of the Code of Criminal procedure provides that an officer has to announce the authorisation to conduct the search and to give one copy of that authorisation to the person whose premises are being searched. Only objects relevant to the investigation can be taken, and all of the objects and documents found have to be shown to those participating in the search and be entered in the record of the search. 16. Article 6 § 1 of the Law on Income Tax at the material time provided that the income tax could amount to 15 or 33 per cent. 17. Summary of the Supreme Administrative Court of 21 September 2011, compiling case-law related with tax legislation (Lietuvos vyriausiojo administracinio teismo praktikos, taikant mokesčių administravimą reglamentuojančias teisės normas, apibendrinimas), provides that in respect of some violations of tax laws criminal or administrative responsibility may arise. However, the duty to pay taxes and related matters are regulated by tax laws; therefore, the laws on criminal or administrative responsibility are not applicable. 18. Summary of the Supreme Administrative Court of 7 March 2012, compiling case-law related with tax legislation, provides that late-payment interest is intended firstly to compensate the State for financial losses that arise when taxpayers do not pay their taxes in on time. 19. The Supreme Court has noted that the courts, when deciding whether to extend the time-limit specified in Article 5.63 § 1 of the Civil Code, have to assess why the time-limit has been missed, and to adopt a procedural decision on the extension of the time-limit (for example, decision of 14 April 2014 (no. 3K-7-18/2014)). The Supreme Court has also noted that the courts, when deciding on whether to extend the time-limit, have to assess not only the objective circumstances, but also other circumstances of legal importance (for example, decision of 15 June 2007 (no. 3K3258/2007)). The assessment of the important reasons is done by the court examining the case on a case-by-case basis (for example, decision of the Supreme Court of 30 October 2006 (no. 3K-3-546/2006)). | 0 |
test | 001-169054 | ENG | ROU | GRANDCHAMBER | 2,016 | CASE OF LUPENI GREEK CATHOLIC PARISH AND OTHERS v. ROMANIA | 1 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 14+6-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 6 - Right to a fair trial;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction) | Alena Poláčková;András Sajó;Angelika Nußberger;Branko Lubarda;Carlo Ranzoni;Egidijus Kūris;George Nicolaou;Guido Raimondi;Iulia Motoc;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Paulo Pinto De Albuquerque;Robert Spano;Síofra O’Leary;Stéphanie Mourou-Vikström;Georges Ravarani | 11. The three applicants belong to the Romanian Church United to Rome, also known as the Greek Catholic or Uniate Church. 12. In 1948 the Greek Catholic Church was dissolved by Decree no. 358/1948, and its assets, with the exception of parish property, were transferred to the State; an inter-departmental committee was given responsibility for determining the ultimate allocation of the parish property. However, the committee never completed this task and the parish property was transferred to the Orthodox Church under Decree no. 177/1948. 13. In 1967 the property comprising the church building and the adjoining courtyard, which had belonged to the first applicant, was entered in the land register as having been transferred to the ownership of the Lupeni I Romanian Orthodox Parish (“the Orthodox parish”). 14. After the fall of the communist regime in December 1989, Decree no. 358/1948 was repealed by Legislative Decree no. 9/1989. The Uniate Church was officially recognised by Legislative Decree no. 126/1990 on certain measures concerning the Romanian Church United to Rome. Article 3 of that Legislative Decree provided that the legal status of property that had belonged to the Uniate parishes and that was in the possession of the Orthodox Church was to be determined by joint committees made up of representatives of both Uniate and Orthodox clergy. In reaching their decisions, the committees were to take into account “the wishes of the worshippers in the communities in possession of these properties”. 15. Article 3 of Legislative Decree no. 126/1990 was amended by Government Ordinance no. 64/2004 and Law no. 182/2005. Under the amended decree, in the event of disagreement between the members of the clergy representing the two denominations in a joint committee, the party with an interest in bringing judicial proceedings could do so under “ordinary law” (drept comun, see the procedure referred to in paragraphs 41 and 121 below). 16. The first applicant was legally re-established on 12 August 1996 and the applicants brought proceedings before the joint committee to have their former properties returned to them, but without success. 17. The domestic law, in particular Legislative Decree no. 126/1990 and the amendments made to it in 2004 and 2005, is set out in paragraphs 39 to 43 below. 18. On 23 May 2001 the second applicant brought proceedings before the domestic courts against the Arad Orthodox Archdiocese and the Orthodox parish. It requested that the expropriation of the church building and cemetery in Lupeni, carried out on the basis of Decree no. 358/1948, be set aside, and that the church be returned to the first applicant. The first and third applicants were mentioned in the initial statement of claim as representatives of the second applicant. 19. By a judgment of 10 October 2001, the Hunedoara County Court (“the County Court”) declared the action inadmissible on the ground that the dispute ought to be settled through the special procedure established by Legislative Decree no. 126/1990, that is, before the joint committee. 20. The first and second applicants lodged an appeal against that judgment. On 22 February 2002 they requested a stay of proceedings so that the case could be resolved by friendly settlement. On 25 March 2003 they applied for it to be restored to the court’s list of cases. On the same day, the Alba-Iulia Court of Appeal (“the Court of Appeal”) dismissed the appeal, holding that the action was premature. In a final judgment of 24 November 2004, ruling on an appeal on points of law (recurs) by the first and second applicants, the High Court of Cassation and Justice (“the High Court”), quashed the Court of Appeal’s judgment and sent the case back to that court to be examined on the merits. 21. On 12 May 2006, in application of the legislative amendments to Legislative Decree no. 126/1990 which gave the courts jurisdiction to rule on the merits of cases concerning properties that had belonged to the Uniate parishes and were in the possession of the Orthodox Church (see paragraph 42 below), the Court of Appeal upheld the second applicant’s appeal and sent the case back to the County Court. 22. On 27 July 2006, when the case was restored to the County Court’s list, the action was amended in order to add the first and the third applicants formally as claimants in the proceedings. On 8 November 2006 the applicants supplemented their action with a claim for recovery of possession of the properties in question, on the basis of ordinary law. 23. The County Court asked the parties to organise a meeting in order to decide the fate of the church building in question, and to inform it of the outcome of the negotiations by 25 April 2007. The parties met on 20 April 2007 without reaching an agreement. 24. By a judgment of 27 February 2008, the County Court dismissed the applicants’ action on the ground that the Orthodox parish had become the legally recognised owner of the contested property by virtue of Decree no. 358/1948 and that it had behaved as an owner, inter alia by ensuring that the church was maintained properly. 25. By a judgment of 26 September 2008, ruling on an appeal by the applicants, the Court of Appeal set aside the judgment of 27 February 2008 on grounds of a procedural defect and remitted the case to the County Court. 26. By a judgment of 13 February 2009, the County Court found in favour of the applicants and ordered that the church be returned to the first applicant. Comparing the parties’ title deeds in respect of the property in question, it noted that the Greek Catholic party had been entered in the land register as owner of the property from 1940, and that in 1967 the Orthodox Church had entered its ownership right to the same property, transferred to it under Decree no. 358/1948. It held that the repealing of Decree no. 358/1948 had had the effect in the present case of terminating the Orthodox party’s right of ownership over the disputed property. It also pointed out that the first applicant did not have a place of worship and that it was obliged to hold its religious services in premises which it rented from the Roman Catholic Church. 27. By a judgment of 11 June 2010, the Court of Appeal allowed an appeal lodged by the Orthodox parish and dismissed the applicants’ action. On the basis of the evidence in the case file, it noted, firstly, that the church building being claimed and two parsonages in Lupeni had been constructed between 1906 and 1920 by Eastern-rite Orthodox and Greek Catholic worshippers and that, after its construction, the church building had been used alternately for services by both denominations. It noted that in 1948 the members of the Greek Catholic Church had been obliged to convert to the Orthodox Church and that this church building had been transferred to the ownership of the Orthodox Church, which had maintained it and carried out renovation work. 28. The Court of Appeal also examined statements, collected by the County Court, from four witnesses. It noted that these statements supported the statistical data indicating that there were more Orthodox than Greek Catholic worshippers in Lupeni. It noted that, according to the most recent census, there were 24,968 Orthodox worshippers and 509 Greek Catholic worshippers in Lupeni. It also compared the witness statements, written documents attesting to the number of Greek Catholic worshippers as declared when the Greek Catholic Church was re-established in Lupeni, and data from the most recent census conducted in Lupeni. 29. It then reasoned as follows: “... although the action was based on the provisions of ordinary law, namely Article 480 of the Civil Code, in view of its subject matter the court cannot rule without applying the provisions of Article 3 § 1 of Legislative Decree no. 126/1990, to the effect that the legal situation of places of worship and parsonages ... must be determined taking account of the wishes of the worshippers in the community that is in possession of the properties”. 30. It considered that, given that there were more Orthodox than Greek Catholic worshippers in Lupeni, including the converts who no longer wished to return to the Greek Catholic Church, their refusal had to be taken into account in ruling on the case. It found that “having regard to the social and historical realities, ignoring the wishes and proportional strength of Orthodox worshippers, who are in the majority, in relation to the far fewer Greek Catholic worshippers, would be to undermine the stability and certainty of legal relations”. 31. The Court of Appeal held that the fact that Decree no. 358/1948 had been repealed did not automatically mean that the Orthodox Church’s title had been annulled, as this Decree represented the law in force at the time that the ownership right was transferred. In consequence, it considered that, although it had been granted under legislation which had subsequently been declared unlawful, the Orthodox Church’s title had been valid from the date on which the transfer had been made, with the result that the action to recover possession was unfounded. 32. The applicants lodged an appeal on points of law before the High Court, alleging that the Court of Appeal had incorrectly applied the legal provisions governing actions for recovery of possession. They argued that the right of ownership could not be linked to a religion’s majority status, since ownership was a legal concept that was independent of the numerical strength and wishes of the parties. 33. On 15 June 2011 the High Court, by a majority, delivered a final judgment in which it set out, in detail, the decisions taken by the lower courts. Reiterating that those courts alone had jurisdiction to establish the facts, it endorsed their findings of fact. It dismissed the applicants’ appeal on points of law and upheld the judgment delivered on appeal. As to the applicable law, it held, in particular, as follows: “Pursuant to Legislative Decree no. 126/1990 ... a distinction is made between two situations: (a) that in which the property is in the ownership of the State ... (b) that in which the places of worship and the parishes have been taken over by the Romanian Orthodox Church and in respect of which [the question of] restitution will be decided by a joint committee made up of representatives of the clergy of the two denominations, a committee which will take account of the wishes of the worshippers in the communities in possession of these properties. In the light of those provisions, the Court of Appeal, examining an action for recovery of possession of a place of worship, correctly applied the criterion of the wishes of the (predominantly Orthodox) worshippers of the community in possession of the property, while simultaneously emphasising the unlawfulness of the reasoning of the first-instance court, which had merely compared the title deeds and ignored the special law... However, it appears that there are 24,968 Orthodox worshippers and 509 Greek Catholic worshippers in Lupeni, that the worshippers who were obliged to transfer to the Orthodox Church in 1948 do not wish to return to the Greek Catholic Church and that an attempt has been made to resolve [the dispute] through the joint clerical committee (according to the minutes of 20 April 2007 ... the Orthodox party had indicated that the request for the return of the place of worship could not be granted, having regard to the wishes of the worshippers in the parish and the fact that since 1948 the place of worship has been administered by the Orthodox believers)... The fact of supplementing Article 3 [of Legislative Decree no. 126/1990] with a paragraph stating “If the committee does not meet within the period established in its mandate, or if the committee does not reach a conclusion or if one of the parties is dissatisfied with the decision taken by the committee, the party with an interest in bringing judicial proceedings may do so under ordinary law” does not mean that actions for restitution governed by the special provisions are transformed into applications to establish title under ordinary law. A court which is required to examine such an action cannot ignore the special regulations in this area, which indicate the criterion to be taken into account in resolving such claims, namely the wishes of the worshippers in the community in possession of the property. In other words, by virtue of its full jurisdiction and in order not to compromise access to justice, a court may be called upon to decide an action on the merits, even though the prior procedure did not culminate in a decision by the joint clerical committee; at the same time, however, it may not go beyond the limits imposed by the special statutory framework. The priority to be given to the criterion of the worshippers’ wishes was decided by the legislature, which wished in this way to regulate an area which concerns the buildings assigned to a particular use (places of worship), [and so] the court is not entitled to criticise the law. Moreover, in ruling on the alleged unconstitutionality of Article 3 of Decree no. 126/1990 and the criterion of the worshippers’ wishes, the Constitutional Court has stated that the text did not infringe the principle of democracy of the Romanian State, nor that of the freedom of religious denominations (CC decision no. 23/1993, CC decision no. 49/1995)... In the Court of Appeal’s view, the fact that the State unlawfully dispossessed the Greek Catholic Church of its places of worship in 1948 cannot be remedied – in a State subject to the rule of law – by committing the opposite error, that is, by failing to take account of the wishes of the majority of worshippers at the point of adopting the given measure. Returning the properties which belonged to the Greek Catholic Church without respecting the criteria imposed by Article 3 § 1 of Legislative Decree no. 126/1990 would undermine the stability and certainty of legal relations. A right cannot be reconstructed in abstracto, in disregard of social and historical realities, and mitigation of past damage must not create disproportionate new problems... Moreover, in order to be able to bring an action for recovery of possession under ordinary law rather than under the special law, the appellants must rely on the existence of a “possession”, namely of a pecuniary right that could be relied upon by them. However, the Greek Catholic denomination was dissolved by Decree no. 358/1948 and the assets of the Greek Catholic Church passed into the ownership of the State. The building in question is currently entered (in the land register ... as belonging to the Lupeni I Romanian Orthodox Church. The fact that, through Legislative Decree no. 9/1989, the Romanian Church United to Rome (Greek Catholic) was officially recognised following the repeal of Decree no. 358/1948 does not mean that all of its titles to property were restored, in so far as the right of ownership is subject to a procedure (namely the provisions of Legislative Decree no. 126/1990 and its subsequent amendments), and the hope of obtaining title to property is not to be equated with a possession...” 34. In a separate opinion, one of the judges sitting in the case noted that the legislature’s reference to ordinary law could not be reduced to a purely procedural dimension, but was to be interpreted as the application of a rule of substantive law. Referring to the rules governing the preparation of statutes, the judge expressed the opinion that if the legislature had wished to ascribe a specific meaning to this reference to “ordinary law”, it ought to have done so explicitly. As an action for recovery of possession involved a comparison of the relevant property titles, the judge concluded that the Orthodox Church had no such title to the church building in question. | 1 |
test | 001-181079 | ENG | RUS | COMMITTEE | 2,018 | CASE OF LOGINOV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | 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 mainly complained of the inadequate conditions of their detention. | 1 |
test | 001-157392 | ENG | HUN | CHAMBER | 2,015 | CASE OF NABIL AND OTHERS v. HUNGARY | 3 | Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-f - Expulsion);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano | 5. The applicants were born in 1984, 1974 and 1985 respectively and currently reside in Bicske, Hungary. 6. Originally coming through Greece, the applicants entered Hungary via Serbia and were intercepted and arrested by the border police on 5 (Mr Nabil) and 6 (the other two applicants) November 2011. They were transferred to the border station in Röszke, Hungary, since they could not prove either their identities or their legal residence in Hungary. 7. On 6 November 2011 the applicants were interviewed with the assistance of an interpreter. On the same day the Csongrád County Police Department ordered the applicants’ expulsion to Serbia and a ban on entry to the territory of Hungary for three years, pursuant to section 43 (2) (a) of Act no. II of 2007 on the Admission and Right of Residence of Third Country Nationals (the “Immigration Act”). With regard to the requirement of non-refoulement, it was considered that there was no such obstacle to the expulsion. The execution of the expulsion order was simultaneously suspended for a maximum period of six months or until the expulsion became feasible, noting that “the Serbian party failed to reply before the expiry of the “retention time” (visszatartási idő)”. At the same time, that is, on 6 November 2011, the applicants’ detention was ordered by the Csongrád County Police Department until 9 November 2011 under section 54(1)(b) of the Immigration Act, on the ground that “[they] refused to leave the country, or for other substantiated reasons it can be assumed that [they] are delaying or preventing the enforcement of expulsion or transfer”. In the findings of fact it was noted that the applicants were not in possession of any travel documents; that they had crossed the border illegally via Serbia; that they said that their travel destination was [Western] Europe, Germany in particular; and that they had not applied for asylum. 8. The applicants were first detained at Bács-Kiskun County Police Department’s guarded accommodation (őrzött szállás). 9. On 9 November 2011 the applicants applied for asylum, claiming that they were persecuted in their home country by the terrorist organisation AlShabaab. On 10 November 2011 the applicants were transferred to the guarded accommodation of Szabolcs-Szatmár-Bereg County Police Department in Nyírbátor. 10. Preliminary asylum proceedings were put in place on 10 November 2011, and the immigration authorities were notified thereof. On 9 December 2011 the applicants were interviewed by the Citizenship and Immigration Authority (hereinafter: “asylum authority”) On 12 December 2011 their case was admitted to the “in-merit phase” by a decision of the asylum authority, in view of the fact, among other things, that there existed no “safe third country” in their respect. 11. Meanwhile, on 8 November 2011 the Kiskunhalas District Court had heard the applicants, assisted by a guardian ad litem and an interpreter, and had extended their detention until 5 December 2011. Relying on section 54(1) b) of the Immigration Act, it endorsed in essence the decision of 6 November 2011 of the Csongrád County Police Department, saying that the applicants, in a state of illegal entry, were likely to frustrate their deportation. On 29 November and 30 December 2011 the detention was extended again by summary decisions of the Nyírbátor District Court, referring to the immigration authority’s renewed requests to have the applicants detained for the same reasons as before and stating that the circumstances had not changed. These latter decisions made no reference to the on-going asylum proceedings. On 1 February 2012 the same court again extended the applicants’ detention on the same basis, mentioning that their expulsion was suspended due to their pending asylum applications. 12. On 17 January 2012 the applicants’ lawyer requested their release, but in vain. (The date as of which they obtained legal representation is not known.) A subsequent request for judicial review of their detention under sections 54(6)(b) of the Immigration Act was to no avail either. 13. On 3 March 2012 the Nyírbátor District Court again prolonged the applicants’ detention, holding that there were substantial grounds for believing that the applicants would hinder or delay the implementation of the expulsion order. Having heard the applicants, the court held as follows: “The expulsion order cannot be considered unenforceable on the ground that the asylum procedure has not been concluded. Under section 51(2) of the Immigration Act, a first asylum application has suspensive effect on the enforcement of the expulsion order, although this does not mean that the expulsion order is not enforceable. Unenforceability refers to a permanent state and not to a temporary period such as the term of the asylum procedure. ... Under section 54(6) of the Immigration Act (Act no. II of 2007), detention ordered under the immigration laws shall be terminated if (a) the expulsion or transfer has become viable; (b) when it becomes evident that the expulsion or transfer cannot be executed; or (c) the detention has exceeded six ... months. None of the reasons for the termination [of the detention] listed in the above-cited paragraph exists. The expulsion or transfer is [actually] not viable because of the pending asylum application; furthermore, there will be [at last] no reason preventing the execution of the expulsion or transfer if the foreign national [eventually] receives no protection in the asylum procedure, since the procedure has failed to prove that Serbia is no safe third country, [and Serbia], according to the information provided by the immigration authority, is ready to re-admit the foreign national pursuant to the Agreement between Serbia and the European Union. Lastly, the time that has elapsed since the beginning of the detention is less than six or twelve months ... On the basis of the information available to the court, the foreign national, according to his statement made during the first interview, intended to travel to Western Europe to find employment. He did not admit to this during the hearing but the court has no information which would support the foreign national’s [statement departing from the earlier one]. In view of this, it is reasonable to assume that the foreign national would delay or prevent the enforcement of the expulsion order. He is unwilling to comply with the expulsion order voluntarily, therefore it can be established that the expulsion order cannot be enforced by way of applying sections 48 (2) or 62 (1) of the Immigration Act [that is, seizure of travel document or designated residence]. The court has found that the conditions for the continuation of the detention lawfully ordered under section 54 of Act no. II of 2007 continue to be met.” 14. After interviews on the merits of their applications on 28 February 2012, on 19 March 2012 the applicants’ asylum applications were dismissed, but they were granted subsidiary protection (“oltalmazott”) under section 12 (1) of Act no. LXXX of 2007 (the “Asylum Act”). This decision was delivered and became final on 23 March 2012. The applicants’ detention ended on 24 March 2012. | 1 |
test | 001-161000 | ENG | ROU | CHAMBER | 2,016 | CASE OF MIHU v. ROMANIA | 4 | No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1938 and lives in Sibiu. 6. At 9.55 a.m. on 21 August 2005 the applicant took his son L.M. to the emergency unit of the Sibiu County Hospital, accompanied by their family doctor. L.M. was immediately examined by the doctor on duty, Mr C.C.R., who recorded an initial diagnosis on the observation sheet of “icteric syndrome” (jaundice). Following subsequent tests the diagnosis was changed to "hepatic cirrhosis with gastrointestinal haemorrhage” and the patient was treated with drugs. 7. Dr C.C.R. filled in forms to admit the patient to the gastroenterology unit, as provided for by the hospital’s code of practice for patients with gastrointestinal haemorrhage. However, owing to the fact that the gastroenterology unit was in a separate building and had no elevator, the patient remained in the emergency unit. 8. Despite the treatment he was given, the patient’s condition worsened and at around 1 p.m. he was examined by Dr A.M., a doctor who specialised in intensive care. She recommended that the treatment be continued and ordered blood transfusions. Owing to a lack of beds in the intensive care unit, the patient was not immediately transferred there. 9. At around 5.40 p.m., L.M. was transferred to the intensive care unit. Dr A.M., on duty that night in the unit, came to see L.M. two times. At some point during the night the blood transfusions were stopped. 10. After 6 a.m. the next morning L.M.’s condition began to worsen and he was given blood transfusions again. 11. At around 4.30 p.m., because the patient’s state continued to deteriorate, Dr F.A., the head of the gastroenterology unit, decided to perform an endoscopy of the stomach. The procedure did not succeed because of massive gastrointestinal bleeding. 12. At 5.50 p.m. on 22 August 2005 L.M. was declared dead owing to cardio-respiratory failure. According to the hospital observation sheet, the direct cause of death was upper gastrointestinal haemorrhage, ruptured oesophageal varices, decompensated hepatic cirrhosis and a haemorrhagic duodenal ulcer. 13. On 22 August 2005 the applicant and his wife lodged a criminal complaint against C.C.R. and A.M., accusing them of manslaughter. The applicant firstly complained that, despite repeated requests, Dr C.C.R. had refused to allow the patient to be transferred to another, better equipped, hospital. The applicant also complained of the failure to provide blood transfusions, which he said caused the death of his son, and of the generally poor treatment received by his son in the Sibiu County Hospital. 14. On 19 September 2005 the two doctors were questioned by the Sibiu County Police. Dr C.C.R. explained that the patient’s state of health did not allow him to be transferred to another hospital. He also submitted that a particular medicine, Lactulose, had been missing from the hospital’s pharmacy and that he had asked the applicant to buy it. Concerning the lack of blood for transfusions, the doctor said that that was not his fault and that the hospital had run out of blood that night. In conclusion, the doctor stated that the patient, who was suffering from hepatic cirrhosis, had received the necessary treatment. Dr A.M. said that the patient’s condition had had a poor prognosis, that she had provided the correct treatment and that a transfer to another hospital would not have been possible under the circumstances. 15. The applicant’s statement was taken on 26 January 2006. He reiterated his previous complaints. In addition, he criticised the delay in the administration of Lactulose to his son. 16. An autopsy report issued on 17 April 2006 said that L.M. had not died by violent means. The death was caused by upper gastrointestinal haemorrhage due to the rupture of varices in the oesophagus and a duodenal ulcer in a patient already suffering from hepatic cirrhosis. The report concluded that no issues had been found that could raise questions about the medical treatment received by the patient. 17. On 2 May 2006 the applicant complained to the Sibiu Prosecutor’s Office of excessive delays in the investigation. He also requested a forensic medical expert report to verify whether his son had received the necessary treatment. He included the results of various blood tests made by L.M. between 2000 and 2005, intending to prove that his son had not been ill in the years before his admission to the Sibiu County Hospital. 18. On 30 May 2006 the Prosecutor’s Office of the Sibiu County Court sent a request for a forensic report to the Sibiu County Forensic Service. On 18 August 2006 the Sibiu County Forensic Service replied that it could not deliver such a report because its chief doctor had already performed the autopsy in the same case. Therefore, on 25 August 2006 the request was sent to the Cluj Napoca Forensic Institute. 19. On 20 December 2006 the forensic report was added to the case file and on 4 January 2007 it was made available to the applicant. The report noted that hospital practice had not been adhered to as the patient should have been admitted to the gastroenterology section, given the diagnosis. Nevertheless, the conclusion was that the treatment received by L.M. was adequate and correct and there was no indication of medical error. 20. On 18 January 2007 the applicant submitted objections to the report and requested it to be reanalysed by the Mina Minovici National Forensic Institute in Bucharest. On 24 January 2007 the applicant’s objections to the forensic report were rejected by the prosecutor, who only allowed it to be referred to the Mina Minovici National Forensic Institute for approval. 21. On 4 April 2007, in a one-page letter, the Mina Minovici National Forensic Institute approved the report drafted by the Cluj Napoca Forensic Institute. 22. On 11 April 2007, in a briefly-worded decision based on the forensic medical report, the Prosecutor’s Office of the Sibiu County Court decided not to commence criminal proceedings against the two doctors as there had been no finding of medical errors. That decision was upheld on 13 June 2007 by the chief prosecutor of the same prosecutor’s office. 23. A complaint by the applicant against the two decisions was allowed by the Timişoara District Court on 16 April 2008. The court decided to send the case back to the prosecutor in order to commence criminal proceedings against the two doctors. The court observed that the prosecutors’ decisions had been based only on statements by the two doctors and on the forensic report and held that the investigators in the case needed to clarify whether the patient’s state of health had required his admission to the gastroenterology unit and whether treatment in that unit could have influenced the course of the victim’s illness. The court ordered that such questions should be answered by way of a more thorough investigation, taking statements from doctors specialising in gastroenterology, as well as from other employees of the hospital. In addition, the court requested the prosecutors to clarify, by way of witness statements and confrontations, what was the practice of the hospital in dealing with cases of gastrointestinal bleeding and whether the two doctors had observed that practice. The judgment became final on 10 October 2008 when an appeal on points of law by the two doctors was rejected by the Timiş County Court. 24. On 20 March 2009 the investigation resumed with the questioning of Dr P.P.J., a gastroenterologist employed at the Sibiu County Hospital, and on 23 March 2009 of Dr F.A., who had performed the endoscopy on L.M. On 25 March 2009, C.C.R. and A.M., the two doctors under investigation, were questioned for a second time. 25. On 27 March 2009 the Prosecutor’s Office of the Sibiu County Court again found no fault in the actions of the two doctors. That decision was communicated to the applicant on 26 May 2009. On 18 June 2009 a complaint by the applicant against that decision was rejected as ill-founded by the chief prosecutor of the same prosecutor’s office. The applicant took his case against those decisions to court. 26. On 7 June 2010 the Timisoara District Court allowed the applicant’s complaint and ordered the reopening of criminal proceedings, considering that the questions raised in its judgment of 16 April 2008 had still not been answered. The court held that, bearing in mind the seriousness of the case, which involved the death of a man, the investigation should have been more detailed and the applicant’s allegations should have been more thoroughly checked. More specifically, the court noted that the applicant had maintained, among other things, that L.M. had been healthy and had never previously been admitted to hospital and that there had been delays in the administration of a particular drug and in giving blood transfusions. However, the medical reports had said that the deceased was suffering from an ulcer and cirrhosis. The court also reasoned that, even if it could be accepted that rapid changes could occur in such conditions, it was hard to believe that the victim had had no previous symptoms and had not been under the supervision of medical professionals prior to 22 August 2005. In view of the above, the court further requested that the prosecutors take statements from the family doctor and gather evidence about the victim’s state of health prior to his admission to the Sibiu County Emergency Hospital. 27. On 24 December 2010 the investigation resumed with a letter being sent to the Sibiu Police in which the prosecutor requested their assistance in obtaining a statement from the victim’s family doctor, as well as copies of any medical documents she might have concerning the victim’s state of health prior to his hospital admission on 21 August 2005. In January 2011 the family doctor, M.L.I., gave a statement to the police. She recalled that, during an examination in December 2004, L.M. had presented with signs of hepatic distress and that she had recommended various tests. The tests had come back showing results that were slightly above the norm, so she had advised him to see a gastroenterologist. 28. Dr F.A. was again questioned on 27 January 2011. Two doctors who had been on duty when L.M. was admitted were questioned in February 2011. They did not remember any relevant details about the case. 29. On 25 July 2011 the Prosecutor’s Office of the Sibiu County Court, considering it established that the applicant had been suffering from cirrhosis well before August 2005 and that nothing could have been done to save his life, decided not to press criminal charges against the two suspects on the grounds that they had not committed any criminal act. A complaint by the applicant against that decision was rejected as ill-founded by the chief prosecutor of the same prosecutor’s office on 23 August 2011. 30. A complaint by the applicant against the prosecutors’ decisions of 25 July and 23 August 2011 was allowed by the Timisoara District Court on 21 December 2011. The court considered that all the facts had still not been clarified by the investigation and again ordered the reopening of criminal proceedings. Specific instructions were again given to the prosecutors. The court noted that, in order to observe the equality of arms and to guarantee a fair trial, the applicant should have been consulted on which witnesses to hear and given the opportunity to call doctors of his own choice as witnesses. The court further reiterated the instructions given in its previous judgments in the case, which it did not consider had been carried out by the prosecutor. Finally, the court ordered the prosecutor to conduct a speedier investigation, bearing in mind that a long time had passed since the lodging of the applicant’s complaint and that the inquiry had been totally ineffective up to that point. 31. The investigation was reopened on 21 February 2012. On 27 February 2012 a statement from the applicant was taken by the prosecutor. He stated that he did not know the names or addresses of the medical staff on duty at the time of the incident. He further requested a confrontation with the two doctors under investigation. 32. On 29 February 2012 the prosecutor asked the Sibiu County Emergency Hospital for a list of employees on duty on the two days of L.M.’s stay in hospital. On 21 March 2012 the hospital replied that it no longer had the duty sheets as that type of document was only kept for three years. 33. On 4 April 2012 two doctors specialising in gastroenterology, called as witnesses by the applicant, testified before the prosecutor that the diagnosis and treatment applied by Drs C.C.R. and A.M. had been correct in the circumstances. They noted that the only drug capable of removing blood from the stomach in order to prepare the patient for an endoscopy under the proper conditions was not available in Romania at that time. 34. A confrontation between C.C.R., A.M. and the applicant took place on 3 May 2012. 35. Between 11 and 20 April 2012 the prosecutor took statements from several employees of the Sibiu County Emergency Hospital. They all declared that they did not remember anything about the patient L.M. 36. By a decision issued on 8 June 2012 the Prosecutor’s Office of the Sibiu County Court ended its criminal investigation, finding no guilt in the actions of the two doctors. The prosecutor noted that according to the hospital’s practice, the patient should have been admitted to the gastroenterology unit but that this had not been possible because the unit did not have an elevator for wheeled beds. However, the prosecutor observed that all the medical reports drafted in the case had concluded that the patient’s diagnosis had been correct and that he had had the appropriate treatment. This conclusion was also confirmed by the two specialists called as witnesses by the applicant. The prosecutor stated that the endoscopy performed before the patient’s death had been rendered more difficult owing to the absence in the country of the drug needed to clear blood from the patient’s stomach. With regard to the applicant’s complaint concerning the doctors’ failure to administer blood transfusions, the prosecutor held that the patient’s death had been caused not only by anaemia but also by hepatic insufficiency. 37. The prosecutor’s decision was upheld on 16 July 2012 by the head prosecutor of the Prosecutor’s Office of the Sibiu County Court. 38. A complaint by the applicant against those two decisions was rejected with final effect on 19 November 2012 by the Timişoara District Court. The court, quoting widely from the prosecutor’s decision of 8 June 2012, held that the investigation had correctly led to the conclusion that there was no proof of fault by the two doctors. 39. On 19 October 2005 the applicant and his wife lodged a disciplinary complaint against Drs C.C.R. and A.M. 40. The disciplinary committee of the Sibiu County College of Doctors opened an investigation into the patient’s death, collecting documents from the patient’s medical file and taking statements from the doctors who had treated him. It gave its decision on 27 February 2006, ruling that no medical errors had been made. 41. The applicant objected to the committee’s conclusions and his appeal was examined by the superior disciplinary committee of the National College of Doctors. 42. On the basis of the evidence presented to it, on 7 December 2006 the National College of Doctors terminated the disciplinary proceedings against Drs C.C.R. and A.M. Relying on the medical documents in the file and on the opinion of a university professor, the authority considered that it had been established that no medical errors had been made. 43. The applicant and his wife brought an action for the quashing of the decision adopted on 7 December 2006, pointing to the failure by the two doctors to provide appropriate treatment for their son. 44. On 5 June 2007 the Sibiu County Court dismissed the action as illfounded and upheld the decision of the National College of Doctors. 45. An appeal by the applicant against that judgment was allowed by the Braşov Court of Appeal on 26 February 2008. The case was sent to the Braşov County Court for rehearing because the lower court had not examined any evidence other than the documents in the file, which had been the sole basis for its decision. 46. On 13 February 2013 the Braşov County Court took note of the fact that the applicant and his wife no longer wished to pursue the proceedings and closed the case. | 1 |
test | 001-166925 | ENG | HRV | CHAMBER | 2,016 | CASE OF ŽAJA v. CROATIA | 3 | Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Criminal offence) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1958 and lives in Prague. 6. The applicant claims to have been living in Prague since 18 November 2000, when the Czech authorities granted him a visa for an extended stay (a long-term residence permit). On 18 February 2008 the applicant was granted the right to reside permanently in the Czech Republic (a permanent residence permit). However, he did not de-register his domicile (prebivalište) in Croatia. 7. On 5 June 2008 the applicant bought a car (a Mercedes S 350 L) in Germany and on 10 June 2008 he registered it in the Czech Republic in his name. 8. On 11 June 2008 the applicant entered Croatia in his car. He claimed that the purpose of his visit was, inter alia, to de-register his domicile in Croatia. 9. On 15 June 2008 the applicant was stopped by the police in Zagreb while driving his car. The police authorities, finding it suspicious that a Croatian national was driving a car with foreign licence plates, impounded the car and reported the matter to the Customs Administration, suspecting that the car had been imported into Croatia without payment of the relevant taxes and that an administrative offence had thus been committed. 10. On 17 June 2008 the applicant de-registered his domicile in Croatia. 11. On 15 September 2008 the applicant re-registered his domicile in Croatia. 12. Meanwhile, on 16 June 2008 the Customs Administration of the Ministry of Finance had instituted administrative proceedings (upravni postupak) with a view to establishing whether the applicant was liable to pay taxes on the importation of his vehicle and if so, in what amount. On the same day the Customs Administration had issued a decision impounding the applicant’s car, against which the applicant did not appeal. 13. On 11 December 2008 the Customs Administration issued a decision ordering the applicant to pay, by 30 December 2008, the customs debt (consisting of the VAT and the special tax on motor vehicles) owed on the importation of his car, which amounted to 527,747.08 Croatian kunas (HRK). 14. The applicant did not appeal against that decision, which thus became final and enforceable on 3 January 2009. 15. Since the applicant did not pay the above sum, on 23 February 2009 the Customs Administration instituted administrative enforcement proceedings and issued a decision confiscating his car and ordering its sale with a view to collecting the above-mentioned customs debt. 16. By a decision of 5 June 2009 the Ministry of Finance, as the second-instance administrative authority, dismissed an appeal by the applicant and upheld the first-instance decision of 23 February 2009. 17. On 6 October 2009 the applicant brought an action in the Administrative Court (Upravni sud Republike Hrvatske). 18. On 9 May 2012 that court, which in the meantime had become the High Administrative Court (Visoki upravni sud Republike Hrvatske), dismissed the applicant’s action. 19. In the meantime, on 17 July 2008 the Customs Administration had also instituted administrative offence proceedings (prekršajni postupak) against the applicant for importing his car into Croatia without paying the relevant taxes. 20. On 31 July 2008 the Customs Administration found the applicant guilty of committing an administrative offence under section 241(1) subparagraph 10 of the Customs Act (see paragraph 29 below), and fined him HRK 5,000. The Customs Administration found that the applicant had had his domicile in Croatia at the time of the commission of the offence. Therefore, it was irrelevant that he did not pay income tax in Croatia, that he had health insurance in the Czech Republic and not in Croatia, and that he had been granted the right to reside permanently in the Czech Republic. By having his domicile in Croatia he failed to satisfy the conditions for exemption from payment of customs duties set forth in Article 5 of Annex C to the Convention on Temporary Admission (“the Istanbul Convention”), which stated that the registered owner of a vehicle registered abroad must, in order to qualify for exemption, have his domicile outside the territory of the State into which the vehicle was being brought (see paragraph 45 below). 21. On 8 September 2008 the High Court for Administrative Offences (Visoki prekršajni sud Republike Hrvatske) quashed the first-instance decision on account of incomplete facts, and remitted the case to the Customs Administration. The relevant part of that decision reads as follows: “[The Customs Administration] states, as the decisive reason for its decision to find the accused guilty, that [he] has his domicile in ... Croatia, at [an] address in Zagreb, ..., and that the fact that he possesses a residence permit, that is, a valid visa, of the Czech Republic, is not sufficient evidence for the accused to be entitled to import [his] vehicle with total exemption from customs duties under the Convention on Temporary Admission. However, it is precisely such explanation of the contested decision that, along with the other elements in the case file, shows that the taking of evidence was flawed, that [the Customs Administration] did not give [sufficient] reasons for the decisive facts on which it based its decision, and that they [that is, those facts and the reasons given] are in strong contradiction with each other. [In particular, the Customs Administration] while acknowledging the fact that [the accused] possesses a residence permit, that is, a visa, of the Czech Republic, further gives as reasons [to support the finding] that the accused has a domicile in ... Croatia, that he is not a taxpayer in ... Croatia, and that he is not even insured with the Croatian Health Insurance Fund. .... ... [D]uring the first-instance proceedings [before the Customs Administration] the accused stated circumstances and furnished evidence which, in his view, suggested that he had not committed the offence of which he was accused. [The Customs Administration therefore] needed to examine the evidence more thoroughly with a view to establishing the [relevant] facts completely and correctly. ... This court considers that what is missing in the present case are the reasons for not accepting the status of the accused in the Czech Republic, the explanation of where the accused actually lives [resides] and, consequently, a clear conclusion as to whether or not he satisfied the conditions set out in Article 5 of Annex C of the Convention on Temporary Admission ....” 22. In the resumed proceedings, by a decision of 9 October 2008 the Customs Administration again found the applicant guilty of committing the same administrative offence and fined him HRK 5,000. The Customs Administration again found that at the time of the commission of the offence the applicant had had his domicile in Croatia according to the Domicile and Residence of Citizens Act (see paragraph 32 below) and thus did not satisfy the conditions for exemption from payment of customs duties set forth in Article 5 of Annex C to the Istanbul Convention (see paragraph 45 below). Therefore, the fact that the applicant resided in the Czech Republic was of no relevance as he had not proved that he had his domicile there. The relevant part of that decision reads as follows: “After having examined the evidence ..., this authority finds that the accused, Miljenko Žaja, committed the customs-related administrative offence he was charged with, defined in section 241(1) subparagraph 10 of the Customs Act. Section 241(1) subparagraph 10 [of the Customs Act] provides that a fine for an administrative offence is to be imposed on a person who treats goods as if they satisfy the conditions for temporary admission, and that conduct is contrary to the conditions for the temporary admission of goods set forth in the Customs Act or in the [Istanbul] Convention. In the proceedings it was established beyond doubt that on 15 June 2008 the accused was found operating the vehicle in question with foreign licence plates of the Czech Republic on the territory of Croatia as if he satisfied the conditions for temporary admission, and that conduct was contrary to the conditions for temporary admission of goods set forth in the Customs Act or in the [Istanbul] Convention because he was a Croatian national who at the time of the commission of the offence had his domicile in Croatia. The rights and obligations of participants in customs proceedings and the powers of the customs authorities as regards means of transport imported by natural persons into Croatian customs territory are regulated by the provisions of the [Istanbul] Convention. Likewise, customs proceedings and supervision of means of transport with foreign licence plates in the Croatian customs territory is regulated by the provisions of the Customs Act and the Decree on the implementation of the Customs Act. It is established beyond dispute that the accused is a Croatian national who at the time of ... the offence had his domicile in ... Croatia. His defence that he had a registered residence in the Czech Republic was not accepted as a ground for exemption from liability ... Namely, the mere fact that he possesses a residence permit is not a proof that would entitle him to import [his] car with total relief from payment of customs duties under the Convention on Temporary Admission because he does not have his domicile abroad. This is so because the procedure for temporary admission of private means of transport is regulated by Article 5 of Annex C to the [Istanbul] Convention in such a way that means of transport for private use must be registered in a territory other than that of temporary admission in the name of a person having a seat or domicile outside the territory of temporary admission and be imported and used by persons residing in that territory. As regards his personal status, it has been established beyond doubt that the accused is a Croatian national, and that until 17 May 2008 he had [his] domicile in Croatia, in Zagreb. Furthermore, after the accused was reported as having committed the administrative offence, he de-registered his domicile in Zagreb – in this authority’s view – merely to avoid liability for the offence. At the time of the commission of the offence the accused did not satisfy the conditions for temporary importation with total relief and [was thus not entitled to] operate a vehicle with foreign licence plates. Namely, [Article 5 of] Annex C to the [Istanbul] Convention expressly provides that the right to temporary importation belongs to persons who have domicile outside the territory of temporary admission, that is, outside Croatia. This authority has examined the argument of the accused that he is not a taxpayer in Croatia, which is evident from the certificate of 23 June 2008 issued by the Tax Administration, as well as the evidence [to the effect] that he is neither insured with the Croatian Health Insurance Fund nor has social security [cover] in Croatia. However, that evidence cannot lead to the adoption of a different decision, because the fact of [having or not] health insurance or social security is not evidence of domicile abroad. This authority has also taken into account the fact that the accused had health insurance in the Czech Republic as of 3 October 2007. However, having [health] insurance is itself not relevant for the adoption of a different decision because the fact of [possessing] insurance, which according to the accused’s own statement is voluntary, does not give [him] the right to temporary admission of the vehicle in question with total relief. On the basis of these findings of fact, and in accordance with the foregoing provisions, this authority has established beyond doubt that the accused did not satisfy the conditions for temporary admission, and that, by handling the vehicle in question contrary to [those] conditions, he committed the administrative offence defined in section 241(1) subparagraph 10 of the Customs Act. This authority has [also] examined the argument of the accused that he is registered in the Czech Republic [as an alien] for an extended stay, of which he submitted evidence [in the form of] a certificate [issued] by the Police of the Czech Republic. However, that evidence does not prove his domicile abroad, but only his stay. What is more, at the hearing held on 30 September 2008 the accused himself stated only the fact of his residence in the Czech Republic, which confirms that at the time of the commission of the offence he did not satisfy the conditions for the temporary admission of vehicles with total relief, in accordance with Annex C to the [Istanbul] Convention. In particular, it is beyond doubt that at the time of the commission of the offence the accused had his domicile in Croatia. Section 2 of the Domicile and Residence of Citizens Act provides that a citizen’s domicile is the place where he has settled with the intention of permanently living there, and in which he has permanent accommodation secured. The solemn statement of the commercial company [ERC] of 13 August 2008 stating that it would provide accommodation for Miljenko Žaja as of 1 January 2008 was also examined in the proceedings. However, [that statement] is not decisive for exempting [the accused] from liability because it was issued after this authority adopted its [first] decision of 31 July 2008 and because the statement in question does not give him the right to temporary admission with total relief. The statement given by P.Ć. (before a notary public on 22 September 2008), which was also examined during the proceedings, is illogical and contrary to [both] the statement of Miljenko Žaja and the solemn statement of 13 August 2008 in that it suggests that the flat [in Prague in which the applicant claimed to be living] was rented to P.Ć., and not to the accused, whereas the solemn statement of ERC of 13 August 2008 suggested that it provided Miljenko Žaja with accommodation at the address [in Prague]. After examining that evidence, this authority considers that it was obtained with a view to proving that the accused had rented accommodation to live in abroad. Moreover, the evidence of the accused that his wife is a director of company PZM in Prague is not relevant either, because in his statement of 22 July 2008 he stated that his wife lived in Zagreb and had her business in Croatia. This authority does not dispute the fact that the accused is disabled, with a degree of disability of 100%, of which he submitted as evidence a membership card [issued by an association of disabled persons] in his name indicating his domicile [as being] in Zagreb ... In the proceedings all the evidence furnished by the accused was examined. However, by that evidence the accused did not prove that he had been living abroad. From all the evidence it is apparent that at the time of the commission of the offence the accused was a Croatian national who had his domicile in Croatia, with all the rights and obligations attached to that. The accused could not pose in Croatia as a person having domicile abroad and enjoy the rights of [such] a person in [his own] country, where until 17 June 2008 he had his domicile. Therefore, the accused did not satisfy the conditions for the temporary admission of a foreign car to the territory of the Republic of Croatia with total relief under Annex C [to the Istanbul Convention] and the Decree on the implementation of the Customs Act because his domicile was in Croatia at the time of the commission of the offence. In the light of the foregoing, this authority has adopted a decision finding the accused guilty, as stated in the operative provisions.” 23. By a decision of 29 October 2008 the High Court for Administrative Offences dismissed an appeal by the applicant and upheld the first-instance decision, endorsing the reasons given therein. The relevant part of that decision reads as follows: “Against the first-instance decision the accused ... lodged ... an appeal on the grounds of breaches of procedure, incomplete and incorrect findings of fact, misapplication of the substantive law, and a wrong decision on the sanction. In the appeal the accused essentially argues ... that he has proved that at the time of entry into the Republic of Croatia he satisfied all statutory requirements for legally entering [Croatia] with the car in question, that the first-instance authority called into question the validity of the visa of the Czech Republic, where he was [first] granted an extended stay, and from 18 February 2008 the right to reside permanently, [and] that he uses the flat in Prague without restrictions. He therefore considers that there are no legal grounds or evidence for a finding that he committed the administrative offence in question. ... The appeal is unfounded. ... The accused unjustifiably denies liability for the administrative offence committed, because the first-instance authority[,] ... on the basis of his statement given at the hearing of 30 September 2008 and ... the written evidence[,] ... correctly concluded that his conduct had all the elements of the administrative offence defined in section 241(1) subparagraph 10 of the Customs Act. [The accused] was on 15 June 2008 in Zagreb found operating a Mercedes Benz vehicle ... with foreign licence plates of the Czech Republic as if he satisfied the conditions for temporary admission, and that conduct was contrary to the conditions for temporary admission of goods given that at the time of the commission of the offence he had his domicile in Croatia. Since that conduct was contrary to the conditions for temporary admission of goods set forth in the Customs Act and the [Istanbul] Convention, he committed the administrative offence defined in section 210(1) subparagraph 10 of the Customs Act. ... The other appellate arguments are also unfounded because the ... Customs Administration ... correctly and accurately established the [relevant] facts ... and correctly applied the substantive law... In particular, special conditions for the temporary importation of means of transport are prescribed in Article 5 of Annex C to the Convention on Temporary Admission in Chapter III, where subparagraph (b) provides that means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons having domicile in such a territory. The Domicile and Residence of Citizens Act in its section 2 provides that domicile is the place where a citizen has settled with the intention of permanently living there. Therefore, given that during the [first-instance] proceedings the decisive fact that the accused is a Croatian national who at the time of the commission of the offence had his domicile in the territory of the Republic of Croatia was established beyond doubt, he did not satisfy the conditions for temporary admission of a foreign car to the territory of the Republic of Croatia set out in the above-cited provisions of the Annex to the Convention on Temporary Admission. [This court] therefore upholds as correct in its entirety the decision of the first-instance authority ... whereby the accused was found guilty and sanctioned for the administrative offence defined in section 210(1) subparagraph 10 of the Customs Act ...” 24. The applicant then, on 12 November 2008, lodged a constitutional complaint against the second-instance decision, alleging violations of his constitutional rights to fair proceedings, equality before the law and equality before the courts and other public authorities. In so doing he relied on Article 14 paragraph 2, Article 26 and Article 29 paragraph 1 of the Croatian Constitution (see paragraph 26 below). He argued that the High Court for Administrative Offences had misinterpreted the text of Article 5 of Annex C to the Istanbul Convention, which in the official text did not refer to “domicile” but to “living” abroad. Therefore, the fact that while living in Prague he had kept his domicile in Croatia was not relevant. The applicant further argued that the meaning given to certain legal terms in domestic legislation could not be relied on in interpreting the same or similar terms used in international agreements. In particular, the applicant argued as follows: “In the decision [of 29 October 2008] the High Court for Administrative Offences totally wrongly quoted the text of Article 5 subparagraph (b) ... of Annex [C] to the Convention on Temporary Admission by stating [that it] ‘provides that means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons having domicile in such a territory’ [emphasis added]. However, the text Article 5 subparagraph (b) ... of Annex [C] to the Convention on Temporary Admission published in the Official Gazette [– International agreements] no. 16/98 is completely different and reads: ‘... means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and [must] be imported and used by persons living in such a territory’ [emphasis added]. The obvious difference between [the two texts] is that the High Court for Administrative Offences refers to [having] domicile in the territory of another State as a condition for using a foreign car whereas the text of the Convention [on Temporary Admission] ... refers to ... living in the territory of another State, which is legally not the same. Besides, the fact of living in the territory of another State, that is, in the State from which the disputed car originates, cannot be assessed in accordance with Croatian laws, and especially not in the way [the High Court for Administrative Offences] did it, but in accordance with the Convention [on Temporary Admission] itself and the Decree on the implementation of the Customs Act, .... [T]hat fact of living in the territory of another State is to be proved by work or residence permit. ... all customs offices in Croatia have, upon a citizen’s entry into [Croatia] by car, been establishing the fact of living in another State by checking only work or residence permit. It is evident that in the instant case [the authorities] departed from the relevant law and the established practice ... by deliberately misquoting the relevant provisions with a view to creating conditions for the complainant’s conviction at all costs. ... [T]he complainant proved beyond doubt, by presenting a valid visa for an extended stay, the contract on the use of a flat and a social security certificate, that he has de jure and de facto been living in the Czech Republic, and that he had legally bought the car in accordance with the Czech laws. [It follows that] the complainant perfectly legally entered Croatia in accordance with Article 5 subparagraph (b) ... of [Annex C to] the Convention on Temporary Admission, and that by so doing he did not commit a customs offence defined in section 241(1) subparagraph 10 of the Customs Act. In any event, the customs office [in question] would not have allowed the complainant to enter the territory of Croatia if he did not satisfy the said conditions. It is totally unclear why the complainant should, as stated in the first-instance decision, pay any customs debt [in the situation] where he did not ask for customs clearance but only temporary admission. If the customs authorities considered that temporary admission was not allowed then they could have ordered that the car be exported from Croatia ... at the expense of the complainant. The above described proceedings are certainly a chicanery for the reasons as stated and at the same time constitute a dangerous precedent for all other citizens of Croatia ... If such proceedings would apply to all Croatian nationals operating cars with foreign licence plates, only a few [such] cars daily could enter Croatia. Besides, if that view of the lower judicial and other authorities on the [interpretation of the relevant] substantive law is to be accepted, not a single one of hundreds of thousands of Croatian citizens temporarily working in Germany, Italy or Switzerland could enter Croatia because they all legally have domicile in Croatia. [In this way] several thousands of cars should be confiscated every year, especially from citizens of Bosnia and Herzegovina having double nationality who enter Croatia on a daily basis. In particular, the [contested] decisions infringed the right to impartial and fair proceedings guaranteed by Article 29 of the Croatian Constitution because for the reasons set out above those decisions are certainly neither fair nor impartial. On the contrary, they are absolutely biased and blatantly unfair. The decision to prosecute only the complainant and not hundreds of thousands of others certainly constitutes a violation of Article 14 paragraph 2 of the Constitution whereby equality before the law is guaranteed to the complainant, and also of Article 26 of the Constitution which guarantees equality of all Croatian citizens before courts and other State authorities.” 25. By a decision of 8 April 2009 the Constitutional Court (Ustavni sud Republike Hrvatske) dismissed the applicant’s constitutional complaint, finding that the contested decisions were based on a “constitutionally acceptable interpretation and application of the relevant substantive law”. The Constitutional Court’s decision was served on the applicant’s representative on 22 April 2009. It reads as follows: “5. According to section 241(1) subparagraph 10 of the Customs Act a ... natural person shall be liable for an administrative offence if he or she handles [the] goods as if they satisfy the conditions for temporary admission, and that conduct is contrary to the conditions for temporary admission of goods set forth in the Customs Act or in the Convention on Temporary Admission, Convention on Temporary Admission, Annex C, Article 5 subparagraph (b) provides as follows: (b) means of transport for private use must be registered in a territory other than that of temporary admission, in the name of a person having seat or domicile in a territory other than that of temporary admission, and be imported and used by persons living in such a territory. Having regard to the cited provisions of the Customs Act and Article 5 subparagraph (b) of the Annex C to the Convention on Temporary Admission, as well as the facts established in the proceedings ... (in particular the fact that it was established ... that at the time of the commission of the offence the complainant had registered domicile in Croatia in accordance with the relevant provisions of the Domicile and Residence of Citizens Act), the Constitutional Court finds that the legal views expressed in the contested decisions are based on a constitutionally acceptable interpretation and application of the relevant substantive law. The Constitutional Court considers that the relevant administrative authority and the High Court for Administrative Offences, relying on the facts established in the proceedings, gave reasons for their views expressed in the contested decisions, which undoubtedly do not result from an arbitrary interpretation and application of the relevant substantive law. The Constitutional Court therefore finds that the complainant’s right to equality before the law guaranteed by Article 14 paragraph 2 of the Constitution was not violated by the contested decisions. 6. Article 29 paragraph 1 of the Constitution provides as follows: Everyone has the right that an independent and impartial court established by law decides fairly and within a reasonable time on his rights or obligations, or as regards suspicion or accusation of a criminal offence. [In the present case] the administrative and judicial authorities acted within their jurisdiction established by law. It is evident from the case-file that the first-instance administrative authority took evidence in accordance with the Administrative Offences Act and that the High Court for Administrative Offences decided on the complainant’s appeal on the merits. It is also evident that the complainant had an opportunity to follow and participate in the proceedings, and that he could undertake all permitted procedural actions and lodge a remedy. The contested decisions are sufficiently reasoned and adopted in accordance with the relevant procedural rules. For these reasons, the [Constitutional] Court finds that the contested decisions did not violate the complainant’s constitutional right to fair proceedings. As regards the complainant’s argument that in similar cases the relevant authorities proceed differently, that in itself does not mean that the complainant’s constitutional right was violated by the contested decisions. In the [Constitutional] Court’s view, in the proceedings [complained of] the contested decisions were adopted in accordance with the relevant legislation. [T]herefore the fact that different decisions may have been adopted in other proceedings is of no relevance for the lawfulness of the decisions contested before the Constitutional Court in these proceedings, nor can it lead to a different decision in this particular case. 7. Article 26 of the Constitution ... is not relevant in this case.” | 1 |
test | 001-164681 | ENG | HRV | CHAMBER | 2,016 | CASE OF VRZIĆ v. CROATIA | 3 | No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property) | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković | 5. The applicants were born in 1955 and live in Poreč. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 5 February 2009 the applicants and their company, M.N., entered into an agreement with M.G. and his company, E. By virtue of that agreement the applicants acknowledged their debt of 580,000 Croatian kunas (HRK) to M.G. and their company’s debt of HRK 180,000 to company E. In order to secure the overall loan, the applicants used their house as collateral, allowing M.G. to register a charge on it. It was stipulated that unless the applicants and their company paid their outstanding debts by 1 May 2009, the creditors were entitled to institute enforcement proceedings for payment of the debt through the sale of the applicants’ house. 8. On 20 October 2009 M.G. and his company E. instituted enforcement proceedings against the applicants before the Poreč Municipal Court (Općinski sud u Poreču), seeking the judicial sale of the house. They argued that the applicants had failed to pay their debt to M.G., while the company M.N. had managed to pay only part of its debt to the company E. The applicants’ outstanding debt amounted to HRK 703,643.05. 9. On 17 November 2009 the Poreč Municipal Court granted that request and issued an enforcement order against the applicants. The applicants did not appeal and the enforcement order became final on 17 December 2009. 10. On 11 December 2009 the Poreč Municipal Court registered the enforcement order on the applicants’ house in the land register. 11. A hearing to assess the value of the property was held before the Poreč Municipal Court on 4 May 2010. Both applicants were properly summoned, but only the first applicant appeared. He undertook to submit an expert valuation of the house within two days. The creditor asked the Municipal Court to commission an expert for that purpose. The first applicant did not comply with his undertaking. 12. On 16 June 2010 the valuation of the house was carried out on site by a civil engineer and a surveyor, in the presence of the first applicant. 13. The civil engineer submitted his report on 20 August 2010, stating that the value of the house was HRK 2,463,092.48 (approximately 323,860 euros). The applicants made no objections to the valuation. 14. On 7 October 2010 another set of enforcement proceedings against the applicants was joined to the proceedings at issue. In the former proceedings an enforcement order had been issued against the applicants at the request of the Poreč Municipality on 12 May 2010, in respect of a claim of HRK 24,352.94 (approximately 3,200 euros). Since the applicants had not lodged an appeal, the enforcement order had become final on 12 June 2010. 15. On 25 October 2010 the Municipal Court set the value of the applicants’ house at HRK 2,463,092.48. 16. On 25 January 2011 a first public auction was held. However, there were no interested buyers. The applicants, though properly summoned, did not appear. 17. A further set of enforcement proceedings against the applicants was joined to the proceedings at issue on 13 May 2011. In those proceedings, an enforcement order had been issued against the applicants at the request of Bank P. on 24 January 2011, in respect of an unpaid loan of 14 February 2006 in the amount of 159,688.87 Swiss Francs. Since the applicants had not lodged an appeal, the enforcement order had become final on 31 March 2011. 18. A second public auction for the sale of the applicants’ house was postponed several times at the request of the creditors. 19. The second public auction was eventually held on 30 March 2012 and the applicants’ house was sold to M.G. for HRK 821,040 (approximately 109,000 euros). The applicants, though properly summoned, did not appear. 20. On 2 April 2012 the Poreč Municipal Court granted M.G. title to the applicants’ house, on condition that he paid HRK 821,040 as the purchase price. 21. On 23 April 2012 the applicants lodged an appeal against that decision, arguing that the judicial sale had been disproportionate since the true value of their house had been about 700,000 euros (EUR). They also argued that the Municipal Court had failed to comply with the provisions of the Enforcement Act, which stated that courts should respect the dignity of debtors subject to enforcement and should make the enforcement process as humane as possible. 22. On 8 May 2012 the applicants submitted a statement that the value of their house was EUR 640,000. 23. On 28 December 2012 the Pula County Court (Županijski sud u Puli) dismissed the applicants’ appeal. It found that the applicants’ house had been sold at a second public auction for more than one-third of its value, that the first public auction had been unsuccessful, and that M.G. had been the only bidder. Furthermore, the value of the house had been set by the Poreč Municipal Court on 25 October 2010 and the applicants had not objected to it. In the County Court’s view, the sale of the applicants’ house was in accordance with the Enforcement Act. 24. On 31 January 2013 the Poreč Municipal Court entered M.G.’s title to the applicants’ house in the land register. 25. On 20 February 2013 the applicants lodged an appeal on points of law against the decision of the Pula County Court, relying on section 382(2) of the Civil Procedure Act. They argued that the actual value of their house was around EUR 700,000, and that their house should have been exempted from enforcement as it was “meeting their basic human needs”. 26. On the same day, the applicants applied to the Poreč Municipal Court for a stay of enforcement. 27. On 22 February 2013 the Poreč Municipal Court declared the applicants’ appeal on points of law inadmissible on the grounds that such an appeal was allowed in enforcement proceedings only if based on section 382(2) of the Civil Procedure Act, which was not the case. The applicants lodged an appeal. 28. On the same day the Poreč Municipal Court declared the applicants’ request for a stay of enforcement inadmissible, finding that they had failed to meet the statutory conditions for such a request. The applicants lodged an appeal. 29. On 8 March 2013 the Croatian Electricity Company (Hrvatska Elektroprivreda, hereinafter “HEP”) cut off the applicants’ electricity at M.G.’s request. The applicants immediately applied to the Poreč Municipal Court for an interim measure prohibiting M.G. from having the electricity and water cut off and from making alterations to the house, ordering HEP to reconnect the electricity, and authorising them to keep the house until the enforcement proceedings were complete. On the same day the Poreč Municipal Court issued the interim measure, prohibited M.G. from having the electricity and water cut off and ordered HEP to reconnect the electricity. That decision was quashed by the Pula County Court on 21 May 2013 and the applicants’ request for an interim measure was denied. 30. On 19 June 2013 the Municipal Court decided to transfer ownership of the house at issue to M.G. The applicants lodged an appeal, which was declared inadmissible by the Municipal Court on 10 July 2013. 31. On 26 July 2013 the Poreč Municipal Court held a hearing on the division of the proceeds (dioba kupovnine) from the sale of the house. The applicants, though properly summoned, did not appear. 32. On 17 September 2013 the Poreč Municipal Court ordered the eviction of the applicants. The applicants lodged an appeal, arguing that enforcement should not have been carried out by the sale of their house, which served to “satisfy their basic needs”: they lived there with their family and it also served as their business premises. 33. On 21 October 2013 the Municipal Court scheduled the eviction of the applicants for 13 December 2013, ordering the court bailiff to carry out the eviction. However, the eviction was postponed for three months. 34. On 19 November 2013 the applicants applied for an interim measure prohibiting the sale of their house and their eviction. 35. On 20 December 2013 the Poreč Municipal Court decided to conclude the enforcement proceedings for the payment of monetary debts. 36. On 20 January 2014 the Pula County Court dismissed the applicants’ appeal against the decision of 17 September 2013 (see paragraph 32 above), finding that the Municipal Court had acted in accordance with the law, namely the provisions of the Enforcement Act. The enforcement proceedings were about to be concluded since the sale of the applicants’ house had been completed. 37. On 23 January 2014 the Pula County Court accepted the applicants’ appeal against the decision of 22 February 2013 (see paragraph 27 above) and remitted the applicants’ appeal on points of law to the Municipal Court. 38. On the same day the Pula County Court, in a different decision, dismissed the applicants’ appeal against the decision of 22 February 2013 by which their request for a stay of the enforcement proceedings had been dismissed (see paragraph 28 above). 39. On 12 March 2014 the applicants withdrew their appeal on points of law referred to in paragraphs 25 and 37 above. 40. On 13 March and 28 April 2014 M.G. sought the applicants’ eviction. 41. The applicants have not yet been evicted. | 0 |
test | 001-171480 | ENG | RUS | COMMITTEE | 2,017 | CASE OF GALIYEV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-176759 | ENG | TUR | COMMITTEE | 2,017 | CASE OF UNCUOĞLU v. TURKEY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing) | Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström | 5. Ms Fatma Nuray Uncuoğlu (“the first applicant”) was born in 1945 and lives in Istanbul. Ms Nurcihan Uncuoğlu (“the second applicant”) was born in 1940 and also lives in Istanbul. 6. The applicants each owned a share in respective plots of land in the area of Firuzköy, in the district of Avcılar, Istanbul. 7. On 24 December 1987, a new zoning plan was put into force in the area of Firuzköy, which encompassed the applicants’ plots of land. Under the new plan, the plots of land were designated as “university area”. Subsequently, in 1988, 1989, 1990 and 1991, annotations (şerhler) were made in the land registry records indicating that the applicants’ land would be expropriated by Istanbul University (hereinafter “the University”). 8. On 26 March 1998 the applicants both asked the University to either expropriate the disputed land or to remove the annotations from the land registry records. The University informed the applicants, on 27 April 1998 and 28 April 1998 respectively, that the expropriation proceedings would commence when the necessary funding was provided. 9. On 20 July 2001 the applicants initiated respective proceedings before the Küçükçekmece Civil Court of First Instance, claiming compensation for de facto expropriation. 10. On 12 December 2003, relying on expert reports which had indicated that the applicants’ land had been fenced off by the University, the Küçükçekmece Civil Court of First Instance awarded the first applicant 97,125,000,000 Turkish liras (TRL) and the second applicant 37,837,500,000 TRL by way of compensation for de facto expropriation. In its respective judgments, the first-instance court held in particular that the land at issue had been under the effective control of the University and that access to the land was restricted due to the fences that had been built around the land. 11. On 22 June 2004 the Fifth Civil Division of the Court of Cassation quashed the judgments of the Küçükçekmece Civil Court of First Instance, holding that the land in question had not been controlled or used effectively by the University. 12. On 24 September 2004 both applicants requested the rectification of the respective decisions dated 22 June 2004. In their petitions, they drew the attention of the Fifth Civil Division of the Court of Cassation to its previous decisions, dated 28 September 1999 and 31 March 2003, in which it had held that neighbouring plots of land in the same area had been de facto expropriated by the University because the latter had built fences around the land and because of the annotations made in the land registry records. 13. On 12 April 2005 the Fifth Civil Division of the Court of Cassation rejected the applicants’ requests for rectification of the decisions of 22 June 2004. However, it did not express any reason as to why it had reached a different conclusion from its previous decisions dated 28 September 1999 and 31 March 2003. 14. On 6 October 2005 the Küçükçekmece Civil Court of First Instance complied with the decisions of the Court of Cassation and dismissed the cases. 15. On 28 November 2005 both applicants filed an appeal, reiterating their argument concerning the contradictory decisions (see paragraph 12 above) delivered by the Fifth Civil Division of the Court of Cassation. 16. On 27 March 2006 and 4 April 2006 respectively, the Fifth Civil Division of the Court of Cassation dismissed the appeals. In its decisions, it gave no reply to the applicants’ arguments regarding the fact that it had given contradictory judgments in respect of similar cases. 17. The applicants’ requests for the rectification of the decisions were furthermore rejected and the judgments became final on 28 September 2006 and 3 October 2006 respectively. 18. On an unknown date the University paid compensation to the second applicant for her plot of land. | 1 |
test | 001-181877 | ENG | UKR | CHAMBER | 2,018 | CASE OF VOYKIN AND OTHERS 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 - Effective investigation) (Procedural aspect);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 13+8-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life;Article 8-1 - Respect for home) | Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Georges Ravarani | 6. The first applicant was born in 1978. At the time of the events he was a district police officer in the Kalyninskyy district police in Horlivka. As of February 2014, he has been serving a prison sentence in Menska prison no. 91. The second applicant is his wife who was born in 1984. She lives in Horlivka with her mother, the third applicant, who was born in 1951. The fourth applicant, the mother of the first applicant, was born in 1948 and died on 5 December 2010. The first applicant expressed wish to pursue his mother’s complaints on her behalf. 7. At the night from 18 to 19 June 2008, shortly after midnight, the second applicant had a conflict with a police officer, M., who was a colleague of her husband. 8. The second applicant’s account of the events was as follows. When walking in the street with a friend, B., she heard somebody running after them. That person pushed her on the shoulder. Having turned, she saw M., whom she knew. He was wearing plain clothes and appeared to be heavily drunk. When she asked him what the matter was, M. shouted that he would subject her to a body search, without explanation. He snatched her bag from her. Having searched its contents, he threw it on the ground. Then M. grabbed the second applicant by the neck and started strangling her. In reply to her protests, he noted that the local prosecutor was there next to him and that it was pointless to complain. He hit the second applicant twice in the head with something heavy, which, in her opinion, could have been a mobile phone. At that moment the first applicant telephoned his wife’s friend B., who was then with her, to find out whether everything was fine (as his wife had not returned home at the expected time and was not answering his telephone calls). Having found out about the incident, the first applicant went there. M. threatened him in a rude manner with dismissal. He let the second applicant go only after two other police officers in plain clothes, who happened to be there, approached them. 9. The second applicant’s friend B. supported the above version of events. However, eventually she specified that M. had not been strangling the second applicant, but had simply held her and not let her leave. 10. M.’s version of the events was as follows. He was walking in the street with an acquaintance, P., a businessman, after the celebration of the professional holiday of police inspectors. They met two colleagues of M. and stopped to talk with them. Two women passed by. M. thought that one of them was a certain T., who was under administrative supervision and was not supposed to be out of her home so late. He went to ask her what she was doing there. However, having approached her, he realised that he had been mistaken. He recognised the second applicant and apologised for his mistake. The second applicant, who appeared to be heavily drunk, started insulting and pushing him. M. submitted that he had not touched her. As regards the possible origin of her injuries, he noted that she had had serious incidents in the past with her husband and that those injuries might have been inflicted by him. As regards the fact that the plastic bag that she had had in her hands had been torn, he explained it by her intense gesticulating. 11. M.’s version was supported by the statements of his friend P. and the two police officers, who had been there. 12. Having come home, the second applicant called an ambulance. She was diagnosed with several bruises on her neck and situational neurosis. She explained that she had been strangled by a police officer. In the presence of an ambulance paramedic, the second applicant called the police. According to the Government, she did not mention that M. was a law-enforcement official. The second applicant contested that submission. 13. In the morning on 19 June 2008 the second applicant was examined by a neuropathologist who diagnosed her with concussion and bruises on her neck, and prescribed outpatient medical treatment. 14. On 28 June 2008 the Kalyninskyy police issued a ruling refusing to institute criminal proceedings in respect of the second applicant’s complaint. It noted that she had complained to the police at 1.05 a.m. on 19 June 2008 of having been hit by an acquaintance. As further stated in the ruling, it had been impossible to question her, as she had never been at home when visited by the police. 15. On 9 July 2008 the second applicant complained about the incident to the Horlivka town prosecutor’s office (“the Horlivka prosecutor’s office”). She requested that the investigation not be entrusted to the Kalyninskyy district prosecutor’s office (“the Kalyninskyy prosecutor’s office”), given that one of its officials had allegedly been with M. at the time of the events and that M. had referred to that fact as a guarantee of his impunity (see paragraph 8 above). The second applicant submitted that there had been no attempts by the authorities to contact them with a view to hearing their version of the events. 16. On 15 July 2008 the Horlivka prosecutor’s office forwarded her complaint to the Kalyninskyy prosecutor. 17. On 25 July 2008 the second applicant gave a written account of the incident to the Kalyninskyy prosecutor’s office. On the same date that authority quashed the refusal of 28 June 2008. It noted that the investigation had wrongly been entrusted to the Kalyninskyy police despite the fact that the second applicant’s complaint concerned her alleged ill-treatment by one of its officers. 18. On 28 July 2008 the police officer who had been on duty during the night from 18 to 19 June 2008 was disciplined for not having followed up the second applicant’s call (see paragraph 12 above). 19. On 1 August 2008 the Kalyninskyy prosecutor’s office refused to initiate criminal proceedings against M. under Article 365 § 2 of the Criminal Code (exceeding individual power by engaging in violent or degrading treatment of a victim), having held that there were no constituent elements of a crime discernible in his actions. The prosecutor noted that the second applicant’s allegation was supported by the statements of her husband and her friend. However, there were also statements of M. and the witnesses from his side, who denied any ill-treatment of the second applicant. The prosecutor therefore found her allegation to be unsubstantiated. It was also noted in the ruling that at the time of the events M. had been wearing civilian clothes and had not been acting as a law-enforcement official. Lastly, it was observed that the second applicant had ignored numerous summonses for questioning. 20. On 4 August 2008 the Kalyninskyy prosecutor’s office annulled its refusal of 1 August 2008 as premature. It noted, in particular, that not all the relevant facts had been established. Furthermore, there had been no forensic medical expert examination of the second applicant. 21. On 14 August 2008 the second applicant underwent such an examination, which documented no visible injuries. Having analysed her medical file, the expert concluded that she had sustained a bruise on her neck and a craniocerebral injury which led to concussion. Those injuries, assessed as insignificant, had resulted from “contact with blunt objects” at the time indicated by the second applicant. 22. On the same day the Kalyninskyy prosecutor’s office once again refused to open a criminal case against M. for lack of the constituent elements of a crime in his actions. It relied, in particular, on the witnesses’ statements, according to which M. had not ill-treated the second applicant. Furthermore, the prosecutor noted that M. had not acted in his official capacity and that the injuries sustained by the second applicant had been insignificant. 23. On 5 September 2008 a senior official of the same prosecutor’s office annulled the above ruling as premature. He noted, in particular, that an additional forensic medical examination was required with a view to verifying the second applicant’s allegation that she had been hit in the head with a mobile phone. 24. On 15 September 2008 the prosecutor ordered such an examination of the second applicant with a view to answering the following questions: (1) how exactly could her injuries have been inflicted; (2) whether there were marks on her head possibly resulting from blows with a mobile phone; (3) whether she could have sustained the injuries in question in the circumstances as she alleged; and (4) when exactly she had sustained the injuries in question. 25. On 9 October 2008 a forensic medical expert examination report was issued. It answered the above questions as follows: (1) the craniocerebral injury and the bruise on the neck had resulted from contact with blunt objects; (2) neither the examination of the second applicant nor the evaluation of the medical file had established any injuries to her head (apparently, implying visible injuries); (3) the second applicant’s injuries could have been inflicted on her in the circumstances described; and (4) according to the medical documents, the second applicant could have sustained the injuries on 19 June 2008. 26. On 19 November 2008 the Kalyninskyy prosecutor’s office delivered yet another ruling refusing to open a criminal case in respect of the second applicant’s complaints. Having relied on the forensic medical examination reports and the witnesses’ statements, the prosecutor stated that her allegation had not been sufficiently corroborated. 27. On 20 April 2009 the Donetsk regional prosecutor’s office (“the regional prosecutor’s office”) annulled the above ruling as premature and based on an incomplete investigation. 28. On 5 May 2009 the Kalyninskyy prosecutor’s office again refused to institute criminal proceedings against M. It was stated in the ruling that the forensic medical expert evaluations of 14 August and 9 October 2008 refuted the second applicant’s allegations. Furthermore, the prosecutor noted that the second applicant had refused to give her account during the additional investigation. 29. The second applicant challenged the above refusal before the Prosecutor General’s Office (“the PGO”) on at least three occasions (on 20 July and 8 October 2009 and on 4 January 2010). Her complaints were forwarded to the regional prosecutor’s office. 30. On 21 February 2010 the regional prosecutor’s office wrote to her that it agreed with the lower prosecution authority’s decision. As further stated in the letter, it was open for her to challenge that decision before the courts if she so wished. 31. In May 2008 the first applicant underwent knee surgery. From 8 August to 2 September 2008 he underwent a follow-up course of outpatient medical treatment in Horlivka Hospital. 32. On an unspecified date (illegible in the available copy) the Kalyninskyy prosecutor’s office sent a summons to the first applicant at his registered residence (his mother’s home), instructing him to come to the prosecutor’s office on 5 September 2008. It is not clear whether it was issued in the context of the criminal investigation in respect of the complaints by the first applicant’s wife (see above) or whether it was rather related to the subsequent criminal proceedings against him. 33. On 10 September 2008 the Kalyninskyy prosecutor’s office opened a criminal case against the first applicant on suspicion of abuse of power and forgery committed in his capacity as a law-enforcement official in January 2008. More specifically, on 14 March 2008 the local court had informed the prosecutor of some factual inaccuracies in a report on an administrative (minor) offence, which had been drawn up by the first applicant. The latter was suspected of having forged that report. 34. On the same date the Kalyninskyy prosecutor’s office informed the first applicant of the above decision by a letter sent to the address where he was de facto living with his wife (separately from their parents). It was also noted in the letter that he had to come to the prosecutor’s office to receive a copy of the decision and for questioning. 35. Still on the same date, 10 September 2008, the prosecutor ordered the Kalyninskyy police to ensure the first applicant’s presence for investigative measures. On 12 September 2008 the police informed the investigator that it was impossible to comply with the above order given that the first applicant had been found neither at the address of his usual residence nor at his mother’s flat. When they had also gone to enquire about his whereabouts with his parents-in-law, the third applicant “had attacked them hysterically”, which made the police believe that the first applicant might be hiding there. 36. On 13 September 2008 a judge of the Kalyninskyy Court ordered the first applicant’s arrest with a view to bringing him before the court to examine the issue of a preventive measure in his regard. 37. On 19 September 2008 the first applicant was declared wanted by the police. 38. On the same date he wrote to the regional prosecutor’s office that, following the incident with his wife, the Kalyninskyy police had been threatening him and his family with his dismissal, criminal prosecution, or even a fatal accident. He therefore sought that the Kalyninskyy prosecutor withdraw from the case. He also submitted that he was scared even to go to the hospital as some suspicious-looking persons had been loitering near his home. The first applicant indicated as his address that of his mother. 39. On 22 September 2008 the investigator visited the first applicant’s mother (the fourth applicant) at her home and asked her whether she knew where the first applicant was. She stated that he had been living separately from her for about two years and that she was not aware of his whereabouts. 40. On 24 September 2008 she sent to the investigator the first applicant’s request of 23 September 2008 to admit her to the proceedings as his representative and to give her a copy of the ruling of 10 September 2008 initiating the criminal investigation against him. In substantiation of that request, the first applicant stated that he was restricted in his movement following knee surgery. 41. On 29 September 2008 the chief of medicine of Horlivka Hospital informed the investigator, in reply to the latter’s enquiry, that the last time the first applicant had come to the hospital had been 15 September 2008 and that the hospital administration did not know how he could be reached. 42. On 1 October 2008 the internal security unit of the Kalyninskyy police wrote to the prosecutor that it had information that the first applicant had been secretly visiting the flats of his parents and parents-in-law. 43. On 3 October 2008 the Kalyninskyy prosecutor wrote to the first applicant at his mother’s address, indicating that the latter could not be admitted in the proceedings as his representative at such an early stage. The prosecutor indicated that the first applicant was on the wanted list and that he needed to show up to receive copies of the rulings in respect of the institution of the criminal proceedings against him and for his questioning. 44. On 31 October 2008 the Kalyninskyy prosecutor sent another letter to the first applicant, informing him that another criminal case had been opened against him on that date on suspicion of abuse of power by a law-enforcement official and forgery in office and that he had to come to the prosecutor’s office to get a copy of that decision and for questioning. 45. During the period from October 2008 to January 2010 further eight criminal cases were opened against the first applicant on additional counts of abuse of office, as well as on suspicion of bribe-taking. He was suspected of having committed those offences in order to report better results to his superiors and thus be entitled to additional remuneration and promotions. The first applicant was informed of each such decision by a letter sent to his mother’s address. 46. On 25 March 2009 the first applicant complained to the PGO that his numerous requests for the Kalyninskyy prosecutor to withdraw had been ignored. He further submitted that he required protection measures as “a person who had reported a crime”. Lastly, the first applicant requested that the prosecutor annul the decision on placing him on the wanted list “so that [he] could defend himself against the criminal charges and continue [his] medical treatment”. 47. On 13 May and 26 June 2009 the regional prosecutor’s office wrote to the first applicant that his complaints had been dismissed as unsubstantiated. 48. On 29 June 2009 the first applicant was arrested at the address where he lived with his wife. The investigator relied on Articles 106 and 115 of the Code of Criminal Procedure (hereinafter “the CCP”, see paragraph 78 below) and substantiated the arrest as follows: the first applicant had been on the wanted list since 19 September 2008, had impeded the establishment of the truth and had committed serious criminal offences. It was also noted in the arrest report that the first applicant was suspected of offences under Articles 364 § 3 (abuse of power or office by a law-enforcement official), 366 § 1 (forgery in office) and 368 § 2 (bribe-taking) of the Criminal Code. The investigator drew up a report on the explanation to the first applicant of his procedural rights. The first applicant refused to sign it. He also refused to make any submissions as regards the charges against him. 49. On 30 June 2009 the Kalyninskyy Court extended the term of the first applicant’s arrest to ten days on the grounds that the case file lacked information about his character. That ruling was not amenable to appeal. 50. On 3 July 2009 the same court ordered the first applicant’s pre-trial detention as a preventive measure, “having regard to the seriousness and circumstances of the crimes committed and the character of [the first applicant]”, without further details. 51. On 6 July 2009 the first applicant appealed. He submitted that his remand in custody was not based on sufficient and relevant reasons. He noted that he had been arrested at his home, where he had been living for over two years, and that he had not absconded. He noted that the reasoning in support of his pre-trial detention had been overly formalistic. Thus, although the court had referred to his character, it had failed to specify what exactly in his character had justified his detention as the most appropriate preventive measure. 52. On 21 July 2009 the Donetsk Regional Court of Appeal (“the Court of Appeal”) quashed the ruling of 3 July 2009 and released the first applicant subject to an undertaking not to leave the town. It found that the first-instance court had not given reasons as to the necessity to choose the strictest preventive measure. 53. On 17 November 2011 the Kalyninskyy Court found the first applicant guilty of fraud, abuse of power in his capacity of a law-enforcement official, forgery causing grave consequences, and bribe-taking, and sentenced him to seven years’ imprisonment with a ban to occupy posts in law-enforcement authorities, and confiscation of his personal property. 54. On 6 March 2012 the Court of Appeal quashed the judgment in the part concerning the forgery charge and remitted it to the first-instance court for a fresh examination. It upheld the judgment in the remaining part, having slightly reclassified some of the charges and having reduced the term of the first applicant’s imprisonment to six years. 55. On 9 October 2012 the Kalyninskyy Court again found the applicant guilty of forgery causing grave consequences and sentenced him to four years’ imprisonment. The final sentence was six years’ imprisonment, as the most severe of the applicant’s punishments absorbed the more lenient one. In the absence of any appeals, the judgment became final. 56. On 1 August 2013 the Higher Specialised Court for Civil and Criminal Matters quashed the appellate court’s ruling of 6 March 2012 in the part concerning the first applicant’s conviction (the part concerning the remittal of the case to the first-instance court remained in force) and remitted the case for fresh appellate examination. 57. On 3 December 2013 the appellate court upheld the judgment of 17 November 2011 in so far as it concerned the first applicant’s conviction for abuse of power in his capacity as a law-enforcement official and his sentencing to six years’ imprisonment. As regards the other charges (with the exception of that dealt with by the judgment of 9 October 2012 – see paragraph 55 above), they were slightly reclassified and the first applicant had the penalty in respect of that part removed. 58. The case file does not contain any further information as regards the criminal proceedings against the first applicant. 59. On 10 September 2008 the investigator applied to the Kalyninskyy Court for authorisation to search the first applicant’s registered residence (the flat of the fourth applicant). It was stated in the application that on 27 January 2008 the first applicant had drawn up a report on an administrative (minor) offence in respect of unauthorised street trading by a private individual. As subsequently established, the information in that report had not been accurate, which had led to the institution of criminal proceedings against the first applicant on suspicion of abuse of power and forgery. The investigator considered that “some items and documents relevant for establishing the truth” in the case could be found in the first applicant’s residence. 60. On 11 September 2008 the Kalyninskyy Court in a final ruling, allowed the above application, having reiterated the investigator’s reasoning and description of the search’s scope. It relied on Article 177 of the CCP (follow the references in paragraph 78 below). 61. On 12 September 2008 the investigator applied to the Kalyninskyy Court for authorisation to search the second applicant’s registered residence (the flat of the third applicant). The text of the application was identical to that submitted on 10 September 2008 (see paragraph 59 above). 62. On the same day the police knocked at the third applicant’s door. She and her husband were at home, but did not let the police in. 63. The third applicant’s account of the events of 12 September 2008 is as follows. A group of nine to ten persons, including police officers and some suspicious-looking persons, came to her flat. They knocked at the entrance door in a violent manner, demanding to be let in. The third applicant’s husband went out and asked them for a search warrant or another document authorising their actions, but no such document was produced. The police threatened the third applicant and her husband that they would break in and that they would find a pretext to criminally prosecute the entire family. They stayed on the stairs and in the yard and shouted for about three hours. 64. According to the Government’s version, three police officers went to the third applicant’s flat. They informed her about the criminal proceedings against the first applicant and enquired as to his whereabouts. As she and her husband refused to cooperate, the police left. 65. On 13 September 2008 the Kalyninskyy Court allowed the investigator’s application of 12 September 2008 (see paragraph 61 above). Its ruling was identical to that delivered on 11 September 2008 (see paragraph 60 above). 66. On the same day the police carried out a search at the flat of the third applicant. According to her, they broke the entrance door using an electric saw. The third applicant further alleged that the police had not shown a search warrant to her. Two attesting witnesses were present. According to the third applicant, they were acquaintances of the police officers. 67. As indicated in the search report, it lasted from 5.20 p.m. to 7.04 p.m. The police seized a number of documents related to the first applicant’s work. Furthermore, they seized a mobile telephone, which did not have a SIM card, together with its box. Lastly, they found and seized a package appearing to contain cannabis. According to the third applicant, it had been planted by the police. 68. On 16 September 2008 the police conducted a search of the flat of the fourth applicant. They discovered and seized some documents which were deemed to be related to the criminal investigation in respect of the first applicant. According to the first and fourth applicants, those documents had been brought there by the police themselves the previous day. The fourth applicant submitted that the officers, whom she knew as colleagues of her son, had explained to her that, following an attack on their police station, they had not had a safe place to store the documents, which had been intended in any event for handing over to the first applicant. 69. On 23 September 2008 an expert established that the package discovered in the third applicant’s flat on 13 September 2008 contained cannabis. On 2 October 2008 the Kalyninskyy police refused to institute criminal proceedings in that regard, having held that it had been impossible to establish to whom the cannabis might have belonged. 70. On 7 October 2008 the Kalyninskyy Court allowed another application to search the first applicant’s registered residence (the flat of the fourth applicant) given that the investigator had information that the first applicant might be hiding there. 71. On 11 February 2009 the police conducted a search of the fourth applicant’s flat on the basis of the court ruling of 7 October 2008. As indicated in the search report, the police were searching for “items, valuables and documents related to the criminal activity of [the first applicant]”. The search did not discover anything of interest for the investigation. 72. The third and fourth applicants requested many times that the Kalyninskyy Court provide them with copies of the rulings authorising the searches of their flats. The president of the court replied that the searches had been carried out in compliance with the CCP and that sending a copy of the respective court rulings was not provided for by the legislation. 73. The third and fourth applicants also complained many times to the prosecution authorities of the unlawfulness of the searches. They submitted, in particular, that the police had been rude and intrusive, that the attesting witnesses had not been independent, and that it was not clear what the police had actually been looking for. 74. On 23 December 2008 the Horlivka prosecutor’s office refused to open a criminal case in respect of the police officers involved in the operation of 12 September and the searches of 13 and 16 September 2008, with the generally couched reasoning that there had been no violations of law. It appears that the applicants were unaware of that decision. 75. On 17 June 2009, following complaints by the third and fourth applicants, the Kalyninskyy prosecutor’s office refused to institute criminal proceedings against the judge of the Kalyninskyy Court in respect of the rulings authorising the searches of their flats. 76. On 20 November 2009 the third applicant got acquainted with the ruling of the Kalyninskyy Court of 13 September 2008 (see paragraph 65 above). It is not known whether, and if so when, the fourth applicant got access to the respective rulings of 11 September and 7 October 2008 (see paragraphs 60 and 70 above). 77. On 5 June 2006 a local heating company initiated civil proceedings against the first and fourth applicants, who had their registered domicile at the same address, for debt recovery. The domestic courts found against the applicants. On 19 May 2008 the Supreme Court refused to examine an appeal on points of law by the first and fourth applicants on the grounds that they had not paid the court fees. | 1 |
test | 001-152316 | ENG | BGR | ADMISSIBILITY | 2,015 | DANAWAR v. BULGARIA | 4 | Inadmissible | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva | 1. The first applicant, Mr Abdul Madjid Mohamed Danawar, is a Syrian national, born in 1968. The second and third applicants, Mrs Irina Danawar and Ms Eleonora Danawar, are Bulgarian nationals, born respectively in 1973 and 1996. They were represented by Mr Y. Grozev and Mrs N. Dobreva, lawyers practising in Sofia. 2. The Bulgarian Government (“the Government”) were represented by their Agent, Mrs N. Nikolova, of the Ministry of Justice. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The first applicant settled in Bulgaria in 1990. He graduated and started practising as a doctor. In 1995 the first and second applicants married. Their daughter, the third applicant, was born in 1996. On 1 November 1995 the first applicant was granted permanent residence in Bulgaria. 4. On 11 and 12 August 1999 the authorities, who suspected the first applicant of participating in organised drug trafficking, conducted a search and seizure operation in his flat. 5. On 17 February 2000 the head of the passports department at the National Police Service issued an order depriving the first applicant of the right to reside in Bulgaria. The order relied on the reasons set out in proposal no. 533/10.02.2000, namely that the first applicant had endangered national security and that there was information that he was a member of a criminal group and had committed crimes with intent. No factual grounds were given. The order further stated that it was not subject to judicial review. 6. On 13 March 2000 the director of the District Police Department in Stara Zagora issued an order depriving the first applicant of the right to enter the country for a period of ten years. 7. On 1 November 2000 the first applicant was arrested pursuant to the orders for his expulsion and prohibition on entering the country. On 3 November 2000 the head of the passports department at the National Police Service ordered the first applicant’s expulsion. The order stated that it was not subject to judicial review. Again, no factual grounds were given. The decision also ordered that the applicant’s detention pending removal. 8. In December 2000 the first applicant was deported to Syria. 9. The order of 17 February 2000 depriving the first applicant of his right to reside in the country and the order of 3 November 2000 for his expulsion were never officially served on the applicant. The second applicant obtained a copy of the expulsion order in December 2002. 10. On 26 May 2003 the first and second applicants sought judicial review in the Sofia City Court of the orders depriving the first applicant of his right to reside in the country and for his expulsion, stating that the impugned measures were arbitrary and amounted to unjustified interference with the applicants’ right to respect for their private and family life. 11. In a decision of 23 March 2004 the Supreme Administrative Court discontinued the proceedings in respect of the second applicant finding that none of her rights had been at stake. 12. In a decision of 14 June 2004 the Sofia City Court discontinued the proceedings in respect of the first applicant, finding that the orders had not been subject to judicial review either at the time they had been issued or at the time the first applicant had sought judicial review. On appeal, in a decision of 1 November 2004 the Supreme Administrative Court quashed the lower court’s decision and remitted the case to the Sofia City Court for a fresh examination. The court held that although the Aliens Act provided that expulsion orders issued on national security grounds were not subject to judicial review, following the Court’s judgment in Al-Nashif v. Bulgaria (no. 50963/99, 20 June 2002) such appeals had to be examined by the courts. 13. In a judgment of 12 May 2006 the Sofia City Court dismissed the appeal. It held that the application had been submitted in time because there was no indication whatsoever that the orders had been officially served on the first applicant and therefore the time-limit for seeking judicial review had not started to run. As to the merits of the application, the court found, on the basis of the facts established in proposal no. 533/10.02.2000 which stated that since 1996 the first applicant had been involved in heroin trafficking from Bulgaria to Greece, that the orders were lawful. The court also found the first applicant’s statements regarding his marital status and links with the country irrelevant. 14. The first applicant appealed in cassation. In a final judgment of 20 June 2007 the Supreme Administrative Court upheld the Sofia City Court’s judgment. 15. On an unspecified date the applicants sought judicial review of the order of 13 March 2000, which prohibited the first applicant from entering the country for a period of ten years. In a final judgment of 8 October 2009 the Supreme Administrative Court declared the order null and void, holding that at the time at which it was issued the administrative authority did not have power to issue such an order. 16. Following his expulsion in December 2000, the first applicant settled in Syria. In 2003 the second and third applicants briefly visited him. In August 2005 they moved to Syria in order to permanently settle there. In June 2008 the second and third applicants returned to Bulgaria and in August 2009 they visited Syria on another occasion. In September 2009 the second applicant returned to Bulgaria while the child remained in Syria with her father. On 7 February 2011 the first applicant returned to Bulgaria for a few days. 17. Section 42(1) of the Aliens Act 1998 provides for the expulsion of aliens where their presence in the country poses a serious threat to national security or public order. Section 44(4)(3) provides that expulsion orders are immediately enforceable. 18. Section 46(2), as in force until 10 April 2007, provided that orders for the expulsion of aliens on national security grounds were not subject to judicial review. Following the Court’s judgment in Al-Nashif v. Bulgaria (cited above), in which the Court found the above regulatory arrangements contrary to Articles 8 and 13 of the Convention, the Supreme Administrative Court departed from its previous case-law. In a number of judgments and decisions given between 2003 and 2006 it held, with reference to Al-Nashif, that the provision in section 46(2) debarring applicants from seeking judicial review was to be disregarded as it contravened the Convention, and that expulsion orders relying on national security grounds were amenable to judicial review. 19. Section 46(2) was amended with effect from 10 April 2007 and now provides that an expulsion order may be challenged before the Supreme Administrative Court, whose judgment is final. | 0 |
test | 001-174626 | ENG | RUS | CHAMBER | 2,017 | CASE OF BIGASHEV 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) | Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 6. The applicant was born in 1927 and lives in Izhevsk, the Republic of Udmurtiya. 7. The applicant is a retired person and a World War II veteran with a category 2 disability. 8. He is the owner of two-thirds of a house with outbuildings and an adjacent plot of land located in the vicinity of a public highway in Izhevsk. His wife lived there with him from 1958 until her death in 2011. They cultivated their garden to grow their own fruit and vegetables. 9. Between 2000 and 2002 the municipal authorities repaired the highway and raised the level of the road surface. 10. Since the completion of the repair works the applicant’s house and plot of land have been submerged by melted snow and groundwater every year. The house has been seriously damaged and, according to the applicant, is no longer habitable. 11. In 2004 the applicant brought proceedings against the municipal authorities and the municipal company that had repaired the road. He claimed that a drainage pipe had been installed in breach of technical requirements and in the absence of any specific project documentation. The authorities had not properly supervised or validated the works carried out, despite numerous technical shortcomings. This had resulted in his house being inundated by melted snow and groundwater in May 2002. Since then it had been regularly flooded. The applicant claimed compensation for the pecuniary and non-pecuniary damage he had sustained as a result of the flooding. He also asked the Industrialnyy District Court of Izhevsk (“the Industrialnyy District Court”) to order the municipal authorities to develop specific project documentation for the installation of a new drainage pipe and carry out the necessary repairs to the road. 12. On 19 March 2007 the Industrialnyy District Court examined the applicant’s claims. It established that between 2001 and 2002 the municipal authorities had carried out repair works to the public highway in the vicinity of the applicant’s house and had installed a drainage pipe. Regarding the flooding of the applicant’s house in May 2002, the court held that he had not proved the extent of the damage and that “no casual connection had been established between the actions of the municipal authorities and the damage”. Accordingly, there were no grounds to award the applicant compensation for pecuniary and nonpecuniary damage. The court also noted that according to an expert report issued in October 2006: “... the most probable cause of the inundation of the applicant’s house in 2002 was its position below the level of the road, lack of preparatory and protective engineering measures, road construction in the absence of project documentation ...” 13. The Industrialnyy District Court concluded that the flooding resulted from a malfunctioning drainage pipe located under the road surface. The authorities were therefore under an obligation to arrange for works to be carried out related to the collection of wastewater from the road and the area near the applicant’s house. 14. On 5 July 2007 the Supreme Court of the Republic of Udmurtiya (“the Supreme Court”) quashed the part of the judgment of 19 March 2007 refusing to award the applicant compensation for pecuniary damage and adopted a new decision to that effect. It held that the case material confirmed that since 2000 the applicant’s house had been regularly inundated by surface water coming from the road, which had not been properly maintained by the town administration. As a result, his property had been damaged. The Supreme Court awarded the applicant 68,900 Russian roubles (RUB) (about 1000 euros (EUR)) in compensation for the pecuniary damage sustained as a result of his house being flooded. It upheld the remainder of the judgment of 19 March 2007. 15. On 12 May 2009 the bailiffs’ service initiated enforcement proceedings. On an unspecified date the town administration engaged the services of the municipal highway service to unclog the drainage pipe. According to the certificate of acceptance, the highway service finished the works in July 2009. 16. On 23 November 2009 the bailiffs’ service terminated the enforcement proceedings. The applicant did not lodge an appeal against that decision. 17. In April 2007 the applicant’s house and plot of land were again flooded. He sued the municipal authorities, claiming that his home and property had been flooded because the town administration had not complied with its obligation to install a waste water collection system for the road. He also claimed compensation for pecuniary and non-pecuniary damage. 18. On 20 October 2008 Oktyabrskiy District Court of Izhevsk (“the Oktyabrskiy District Court”) terminated the proceedings in respect of the applicant’s claim regarding the municipal authorities’ obligation to repair the road, since it had already been examined and decided by the Industrialnyy District Court on 19 March 2007. 19. On 30 October 2008 the Oktyabrskiy District Court examined the remainder of the applicant’s claims. It established that since 2000 the applicant’s house had been regularly flooded because the town administration had not carried out the necessary repairs to the road. It further established that the town administration had not enforced the final judgment of 19 March 2007 and as a result the applicant’s house had been regularly flooded since its adoption. Having regard to the above, the court concluded that the flooding of the house in spring 2007 had been the fault of the town administration, which had not properly maintained the road. The court awarded the applicant RUB 132,017 (about EUR 2,000) in compensation for pecuniary damage and dismissed his claim in respect of non-pecuniary damage. 20. On 21 January 2009 the Supreme Court upheld that judgment. 21. In September 2010 the applicant brought a new set of proceedings against the municipal authorities. He submitted that his house had been regularly flooded because of the failure of the local authorities to install a waste water collection system next to his house. The flooding had continued after the enforcement of the judgment of 19 March 2007. As a result of regular flooding his house had been almost destroyed, the living conditions did not conform to the established sanitary standards and the air inside and around the house was permanently damp. The applicant also claimed compensation for pecuniary and non-pecuniary damage. 22. The Oktyabrskiy District Court ordered an expert construction examination in the applicant’s case. According to the expert report dated 9 January 2013, which relied on Russian Building Regulations pertaining to roads and urban development (see paragraphs 42-48 below): “... the installation of a drainage system ordered by the judgment of 19 March 2007 ... has not been carried out ... [the applicant’s] house has been flooded since July 2009 [up to the date] of examination of [his] case in court. The waste water is collecting in [four neighbouring] streets, including the applicant’s. The road next to the applicant’s house is essentially horizontal and the diversion of [melted snow] ... has not been technically finalised (the diameter of the pipe has not been technically justified, its route and gradient not calculated) ... The water collection system which existed previously has been modified due to the unauthorised elevation of parts of the road and its surface and the newly constructed road ...” In the expert’s opinion, in order to protect the applicant’s house from yearly flooding it was necessary to carry out a land survey, draft a plan of the project, make the necessary calculations and perform repairs. 23. On 21 January 2013 the Oktyabrskiy District Court examined the applicant’s claims. It held that it was competent to do so in so far as they concerned the flooding of his house which occurred after enforcement of the judgment of 19 March 2007. 24. The court allowed the applicant’s claims in part. It established, in particular, that after enforcement in 2009 of the judgment of 19 March 2007 the applicant’s house had been regularly flooded as a result of the authorities’ failure to comply with their obligation to properly maintain the applicant’s street and the road near his house. The court ordered the municipal authorities to commission a project with a specialist firm for the construction of a drainage pipe on the part of the road adjacent to the applicant’s house, and to carry out construction works in accordance with that project by 1 July 2013. It dismissed the applicant’s claims in respect of pecuniary and non-pecuniary damage as there was “no causal link between the action or inaction of [the authorities] and the damage sustained [by the applicant]”. 25. On 22 April 2013 the Supreme Court upheld the judgment of 21 January 2013. It appears that the applicant did not lodge an appeal against that decision. 26. On 16 August 2013 the Oktyabrskiy District Court issued a writ of execution. 27. On 4 September 2013 the bailiffs’ service instituted enforcement proceedings. 28. On 24 February 2014, after three formal demands under the writ of execution and in the absence of any action on the part of the town administration, the bailiffs’ service found it liable for the administrative offence of non-compliance with a writ of execution, and issued a fine of RUB 5,000 (about EUR 80). 29. In spring 2014 the applicant’s house was again flooded. 30. On 13 and 16 September 2014 the town administration signed two municipal contracts under the terms of which it engaged two companies to perform road repairs and anti-flood works on the part of the road adjacent to the applicant’s house. On 13 and 31 October 2014 respectively the works were completed. 31. On 5 November 2014 the bailiff terminated the enforcement proceedings following an on-site inspection and determined that the judgment of 21 January 2013 had been fully enforced. 32. The applicant appealed against that decision, complaining that the judgment in question had not been fully enforced. 33. On 4 February 2015 the Oktyabrskiy District Court dismissed his appeal, finding that the judgment had been fully enforced. 34. On 29 April 2015 the Supreme Court quashed that decision and adopted a new decision allowing the applicant’s complaint regarding the bailiff’s decision to terminate the proceedings. It held, in particular, that that decision had been unlawful and ordered the bailiffs’ service to reopen the enforcement proceedings. On 27 May 2015 the chief bailiff overturned the decision to terminate the enforcement proceedings in the applicant’s case. 35. On 8 July 2015 the Oktyabrskiy District Court examined the applicant’s claim concerning the failure of the town administration to enforce the judgment of 21 January 2013 within a reasonable time. The applicant claimed RUB 98,000 (about EUR 1,600) in respect of nonpecuniary damage. The court acknowledged that he had undeniably sustained non-pecuniary damage and awarded him RUB 10,000 (about EUR 160). It also noted that the necessary repairs had been carried out in October 2014 and that the applicant’s representative, Mr K., had stated in the proceedings that the flooding of the house had stopped. 36. On 19 October 2015 Mr K. acknowledged in writing that the judgment had been enforced. On 20 October 2015 the bailiff terminated the enforcement proceedings. 37. On 16 September 2013 the applicant applied to the Interdepartmental Commission (“the Commission”) attached to the Industrialnyy District administration to have his house declared unfit for habitation on account of the damage caused by regular flooding. 38. On 11 October 2013 the Commission held that over the years the applicant’s house had lost a number of its features. However, it was still possible to recover them by carrying out structural repairs. 39. On 18 October 2013 the head of the Industrialnyy District administration approved those conclusions and held that the applicant’s house was in need of structural repairs, that it was possible to carry them out and that they should be carried out by the owner. 40. On 26 December 2014 the Industrialnyy District Court dismissed a complaint by the applicant regarding the Commission’s decision. On an unspecified date the Supreme Court upheld that decision on appeal. 41. On 10 January 2011 the applicant and his wife applied to the municipal authorities to be placed on the municipal housing list. It appears that up to the date of examination of his case by the Court the applicant has not been provided with any accommodation. | 1 |
test | 001-147876 | ENG | AUT | COMMITTEE | 2,014 | CASE OF BIRNLEITNER v. AUSTRIA (No. 2) | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time) | Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković | 5. The applicant was born in 1937 and lived in Aistersheim. 6. The applicant owned a landholding of some 150 hectares, which is an approved hunting ground (Eigenjagd). According to the Upper Austrian Hunting Act (Oberösterreichisches Jagdgesetz), every six years, the District Authority has to establish the boundaries of the Upper Austrian hunting grounds. In this respect, requests may be filed by landowners to have adjacent land allocated to their hunting grounds where, for the purpose of facilitating the exercise of hunting rights, boundaries need readjustment (Arrondierungsantrag). On 29 September 2004 the applicant filed such a request for readjustment in respect of the next six years’ hunting period, i.e. from April 2005 to March 2011. 7. On 28 December 2004 the Grieskirchen District Authority (Bezirkshauptmannschaft) partly granted the applicant’s request and assigned specified plots of third persons to the applicant’s hunting grounds, but dismissed her request concerning some other parcels of land. 8. On 21 October 2005 the Upper Austria Regional Government (Landesregierung) dismissed the applicant’s appeal. The applicant lodged a complaint with the Constitutional Court (Verfassungsgerichtshof). 9. On 15 March 2006 the Constitutional Court declined to deal with the applicant’s complaint due to lack of prospects of success and referred the case to the Administrative Court (Verwaltungsgerichtshof) on 18 April 2006. On 2 May 2006 the Administrative Court requested the applicant to complement the complaint. The applicant submitted her additional comments on 21 June 2006 and requested an oral hearing. On 31 August 2006 the Upper Austria Regional Government submitted its additional comments to the Administrative Court. 10. On 29 September 2008, after having held an oral hearing on the same day, the Administrative Court dismissed the complaint as unfounded. That decision was served on the applicant’s counsel on 13 October 2008. | 0 |
test | 001-158505 | ENG | RUS | CHAMBER | 2,015 | CASE OF BUZURTANOVA AND ZARKHMATOVA v. RUSSIA | 4 | No 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) | András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque | 5. The applicants were born in 1970 and 1987 respectively. The first applicant lives in Noviy Redant, Ingushetia, and the second applicant in Mayskiy (also spelled as Mayskoye), North Ossetia-Alania. The first applicant is the sister of Mr Akhmed Buzurtanov, who was born in 1983. The second applicant is his wife. 6. At the material time Mr Akhmed Buzurtanov was working as a martial arts trainer in the “Ellin” sports club (gym) (in the documents submitted also referred to as the “Kaloy” sports club) in Nazran, Ingushetia. He was the mixed martial arts European champion and a well-known sportsman in the region. He and the second applicant lived in Mayskiy, a settlement on the border between North Ossetia-Alania and Ingushetia. Permanent checkpoint no. 105, also known as “Chermenskiy krug”, was located between Mayskiy on one side of the border and the settlement of Chermen on the other. The checkpoint was equipped with CCTV cameras. Every passing vehicle was checked along with the driver’s and passengers’ identity documents. From the documents submitted to the Court it appears that other traffic checkpoints were located in the area. 7. Between 9 and 10 p.m. on 6 December 2012 Mr Akhmed Buzurtanov was driving home from Nazran in his white Lada-Priora car with registration number AH214A06. At about 10 p.m. he called his wife saying that he would arrive soon, but he did not. The applicants tried to call him, but his mobile phone was switched off. At around 5 a.m. on 7 December 2012 the applicants and their relatives found Mr Akhmed Buzurtanov’s training shoe, socks and hat in a street in the neighbourhood. 8. At about 9.30 a.m. on 7 December 2012 Mr Akhmed Buzurtanov’s car was found in the vicinity of Mayskiy, not far from the motorway. The car’s front side windows were smashed and the front of the vehicle had been damaged. 9. According to the applicants, in the evening of 6 December 2012 Mr Akhmed Buzurtanov had been stopped about 200-300 metres from his house by masked men in military uniforms, who had followed him in three cars. The men had forced him into one of their vehicles and taken him to an unknown destination. The applicants did not witness the abduction. 10. On 20 and 24 December 2012 a local newspaper published an article concerning a meeting held on 17 December 2012 (in the documents submitted the date was also referred to as 20 December 2012) by the President of Ingushetia, Mr YunusBek Yevkurov, and other high-ranking officials with members of the sports club where Mr Akhmed Buzurtanov had worked. Information about the meeting, held in Ingush, was posted on various websites. At the meeting one of the officials stated that Mr Akhmed Buzurtanov had been aiding a member of an illegal armed group, Mr D. The President of Ingushetia reminded them that at his previous meetings with members of the sports community, at which Mr Akhmed Buzurtanov had also been present, he had warned them not to engage in illegal acts. The President also said that he had information concerning phone calls proving Mr Akhmed Buzurtanov’s involvement in illegal activities. A video recording of the meeting was provided to the investigating authorities (see paragraph 44 below). 11. The applicants have had no news of Mr Akhmed Buzurtanov since his alleged abduction. 12. The Government contested neither the applicants’ description of the circumstances of the abduction, nor their account of the subsequent events. However, they stated that the alleged abduction had taken place in the absence of witnesses and that there was no evidence that the perpetrators had been State agents. 13. In reply to the Court’s request for a copy of the contents of the criminal case file opened in connection with the disappearance, the Government submitted copies of documents running to 1,570 pages. From the documents submitted, the domestic investigation can be summarised as follows. 14. On 7 December 2012 the second applicant complained to the Prigorodniy District Investigations Department in the Republic of North Ossetia-Alania (“the investigations department”), stating that her husband had disappeared while driving home from Ingushetia. 15. On the same date the investigations department opened criminal case no. 21/1908 into the events under Article 105 of the Criminal Code (murder). The applicants were informed thereof. 16. On the same day the investigators examined the crime scene. They collected from the scene the hat, the training shoe and the socks. 17. Also on the same date, 7 December 2012, the investigators examined Mr Akhmed Buzurtanov’s car, which had been found with smashed windows eighty metres from the Vladikavkaz-Mozdok motorway. They found traces of blood in the car. The investigators collected a number of pieces of evidence, such as a finger print from pack of cigarettes, thirteen swabs of various parts of the vehicle (including the steering wheel and breaks), a number of items of clothing, two bags, a mobile telephone, eight memory cards, pieces of broken glass and a police service identity card certifying that Mr Akhmed Buzurtanov worked as a policeman in Ingushetia. On the same date a forensic expert examination of the evidence was ordered. The applicants were informed thereof. 18. On 8 December 2012 the second applicant was granted victim status in the criminal case. 19. On 10 December 2012 the investigators requested that the Prigorodniy District Court grant permission to obtain the list of calls and other connections made from Mr Akhmed Buzurtanov’s and the second applicant’s mobile telephones between 1 and 7 December and 6 and 7 December 2012. In addition, the investigators requested permission to obtain the list of all mobile connections made in the vicinity of the crime scene (see paragraph 7 above) between 6 and 7 December 2012. On 12 December 2012 the permissions were granted and on 19 and 21 December 2012 the lists were examined. 20. On 11 December 2012 the investigators requested that the Prigorodniy District Court grant permission to tap for thirty days the mobile telephone of Mr Akhmed Buzurtanov’s aunt, Ms Kh.B., and that of the second applicant, as earlier on the same date the investigators had obtained operational information that the perpetrators would try to call them to discuss payment of ransom for Mr Akhmed Buzurtanov. 21. On the same date the second applicant requested that the investigators provide her with information on the progress of the investigation and with copies of the case-file documents. On 13 December 2012 the investigators granted the request in part, stating that under national law, prior to the completion of the investigation the applicant was entitled to obtain copies of certain procedural documents but not the entire contents of the case file. 22. Also on the same date, 11 December 2012, the second applicant requested that the investigators provide her with information concerning the list of connections made to and from Mr Akhmed Buzurtanov’s mobile telephone from 7 p.m. on 6 December to 11 December 2012 and the information from the CCTV cameras installed at checkpoint “Kizlyar” on the motorway next to Mayskiy between 6 p.m. on 6 December and 3 a.m. on 7 December 2012. On 13 December 2012 her request was rejected, as under domestic law she was not entitled to obtain such information from the case file. 23. On 13 December 2012 the expert examination of Mr Akhmed Buzurtanov’s police identity card collected from his vehicle (see paragraph 16 above) concluded that the document had been forged. On 28 February 2013 the Ingushetia Ministry of the Interior confirmed to the investigators that the police identity card had been forged and that Mr Akhmed Buzurtanov had not served in the police. 24. On 17 December 2012 the second applicant requested that the investigators verify the theory that her husband had been abducted by residents of Beslan, North Ossetia-Alania, who on 24 June 2012 had attacked Mr Akhmed Buzurtanov’s sports team after a tournament held in that town. On the same date the investigators granted the request in full. In particular, they obtained copies of the inquiry carried out into the incident and questioned witnesses to the scuffle. 25. On 17 December 2012 the investigators examined the eight memory cards collected from Mr Akhmed Buzurtanov’s car and ordered their forensic expert examination. The applicants were informed thereof. 26. On the same date the investigators asked the Ministers of the Interior of North Ossetia-Alania, Ingushetia, Dagestan and Kabardino-Balkaria and the heads of the North Ossetia-Alania, Ingushetia, Dagestan and Kabardino-Balkaria Departments of the Federal Security Service (“the FSB”), as well as other law-enforcement agencies, whether they had any incriminating information concerning Mr Akhmed Buzurtanov and whether they had carried out a special operation in respect of him. 27. The investigators asked a number of banks whether they had accounts opened in Mr Akhmed Buzurtanov’s name and if so, details of the transactions on those accounts between the dates of their opening and 17 December 2012. 28. The investigators also asked a number of hospitals whether Mr Akhmed Buzurtanov was or had been treated on their premises. 29. On 19 December 2012 the investigators granted the first applicant victim status in the criminal case. 30. On 20 December 2012 the first applicant requested that the investigators allow nine lawyers from the human rights organisation United Mobile Group (“the UMG”) to represent her in the criminal case. On 24 December 2012 her request was rejected as the lawyers had failed to enclose their professional identity cards confirming their Bar membership. On 28 January 2013 the refusal was overruled as groundless (see paragraph 48 below). 31. On 20 December 2012 the first applicant provided her statement concerning the alleged abduction to the UMG lawyers. In particular, she stated that in her opinion, the abduction had been perpetrated by representatives of law-enforcement agencies for unknown reasons. The statement was provided to the investigators on the same date (see the paragraph 75 below). 32. On the same date, 20 December 2012, one of the UMG lawyers, Mr D.L., requested that the investigators take, amongst others, the following steps: “... -to include in the case file the first applicant’s statement given to the UMG on 20 December 2012 ... - to ask the motorway Kavkaz and the other traffic police stations between Ingushetia and North Ossetia-Alania whether in the period between 5 and 8 December 2012 three vehicles passed through them: a VAZ-2114 and two Lada Priora cars and a white Lada-Priora with registration number AH214A 06 with Mr Akhmed Buzurtanov in it; - to request information from the “Potok” database and the video recording from the traffic police stations and checkpoints between Ingushetia and North OssetiaAlania as to whether between 5 and 8 December 2012 three vehicles passed through them: a VAZ-2114 and two Lada-Priora cars and a white Lada-Priora with registration number AH214A 06 with Mr Akhmed Buzurtanov in it; - to request from the mobile phone service providers information on connections between 6 and 7 December 2012 ... in order to establish the whereabouts of the subscriber of telephone number 99631744448 and his mobile connections from 6 December 2012 up to the present; Enclosures: copy of the statement of Ms L. Buzurtanova of 20 December 2012 ...” On 29 January 2013 the investigators decided to grant the request of 20 December 2012. However, from the documents submitted it appears that the requested steps were taken only in part (see paragraph 68 below). 33. On 20 December 2012 the investigators received a reply from the Counter Terrorism Centre (“the CTC”) of North Ossetia-Alania promising to inform them whether they had any incriminating information on Mr Akhmed Buzurtanov and whether they had conducted any special operations against him. 34. On the same date the investigators examined the premises of the “Ellin” sports club. No evidence was collected from the scene. 35. On or before 20 December 2012 Mr Akhmed Buzurtanov’s name was included in the Russian federal database of missing persons. 36. On 21 December 2012 the investigators requested that the Prigorodniy district department of the interior (“the ROVD”) inform them which officers had patrolled Mayskiy between 6 and 7 December 2012. The reply with the names of four police officers was given on 14 January 2013. 37. On 24 December 2012 the investigators requested permission from the Prigorodniy District Court to obtain the list of calls and other connections made in the vicinity of Raduzhnaya Street in Nazran, Ingushetia between 1 a.m. on 6 December and 1 a.m. on 8 December 2012. On 25 December 2012 the permission was granted. 38. On the same date, the investigators asked the local TV stations to broadcast a general description of the circumstances of Mr Akhmed Buzurtanov’s abduction and to request assistance in establishing his whereabouts and the perpetrators’ identities. 39. Also on 24 December 2012 the Beslan investigations department informed the investigators that on 24 June 2012 Mr Akhmed Buzurtanov had participated in a fight, as a result of which he had received insignificant bodily injuries, and that he had not given any statements about the incident. On 15 September 2012 the Prigorodniy ROVD had opened a criminal case into the injuries received by eleven sportsmen, including Mr Akhmed Buzurtanov, who had been attacked on 24 June 2012 by a crowd of about fifty to one hundred young men in Beslan. 40. On 25 December 2012 the investigators forwarded information requests concerning Mr Akhmed Buzurtanov’s whereabouts, possible detention, hospitalisation and discovery of his body to a number of lawenforcement agencies in the Russian Federation. Replies in the negative were received. 41. Also on 25 December 2012 the investigators examined video footage obtained from the CCTV camera situated at traffic police checkpoint “Kizlyar” on the motorway next to Mayskiy between 8 a.m. on 5 December and 5 p.m. on 7 December 2012. Neither Mr Akhmed Buzurtanov’s car nor any other Lada-Priora cars were found on that footage. 42. On various dates in December 2012 the investigators received replies from the mobile telephone companies, according to which between 2008 and 2012 multiple mobile telephone numbers had been registered in the name of Mr Akhmed Buzurtanov. 43. On 18 January 2013 the head of the operational search unit of the Ministry the Interior of North Ossetia-Alania replied to the investigators’ request (see paragraph 42 above) stating, amongst other things: “In reply to your request no. 240-21/1908-2012 of 17 December 2012 I inform you that the operational services of North Ossetia-Alania have obtained information that Mr Akhmed Buzurtanov, who was born in 1983, possibly had been aiding members of illegal armed groups acting in Ingushetia, that he had provided financial assistance to them and could have acted as their contact person. According to the information in our possession, Mr Akhmed Buzurtanov could have stored illegal weapons and ammunition in his home. I inform you also that we are taking a number of operational steps to establish Mr Akhmed Buzurtanov’s whereabouts and detain persons involved in his disappearance ...” 44. On the same date, 18 January 2013, one of the applicants’ lawyers from the UMG, Mr A.R., requested that the investigators take the following steps: “... 1. Include in the case file the video of the meeting of the Ingushetia sportsmen with the President of the Republic, Mr Yunus-Bek Evkurov, concerning the abduction of Mr Akhmed Buzurtanov, which took place on 17 December 2012, and order a linguistic examination of the footage in order to obtain its translation into Russian. 2. Question former colleagues of the abducted man, including the Chief Bailiff of North Ossetia-Alania, Mr M. Ozdoyev, concerning the information provided by him during the meeting of 17 December 2012 and recorded on video. 3. Question the President of Ingushetia, Mr Yunus-Bek Evkurov, concerning, amongst other things, the incriminating information on Mr Akhmed Buzurtanov which was mentioned by him during the meeting with the sportsmen of Ingushetia. In particular, he stated the following: ‘There are print-outs of telephone conversations, I have not brought them with me, but people know what I mean anyway and the fellow villagers understand it too’. 4. Request from the Vladikavkaz prosecutor’s office the criminal case file against Mr D., who was mentioned by the Chief Bailiff of North Ossetia-Alania, Mr M. Ozdoyev, by the secretary of the Security Council Mr A. Kotiyev, and by President Evkurov. Those officials spoke of the criminal nature of Mr Akhmed Buzurtanov’s interactions with Mr D. In connection with this, it is necessary to examine the contents of the criminal case file to establish the involvement of Mr Akhmed Buzurtanov in the actions of Mr D. and his accomplices... 5. Inform me about the steps taken ... ...Enclosures: - copy of the authority form - video footage of the meeting of President of Ingushetia Mr Yunus-Bek Evkurov with representatives of the sports community of Ingushetia on 17 December 2012 ...” 45. On 20 January 2013 forensic experts examined the evidence collected from the crime scene (see paragraph 16 above). 46. On 28 January 2013 the investigators decided to grant the request of 18 January 2013 (see paragraph 44 above). However, from the documents submitted it appears that none of the requested measures was taken. 47. On the same date, 28 January 2013, one of the applicants’ lawyers from the UMG, Mr A.R., requested that the investigators take the following steps: “... speak to the Mr Akhmed Buzurtanov’s neighbours to establish the identity of eyewitnesses to the abduction and question them. (According to the information from a resident of North Ossetia, Mr M.Iz., several neighbours stated that they had witnessed the abduction. This information can be found on the website of Kavakzakiy Uzel: http:Kavkaz-uzel.ru/articles/21687/); ... check whether during the same time frame other persons were abducted or detained under similar circumstances ... and examine the contents of the relevant criminal case files ...” On the same date the request was rejected by the investigators as the UMG lawyer was not the applicants’ representative in the criminal case. 48. On 28 January 2013 the head of the investigations department overruled the refusal of 24 December 2012 (see paragraph 47 above) and allowed the nine UMG lawyers to represent the applicants in the criminal case. The applicants were informed thereof. 49. On 11 March (in the documents submitted the date is also stated as 25 March) 2013 one of the applicants’ lawyers from the UMG, Mr D.U., requested that the investigators proceed as follows: “... According to Mr Akhmed Buzurtanov’s wife [the second applicant], he was abducted by unidentified persons driving three cars. Therefore, it is possible to conclude that before the abduction, on the way from the gym to the crime scene, Mr Akhmed Buzurtanov was under surveillance. It is also possible to presume that while driving, the abductors used some kind of device to communicate with each other. If the fact of such connections from the same sources at the time of the incident is established in the areas along Mr Akhmed Buzurtanov’s route, then it would allow the identification of the persons who used those means of communication. It would also provide grounds to question them about the reasons for their presence at the scene at the material time and why they were taking the same route as Mr Akhmed Buzurtanov. The taking of such steps would lead to the identification of the persons involved in Mr Akhmed Buzurtanov’s disappearance. Therefore, on the basis of Articles 119 and 120 of the Russian Criminal Procedure Code you are requested to: - establish Mr Akhmed Buzurtanov’s route on 6 December 2012 from the sports club ... to the possible place of his abduction in Mayskiy and the place of the discovery of [his] car; - locate the main telecommunication towers capable of receiving and issuing mobile phone signals along the above route; - obtain from the mobile phone companies the lists of all incoming and outgoing connections, including text messages, made with the technical assistance of the above devices between 7.30 p.m. and 11.30. p.m. on 6 December 2012; - examine the information obtained and establish the mobile service subscribers who were located on the above-mentioned route at the relevant time; - obtain from the agencies carrying out electronic intelligence in Ingushetia and North Ossetia-Alania information concerning the use of radio devices at the relevant time along the above-mentioned route; - identify the users of those devices and question them about the case ...” 50. On 21 March 2013 the Prigorodniy central district hospital provided the investigators with a copy of the registration log of urgent calls for medical assistance on 6 and 7 December 2012. Mr Akhmed Buzurtanov’s name was not indicated therein. 51. On 25 March 2013 the applicants requested that Mr M. Pliyev, member of the Moscow Bar, be allowed to represent them in the criminal case. On 6 April 2013 the request was granted. 52. On 28 March 2013 the request of the applicants’ lawyer was granted (see paragraph 48 above). However, from the documents submitted it appears that the requested measures were not taken. 53. On 2 April 2013 the investigators again questioned the second applicant, who stated that she still had no information concerning her husband’s whereabouts. 54. According to the applicants, on 4 October 2013 the first applicant told her representative at the Court that someone, whose identity she could not disclose out of fear for that person’s life, had informed her that Mr Akhmed Buzurtanov had been abducted by officers of the Federal Security Service (“the FSB”) from Ekaterinburg, Russia, and taken to the capital of North Ossetia-Alania, Vladikavkaz, for unknown reasons. It is unclear whether the applicants passed that information on to the official investigation. 55. According to the applicants, the case-file documents furnished by the Government did not include the list of all the mobile phone communications which had been made in the vicinity of Mr Akhmed Buzurtanov’s alleged abduction obtained by the investigation on 15 March 2013. 56. On 7 December 2012 the investigators questioned the second applicant, whose statement concerning her husband’s disappearance was similar to the applicants’ account submitted to the Court. In addition, she stated that her husband had used mobile telephone number 9-963-174-4448 and that he had neither enemies nor unpaid debts. 57. On the same date, the investigators questioned Mr R.K., who stated that on 6 December 2012 he had been with Mr Akhmed Buzurtanov at the sports club until about 10 p.m. At about 2.30 a.m. on 7 December 2012 the applicants had called him looking for Mr Akhmed Buzurtanov as the latter had not returned home. The witness and Mr I.M. had then assisted the applicants in their search and had gone to the hospitals, morgues and police stations looking for Mr Akhmed Buzurtanov, but without success. The following morning they learnt that Mr Akhmed Buzurtanov’s car had been found. 58. On 7 December 2012 the investigators also questioned the husband of the first applicant, Mr I.Ts., who stated that he had accompanied the first applicant in the search for Mr Akhmed Buzurtanov when the latter had not returned home. Driving around Mayskiy, they had found pieces of broken glass along with a training shoe and a sock. The first applicant had immediately identified them as belonging to Mr Akhmed Buzurtanov. They had then immediately gone to the Mayskiy police station. 59. On the same date, the investigators also questioned a resident of Mayskiy, Ms Z.E., who stated that after 10 p.m. on 6 December 2012 she had been at home when she had heard men shouting outside for about a minute. She had stepped outside and seen two or three vehicles; she had not been able to identify the model or make of the vehicles as it had been dark. The witness thought that it had been a squabble between young men who frequently gathered at the spot to drink alcohol, and returned indoors. 60. On the same date, the investigators also questioned another resident of Mayskiy, Mr M.E., who stated that he had gone to bed early on 6 December 2012 and had not seen the police examining the crime scene outside his house until the following morning. 61. On 8 December 2012 Mr Akhmed Buzurtanov’s mother, Ms Li.B., lodged another complaint concerning the abduction with the investigations department. 62. On the same date the investigators again questioned the second applicant, whose statement was similar to the one she had given on 7 December 2012 (see paragraph 17 above). In addition, she stated that Mr Akhmed Buzurtanov was a professional sportsperson, that in 2012 he had won the European mixed martial arts championship and that he did not have any enemies. 63. On 8 December 2012 the investigators also questioned Mr Akhmed Buzurtanov’s friend, Mr M.M., who stated that he had known Mr Akhmed Buzurtanov since childhood, that they had trained together for fifteen years and that Mr Akhmed Buzurtanov did not have any enemies. In 2011 Mr Akhmed Buzurtanov had participated in a fight with someone, but afterwards the parties to the conflict had settled the issue. The witness stated that he had learnt of the alleged abduction from the applicants and had no idea as to why Mr Akhmed Buzurtanov had disappeared. 64. The investigators questioned Mr Akhmed Buzurtanov’s friend, Mr R.K., who stated that he had seen him in the evening of 6 December 2012 in the gym and that he had not witnessed the alleged abduction. 65. The investigators also questioned Mr Akhmed Buzurtanov’s sisters, Ms F.B. and Ms Lu.B., both of whom stated that they had not witnessed the alleged abduction but had found out about it from a woman living at the corner of Zhebagiyeva Street, according to whom an abduction had been perpetrated by masked men in black uniforms driving three cars. In addition, Ms Lu.B. stated that another resident of that area, Mr M. Be., had confirmed the woman’s story and had added that one of the abductors’ cars had hit Mr Akhmed Buzurtanov’s car from the front and another had blocked it at the back. 66. The investigators also questioned Mr Akhmed Buzurtanov’s aunt, Ms Kh.B., who stated that she had not witnessed the alleged abduction and that she had no explanation for his disappearance. 67. The investigators also questioned Mr Akhmed Buzurtanov’s friend, Mr M.P., a police officer, who stated that at about 11 p.m. on 6 December 2012 he had been driving home when he had seen Mr Akhmed Buzurtanov’s white car with a dent in the front. The car had skidded and had been driven erratically. The witness had then seen two cars, one of which was a silvercoloured Lada–Priora, following Mr Akhmed Buzurtanov’s car. All of the vehicles had been heading in the direction of the border with Ingushetia. 68. On 9 December 2012 the investigators questioned the second applicant’s neighbour, Ms L.G., who stated that at about 10 p.m. on 6 December she had been at home with her husband when they had heard men yelling and then two cars speeding away. 69. On 9 December 2012 the investigators also questioned Mr Akhmed Buzurtanov’s mother, Ms Li.B., who stated that she had not witnessed the alleged abduction and had no explanation for her son’s disappearance. On the same date the investigators obtained a blood sample from the witness for a comparative examination with the evidence collected from Mr Akhmed Buzurtanov’s car and for inclusion in the regional DNA database. 70. On 12 December 2012 the investigators again questioned the second applicant, who reiterated her previous statements (see paragraphs 17 and 23 above) confirming that she had no explanation for Mr Akhmed Buzurtanov’s disappearance. 71. On 15 December 2012 the investigators questioned a police officer from traffic checkpoint no. 5, Mr A.Ts., who stated that he had been on duty at the station between 4 p.m. and 11 p.m. on 6 December 2012 and that he had not seen anything suspicious. He had no information pertaining to the alleged abduction. 72. On 16 December 2012 the investigators again questioned Mr Akhmed Buzurtanov’s friend, police officer M.P., who reiterated his previous statement (see paragraph 67 above), adding that he could show the investigators the place where he had seen Mr Akhmed Buzurtanov’s car on the night of the disappearance. On the same date, in order to verify the statement, the investigators took the witness to the place where he had seen the vehicle. 73. Between 18 and 23 December 2012 the investigators questioned Mr Akhmed Buzurtanov’s neighbours, Mr M.E., Mr M. Dzh. and Mr I.D., all of whom stated that on the night of the disappearance they had been asleep at home and, therefore, had no pertinent information about it. 74. On 19 December 2012 the investigators questioned the first applicant. Her statement was similar to the account submitted before the Court. She also stated that she had no theories concerning the reasons for her brother’s disappearance. 75. On 20 December 2012 the investigators received the first applicant’s statement concerning the alleged abduction, which she had given to the UMG lawyers (see paragraph 31 above). 76. On 21 December 2012 the investigators again questioned Ms Z.E. who reiterated her previous statement (see paragraph 59 above), adding that she had not been able to hear in what language the men had been shouting on the night of the alleged abduction. 77. On 25 December 2012 the investigators again questioned the second applicant, who stated that Mr Akhmed Buzurtanov had never worked in the police, she had never seen him with a police service identity card and that she had no theories concerning the reasons for her husband’s disappearance. At the same time she stated that she had read on the internet that her husband’s disappearance could have been related to the brawl in June 2012. 78. On 26 December 2012 the investigators questioned Mr Akhmed Buzurtanov’s cousin Mr U.B., who stated that he had not witnessed the alleged abduction, had no information about it or theories concerning the possible perpetrators’ identities. 79. On various dates between December 2012 and February 2013 the investigators questioned Mr Akhmed Buzurtanov’s acquaintances, colleagues and neighbours: Mr I.T., Mr A.E., Mr I.A., Mr A.G., Mr A.Ga., Mr Kh.Ts., Mr M.Ts., Mr V. Dzh., Mr R.Ts., Mr M.I., Mr B.Ts., Mr R.D., Mr M.B., Mr Ta.E., Mr I.Im., Ms N.K., Ms N.Ke., Ms T.K, Mr Z.K., Mr P.Kv. and Mr G.Ts. They stated that they had not witnessed the alleged abduction, had no information about it or any theories concerning the possible perpetrators’ identities. 80. On various dates between January and April 2013 the investigators questioned Mr Akhmed Buzurtanov’s relatives, neighbours and former colleagues Mr Is.B., Mr Ab.B., Ms Z.E., Ms G.P., Mr R.Kh., Mr M.Ko., Mr B.E., Mr R.P. and Mr M.Kh. Their statements concerning the alleged abduction were similar to the applicants’ account submitted before the Court. They also stated that they did not have any theories concerning the possible perpetrators’ identities. 81. From the documents submitted it appears that the proceedings are still ongoing. 90. The applicants maintained that it was beyond reasonable doubt that the men who, in their view, had abducted Mr Akhmed Buzurtanov had been State agents. In support of their complaint, they referred to the following facts. Witnesses had seen two vehicles following Mr Akhmed Buzurtanov’s car (see paragraphs 26 and 67 above) and the evidence collected subsequently (see paragraphs 15 and 16 above) demonstrated that the abduction had been well-planned and well-organised and that the perpetrators had taken into account Mr Akhmed Buzurtanov’s physical abilities. The manner in which the alleged abduction had been carried out demonstrated that law-enforcement officers or other State agents had been involved in it. 91. The Government submitted that there was no evidence of the involvement of representatives of law-enforcement agencies in the disappearance of Mr Akhmed Buzurtanov and that the applicants had failed to present a prima facie case of abduction by State agents. 92. The Court observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of matters in dispute, in particular when faced with allegations of violations of fundamental rights (for the most recent summary of these, see El Masri v. “the former Yugoslav Republic of Macedonia” [GC], no. 39630/09, §§ 151-53, 13 December 2012). 93. More specifically, the Court has adjudicated a series of cases concerning allegations of disappearances in the Russian North Caucasus. Applying the above-mentioned principles, it has concluded that it would be sufficient for the applicants to make a prima facie case of abduction of the missing persons by State agents, thus falling within the control of the authorities, and it would then be for the Government to discharge their burden of proof, either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred (see, for example, concerning abductions in Dagestan, Alpatu Israilova v. Russia, no. 15438/05, 14 March 2013, and Umarovy v. Russia, no. 2546/08, 12 June 2012). If the Government failed to rebut this presumption, that would entail a violation of Article 2 in its substantive part. Conversely, where the applicants failed to make a prima facie case, the burden of proof could not be reversed (see, for example, Shafiyeva v. Russia, no. 49379/09, § 71, 3 May 2012). 94. Turning to the circumstances of the present case, the Court notes that no assessment of evidence was carried out by the domestic courts. Therefore, it is for the Court to assess the facts of the case as presented by the parties. 95. It should be noted at the outset that the documents submitted contain no witness statements of persons who could describe in detail the circumstances of the alleged abduction other than the very general descriptions of the vehicles and persons following Mr Akhmed Buzurtanov’s car on the night in question (see paragraphs 59, 65, 67, 68, 72 and 76 above). The Court also notes that the investigation obtained various theories concerning the reasons for his disappearance: kidnapping for ransom (see paragraph 20 above), abduction relating to hostile relationship (see paragraphs 24 and 77 above) and, lastly, abduction by law-enforcement agents (see paragraph 31 above). In such circumstances, in the absence of unequivocal prima facie evidence of the latter, the Court is unable to conclude that State agents or persons acting with their consent could be the sole possible perpetrators of the alleged abduction. 96. Therefore, it has not been established to the required standard of proof – “beyond reasonable doubt” – that State agents were implicated in Mr Akhmed Buzurtanov’s disappearance; nor does the Court consider that the burden of proof can be entirely shifted to the Government. | 1 |
test | 001-154147 | ENG | ROU | CHAMBER | 2,015 | CASE OF FERRARI v. ROMANIA | 4 | Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life) | Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 4. The applicant was born in 1971 and lives in Buenos Aires. He is a military pilot. 5. On 11 August 2005 his child was born of his marriage with M.T.R. who holds both Romanian and Argentinean nationality. At the date of the facts, the family’s permanent residence was in Argentina, but they travelled due to the applicant’s various work assignments. 6. In September 2006 the applicant was sent to a UN mission in Cyprus where his family joined him shortly after. While in Cyprus, the family travelled to Spain to visit the applicant’s sister. In order to facilitate the travelling, the applicant and his wife signed an authorisation form allowing each one of them to travel abroad with the child. 7. After having lived together for seven months in Cyprus, the applicant and M.T.R. decided together that M.T.R. would take their child to Romania for a few months, and would join the applicant in Buenos Aires in October, at the end of his contract in Cyprus. The parents agreed that M.T.R. and the child would return to Argentina before 15 October 2007, the date at which the child’s passport would expire. 8. M.T.R. was unable to make travel arrangements on time, as the applicant had been late in sending money for the tickets, and eventually the child’s passport expired. M.T.R. sought the applicant’s consent to request a Romanian passport for the child, but the applicant refused. 9. On 14 November 2007 M.T.R. informed the applicant that she would not return with the child to Argentina. Later on, on 3 February 2008 she filed for divorce and custody of the child before the Romanian courts. 10. On 16 November 2007 the applicant withdrew the authorisation that he had given to the wife to travel with the child. On 4 December 2007 he also lodged a request for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), with the Argentinean Ministry of Foreign Relations, the Central Authority for the purpose of the Hague Convention. 11. On 4 January 2008 the notification made by the applicant was received by the Romanian Ministry of Justice, the Central Authority for the purpose of the Hague Convention (“the Ministry”). At the Ministry’s request, the police visited M.T.R.’s home and inquired about their situation. She provided copies of their identity papers and of the authorisation form allowing her to travel with the child. 12. On 12 February 2008 the Romanian Central Authority tried unsuccessfully to engage the mother in negotiations concerning the return of the child to Argentina. On 30 March 2008 they lodged before the Bucharest County Court an application under the Hague Convention for the return of the child. 13. Five hearings took place in the case. At the first hearing M.T.R. filed a response to the applicant’s motion; a postponement was granted at the Ministry’s request. At the second hearing M.T.R. learned, allegedly for the first time, that the authorisation to travel had been withdrawn by her husband. This hearing as well as the next one were postponed at M.T.R.’s request. At the next hearing M.T.R. asked that the applicant’s request be dismissed; she claimed that he was sexually deviant and stated that she feared for her child’s safety should he be returned to his father. The applicant did not appear in court. 14. On 8 July 2008 the County Court granted the applicant’s request and ordered M.T.R. to return the child to the habitual residence in Buenos Aires within two weeks from the date of its decision. It noted that while the applicant had given his consent to the travel to Romania, his wife retained the child in Romania against the applicant’s will contrary to what had been initially agreed upon. It also observed that the parents maintained joint custody of the child, as they had been legally married at the date of the wrongful retention. It further noted that on 16 April 2008 the Huşi District Court had granted the couple’s divorce but had not decided on the custody of the child (see paragraph 21 below). It dismissed as unfounded the mother’s allegations that the applicant was not taking active part in the child’s upbringing and that his presence constituted a major risk for “the child’s physical, psychical, emotional and affective development”. The decision was final and enforceable within two weeks. 15. On 12 August 2008 M.T.R. appealed in cassation. The case was heard on 27 November 2008 by the Bucharest Court of Appeal. In a final decision of 4 December 2008 the court upheld the County Court’s decision. 16. On 22 December 2008 the Ministry requested the assistance of a bailiff for the enforcement of the final decision. On 8 January 2009 the bailiff informed M.T.R. of the obligation to comply with the court order. The next day M.T.R. lodged an application for a stay of execution which was dismissed by the Bucharest County Court on 25 March 2009. A new enforcement attempt took place on 2 April 2009 when M.T.R. informed the bailiff that she refused to comply with the return order. She explained that the applicant could keep contact with the child through internet and webcam, that she kept him updated with the developments of the child and that he did not support the child financially. On that day the bailiff decided to postpone the enforcement proceedings. 17. At the same time, M.T.R. requested the annulment of the final decision of 4 December 2008 (contestaţie în anulare) which she considered to be “unfounded and unlawful” (netemeinică şi nelegală). On 23 February 2009 the Bucharest Court of Appeal granted her request, quashed the return order and sent the case back for re-examination of the appeal on points of law. The Court of Appeal retried the appeal and in a final decision of 4 May 2009 dismissed the initial request for the return of the child. The court considered that the child’s arrival to Romania was not unlawful as both parents had consented to the trip. It also found that the child was already integrated in his new environment. It considered that it would not be in the child’s best interest to return to Argentina, because the applicant travelled often due to his job as a military pilot and consequently could not take proper care of the child: “The social workers’ reports in the case and the child’s psychological evaluation show that the child is harmoniously developed – affectively, emotionally and intellectually -, is affectively attached to his mother and maternal grandmother, and is integrated in the environment in which he lives since his arrival in Romania. His return to Argentina is perceived by the court as not corresponding to his superior interest in so far as, notably, his father being a military pilot, is selected for missions within the United Nations, which makes it impossible for him to be preoccupied with raising, caring for and educating the child; in addition frequent travel by the child with his father in these missions is unfavourable to the child’s harmonious development.” 18. On 15 May 2009 the Ministry informed the Argentinean Central Authority of the outcome of the proceedings and advised the applicant to request a right of access under the Hague Convention. The Argentinean Central Authority sent the decision to the applicant and expressed their disagreement with the court’s reasoning. They argued mainly that the protractions leading to the child becoming integrated in his new environment, in Romania, were not imputable to the applicant, but to the Romanian authorities themselves. Moreover, they claimed that the Romanian courts were wrong in considering that because of his profession the applicant could not take care of the child; in any event, such consideration should have been examined and decided by the courts ruling on the custody of the child. 19. The Ministry kept close contact with the Argentinean Central Authority throughout the proceedings, informing them of the progress of the case and seeking information requested by the courts about the applicant. 20. On 3 February 2008 M.T.R. filed for divorce and custody of the child. On 27 February 2008 the Ministry informed the applicant of those proceedings. 21. On 16 April 2008 the Husi District Court granted the divorce but decided not to rule on the custody matters before the end of the Hague proceedings which were pending at that time. The applicant did not appeal and the decision became thus final. 22. On 26 September 2011 the Bucharest District Court granted M.T.R. custody of the child and awarded the applicant visiting rights. The parties appealed; the applicant contested the alimony set by the court. The decision became final with certain amendments on 6 December 2012 when the Court of Appeal dismissed the appeals on points of law lodged by the two parents. 23. In the latter part of 2009 the applicant travelled for the first time to Romania since the beginning of the conflictual situation. He stayed with M.T.R. and his child in M.T.R.’s apartment in Husi for a month. 24. In 2010 the applicant travelled to Romania on two occasions, once accompanied by the child’s paternal grandmother. The child was able to spend time with his father and shared his hotel room for one night. | 1 |
test | 001-158090 | ENG | CYP | CHAMBER | 2,015 | CASE OF VROUNTOU v. CYPRUS | 3 | Violation of Article 14+P1-1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction) | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 5. On 19 September 1974 the Council of Ministers of the Republic of Cyprus approved the introduction of a scheme of aid for displaced persons and war victims. Under the scheme, displaced persons were entitled to refugee cards. The holders of such cards were (and still are) eligible for a range of benefits including housing assistance. For the purposes of the scheme the term “displaced” was determined as being any person whose permanent home was in the areas occupied by the Turkish armed forces, in an inaccessible area, or in an area which had been evacuated to meet the needs of the National Guard. 6. To implement the scheme, the Director of the Care and Rehabilitation of Displaced Persons Service (“SCRDP”) issued a circular on 10 September 1975. The circular provided that non-displaced women whose husbands were displaced could be registered on the refugee card of their husbands. It also provided that children whose fathers were displaced could be registered on the refugee card of their fathers (see paragraph 20 below). No provision was made for the children of displaced women to be registered on the refugee cards of their mothers. 7. Although the term “displaced” was extended by the Council of Ministers on 19 April 1995 (see paragraphs 23 and 24 below), at the time of the facts giving rise to the present application it had not been extended to allow children whose mothers were displaced but whose fathers were not, to qualify for refugee cards. 8. The applicant’s mother has been a refugee since 1974. Her mother is the holder of a refugee card. 9. In September 2002, the applicant married and began looking for a house for her family in Kokkynotrimithia. She wished to obtain housing assistance and so, on 27 February 2003, applied to the Civil Registry and Migration Department of the Ministry of the Interior for a refugee card with occupied Skylloura, the place from which her mother was displaced, as her place of displacement. 10. By letter dated 6 March 2003 the request was rejected on the basis that the applicant was not a displaced person because, while her mother was a displaced person, her father was not. 11. The applicant filed a recourse before the Supreme Court challenging the above decision. She claimed, inter alia, that the decision was in violation of the principle of equality safeguarded by Article 28 of the Constitution and in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. She claimed that it also breached Article 13 of the Convention. 12. A single judge of the Supreme Court dismissed the recourse on 12 May 2004, finding that, on the basis of the relevant case-law, the extension of the applicable criteria so as to cover the children of displaced women was not possible. The question of extending the term “displaced” to cover the children whose mothers were displaced but whose fathers were not had been repeatedly discussed before the House of Representatives’ Committee for Refugees. A proposal to change the law to that effect had been placed before the Committee but was never approved. Furthermore, because of the consequences which would ensue from such an extension of the term “displaced”, the Minister of the Interior had referred the question to the Council of Ministers for its consideration and, on 19 April 1995, the Council of Ministers had decided not to extend the term in this manner (see the relevant domestic law and practice set out at paragraphs 23 and 24 below). 13. On 23 June 2004 the applicant filed an appeal before the Supreme Court. 14. By judgment of 3 March 2006 a five-judge panel of the Supreme Court dismissed the appeal and upheld the findings of the first instance court. 15. The Supreme Court held as follows: “[In the present appeal] an attempt was made to demonstrate that we must depart from the above [first instance] decision, since the Supreme Court can, in the present case, proceed to the so-called “extended interpretation” and, by invoking the principle of equality, widen the application of the criterion to the children of displaced mothers as well. ... The proposed extension of the plan was placed before the Council of Ministers in Proposal no. 1852/92, which was submitted by the Ministry of the Interior to amend the criteria for providing assistance to displaced persons. However the decision taken refers only to amendments which do not concern the present case. Despite the fact that, on 19 April 1995, by decision no. 42.465 of the Council of Ministers, further amendments were made by which the term ‘displaced’ was extended and now includes other categories of those entitled, the point which concerns us in this case remains unchanged. ... In accordance with the case-law (Dias United Publishing Co Ltd v. The Republic, [1996] 3 A.A.D. 550), the non-existence of a legislative provision cannot be remedied by judicial decision because, in such a case, the constitutional control which the Supreme Court exercises would be turned into a means of reshaping or supplementing the legislation. ... We have given this matter very serious consideration in view also of the position that, in the case of an arrangement favouring one sex only, the extended application of the provision also finds support in European Community Law ... However this may be, we cannot depart from the prevailing case-law. Dias United Publishing Co Ltd v. The Republic, cited above, fixed the framework of the jurisdiction of the Supreme Court. The Supreme Court has, in accordance with Article 146(4) of the Constitution, the power to uphold in full or in part the decision appealed against or to declare the act or omission invalid. It does not have jurisdiction to legislate by extending legislative arrangements which did not meet with the approval of parliament. This would conflict with the principle of the separation of powers. We note that the House of Representatives cannot of its own accord enact legislation which would incur expenditure. If the House of Representatives, the constitutionally appointed legislative organ, does not have such a right, the Supreme Court has even less of a right. In agreement with the principles set out above, we conclude that the Supreme Court does not have the competence to proceed to an extended application of a legislative arrangement.” 16. The same issue of the non-extension of refugee cards to the children of displaced women was also considered by the Supreme Court in Anna Giagkozi v. the Republic (case no. 291/2001). That challenge was rejected at first instance on 30 April 2002 ((2002) 4 A.A.D. 405), the court finding that, while it was difficult to understand why there should not be uniform treatment between the children of displaced men and displaced women, on the basis of Dias United, cited above, it was unable to grant the relief sought. This was because Ms Giagkozi was, in effect, asking the court to extend the relevant legal framework so that the benefits provided to children of displaced fathers would be provided to children of displaced mothers. An appeal against that judgment was dismissed on 3 March 2006 by the same bench which dismissed the present applicant’s appeal (the appeal judgment in Giagkozi is reported at (2006) 3 Α.Α.D. 85). | 1 |
test | 001-183870 | ENG | TUR | COMMITTEE | 2,018 | CASE OF ERBEK v. TURKEY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | Paul Lemmens;Stéphanie Mourou-Vikström | 4. The applicant was born in 1991 and lives in Mersin. 5. On 30 December 2011 the applicant was taken into custody on suspicion of membership of a terrorist organisation and of making propaganda for that organisation. 6. On the same day, the applicant was brought before the investigating judge who ordered his detention on remand taking into account the nature of the offences, and the strong suspicion that he had committed the alleged offences, and the risk of absconding. 7. On 28 March 2012 the applicant’s lawyer lodged an objection against the decision dated 30 December 2011 ordering the applicant’s detention and requested his release. On 29 March 2012 the Mersin Magistrates’ Court dismissed the objection on the basis of the case file, without holding a hearing. On 16 April 2012 the applicant’s lawyer filed a further objection against that decision. On 17 April 2012 the Mersin Criminal Court with General Jurisdiction dismissed the objection on the basis of the case file, without holding a hearing. 8. On 5 September 2012 the applicant was released from detention on remand. 9. On 10 September 2012 the Adana Public Prosecutor filed a bill of indictment against the applicant, accusing him of being a member of a terrorist organisation and of making propaganda in its favour. 10. According to the latest information in the case file, the proceedings against the applicant are still pending before an assize court. | 1 |
test | 001-178364 | ENG | RUS | CHAMBER | 2,017 | CASE OF PUKHACHEV AND ZARETSKIY v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova | 4. The list of applicants and the relevant details of the applications are set out in the appended table. 5. The applicants complained of the inadequate conditions of detention during their transport. | 1 |
test | 001-159049 | ENG | LTU | CHAMBER | 2,015 | CASE OF MIRONOVAS AND OTHERS v. LITHUANIA | 3 | Inadmissible (Article 34 - Victim);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano | 5. Mr Petrulevič was born in 1986. When he lodged the application with the Court in 2012, he was serving a prison sentence at the Pravieniškės Correctional Home. 6. From 8 April 2005 to 26 October 2006 the applicant was detained at the Lukiškės Remand Prison. It transpires from the documents before the Court that he was held in different remand prison cells where he had between 1.55 and 3.95 square metres of living space. 7. After his conviction and transfer to the Pravieniškės Correctional Home to serve his sentence, on 27 October 2009 the applicant instituted civil proceedings for damages. He argued that the conditions in which he had been held at the Lukiškės Remand Prison had been degrading: the cells were overcrowded, full of rats and worms, appropriate toilet facilities were lacking, the cells were hot in summer and cold in winter, the cell walls were damp, and the roof of the remand prison was covered with asbestos, which put the applicant’s health in danger. 8. The Lukiškės Remand Prison administration responded that they attempted to maintain the statutory norm of 5 square metres per remand prisoner held in a cell (see paragraph 54 below), but that had not always been possible. The administration acknowledged that the facility was “constantly overcrowded (nuolat perpildytas)”, because the institution could not refuse to admit persons brought there. The buildings of the remand prison were very old, they were repaired periodically and it was not possible to repair them entirely. 9. The case was first examined by the Vilnius Regional Administrative Court, which rejected the applicant’s claim, inter alia, for having missed the statutory time-limit. The Supreme Administrative Court then remitted the case for fresh examination. On 9 June 2011 the Vilnius Regional Administrative Court noted that the applicant had missed, by one day, the statutory three-year time-limit to lodge a claim for damages. The court nevertheless restored the time-limit of its own motion, having observed that the applicant had lodged his claim belatedly partly because he had not obtained in time information necessary for his civil claim. 10. The Vilnius Regional Administrative Court established that the applicant had been held in overcrowded cells for just under a year and a half, given that for that duration he had been held in cells where he had less than 5 square metres of personal space. On the basis of Article 21 § 2 of the Constitution, Articles 6.250 and 6.271 of the Civil Code and the Strasbourg Court’s judgment in Savenkovas v. Lithuania (no. 871/02, 18 November 2008), the first-instance court held that because of the overcrowding the applicant’s dignity had suffered. Nonetheless, the court dismissed the applicant’s remaining complaints about the detention conditions in the Lukiškės Remand Prison as not actually proven. It also noted that he had not complained to any authority of the unsanitary conditions in Lukiškės while he had been held there. The court also took into account that after having been transferred to the Pravieniškės Correctional Home, the applicant had undergone a medical examination. The doctors had established that he was healthy, which provided evidence that the conditions of his detention in Lukiškės had had no impact on his health. 11. Having taken into account the economic conditions in Lithuania, namely, a minimal monthly salary of 800 Lithuanian litai (LTL, approximately 230 euros (EUR)) and an average monthly salary of LTL 2,151 (EUR 620), as well as the Lithuanian administrative courts’ practice in similar cases, the court awarded the applicant LTL 3,000 (EUR 870) in compensation for non-pecuniary damage on account of overcrowding. 12. On 6 February 2012, on appeal, the Supreme Administrative Court underlined that notwithstanding the general rule that a person claiming damage bore the burden of proving it, the lower court had actively used available means for obtaining evidence: on several occasions it had requested the prison in question to provide additional information as to the applicant’s detention conditions and his state of health. That information had been provided to the court. 13. The Supreme Administrative Court also established that for 564 days the applicant had been kept at the Lukiškės Remand Prison in inadequate conditions on account of overcrowding, understood by the domestic law requirement to guarantee prisoners 5 square metres of personal space in a remand prison cell. It can be deduced from the Supreme Administrative Court’s analysis of the details of the applicant’s placement in Lukiškės that for 361 days he was held in cells where he had less than 3 square metres of personal space. The Supreme Administrative Court also noted that for most of his detention, namely for 309 days, the applicant had been held in cells where his personal space had been even less than 2.5 square metres. The court noted that, despite the overcrowding, for 366 days out of 564 the applicant had been held in two cells where heating, ventilation, sanitary and electric systems had been renovated in 2004, thus providing him with somewhat better material conditions (geresnėmis buitinėmis sąlygomis, nors ir neužtikrinant minimalios gyvenamojo ploto normos). Nevertheless, he had been held in overcrowded cells for twenty-three hours a day, and the Lukiškės Remand Prison had provided no evidence that the lack of living space had been remedied in any other way. For the court, such conditions went beyond the inevitable element of discomfort connected with detention (it referred to Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000XI), degraded the applicant and were in breach of Article 3 of the Convention. 14. The Supreme Administrative Court also noted that the Strasbourg Court would sometimes hold that finding a violation constituted sufficient just satisfaction. In the instant case, however, the Supreme Administrative Court considered that the degree of the applicant’s suffering called for pecuniary compensation. Moreover, the sum of LTL 3,000 was not sufficient. Yet, the Supreme Administrative Court took into account that the applicant had not lodged a claim for damages until three years after his detention in such conditions had ended, by which time the court considered that the impact on a person’s emotional and physical suffering had decreased (laiko veiksnys asmens patirtas dvasines ir fizines kančias menkina, jos blėsta). The fact that the applicant had not instituted court proceedings for damages until three years after his release from the Lukiškės Remand Prison led the court to the conclusion that his mental suffering (dvasinė skriauda) was not so significant. Furthermore, when detained, the applicant was nineteen to twenty years old. During the hearing before the first-instance court he had acknowledged that he was in a good state of health. Accordingly, the conditions of his detention in Lukiškės had had no negative effect on his health. On the evidence, no other complaints, except for those concerning overcrowding, were found to be substantiated in his case. Lastly, the court held that the applicant had been partly favoured by the first-instance court’s initiative to restore the time-limit for lodging a claim for damages. It was therefore reasonable and just to award LTL 8,000 (approximately EUR 2,300) to compensate him for any non-pecuniary damage. 15. Mr Mironovas was born in 1978. When he lodged his application with the Court in 2012, he was serving a prison sentence at the Pravieniškės Correctional Home. 16. From 2009 to 2011 the applicant was held at the Prison Department Hospital (Laisvės atėmimo vietų ligoninė) in Vilnius in the following conditions: - twenty-eight days in a room measuring 14.9 square metres, containing four beds (that is, 3.75 square metres per bed), and in a room measuring 12.11 square metres, containing three beds (that is, 4.03 square metres per bed); - fourteen days in a room measuring 14.9 square metres, containing four beds (that is, 3.73 square metres per bed); - one month and three days in a room measuring 21.25 square metres, containing five beds (that is, 4.25 square metres per bed); - six days in a room measuring 19.80 square metres, containing seven beds (that is, 2.83 square metres per bed); - five days in a room measuring 12.14 square metres, containing three beds (that is, 4.04 square metres per bed); - five days in a room measuring 22.84 square metres, containing six beds (that is, 3.81 square metres per bed). 17. The applicant later instituted court proceedings for damages, claiming that he had been held in inhuman and degrading conditions at the Prison Department Hospital, because the rooms had been overcrowded, the hospital did not have a hygiene certificate, and the rooms had been dilapidated. 18. On 14 November 2011 the Vilnius Regional Administrative Court partly accepted the complaint. It established that as of 2007, the health-care authorities had six times established breaches of hygiene requirements at the Prison Department Hospital. In particular, the hospital showers, toilets and other premises were not properly cleaned and disinfected, patients who were suffering from an open form of tuberculosis and psychiatric patients took showers together with other patients (without being isolated, against the domestic law requirements), and many parts of the hospital needed renovation. The court also established that the Prison Department Hospital was operating without a hygiene certificate, which was against the domestic law. 19. As to overcrowding, the hospital provided information about the applicant’s stay therein, but could not specify how many persons had been held with him in the room. The first-instance court considered the lack of appropriate documentation as a flaw on the part of the hospital. The court then itself counted how many square metres the applicant could have had during each period of his stay at that hospital, dividing the size of each room by the number of beds therein. The court thus established that the applicant had been held in overcrowded rooms, and that the domestic norm had been “seriously breached” (nustatyta minimali norma pažeista ženkliai), given that the norm was that hospitals had to provide no less than seven square metres per bed (see paragraph 54 below). 20. The Vilnius Regional Administrative Court concluded that the applicant’s right to be treated in appropriate conditions had been breached. It underlined that the flaws could not be justified by a lack of financing for the hospital. The court considered that compensation of LTL 2,000 (EUR 580) would be sufficient for the applicant, taking into account the principles of reasonableness and justice, and the economic situation in Lithuania. 21. On 3 May 2012 the Supreme Administrative Court upheld the above decision. The higher court recognised that the applicant had been held in overcrowded rooms and in improper sanitary conditions. However, patients at the Prison Department Hospital had the opportunity of being in the open air from 6 a.m. to 10 p.m., which eased their situation as regards the overcrowding and also justified a lower award for non-pecuniary damage. Moreover, the conditions of the applicant’s stay in the hospital, whilst unsatisfactory from a hygiene point of view, had not put his health or life at risk. Those conditions had had no lasting effect on the applicant. 22. Mr Ivanenkov was born in 1980. When he lodged his application with the Court, he was serving a sentence at the Alytus Correctional Home. 23. It transpires from the court decisions that from 2008 to 2010 the applicant spent time in dormitory no. 2 at the Alytus Correctional Home in the following conditions: - nearly nineteen months in a dormitory-type room measuring 30.28 square metres, which contained sixteen beds (that is, 1.9 square metres of living space per inmate); and - over four months in a dormitory-type room measuring 24.80 square metres, containing fifteen beds (that is, 1.65 square metres of living space per inmate). 24. The applicant sued the Alytus Correctional Home for damages, claiming that the conditions of his detention had been degrading on account of overcrowding and the lack of suitable sanitary facilities. He relied, inter alia, on Council of Europe recommendation No. R(87) and on Article 3 of the Convention. To support his claim, he submitted a report of 2010 drawn up by the Alytus Public Health Centre (Alytaus visuomenės sveikatos centras). 25. On 19 December 2011 the Vilnius Regional Administrative Court took note of the Alytus Public Health Centre report of 2010 no. R1-362(2.6), issued in reply to a complaint by the inmates, to the effect that the Alytus correctional facility had a shortage of furniture, dilapidated cells, insufficient lighting, a shortage of cleaning equipment and a shortage of toilets, and that renovation was necessary. The court also took note of another document – a report by the State Health Care Centre (Valstybinės visuomenės sveikatos centro tarnyba prie Sveikatos apsaugos ministerijos) – to the effect that complaints made by another inmate in the Alytus facility were warranted and that there had been “gross violations of hygiene norms (šiurkštūs higienos normų pažeidimai)”. 26. The Vilnius Regional Administrative Court observed that the parties in essence did not dispute that the applicant had been held in premises where he had had between 1.7 and 1.9 square metres of personal space, and that there had been a shortage of toilet facilities and furniture. Such breaches of the domestic norms on hygiene were far from being short term (ne trumpalaikiai). Even so, the applicant’s claim that his physical health had been damaged was dismissed as not proven. Given that he had had to stay within the dormitory only during the night and had been able to move about during the day in the prison yard, take exercise outside on basketball, football and volleyball pitches, and that the premises had ventilation and the toilets were in a separate room, the court decided that it was reasonable and just to award the applicant LTL 2,300 (EUR 660). 27. On 26 April 2012 the Supreme Administrative Court agreed with the assessment of the applicant’s conditions in the Alytus Correctional Home. It noted that the applicant had never complained about the conditions to the Alytus facility administration. Furthermore, there was no proof that the Alytus administration had deliberately sought to degrade the applicant or to treat him inhumanely. Lastly, the Supreme Administrative Court observed that the Strasbourg Court quite often (neretai) held that the finding of a violation was sufficient just satisfaction. It considered that that would be an appropriate solution in the applicant’s case, even though his right to be held in conditions as set out by the domestic law had been breached. Accordingly, no pecuniary award was made. 28. The applicant was born in 1983. When he lodged his application with the Court, he was serving a sentence at the 2nd Correctional Home-Open Colony of the Pravieniškės Correctional Home. 29. It transpires from the documents before the Court that from 2008 to 2012 the applicant spent time in the 2nd Correctional Home-Open Colony in the following conditions: - one month in a dormitory-type room, where he had 1.96 square metres of personal space; - over four months in a dormitory-type room, where he had 2.03 square metres of personal space; - the remaining time, which appears to be a little bit less than four years, in a dormitory-type room, where he had between 2.27 and 2.57 square metres of personal space. 30. In 2012 the applicant instituted court proceedings for damages, claiming that during his entire stay in Pravieniškės the facility was overcrowded. Moreover, the number of inmates held was constantly rising, even though no new premises were built. The Pravieniškės administration stated that there were plans to modernise that facility by 2017. 31. By a decision of 9 July 2012 the Kaunas Regional Administrative Court partly accepted the applicant’s complaint, having noted that under the domestic law personal space in dormitory-type rooms had to be no less than 3 or 3.1 square metres (see paragraphs 54 and 55 below). The court awarded the applicant LTL 1,000 (EUR 290) in respect of non-pecuniary damage. 32. On 4 February 2013 the Supreme Administrative Court maintained the award of LTL 1,000 (EUR 290) for non-pecuniary damage, caused by the State’s failure to observe domestic law norms. That being so, the court underlined that overcrowding in the applicant’s case was compensated for by free movement during the day. Moreover, the dormitory’s rooms in Pravieniškės had natural light and ventilation, and the sanitary facilities (asmens higienos patalpos) were separated from the sleeping premises. There was no evidence that overcrowding had had an impact on the applicant’s health. The Lithuanian court relied on the Court’s findings in Valašinas v. Lithuania (no. 44558/98, ECHR 2001VIII), whereby it held that merely a lack of living space provided for the inmate did not necessarily amount to a violation of Article 3 of the Convention. Last but not least, the applicant’s personal living space was close to the required domestic norm. It was also noteworthy that the applicant had complained only about lack of space. Having taken into account the cumulative effect of the conditions the applicant was held in, the Supreme Administrative Court thus rejected his assertion that the conditions of his stay in Pravieniškės had been in breach of Article 3 of the Convention. 33. Mr Gaska was born in 1958. When introducing the application with the Court in 2013, he was serving his sentence at the Alytus Correctional Home. 34. It transpires that after conviction, in May 2010 the applicant was placed in the Vilnius Correctional Home (Vilniaus pataisos namai), where he was held until February 2012. Specifically, from 20 May 2010 to 16 September 2011 the applicant had to stay in dormitory-type room no. 4-414 measuring 14.41 square metres with five other inmates (that is, 2.4 square metres of living space per inmate). 35. In April and June 2012, when he was already in the Alytus Correction Home, the applicant complained to the administration of the Vilnius Correctional Home that he had not had adequate living space in the latter facility and that the lighting in his room had been poor. When the Vilnius Correctional Home denied responsibility, the applicant appealed to the Prison Department, the body that oversees the Lithuanian prisons. The latter replied that, because of the lack of available space, the Vilnius Correctional Home’s administration could not always guarantee the minimum personal space of 3.1 square metres to each inmate required under domestic legislation. However, any lack of personal space during the night was compensated for by the inmates’ ability to move about within the confines of the Vilnius Correctional Home during the day. 36. The applicant then instituted court proceedings for damages. The Vilnius Correctional Home asked the court to dismiss the claim, admitting that “because of overcrowding in prisons throughout Lithuania at this time, the Vilnius Correctional Home administration was not always able to provide the inmates with the minimum living space, as provided for by the domestic law (šiuo metu dėl įkalinimo įstaigų visoje Lietuvoje perpildymo Vilniaus pataisos namų administracija ne visada gali visiems nuteistiesiems suteikti įstatymais nustatytą minimalų gyvenamąjį plotą)”. 37. On 25 April 2013 the Supreme Administrative Court noted that there were no particular data with regard to the exact number of inmates held together with the applicant. That being so, having regard to the material provided, namely photographs of six beds in room no. 4-414, the court interpreted all the uncertainties in the applicant’s favour, acknowledging a violation of his rights under the domestic legislation, on account of overcrowding. It established, however, that the applicant had not complained about the conditions of his detention during his stay in the facility at issue. The court held that the applicant’s argument that he had not complained because he had feared retribution from the prison administration had no objective grounds (niekuo nepagrįstas). Furthermore, there was no proof that the overcrowding had had an effect on the applicant’s health. Moreover, any lack of space during the night was compensated for by the applicant being able to move about within the facility during the day. The court acknowledged that, according to the domestic case-law and the case-law of the Court, in the event of inadequate detention conditions a person was considered to have sustained non-pecuniary damage. However, pecuniary compensation was not indispensable in order to protect infringed rights. 38. In parallel court proceedings, the applicant also complained of insufficient lighting in his dormitory. By a final decision of 11 June 2013, the Supreme Administrative Court held that the lighting was very near the requirements as set by the applicable domestic legislation (74 lx, 83 lx and 112 lx, whereas100 lx was required under the legislation). 39. Mr Traknys was born in 1966. When he lodged his application with the Court in 2013, he was serving a prison sentence at the Pravieniškės Correctional Home. 40. From 8 December 2009 to 5 October 2011 and from 4 to 20 July 2012 Mr Traknys was held in the Lukiškės Remand Prison. It can be deduced from the Lithuanian court decisions that during the first period of his detention in Lukiškės he spent 608 days in cells where he had between 1.23 and 2.74 square metres of living space. During his second stay in Lukiškės, the applicant spent sixteen days in cells where he had between 2.8 and 3.4 square metres of personal space. 41. The applicant later instituted court proceedings for damages, complaining of overcrowding and deplorable conditions on account of the poor sanitary situation. He alleged that the cells were infested with mice and cockroaches, had insufficient lighting and were damp. He relied on a Vilnius Public Health Centre report to the effect that one of the cells had mould on the ceiling. 42. By a decision of 23 May 2013, the Supreme Administrative Court acknowledged that there had been overcrowding during the first period of the applicant’s detention in Lukiškės, on account of the prison authorities’ failure to keep up with the domestic law requirement to provide 5 or, later, 3.6 square metres of personal space in the remand prison cells. The court had no doubts that staying in cells that did not meet hygiene standards had caused the applicant mental suffering. Furthermore, even though the applicant had objected to being placed with inmates who smoked, in breach of the domestic legislation, he had been held with smokers for ninety-nine days (the domestic court referred to Elefteriadis v. Romania, no. 38427/05, 25 January 2011), and with previously convicted inmates for 201 days, even though it was his first time in prison. On account of those multiple breaches of the applicant’s rights, without explicitly acknowledging a violation of Article 3 of the Convention and taking into consideration the economic situation in Lithuania, the court considered it just to award compensation of LTL 2,500 (EUR 725). 43. As to the second period of the applicant’s detention, by a decision of 16 July 2013 the Supreme Administrative Court also acknowledged overcrowding. Taking into account the short duration of the violation and the economic situation in Lithuania, an award of LTL 350 (EUR 100) was made. 44. Mr Zeleniakas was born in 1973. When he lodged his application with the Court in 2013, he was serving a prison sentence at the Alytus Correctional Home. 45. In 2009 and 2010, Mr Zeleniakas was held at the Šiauliai Remand Prison, where he spent 328 days. During that time, he was held in a cell measuring 22.85 square metres, housing four to eight detainees (that is, between 2.86 and 5.71 square metres of personal space); in a cell measuring 20.13 square metres, housing four to nine detainees (that is, between 2.25 and 5.06 square metres of personal space); and in a cell measuring 16.26 square metres, housing five to eight detainees (that is, between 2.03 and 3.25 square metres of personal space). 46. The applicant instituted court proceedings. His written complaint was sent from the Alytus Correctional Home, claiming that the conditions at the Šiauliai facility had been deplorable: the remand prison was overcrowded, the cells were “unsanitary”, and he had been held together with smoking inmates, even though he was a non-smoker. During the hearings before the Šiauliai Regional Administrative Court the applicant also complained that the cells lacked proper ventilation and that the toilets were not separated from the cells. 47. On 12 November 2012 the Šiauliai Regional Administrative Court acknowledged a breach of the applicant’s rights under the domestic law, as regards overcrowding. The court noted his statement during the hearing that he had complained to the Šiauliai Remand Prison about being kept with smokers. Although the applicant had not complained of a violation of Article 3 of the Convention, the first-instance court nevertheless deemed it proper to examine his complaint in the light of the Court’s case-law criteria. Having done that, the court considered that the applicant’s rights had been violated on account of overcrowding, as it was understood under the domestic law, and that while it was close to a breach of Article 3 of the Convention, it did not pass that threshold. Lastly, the applicant had instituted court proceedings a year and a half after the date on which he had left the Šiauliai Remand Prison, by which time his psychological and physical suffering had diminished. Accordingly, there was no need to award him any pecuniary compensation. The court did not address the applicant’s complaint of unsanitary conditions. 48. On 10 May 2013 the Supreme Administrative Court partly granted the applicant’s appeal. It considered, however, that in his appeal the applicant had touched upon not only those issues which he had raised in his complaint to the first-instance court, but had also complained about other aspects of his detention. In particular, according to the Supreme Administrative Court, in his appeal the applicant had argued that the cells had lacked an artificial ventilation system, that the natural ventilation system had been insufficient, and that the toilet in the cell was of the type that should only be installed outside (kameroje esantis tualetas ir pati kamera buvo vienoje patalpoje, o sanitariniam mazgui įrengti panaudotas lauko tualeto principas). The appellate court considered that the applicant should have raised those issues in his complaint (skunde) to the first-instance court. Accordingly, it dismissed the applicant’s allegations of lack of ventilation and proper toilet facilities. 49. As to overcrowding, the Supreme Administrative Court noted that the number of inmates at the Šiauliai Remand Prison often changed during the day. On the basis of the documents provided by the Šiauliai Remand Prison, the Supreme Administrative Court established that for seventeen days the applicant had been held in “overcrowded” cells and for twenty-one days he had been held in cells where the minimum personal space was “very close to, but did not meet the [domestic] norms”. The Šiauliai facility had thus breached the applicant’s statutory right to be held in a cell where he would have 5 or 3.6 square metres of space. Having reviewed the Court’s case-law on conditions of detention, the Supreme Administrative Court considered that the inconveniences suffered by the applicant during those thirty-eight days went beyond those inherent in detention and were intense enough to amount to a violation of Article 3. The court nevertheless noted that there was no evidence in the case that the remand facility had intentionally sought to debase the applicant. The applicant could go out for a stroll for one hour per day, thus spending some time outside his cell. Lastly, the Supreme Administrative Court observed that there was no evidence in the file that the applicant had ever asked the remand prison administration to be held in a non-smoking cell. Nor was there any evidence in the file that he had been held in unsanitary conditions. The appellate court considered that the applicant had lodged his complaint more than one and a half years after his release from the Šiauliai Remand Prison, and thus had had a possibility to gather evidence and to provide it to the court. Having taken into account the economic situation in the country, the Supreme Administrative Court awarded the applicant LTL 200 (EUR 60) for his suffering. | 1 |
test | 001-168859 | ENG | RUS | COMMITTEE | 2,016 | CASE OF SOLOVYEV AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-171491 | ENG | RUS | COMMITTEE | 2,017 | CASE OF KHASANOV AND OTHERS v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-5 - Compensation) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-163437 | ENG | BIH | CHAMBER | 2,016 | CASE OF PILAV v. BOSNIA AND HERZEGOVINA | 3 | Preliminary objection joined to merits and dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 12 - General prohibition of discrimination;Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction) | André Potocki;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary | 7. The applicant was born in 1964 and lives in Srebrenica, a town in the Republika Srpska (one of the two constituent Entities of Bosnia and Herzegovina). 8. The applicant declares himself as Bosniac (one of the country’s “constituent peoples”). He actively participates in the social and political life of the country. The applicant is a member of the Party for Bosnia and Herzegovina (Stranka za BiH; “the BH Party”) and a founding member of the Srebrenica Intellectuals’ Club (Klub Intelektualaca Srebrenice). 9. He has held several elected and appointed political positions in the Republika Srpska. At the time of lodging his application to the Court, the applicant was a member of the National Assembly of the Republika Srpska. 10. In 2006, as a candidate of the BH Party, the applicant submitted his candidacy for the 2006 elections to the Presidency of Bosnia and Herzegovina. 11. On 24 July 2006 the Central Election Commission of Bosnia and Herzegovina (“Centralna izborna Komisija Bosne i Hercegovine”; “the CEC”) rejected his candidacy. It explained that the applicant could not be elected to the Presidency from the territory of the Republika Srpska considering that he declared affiliation with Bosniacs. Pursuant to Article V of the Constitution and Article 8.1 § 2 of the Election Act 2001 the presidential candidate from that Entity must be a Serb. 12. On 1 August 2006 the CEC rejected the applicant’s request for the reconsideration of that decision. 13. On 10 August 2006 the Court of Bosnia and Herzegovina rejected the applicant’s further appeal. It held that the applicant’s candidacy was in contravention of the Constitution and the Election Act 2001. 14. On 20 September 2006 the BH Party and the applicant lodged a constitutional appeal relying on Article 1 of Protocol No. 12 to the Convention. On 29 September 2006 the Constitutional Court of Bosnia and Herzegovina held that there had been no violation of that provision (decision no. AP 2678/06). The relevant part of the majority opinion reads as follows (the translation has been provided by the Constitutional Court): “...Therefore, the provision of Article 8 of the Election Law of Bosnia and Herzegovina, including Article V of the Constitution of Bosnia and Herzegovina, should be viewed in the light of the discretionary right of the State to impose certain restrictions when it comes to the exercise of individual rights. The said restrictions are justified by the specific nature of the internal order of Bosnia and Herzegovina that was agreed upon by Dayton Agreement and whose ultimate goal was the establishment of peace and dialogue between the opposing parties given that the said provision was intentionally incorporated into the Constitution so that the members of the Presidency come from amongst Bosniaks, Croats and Serbs. There is no dispute that the provision of Article V of the Constitution of Bosnia and Herzegovina, as well as the provision of Article 8 of the Election Act 2001, have a restrictive character in that they restrict the rights of citizens, namely the candidacy of Bosniacs and Croats from the territory of the Republika Srpska and the Serbs from the territory of the Federation of Bosnia and Herzegovina to stand for election as members of the Presidency of Bosnia and Herzegovina. However, the purpose of those provisions is to strengthen the position of the constituent peoples in order to ensure that the Presidency is composed of the representatives from these three constituent peoples. Taking into account the current situation in Bosnia and Herzegovina, the restriction imposed ... is justified at this moment since there is a reasonable justification for such reasoning. Therefore, given the current situation in Bosnia and Herzegovina and specific nature of its constitutional order as well as the current constitutional and statutory arrangements, the challenged decisions of the Court of Bosnia and Herzegovina and the Central Election Commission did not violate the appellants’ rights under Article 1 of Protocol No. 12 to the European Convention and Article 25 of the International Covenant on Civil and Political Rights since the above-mentioned decisions are not arbitrary and are based on law. It means that they serve a legitimate aim, that they are reasonably justified and that they do not place an excessive burden on the appellants given that the restrictions imposed on the appellants’ rights are proportionate to the objectives of the general community in terms of preservation of the established peace, continuation of dialogue, and consequently the creation of conditions for amending the above-mentioned provisions of the Constitution of Bosnia and Herzegovina and Election Act 2001.” The relevant part of the concurring opinion of Judge Feldman reads as follows: “I agree that the special circumstances in which the Dayton Agreement was drafted and the needs of the time are capable of providing a rational and objective justification for treatment which would otherwise be discriminatory...Like Judge Grewe in her separate dissenting opinions....I regard the justification as being temporary rather than permanent, but I respectfully differ from Judge Grewe in thinking that the time has not yet arrived when the State will have completed its transition away from the special needs which dictated the unusual architecture of the State under the Dayton Agreement and the Constitution of Bosnia and Herzegovina. However, I have another reason for joining the majority of the Constitutional Court in this case. Until the time (if it ever arrives) when Article V of the Constitution of Bosnia and Herzegovina is amended to remove the differential treatment of potential candidates for the Presidency, it seems to me that Article V leaves the drafters of the Election Law, the Central Election Commission and the courts no choice. It is not constitutionally permissible for a Law or the interpretation or implementation of a Law to be directly incompatible with the express and unambiguous requirements of Article V of the Constitution. Had the appellants succeeded in their appeal, it would have left Article V of the Constitution with no effect whatever. It would have been otiose, reduced to empty words. In my view, the Constitutional Court, required by Article VI of the Constitution to ‘uphold this Constitution’, cannot properly make a decision which makes an important part of the Constitution wholly ineffective. I accept that there different parts of the Constitution appear to have conflicting values and objectives, but constitutions are never entirely coherent. They are always shaped by, and are a compromise between, conflicting values and objectives. The task of the Constitutional Court under Article VI is to give effect to the Constitution, with all its inconsistencies, and make it as effective as possible in all the circumstances. For this reason, I would have dismissed this appeal as ill-founded even had I disagreed with the conclusion of the majority of the Constitutional Court that there is an objective and rational justification for the difference of treatment. Whether justified or not, the difference is required by Article V of the Constitution of Bosnia and Herzegovina. An international tribunal such as the European Court of Human Rights might perhaps decide that the constitutional arrangements for electing members of the Presidency violate rights under the European Convention (and nothing I write here should be taken to lend support to that suggestion under present conditions). Such a tribunal has no duty to uphold the Constitution. The Constitutional Court has an express constitutional obligation to uphold the Constitution, and in my opinion has no power to set aside parts of it, or make them ineffective, by relying on rights arising in an international instrument in preference to the express and unambiguous terms of the Constitution itself.” The relevant part of the dissenting opinion of Judge Grewe, joined by Judge Palavrić, reads as follows: “...I respectfully differ from the conclusion that there is no violation of the appellant’s rights guaranteed by the European Convention, its Protocols and Additional Human Rights Agreements because of an ‘objective and reasonable justification for differential treatment’. ...I consider the exclusion of the candidate Mr. Ilijaz Pilav on the Party’s candidate list for the Presidency of Bosnia and Herzegovina inconsistent with Article 1 of Protocol No. 12 and with Article 25 of the International Covenant on Civil and Political Rights which guarantees equal right to stand for election and to be elected without unreasonable restrictions. Contrary to the statements of the majority (§ 22), it seems to me that the current situation in Bosnia and Herzegovina does not justify at this moment the differential treatment of the appellant’s candidacy in relation to the candidacy of other candidates who are the Serbs and are directly elected from the territory of the Republika Srpska, nor it serves a legitimate aim, such as preservation of peace, continuation of dialogue or creation of conditions for amending the provisions of the Constitution of BiH and Election Law. Although I think like judge Feldman in his separate concurring opinion under this decision that the State of BiH has not yet completed its transition, that it is still in a special situation requiring specific measures, I however consider that the Dayton Agreement architecture is evolving and has to adapt to the different stages of evolution in BiH. The constitutional specificity of BiH consists of the multi-ethnic character of State and public institutions. The multi-ethnicity established by the Dayton Agreement has been precised by the Constitutional Court in case U 5/98 (Official Gazette of BiH, No. 36/00), stressing the equality of all constituent peoples in both entities and excluding in consequence the minority status of any constituent people in any entity. The coherence of this decision implies a multi-ethnic composition of the Presidency without territorial interference since the three constituent peoples are precisely equal in the whole State territory of BiH...It is the particular combination of ethnic and territorial structures which leads to unjustified discriminations since the territorial interference in presidential elections result to an ethnic separation materialized by the exclusion of the right to stand for election for all Serbs living in the Federation and for all Croats and Bosniacs living in Republika Srpska. This combination is inconsistent with the Dayton Agreement’s goal of a multi-ethnic State and with the principle of equality of constituent peoples in both entities which only justifies that the Serbs living in Federation and that the Bosniacs and the Croats living in Republika Srpska do not benefit of the status of a minority. Therefore the only legitimate aim appropriated in the current situation in BiH consists of excluding the territorial criterion in presidential elections. Only such a solution could be a reasonable justification of differential treatment and would be consistent with the requirements of Article 1 of Protocol No. 12 that any right set forth by law shall be secured without discrimination on any ground and of Article 25 of the International Covenant on Civil and Political Rights. In other terms, the differential treatment challenged by the appeal is not justified in an objective or in a proportionate manner. I also differ from the opinion expressed by judge Feldman in his point 4. Indeed, the European Convention and its Additional Protocols have at least the same rank as the Constitution of BiH. The Constitutional Court stated that the Constitution of Bosnia and Herzegovina was adopted as the Annex 4 to the Peace Agreement. It follows that there cannot be a conflict and possibility of dispute between that Agreement and the Constitution of BiH which form a legal unity. This implies that the Constitutional Court grants the same importance to the Peace Agreement and its annexes and thus that in case of conflict of norms, the case may only be resolved through a method of systematic interpretation. Furthermore the provisions of Articles II.2, II.3 and X.2 of Constitution place the compliance with the human rights and the European Convention among the basic pillars of the constitutional order in Bosnia and Herzegovina which have priority over any other law and cannot be restricted even by a constitutional revision. The Constitutional Court in its role of upholding the Constitution has to take account of all these elements as well as of legal evolutions in order to guarantee concrete and effective rights. Therefore Article V.1 has to be read in light of Articles II and X of the Constitution and of Article 1 of Protocol No. 12. The Constitutional Court cannot, of course, replace or modify the present Constitution but it can request the Parliament to harmonize the text with the requirements of BiH’s international obligations.” 15. On 5 July 2010 the applicant again submitted his candidacy to the CEC. On 29 July 2010 it was rejected for the same reasons as before. | 1 |
test | 001-153502 | ENG | TUR | ADMISSIBILITY | 2,015 | CANAN v. TURKEY | 4 | Inadmissible | András Sajó;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano | 1. The applicant, Mr Tahir Canan, is a Turkish national, who was born in 1953 and is currently serving a prison sentence in Bandırma. He is represented before the Court by Ms Y. İmrek, a lawyer practising in Istanbul. 2. 3. The applicant was serving a prison sentence at the Adana F-Type High Security Closed Penitentiary Institution for the offences of “homicide and purchase or possession of unlicensed firearms and bullets”. 4. On 12 August 2009, the applicant was transferred from Adana Prison, where he had been held until that date, to Bandırma M-Type Closed Penitentiary Institution, approximately 1,000 km away from the former. It was planned that the bus carrying a total of twelve detainees and convicts who were being transferred from Adana province to various other provinces would stop off at the Ankara Sincan Closed Penitentiary Institution. 5. Roughly halfway through the trip, the bus carrying the prisoners stopped off at the Gendarmerie Command in Ankara to break the journey and the applicant asked to be taken to the toilet. 6. The detainees and the convicts started to go to the toilets in groups of three after the necessary security measures were taken under the supervision of the deputy patrol commander. The applicant asked the gendarmerie officers who were ensuring security to remove his handcuffs which were positioned in front of his body (see paragraph 29 below), while he was relieving himself. However, the gendarmerie lieutenant Ü.G., in charge of the group, refused that request. 7. On 17 August 2009 the applicant filed a complaint with the Bandırma public prosecutor’s office, submitting that he had been subjected to degrading treatment by Ü.G. because he had had to use the toilet wearing handcuffs, despite his repeated requests to have them unlocked. He claimed that such treatment could not have been justified by security concerns, as he had been using the Gendarmerie Command’s toilet facilities, which had been guarded by gendarmerie officers. 8. On 5 February 2010 the Bandırma public prosecutor took a statement from the applicant. Repeating his initial submissions, the applicant maintained that the other inmates on the bus had witnessed the degrading treatment, as they had also been required to use the toilets under the same conditions. 9. On 6 September 2010 a colonel from the Adana Gendarmerie Command informed the applicant that lieutenant Ü.G. had made a statement before the Adana public prosecutor and that no other disciplinary or administrative measure had been taken against him, as he had acted in compliance with the relevant orders. 10. Subsequently, on 27 October 2010 the Adana Gendarmerie Command sent a second letter to the applicant, indicating that security measures during the transfer of prisoners were taken having regard to the security requirements at a given time. The letter added that the lieutenant in charge of the transferred group was the sole person authorised to determine whether the situation required the application of a security measure, namely the use of handcuffs in the applicant’s case. 11. On 8 December 2010, after having examined the case file and an investigation report from the Gendarmerie Command, the Governor of Adana decided not to permit the instigation of a criminal investigation against Ü.G., pursuant to Law no. 4483 (Law on the Prosecution of Civil Servants and Public Officials). The Governor referred to section 456 of the Directive on the Transfer of Prisoners (Ceza İnfaz Kurumu ve Tututkevlerinin Dış Koruması ile Sevk ve Nakil Hizmetleri Yönergesi), which stated that the gendarmerie had the authority to handcuff prisoners in order to prevent their escape. He further relied on section 27 of the Gendarmerie Guidelines (Jandarma Talimnamesi), which stated that prisoners would be allowed to go to the toilet if in the company of gendarmerie officers and that their handcuffs must not be removed during that time. The Governor found accordingly that lieutenant Ü.G. had acted in compliance with the relevant legislation in not permitting the applicant to go to the toilet without handcuffs. 12. Following the Governor’s decision, on 4 April 2011 the Ankara public prosecutor decided to discontinue the case. 13. The applicant objected to the public prosecutor’s decision. On 30 September 2011 the Sincan Assize Court rejected that objection. 14. Regulations in the domestic law authorising the use of handcuffs and devices restraining bodily movements during the transfer of detainees are as follows. 15. Article 50 of Law no. 5275 on the Execution of Penalties and Security Measures, which is entitled “Use of Constraining Devices”, provides as follows: “Handcuffs and other body restraints can be used with a view to preventing escape during referral or transfer, on the condition that they are removed when the convict is brought before the competent authority.” 16. Article 155 of the Regulation (2006/10218) on the Administration of Penitentiary Institutions and the Execution of Penalties and Security Measures, which is entitled “Use of Constraining Devices”, provides as follows: “All the necessary measures that would not cause any harm to health shall be taken to prevent escape during referral or transfer, on the condition that they are removed when the convict, except for child convicts, is brought before the competent authority.” 17. The relevant part of Article 76 of the Regulation on the Duties and Powers of the Gendarmerie, which is entitled “Measures to Be Taken During Referral and Transfer”, provides that “All the necessary measures that would not cause any harm to health shall be taken to prevent escape of the detainees and the convicts during referral and transfer...”. 18. The relevant provisions under the heading of “General Rules to be respected by the Referring Penitentiary Institution Unit, City Centre or District Gendarmerie Commands During Referral and Transfer” of paragraph 4/B of the Directive on the Transfer of Prisoners read as follows: “All the necessary measures that would not cause any harm to health, such as using handcuffs, linking arms with those who are transferred and encircling them with a sufficient number of personnel, shall be taken to prevent escape of detainees and convicts during referral and transfer. The security needs shall be the only decisive factor in designation of the level of the security measures to be taken. The commander in charge of the transfer shall be the sole person authorised to make a decision for the use of handcuffs by assessing the security need.” “The patrol commander shall have the keys to the handcuffs of detainees and convicts. The handcuffs shall not be unlocked on any account, except for cases such as deaths, injuries, heart attacks and serious diseases. In cases where the handcuffs are unlocked, the security measures shall be improved and more attention shall be paid. During the transfer, the convict will be provided with food and her/his biological needs shall be met.” 19. The relevant provisions under the heading of “Use of Handcuffs” of the Regulation on the Duties and Powers of the Gendarmerie: Directive no. 27-3 on Patrols, pages 8-5, insofar as relevant, read: “Handcuffs shall be used with a view to preventing escape of the detainees and the convicts during referral or transfer, or outside the penitentiary institutions, and to prevent them from posing a danger to the lives and physical integrity of themselves or others”. 20. The relevant provisions of the Gendarmerie Guidelines provide as follows. Paragraph (b) of the Article entitled “Measures to be taken during referrals and transfers”: “The prisoners and their belongings shall be searched thoroughly before they get on the bus; they are dispossessed of all instruments that could be used for attacking or escaping. The patrol commander shall have the keys to the handcuffs of the prisoners. The handcuffs shall not be unlocked under any circumstances except for the mandatory conditions.” 21. In the same Gendarmerie Guidelines, the Article entitled “Code of conduct to be followed for contingencies during the transfer” reads: “All the necessary measures that would not cause any harm to health shall be taken to prevent escape of the detainees and the convicts during referral or transfer.” “The prisoners shall be searched before going on a journey. They shall be allowed to use the toilets and their similar needs shall be taken care of. When they go into the toilet, the door shall be kept open and the handcuffs shall remain locked.” | 0 |
test | 001-159040 | ENG | RUS | COMMITTEE | 2,015 | CASE OF KOVALENKO AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 5. The applicants, whose names and years of birth are tabulated in Appendix I, took part in the cleaning-up operation at the Chernobyl nuclear disaster site. They were subsequently registered disabled, becoming entitled to various social benefits. 6. On various dates the applicants successfully sued the authorities for inflation adjustment of these benefits. The judgments became final. 7. On various dates the Presidia of Regional Courts allowed the defendant authorities’ applications for supervisory review and quashed the judgments, considering that the lower courts misapplied the material law. 8. Some of the judgments remained unenforced until the date of their quashing or were enforced with delay. | 1 |
test | 001-167826 | ENG | HRV | ADMISSIBILITY | 2,016 | LALIĆ v. CROATIA | 4 | Inadmissible | Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković | 1. The applicant, Ms Ljubica Lalić, is a Croatian national, who was born in 1950 and lives in Šibenik. She was represented before the Court by Mr I. Labura, a lawyer practising in Šibenik. 2. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant’s husband was an employee of the “Slavonac” company. On 24 September 1998 the applicant and her husband, as guarantors of a loan to the company, entered into an agreement with the Jadranska bank of Šibenik to use their house as security for a loan of 200,000 Croatian kunas. It was stipulated that unless the debtor paid its outstanding debts within five years, the creditor bank was entitled to institute enforcement proceedings for payment of the debt through the sale of the applicants’ house. 5. On 13 March 2005 the applicant brought a civil action before the Šibenik Municipal Court against the said bank and the “Slavonac” company, claiming that neither she nor her husband had ever signed the fiduciary agreement in respect of their house and that she had learned about it for the first time in the inheritance proceedings instituted after the death of her husband. 6. The Municipal Court commissioned an expert in graphology, who confirmed that the signatures on the said agreement were indeed those of the applicant and her husband, and on 15 February 2008 the Municipal Court dismissed the applicant’s claim. This judgment was upheld by the Šibenik County Court on 27 September 2010 and the Supreme Court on 2 July 2013. 7. The applicant’s subsequent constitutional complaint was dismissed on 12 March 2014. 8. In the meantime, on 18 April 2006 the Jadranska bank of Šibenik applied to the Šibenik Municipal Court for enforcement of the fiduciary agreement against the applicant. It sought her eviction on the basis of a report of 21 February 2006 and its appendix, certified by a notary public on 9 February 2006 (Zapisnik o posvjedočenju činjenica s potvrdom kojeg je sastavio javni bilježnik i dopuna Potvrde). Those documents had been issued in connection with the above-mentioned fiduciary agreement in respect of the applicant’s and her husband’s house. 9. On 26 May an eviction order against the applicant was issued by the Šibenik Municipal Court. 10. On 14 June 2006 the applicant lodged an appeal against the eviction order, referring to the above-mentioned civil proceedings, which were still pending. The appeal was dismissed by the Šibenik County Court on 26 February 2007. However, on 9 October 2007 the eviction was postponed. 11. On 20 January 2012 the creditor asked the court to postpone the applicant’s eviction until further notice. | 0 |
test | 001-152894 | ENG | BGR | ADMISSIBILITY | 2,015 | DANAILOV AND OTHERS v. BULGARIA | 4 | Inadmissible | George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Zdravka Kalaydjieva | 1. The applicants are Bulgarian nationals. A list of their names and years of birth is set out in the appendix. All of the applicants lived in Dospat, except Mr Sergey Savkov Bozov, who lives in Negovan. The applicants were represented before the Court by Mr M. Ekimdzhiev, Ms K. Boncheva and Ms G. Chernicherska, lawyers practising in Plovdiv. Some of the initial applicants died or transferred their properties in the course of the proceedings before the Court and their heirs or successors expressed the wish to continue the application in their stead. They also authorised Mr Ekimdzhiev, Ms Boncheva and Ms Chernicherska to represent them. 2. The Bulgarian Government (“the Government”) were represented by their Agents, Ms N. Nikolova and Ms A. Panova, then by Ms M. Kotseva and Ms A. Panova, from the Ministry of Justice. 3. The application concerns twenty-two sets of domestic proceedings to which the applicants were parties, relating to the restitution of forestry land in the area of Dospat. The facts, as submitted by the parties, may be summarised as follows. 4. Following the enactment of the Forests Restitution Act in 1997 (see paragraph 24 below), the applicants (or, in some cases, their predecessors) applied for the restitution of forestry land in the area of Dospat. 5. The applicants claimed that the documents establishing their former titles had been destroyed, so they could not present them. The claims were therefore examined under the special procedure provided for under section 14 of the Forests Restitution Act (see paragraphs 25-26 below). For the region of Smolyan, the commission provided for in section 14 (“the regional commission”) was created in October 1999 by an order of the Minister of Agriculture. It was headed by a judge of the Smolyan Regional Court and included representatives of the municipalities in the region, the Smolyan Regional Governor’s office, the Smolyan Regional Forest Authority and the local forest authorities. The order specified that the regional commission was to be assisted by representatives of the local land commissions. 6. The regional commission carried out an inquiry to verify the restitution claims for the area of Dospat. The Dospat forest authority made submissions to it, pointing out that as there had never been privately owned forests in the area, there was no need for restitution. Nevertheless, on 30 August 2000 the regional commission adopted a decision recognising the rights of numerous persons, including the applicants, to different plots of forestry land. 7. The representative of the Smolyan Regional Forest Authority signed the decision, but joined a separate opinion whereby he too stated that there had been no privately owned forests in the area prior to the process of nationalisation. He considered that if, on the other hand, the land claimed had been agricultural before nationalisation, that fact had to be expressly established by showing that the forests on the land were less than fifty years of age. 8. On the basis of the regional commission’s decision of 30 August 2000, in a series of decisions dated 10 May 2001 the Dospat land commission restored the applicants’ property rights to the land at issue, and the applicants took possession and started using it shortly thereafter. 9. In July 2001 the Dospat forest authority complained to the Smolyan regional public prosecutor’s office about the restitution process in the Dospat region. The complaint concerned seventy-five beneficiaries of the restitution process, including the applicants, and 189.9 hectares of forestry land. Non-governmental organisations also complained to the prosecution authorities that the Dospat forests had been “plundered”. 10. The Smolyan regional public prosecutor’s office commissioned an expert report, which established that before nationalisation the land given to the applicants had been yaylak (a Turkish term designating a high-mountain pasture). Under the law of the Ottoman Empire to which the territory had belonged until 1912, the State remained the owner of all yaylak land and private individuals could only receive the right to use it. That situation was preserved in Bulgarian law after the area had been included in Bulgarian territory. There were no documents in the public archives indicating that there had ever been privately owned forests in the area. In particular, in the tax registers for the period between 1929 and 1934, there were no data indicating that private individuals had paid land tax; there were no documents for the expropriation of forestry land in the area after the enactment of the relevant legislation in 1947; and there was no indication that at the time of expropriation anyone in the area had received compensation, which in accordance with the law had to be in the form of State bonds. Lastly, the expert pointed out that there had been no cases of restitution of forests or forestry land in the Dospat region under section 13 of the Forests Restitution Act, namely with documents establishing rights to property prior to nationalisation (see paragraph 25 below). 11. In November 2003 the Smolyan regional public prosecutor’s office proposed that the administrative proceedings be re-opened and the decisions of the land commission of 10 May 2001 be quashed. 12. In a series of decisions dated 2 and 8 December 2003, in all but four of the present cases the Dospat Agriculture and Forestry Department (the former land commission) quashed the decisions of 10 May 2001. It considered that those decisions had been adopted “in material breach of the law”, because the documents submitted by the prosecution had shown that as there had never been privately owned forests and forestry land in the area of Dospat, the preconditions for restitution had not been met. 13. The applicants challenged those new decisions. In judicial proceedings which all ended between 1 February and 12 April 2005, the Smolyan Regional Court and the Supreme Administrative Court quashed the decisions. Giving largely identical reasoning, they found that the Agriculture and Forestry Department’s reasons for re-opening the proceedings had not been valid and quashed its earlier decisions because the relevant time-limits for doing so, as provided for by the general rules on administrative procedure, had expired. They did not discuss the merits of the applicants’ restitution claims. 14. In November 2005 the Dospat forest authority, acting on behalf of the State, brought rei vindicatio claims against the applicants, arguing that the State was the lawful owner of the restored land and that the restitution had been unlawful. Following requests by the forest authority, in many of the cases the courts issued interim injunctions against the applicants, barring them from transferring their titles. 15. The different sets of rei vindicatio proceedings ended between 22 January 2009 and 4 March 2010. In all of them, using largely identical reasoning and relying on the legislation as in force in the 1920s and 1930s and documents from different periods, the courts found that the land at issue had been yaylak, which meant that it could not have been privately owned at the time of nationalisation of forests in Bulgaria in the 1940s. Moreover, given the age of the forests – in some cases more than a hundred years – it could not be accepted that at the time of nationalisation the land at issue had been agricultural and that it had subsequently been afforested. In some of the cases the courts pointed out that the applicants had not even claimed that they or their predecessors had been owners, but merely relied on the land commission’s respective decisions of 10 March 2001. In some cases the courts noted in addition that the regional commission’s decision of 30 August 2000 had not been signed on the part of the Dospat forest authority by the member indicated in the order of the Minister of Agriculture, but by another person. 16. On the basis of the above findings the courts concluded that the land at issue had not been owned by the applicants’ predecessors and could not therefore have been taken from them in the 1940s; on the contrary, the land had always been State-owned. Accordingly, the restitution legislation had not given rise to any rights for the applicants. Furthermore, the courts considered that both the regional commission’s decision of 30 August 2000 and the Dospat land commission’s decisions of 10 March 2001 had been given in breach of the law. 17. In addition, the courts found that the State, as represented by the Dospat forest authority, was not bound by the land commission’s decisions on restitution. For instance, in its judgment of 27 November 2007 in the case of Mr Eduard Stefanov Danailov and Mr Aleksandar Stefanov Danailov, the Smolyan Regional Court held: “The court, in examining a rei vindicatio action, must scrutinise independently whether the right to property has arisen on valid grounds and is not bound by the administrative decision relied on – the decision of the land commission – the validity of which is to be verified through indirect judicial review where the plaintiff has not participated in the administrative proceedings. It cannot be accepted that the participation of a representative of the Dospat forest authority in the administrative proceedings which resulted in the adoption of the land commission’s decision is sufficient to render the conclusions of those proceedings binding on the Dospat forest authority.” 18. Similarly, in a judgment of 18 December 2009, in the case of Mr Velin Menkov Terziev, the Supreme Court of Cassation held: “The claimant in the rei vindicatio proceedings has not participated in the administrative proceedings concerning restitution of property and is not bound by the land commission’s decision. It can therefore challenge that decision in civil proceedings concerning its property rights.” 19. After the entry into force of the new Code of Civil Procedure on 1 March 2008 Mr Sevdalin Antimov Pehlivanov and Mr Feti Halilov Pehlivanov lodged an appeal on points of law, which was examined in accordance with the rules provided for in the new Code. 20. As required under Articles 287 and 288 of the Code, the appeal was served on the Dospat forest authority, which lodged written submissions in reply. The submissions were not communicated to the applicants. Having considered the case file on the papers, in a final decision of 26 February 2010 a three-member panel of the Supreme Court of Cassation refused to admit the appeal for examination. It held that the appeal did not meet the requirements of Article 280 § 1 of the Code. 21. On unspecified dates the prosecution authorities instituted criminal proceedings against some of the beneficiaries of restitution in the Dospat region for document forgery and fraud. In six of the cases under examination, which were not specified by the parties, the applicants were indicted. In two of those cases the courts convicted the applicants. 22. Specific information has been provided on the case of Mr Emil Velinov Mladenov, Ms Atidzhe Salihova Uzunova, Ms Nayle Salihova Letifova and Mr Mladen Velinov Mladenov. On 25 June 2004 Mr Emil Velinov Mladenov was convicted by the Devin District Court for having forged a request for restitution submitted on behalf of the remaining applicants. This was taken into account by the courts examining the rei vindicatio action against those applicants and served as grounds to allow the action and conclude that the applicants had not become the owners of the land claimed. 23. After the completion of the rei vindicatio proceedings the Dospat forest authority brought proceedings for unlawful enrichment against some of the applicants, seeking to recover the monetary equivalent of the timber produced from the respective plots of land between 2001 and 2005. 24. The Restitution of Title to Forests and Forestry Land Act (Закон за възстановяване на собствеността върху горите и земите от горския фонд, “the Forests Restitution Act”) was enacted in 1997. It set out the conditions for restitution of forestry land which had been expropriated in 1946 and the following years. Under section 11 of the Act, the bodies competent to take decisions on restitution were the respective land commissions, replaced in 2002 by Agriculture and Forestry Departments (after 2008 renamed Agriculture Departments). Those are State bodies, whose members are appointed by the Minister of Agriculture. Forest authorities are also State bodies. 25. Former owners of forestry land wishing to have their property rights restored had to support their claims by documents establishing their title before nationalisation (section 13 of the Forests Restitution Act). Where the relevant documents had been “lost or destroyed through no fault of their own”, such claimants might still apply for restitution and their requests were to be examined under a special procedure provided for in section 14 of the Act. 26. Section 14 provides for the creation of regional commissions, composed of representatives of the local judicial and administrative authorities, with the task of carrying out inquiries to verify restitution claims. Where, following an inquiry, the regional commission was satisfied that the claims in question were well founded, it would take a decision to restore the former owners’ property rights. Such a decision was binding on the respective land commission/Agriculture Department, which was obliged, within six months of its receipt, to issue a formal decision on restitution. The decisions taken by the land commissions/Agriculture Departments were not amenable to judicial review, and any disputes with third parties over property rights were to be determined in separate proceedings. 27. On 14 January 2013 the Plenary of the Civil Chambers of the Supreme Court of Cassation delivered interpretative decision no. 5/2013 (Т.д. № 5/2011 г., Върховен съд на Република България, Общо събрание на Гражданска колегия). It found, in the first place, that court judgments ordering restitution under the Forests Restitution Act had binding effect on the State and its bodies, which could not seek the re-examination of the matter in new judicial proceedings. 28. The Supreme Court of Cassation found, on the other hand, that it remained open for the State, through its bodies, to challenge administrative decisions of the land commissions/Agriculture Departments allowing restitution claims. In particular, it held: “The restitution of ... forests is carried out through administrative means. ... The procedure unfolds between the administrative body and the person who has sought restitution, and that is why it is ex parte. No disputes concerning rights to property are examined in these proceedings, and the Agriculture Department decides on the request for restitution. ... The State is not a party to the proceedings before the Agriculture Department. Pursuant to [the relevant provisions of the Code of Administrative Procedure], the parties to proceedings concerning the issuance of an individual administrative decision are the claimant and other interested parties who were summoned or have joined the procedure. The Agriculture Department is not a party to the administrative procedure, but the body before which the procedure unfolds. ... Where the decision given in the restitution procedure affects rights in rem of the State, it is entitled to defend them under the general civil law, by bringing an action to establish the rights claimed by it. Where an action has been brought against it, it can seek to establish that it has the right to ownership of the disputed plot. For the State this is the only means of defence against an unlawful administrative decision.” 29. The rules under the Code of Civil Procedure, as in force since 1 March 2008, have been summarised in the Court’s decision in the case of Valchev and Others v. Bulgaria ((dec.), nos. 47450/11, 26659/12 and 53966/12, 21 January 2014). | 0 |
test | 001-147835 | ENG | NLD | ADMISSIBILITY | 2,014 | STOLK v. THE NETHERLANDS | 4 | Inadmissible | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra | 1. The applicant, Mr Jan Stolk, is a Netherlands national, who was born in 1957 and lives in Utrecht. He was represented before the Court by Mr A.M.J. Brands, a lawyer practising in Oegstgeest. 2summarised as follows. 3. From January 2003 the applicant worked for a design and consultancy agency specialised in urban planning. At the relevant time, the owner of the agency was self-employed and was employing two other persons, one of them the applicant. 4. On 17 February 2010 the applicant’s employer (hereafter: “the employer”) requested the Employee Insurance Schemes Implementing Body (Uitvoeringsinstituut Werknemersverzekeringen) to authorise the termination of the applicant’s employment contract. Such authorisation may be requested and granted under the Extraordinary Labour Relations Decree 1945 (Buitengewoon Besluit Arbeidsverhoudingen 1945; see below). The employer’s request was based on altered business circumstances (veranderde bedrijfeconomische omstandigheden). 5. On 24 March 2010 the applicant submitted a statement of defence (verweer) to the Employee Insurance Schemes Implementing Body, arguing that it appeared from that organisation’s policy rules that a request for authorisation on the basis of altered business circumstances should be substantiated by relevant figures regarding the turnover, the costs and the results of the business per month for the last three years, which figures the employer had failed to include in his request. He further argued that there was a chance that the agency would be awarded two new projects and that there was a fair chance that any delay in ongoing projects had been caused by administrative proceedings instead of economic circumstances so that the decrease in available work would constitute normal business risk (normale bedrijfsrisico). 6. On 2 April 2010 the employer stated that the ongoing projects were nearly finished and that due to the economic crisis much work had disappeared over a short period of time, that he had submitted the figures over the years 2008 and 2009, that the drop in available work did not concern a temporary lapse which could be considered normal business risk, and lastly, that his other employee, thanks to his qualifications, was able to carry out all business activities independently, unlike the applicant. 7. On 16 April 2010 the applicant submitted a second statement of defence to the Employee Insurance Schemes Implementing Body, arguing, inter alia, that the employer’s statements concerning the agency’s prospects had not been substantiated. 8. On 20 April 2010 the applicant received both the acknowledgement of receipt of the second statement of defence and the Employee Insurance Schemes Implementing Body’s decision authorising his employer to terminate his employment contract. 9. On 22 April 2010 the applicant received a letter from his employer terminating his employment contract as of 1 August 2010. 10. Provisions of domestic legislation relevant to the case, and as applicable at the relevant time, are the following. 11. The Employee Insurance Schemes Implementing Body is a nondepartmental administrative body (zelfstandig bestuursorgaan) – i.e. an administrative body not subordinate to any particular Minister – under Netherlands law (section 4 of the Work and Income (Implementation Structure) Act (Wet structuur uitvoeringsorganisatie werk en inkomen)). It is responsible not only for implementing social-security legislation, but also for exercising the tasks imposed on it by section 6 of the Extraordinary Labour Relations Decree 1945. 1. The employer requires for the termination of the employment relationship prior authorisation of the Employee Insurance Schemes Implementing Body. 2. The employer does not require this authorisation: a. if termination takes place without delay (onverwijld) for an urgent reason, under simultaneous notice of this reason to the employee; b. during the probationary period; c. if termination takes place as a result of bankruptcy of the employer or if a debt rescheduling scheme concerning natural persons is applied to him. 3. By ministerial regulation (ministeriële regeling) rules are set out concerning the authorisation within the meaning of paragraph one. 4. Before a decision regarding the giving of authorisation pursuant to paragraph one is taken, the Employee Insurance Schemes Implementing Body will hear representatives of the appropriate employer and employee organisations except in cases provided for by ministerial regulation. 5. Our Minister [of Social Affairs and Employment (Minister van Sociale Zaken en Werkgelegenheid)] may provide the Employee Insurance Schemes Implementing Body with indications concerning the power to give authorisation within the meaning of paragraph one. He does not enter into the decision-making in individual cases. 6. By ministerial regulation provisions can be made in case the Employee Insurance Schemes Implementing Body does not properly fulfil its obligations that flow from this section. ... 9. By ministerial regulation certain employees or groups of employees can be conditionally or unconditionally dispensed or exempted from paragraph one. 10. No appeal to the Industrial Appeals Tribunal (College van Beroep voor het Bedrijfsleven) lies against decisions of the Employee Insurance Schemes Implementing Body regarding the giving of authorisation pursuant to paragraph one.” 12. Detailed rules for this procedure have been set out in the Dismissals Decree (Ontslagbesluit). 13. The authorisation of the Employee Insurance Schemes Implementing Body constitutes a decision within the meaning of the General Administrative Law Act (Algemene wet bestuursrecht). This Act generally grants a right to a judicial examination of such decisions; however, decisions made pursuant to section 6 of the Extraordinary Labour Relations Decree 1945 are excluded from the possibility to appeal (section 8:5, paragraph one, in conjunction with Annex F, paragraph one of the General Administrative Law Act). | 0 |
test | 001-164459 | ENG | MDA | CHAMBER | 2,016 | CASE OF LAZU v. THE REPUBLIC OF MOLDOVA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible (Article 35-3 - Manifestly ill-founded);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Georges Ravarani;Ksenija Turković | 5. The applicant was born in 1954 and lives in Chișinău. At the time of the events, he was a bank armoured vehicle driver. 6. At around 10.55 a.m. on 12 August 2005 the applicant went around an illegally parked bus while driving an armoured vehicle. While he was completing the manoeuvre, the bus started moving and to prevent having an accident with the armoured vehicle it stopped abruptly. As a result of the sudden stop a bus passenger, C., fell from her seat and suffered moderately severe injuries. 7. On 1 September 2005 a criminal investigation was initiated. The prosecutor heard the applicant, the victim C., the bus driver D., a witness who had been sitting in the applicant’s vehicle and another two witnesses who had been passengers on the bus (S. and V.). 8. On 7 October 2005 D. was charged with violating traffic rules, resulting in C.’s injuries. 9. On 10 October 2005 the applicant and D. were interviewed face-to-face. According to the applicant, he had completed the manoeuvre around the stationary bus and taken the lane in front of it after making sure the bus was still stationary. He had then signalled to turn right and used the horn to alert the driver of his intentions. According to D., the applicant’s car had turned right without any warning and he had been forced to stop abruptly to prevent an accident. 10. The same day the prosecutor discontinued the criminal proceedings against D. for lack of evidence and instead interviewed him as a witness. 11. On 21 October 2005 the applicant was charged with violating traffic rules, resulting in C.’s injuries. 12. During the course of the proceedings the Botanica District Court heard the same witnesses as the prosecutor. The court also examined a site investigation report and a sketch map of the scene of the incident, both drawn up on 12 August 2005 at 12.20 p.m. in only D.’s presence. 13. The court considered the testimony of C. and the two bus passengers unreliable. They claimed that the applicant had performed a sudden manoeuvre which had obliged D. to suddenly stop the bus. The court considered that none of them had seen any of the events themselves and that their impression that the applicant was guilty was because the bus driver blamed him. The court also considered D.’s testimony unreliable because the same charges had been previously brought against him. The court noted that charges had been brought against the applicant based on statements by D. made shortly after the criminal proceedings against him had been discontinued, without re-interviewing the other witnesses. The court also noted that the site investigation report and the sketch map had not been drawn up immediately after the incident, that the police had gone to the scene several hours later and had been joined only by D., that the applicant’s objections had not been reflected in the documents, and that the sketch map did not correspond to the statements given by all the witnesses shortly after the incident. 14. In a judgment of 27 March 2006 the Botanica District Court acquitted the applicant for the reasons given above. It concluded that the prosecution had failed to provide reliable evidence in support of the contention that the applicant’s actions had obliged D. to suddenly stop the bus. The prosecutor appealed. 15. On 23 May 2006 the Chișinău Court of Appeal dismissed the prosecutor’s appeal and upheld the first-instance judgment. It noted that the first-instance court had correctly scrutinised all the evidence and had provided reasons supporting the findings about the unreliability of the witness statements, referring to the testimony of the two passengers. The prosecutor appealed on points of law. 16. On 17 October 2006 the Supreme Court of Justice held a hearing at which the applicant, his representative and the prosecutor were present. The court upheld the prosecutor’s appeal on points of law, quashed the appellate judgment and ordered a rehearing of the case in accordance with the provisions of Article 436 of the Code of Criminal Procedure, namely that any examination had to be in accordance with the rules applicable in proceedings before the first-instance court. The court found that the appellate court had not thoroughly stated its position on the assessment of the statements made by C., D. and the two passengers, but had merely relied on evidence in the applicant’s favour. 17. After rehearing the case, on 28 December 2006 the Chișinău Court of Appeal dismissed the prosecutor’s appeal and upheld the first-instance judgment. The court analysed the witness testimony and the site investigation report and the sketch map, providing reasons why the evidence was unreliable. The prosecutor appealed on points of law. 18. On 26 June 2007 the Supreme Court of Justice held a hearing at which the applicant, his representative and the prosecutor were present. The court upheld the prosecutor’s appeal on points of law and ordered a rehearing of the case. The court provided reasoning similar to that in its judgment of 17 October 2006. 19. Pursuant to the verbatim record of the appellate hearing of 25 October 2007 the applicant and his lawyer did not object to the court continuing to examine the case without recalling the victim and did not request the recalling of witnesses. On the same day, the Chișinău Court of Appeal upheld the prosecutor’s appeal, quashed the judgment of the Botanica District Court of 27 March 2006, found the applicant guilty and ordered him to pay an administrative fine of 3,000 Moldovan lei (MDL – approximately 194 euros (EUR)) and damages to C. in the amount of MDL 2,500 (approximately EUR 162). The court referred to a list of evidence, including the disputed statements of C., D. and the two witnesses, without providing any additional reasons. 20. The applicant appealed and outlined, inter alia, the discrepancies in the witness statements, which had been identified by the first-instance court after hearing them and which had not been clarified by the appellate court. On 13 February 2008 the Supreme Court of Justice examined the applicant’s appeal in the absence of the parties and declared it inadmissible. 21. The applicant was served with this judgment on 24 May 2008. | 1 |
test | 001-145572 | ENG | GEO | CHAMBER | 2,014 | CASE OF ASHLARBA v. GEORGIA | 3 | Remainder inadmissible;No violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege;Conviction;Criminal offence) | Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 5. The applicant was born in 1956 and lives in the village of Angisa, Ajarian Autonomous Republic (“the AAR”), Georgia. 6. On 15 February 2006 a criminal investigation was launched by the Ministry of the Interior of the AAR into the activities of a Mr A.K., on account of his alleged association with the criminal underworld, under Article 223(1) of the Criminal Code. Notably, he was suspected of being a “thief in law” (for an exact definition of this term, see paragraphs 1820 below) who ran criminal syndicates and participated in the settlement of various private disputes through criminal actions. In the course of the investigation, a number of relevant witnesses were questioned – the officers of the prisons where Mr A.K. had served his previous prison terms, his family members and other close persons, all of whom confirmed that Mr A.K. had indeed obtained, through the criminal ritual of “baptism”, the title of a “thief in law” in 1999. Since then he had participated in management of the “thieves’ underworld” (a well-organised network of criminal syndicates; for more details see paragraphs 21-22 below), in accordance with the special rules regulating the conduct of members of the criminal underworld. 7. On 5 March 2006 a search warrant was issued in respect of Mr A.K., who was living at that time in either Ukraine or Russia. According to the findings of that investigation, the fugitive suspect had been in regular telephone contact with other purported criminal leaders in the AAR, instructing them on how to settle various private disputes in the region. The subsequent judicially authorised tapping of Mr A.K.’s telephone conversation showed that one of the persons who had been receiving regular instructions from the “thief in law” was the applicant. Consequently, the criminal probe was expanded to include the latter’s activities. 8. On 31 July 2006 the applicant and another person, Mr Y.A., were arrested on suspicion of being members of the “thieves’ underworld”, an offence punishable under Article 223(1) § 1 of the Criminal Code. When questioned on the same day, the applicant confirmed that he had already known Mr A.K. for thirty years and was aware that he possessed the criminal title of a “thief in law”. The applicant added that a thief in law was, in his opinion, “a righteous man (კაი კაცობა)”. 9. On 29 September 2006 the criminal investigation against Mr A.K., the applicant and Mr Y.A., was terminated, and the case was transmitted by the prosecution service to a trial court. 10. By a judgment of 27 March 2007, the Batumi City Court convicted the applicant and Mr Y.A. of being members of the “thieves’ underworld” (Article 223(1) § 1 of the Criminal Code), sentencing them to seven and five years’ imprisonment respectively, whilst Mr A.K. was convicted of being a “thief in law” (Article 223(1) § 2 of the Criminal Code) and sentenced to ten years in prison. 11. The activities imputed to the applicant were described by the court, in general terms, as follows: “Acknowledging and giving recognition to the thieves’ underworld, [the applicant] has publicly expressed his support for it through his own lifestyle, and has been actively involved in achieving the goals of this underworld... by obtaining profits for its members and for other persons, and by terrorising and exercising coercion with respect to ordinary individuals; [the applicant] has disseminated the special rules of the thieves’ underworld through his own actions, and by assisting the thief in law in running this underworld.” 12. More specifically, the finding of the applicant’s guilt was based on the following three episodes, the reality of which had been confirmed by statements from numerous pertinent witnesses, examined during both the investigation stage and the trial, and evidence obtained by tapping the telephone lines of the applicant, the other convicts and other relevant persons. 13. Firstly, the City Court established that Mr A.K., generally acknowledged to be one of the most authoritative criminal bosses in the region, had requested the applicant to settle a dispute over an apartment between his mother-in-law and another individual. The court accused the applicant of accepting that task and becoming involved, between 24 June and July 2006, in unofficial adjudication of the dispute, using Mr A.K.’s criminal authority. In reply, the applicant unsuccessfully argued that he had merely wished to help the woman, who was his close acquaintance, to have the dispute settled by friendly agreement, as indeed the parties had been invited to do during a civil court hearing of their case at the relevant time; he had been unaware that such ordinary conduct was a criminal offence. He did not contest that he had indeed been asked by Mr A.K., his old friend, to look into the dispute. 14. Secondly, the City Court established that the same co-accused “thief in law”, Mr A.K., had requested the applicant, on 24 July 2006, to establish the whereabouts in Batumi of two young men, aged 20-25 years, who had refused to pay a fare to a private taxi driver. The applicant was asked to persuade the young men, using his own authority as a senior member of the criminal world, and the authority of the more influential Mr A.K., to settle the debt towards the driver. Implicitly acknowledging that he had indeed been requested to look into this second private dispute by Mr A.K., the applicant unsuccessfully argued that he had not taken any action in practice and thus could not understand why he should be held responsible for something which had not occurred. 15. Lastly, the City Court relied on the fact that on 8 July 2006 the applicant, when visiting an imprisoned acquaintance who was considered by members of the “thieves’ underworld” to be a promising young man, that is, a future “thief in law”, the applicant, in addition to discussing financial issues relating to the kitty (obshyak), the common fund belonging to the “thieves’ underworld”, had also informed him that the Minister of the Interior might soon lose his post, which would then naturally lead to reinforcement of the authority of “thieves’ in law” and of the relevant rules of conduct in the criminal world. With respect to this third episode, the applicant unsuccessfully argued before the court that he had merely expressed his opinion about the personality of the Minister of the Interior and that he should not be punished for that. 16. On 10 July 2007 the Kutaisi Court of Appeal, dismissing the applicant’s appeal in which he reiterated all of his previous arguments, fully upheld his conviction of 27 March 2007. 17. By a decision of 29 February 2008, the Supreme Court of Georgia rejected the applicant’s cassation appeal as inadmissible, thus terminating the criminal proceedings against him. | 0 |
test | 001-155811 | ENG | ARM | CHAMBER | 2,015 | CASE OF SHAMOYAN v. ARMENIA | 3 | Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra | 6. The applicant was born in 1955 and lives in Armavir. She is disabled and is confined to a wheelchair. She depends on her disability pension as a means of subsistence. 7. On an unspecified date the applicant instituted proceedings against her neighbour, M., seeking to have dismantled a construction that the latter had built in 1987 inside the entrance of their multi-flat house for the purpose of insulating the building. In its place the applicant sought to install a wooden ramp for her wheelchair in order to facilitate her access to her flat, situated on the ground floor. 8. It appears that during the court proceedings the applicant, who was not represented by a lawyer, modified her claim and asked for the construction in question not to be dismantled but to be allocated to her so that she could install a wooden ramp in its place. 9. On 26 July 2007 the Armavir Regional Court dismissed the applicant’s claim, finding that the applicant had failed to substantiate with any proof, such as an expert opinion, that it was necessary and possible to dismantle the construction and that it was technically possible to install a wooden ramp in its place. 10. On 1 August 2007 the applicant, still not represented, lodged an appeal. 11. On 13 September 2007 the Civil Court of Appeal dismissed the applicant’s claim on appeal. The court found that the applicant’s request to have the construction allocated to her was ill-founded since the construction had not been built by her and, moreover, belonged to the owner of the underlying plot of land. The court further referred to an opinion issued on 16 January 2007 by the Armavir Municipality, according to which it was technically preferable to build a wooden ramp from the balcony side of the applicant’s flat rather than from the building’s main entrance. 12. On 7 November 2007 the applicant, still unrepresented, lodged an appeal on points of law with the Court of Cassation. 13. By a letter of 12 November 2007 the Chief Registrar of the Court of Cassation returned the applicant’s appeal, informing her that the appeal had not been admitted for examination as it had not been lodged by an advocate licensed to act before the Court of Cassation, pursuant to Article 223 of the Code of Civil Procedure (the CCP). | 1 |
test | 001-163802 | ENG | HRV | ADMISSIBILITY | 2,016 | LUKIĆ AND OTHERS v. CROATIA | 4 | Inadmissible | Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković | 1. A list of the applicants is set out in the appendix. They were all represented by Mr L. Šušak, a lawyer practicing 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. The applicants’ family lived in Vukovar, a Croatian town near the Serbian border which was heavily attacked by the Yugoslav People’s Army and paramilitary Serbian armed forces in the period between August and November 1991, during the war in Croatia. 5. According to the applicants, on 17 November 1991 their respective husband and father, K.L., was taken from his home in Borovo Naselje, a district of the town of Vukovar, by Croatian soldiers and killed on 18 November 1991. 6. According to the Government, the town of Vukovar fell on 18 November 1991; after the surrender of the last Croatian forces on 20 November 1991 the Yugoslav Peoples’ Army and Serbian paramilitary forces established their control over it. 7. After the fall of Vukovar, the applicants went to live in Serbia. 8. Between 1992 and 1996 Vukovar was a part of the United Nations Protected Area (UNPA). In 1996 the United Nations Security Council established the United Nations Transitional Administration in Eastern Slavonia, Baranja and Western Sirmium (UNTAES), which included Vukovar. On 15 January 1998 the UNTAES mandate ceased and the transfer of power to the Croatian authorities began. 9. An investigation was opened on 27 November 1991 by an investigating judge of the Belgrade Military Court. On 26 February 1992 the first applicant gave evidence in those proceedings. 10. On 1 April 1992 an indictment was lodged before that court against M.F., Z.Š., M.D. and D.S., Croatian soldiers imprisoned by the Serbian forces, on charges of war crimes against the civilian population. 11. On 26 June 1992 the Belgrade Military Court found the accused guilty as charged. The conviction of Z.Š. and M.D. covered, inter alia, responsibility for the killing of K.L. M.D. was sentenced to twenty years’ imprisonment and Z.Š. to death. This judgment was upheld by the Serbian Supreme Military Court on 29 December 1992 and thus became final. 12. On 14 February 2007 the applicants submitted a claim for damages with the State Attorney’s Office in respect of the death of K.L. They requested that V.P. and M.S. be heard as witnesses. 13. The Croatian authorities learned about the death of the applicants’ relative for the first time when they made the above request. An investigation ensued. On 15 June 2007 the police interviewed V.P., who had no knowledge whatsoever about the killing of K.L. and said that she had never been to Vukovar. It was also established that M.S. had died. 14. The applicant’s request was refused. 15. Between 24 November 2010 and 3 July 2013 the police interviewed the applicants, M.K., P.D., V.M., Z.Š. and M.V. None of them had any relevant knowledge about the circumstances of the killing of K.L. 16. In the meantime, on 3 January 2011 the Vukovar County State Attorney’s Office asked the Serbian Prosecution Office for War Crimes for all evidence in respect of the killing of K.L. On 4 May 2011 the latter Office sent to the Croatian authorities completed documentation which did not contain any of the judgments of the Serbian Military Courts. 17. On 5 March 2008 the applicants brought a civil action against the State before the Vukovar Municipal Court, seeking compensation in connection with the death of their relative. They asked that witness M.K. be heard in respect of the circumstances surrounding the killing of K.L. 18. That claim was dismissed on 13 April 2010. The Municipal Court found that the claim had been submitted after the expiry of the applicable time-limit specified in the statute of limitations. The applicants were also ordered to pay to the State the costs of the proceedings in the amount of 9,750 Croatian kuna (HRK). In an appeal against the first instance-judgment and an appeal on points of law before the Supreme Court the applicants complained about the manner in which the rules on the time-limit specified in the statute of limitations had been applied. The first-instance judgment was upheld by the Vukovar County Court and the Supreme Court on 1 July 2010 and 12 October 2011 respectively. 19. On the latter day the applicants sent to the Supreme Court copies of judgments of the Belgrade Military Court and the Serbian Supreme Military Court (together “the Serbian Military Courts”) (see paragraph 11 above). 20. On 16 February 2012 the applicants lodged a constitutional complaint. They enclosed the judgments of the Serbian Military Courts and argued, inter alia, that there had been a conviction by a criminal court in respect of the killing of K.L. and that therefore their civil claim could not have become statute-barred. The applicants’ constitutional complaint was dismissed on 16 May 2012 as ill-founded. The Constitutional Court did not make any reference to the judgments of the Serbian Military Courts. 21. The State authorities instituted enforcement proceedings in the Vukovar Municipal Court against the first applicant, seeking the payment of the costs of the above-mentioned civil proceedings, together with applicable interest and the costs of the enforcement proceedings. 22. An enforcement order was issued on 19 April 2011; under the order, one-third of the first applicant’s pension was to be seized each month. 23. The first applicant lodged an appeal, arguing that her monthly pension amounted to HRK 1,200 and the seizure of one-third of that amount put her in a precarious position since it did not leave her with sufficient resources for subsistence. 24. The appeal was dismissed by the Vukovar County Court on 14 October 2011 and a subsequent constitutional complaint lodged by the first applicant was dismissed by the Constitutional Court on 4 April 2012. 25. Section 62 of the Constitutional Act on the Constitutional Court (Ustavni zakon o Ustavnom sudu Republike Hrvatske, Official Gazette no. 49/2002 of 3 May 2002 reads: “1. Everyone may lodge a constitutional complaint with the Constitutional Court if he or she deems that the individual act of a state body, a body of local and regional self-government, or a legal person with public authority, which decided about his or her rights and obligations, or about suspicion or accusation of a criminal act, has violated his or her human rights or fundamental freedoms, or his or her right to local and regional self-government guaranteed by the Constitution (hereinafter: constitutional right) ... 2. If another legal remedy exists against the violation of the constitutional right [complained of], the constitutional complaint may be lodged only after that remedy has been exhausted. 3. In matters in which an administrative action or, in civil and non-contentious proceedings, an appeal on points of law is allowed, remedies are exhausted only after the decision on these legal remedies has been given.” 26. The relevant provisions of the 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 statute-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. ...” “(1) Where the damage was the result of a criminal offence and the statutory limitation period for criminal prosecution is longer, the claim for damages against the person responsible becomes statute-barred at the same time as the criminal prosecution. (2) The interruption of the statutory limitation period in respect of criminal prosecution entails the interruption of the statutory limitation period in respect of a claim for damages. ...” “The statutory limitation period is interrupted by the lodging of a civil action or any other action by a creditor against a debtor, before a court or other competent body, which is brought in order to secure or enforce the creditor’s claim.” 27. The relevant part of the Act on the Nullity of Certain Legal Acts of the Judicial Bodies of the Former Y[ugoslav] P[eoples’] A[rmy], the former S[ocialist] F[ederal] R[epublic of] Y[ugoslavia] and the Republic of Serbia (Zakon o ništetnosti određenih pravnih akata pravosudih tijela bivše JNA, bivše SFRJ I Republike Srbije, adopted on 21 October 2011 and published in the Official Gazette no. 124/2011 of 4 November 2011 – hereinafter the “Nullity Act”) reads as follows: “It is to be established that by the enactment of this Act all legal acts of the former YPA, its judicial bodies, the judicial bodies of the former SFRY and the judicial bodies of the Republic of Serbia which concern the Homeland War in the Republic of Croatia, under which citizens of Croatia have been [deemed to be] suspects, or accused or convicted for criminal offences recognised by international law ..., committed on the Croatian territory, are null and void and without legal effect, including: ... - a war crime against the civilian population ... Legal acts adopted by judicial bodies of the Republic of Serbia for which the Croatian judicial authorities establish that they comply with the standards of the Croatian criminal legislation are exempted from nullity.” | 0 |
test | 001-164682 | ENG | LTU | CHAMBER | 2,016 | CASE OF ŽEKONIENĖ v. LITHUANIA | 4 | No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention) | András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1940 and lives in Gelgaudiškis, Šakiai Region. 6. On 17 February 2010 the Šakiai police arrested the applicant’s son, V.Ž., on suspicion of unlawful possession of narcotic substances with the purpose of distributing them under Article 260 § 1 of the Criminal Code. 7. On that same day the police searched the applicant’s apartment where she lived together with V.Ž., and found some small plastic bags. The following day a search was conducted in the applicant’s daughter V.B.’s apartment. As V.B. was living abroad, the applicant provided the police officers with the keys to V.B.’s apartment and was present during the search. The officers found some plastic bags, a digital weighing scales, and remnants of “herbal substances” (augalinės kilmės medžiagos). 8. On 19 February 2010 the Šakiai District Court authorised V.Ž.’s detention for fourteen days. 9. On 2 March 2010 an officer informed the head of the Šakiai Police that V.Ž. had unlawfully carried a mobile phone into detention. Most of the information on that phone, including any text messages sent by V.Ž., had been deleted but police officers found several text messages which V.Ž. had received from his fiancée on 19 and 20 February 2010, including the following: “Will not risk transfer now, [it’s been] said.” “Don’t use that phone at all, don’t you understand.” “She is telling me something else.” “Throw that phone away, don’t you understand, mother already knows what to do.” “Give me their number, I’ll arrange for us to give it later. We can’t give it now. Your mother was questioned today and almost got arrested, don’t you understand? It’s all hidden now.” “Mother doesn’t give anything, I’m telling you the customs office is watching everything.” 10. In the afternoon of 3 March 2010 the applicant arrived at Šakiai Police station, where V.Ž. was detained, to bring him food and clean clothes. 11. At 4 p.m. that day the applicant was informed by a senior investigator that she was being placed under provisional arrest (laikinas sulaikymas), on the basis of Article 140 of the Code of Criminal Procedure (see “Relevant domestic law” below). The decision to arrest the applicant indicated that she was suspected of unlawful possession of narcotic substances with the purpose of distribution (see paragraph 27 below). Provisional arrest had been deemed necessary in order to prevent her from fleeing, interfering with the investigation or committing further crimes because it was suspected that she had previously hidden drugs from the investigators (see paragraph 9 above). The record of the provisional arrest, drawn up at the time of the arrest, stated that the applicant had been explained her rights, including the right to a lawyer, and that she had refused to sign the record. The applicant was placed in the Šakiai police station in a nearby cell to her son. Her husband was informed of her arrest. At that time the applicant was sixty-nine years old. 12. On 4 March 2010 the applicant was served with the official notice that she was a suspect (pranešimas apie įtarimą). The notice stated that in February 2010 she had allegedly acquired drugs from unidentified persons, kept them in her daughter V.B.’s apartment with the purpose of distribution, and subsequently distributed them, thereby committing the act proscribed in Article 260 § 1 of the Criminal Code. The applicant signed the notice that she was an official suspect, to indicate that she had received it and that her rights had been explained to her. 13. From 11.30 a.m until midday that day the applicant was questioned as a suspect in the case, in the presence of a lawyer. She denied having committed any crimes and refused to answer any further questions. 14. At some point during the day the applicant started feeling weak, and felt a headache and a pain in her chest. An ambulance was called to the police station and the applicant was given first aid. 15. On the same day the applicant’s lawyer submitted a request to the Šakiai district prosecutor to release the applicant from provisional arrest. The lawyer argued that the applicant had not committed any crime and that she had only been arrested to pressurise her to testify against her son. 16. At 3.50 p.m. that day the Šakiai police released the applicant. The decision to release her stated that all the necessary investigative actions concerning the applicant had been conducted, and that there were no grounds to believe that she would interfere with the investigation upon her release. 17. On 5 March 2010 the Šakiai district prosecutor rejected the applicant’s lawyer’s request to release the applicant (see paragraph 15 above) as based on “subjective and declaratory statements” and thus unfounded. According to the applicant, she did not appeal against that decision because she had already been released. 18. On 30 September 2010 the Šakiai district prosecutor discontinued the pre-trial investigation against the applicant on the grounds of insufficient evidence that she had committed the crime outlined in Article 260 § 1 of the Criminal Code. 19. The Šakiai police continued the pre-trial investigation concerning the applicant’s son V.Ž. The police obtained his call records and questioned several witnesses who admitted to having bought cannabis from V.Ž. 20. On 4 November 2011 the Šakiai District Court convicted V.Ž. of unlawful possession of narcotic substances with the purpose of distribution under Article 260 § 1 of the Criminal Code. On 2 March 2012 the Kaunas Regional Court dismissed V.Ž.’s appeal, and on 23 October 2012 the Supreme Court dismissed his appeal on points of law. 21. On 25 February 2013 the applicant lodged a civil claim for damages against the State under Article 6.272 of the Civil Code. She claimed that her provisional arrest had been unfounded because she had not committed any crimes, as proven by the subsequent discontinuation of the pre-trial investigation. The applicant also argued that her arrest had been unnecessary because at the time she had been almost seventy years old, ailing and had had difficulties walking; she had had no prior convictions, had been retired and had had a place of residence with her husband. Thus, she claimed that it had been unlikely that she would have attempted to flee or hide from the investigation. The applicant noted that the investigation against her son had been instituted on 17 February 2010, and there had been no indication from that day until her arrest that the police suspected that she had committed any crimes or attempted to interfere with the investigation on the contrary, she had voluntarily come to the police station to see her son. The applicant argued that the real purpose of arresting her had been to force her to testify against her son. 22. The applicant further submitted that she had suffered pecuniary and non-pecuniary damage because of the provisional arrest: her blood pressure had risen and as a result she had had to seek medical help and take medication; she had become irritable, had started having nightmares and was scared of police officers; she felt humiliated in front of her son who had been detained in a nearby cell, as well as other inhabitants of her village, who subsequently thought of her as a criminal. The applicant claimed 2,300 Lithuanian litai (LTL, approximately 666 euros (EUR)) in respect of pecuniary damage resulting from her legal expenses, as well as LTL 10,000 (EUR 2,896) in respect of non-pecuniary damage. 23. At the hearing before the Šakiai District Court the applicant also submitted that, after arresting her, the police officers had searched her purse and tried to strip search her, but she had resisted. She stated that the cell in which she had been detained had been damp and dilapidated and that there had been smells emanating from the toilet which had made her nauseous. 24. On 27 May 2013 the Šakiai District Court dismissed the applicant’s claim. The court noted that the termination of the pre-trial investigation against the applicant did not make the investigation unlawful ab initio, and found that there had been sufficient grounds for suspicions against her: plastic bags had been found in the apartment where she lived together with her son V.Ž., and remnants of drugs had been found in the applicant’s daughter V.B.’s apartment. Furthermore, while detained, V.Ž. had unlawfully been in possession of a mobile phone, and the police officers had had grounds to believe that he had warned the applicant to hide the drugs which had been stored in V.B.’s apartment. Accordingly, the court found that the applicant’s provisional arrest had been well-founded. The court also noted that the applicant had not appealed against the district prosecutor’s decision of 5 March 2010 to refuse her release (see paragraph 17 above), which meant that the decision to arrest her had not been declared unlawful. Lastly, the court held that the medical documents submitted by the applicant did not prove that the deterioration of her health had been caused by the provisional arrest. The court did not address the applicant’s complaints concerning the conditions of her detention. 25. On 29 October 2013 the Kaunas Regional Court rejected the applicant’s appeal. It upheld the findings of the first-instance court that at the time of the arrest there had been sufficient evidence to suspect the applicant of having committed a crime, and that the subsequent discontinuation of the pre-trial investigation did not make the arrest unlawful. The Kaunas Regional Court also noted that Article 140 of the Code of Criminal Procedure permitted the provisional arrest not only of a suspect but also any other person in respect of whom it was necessary to conduct certain investigative actions. Having found that the applicant’s arrest had been lawful, the court held that there were no grounds to award the applicant any damages. It did not address the applicant’s complaints concerning the conditions of her detention. 26. On 18 December 2013, following an appeal on points of law by the applicant, the Supreme Court refused to examine the case as raising no important legal questions. | 0 |
test | 001-184660 | ENG | RUS | CHAMBER | 2,018 | CASE OF MAZEPA AND OTHERS v. RUSSIA | 3 | Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom | 5. The applicants live in Moscow. The first applicant is the mother of the second applicant and of Ms Anna Politkovskaya, who was born in 1958 and died in 2006. The third and fourth applicants are Anna Politkovskaya’s children. 6. Anna Politkovskaya was a well-known investigative journalist who made a name for herself covering alleged violations of human rights in the Chechen Republic committed in the course of the counterterrorism operation in the region, an operation widely known as the “Second Chechen War”. Ms Politkovskaya was also an adamant critic of President Putin’s politics. 7. On 7 October 2006 Anna Politkovskaya was fatally shot in the lift in her block of flats in Moscow. A Makarov pistol with a silencer and bullet cartridges were found on the stairs. 8. On the same date the prosecutor’s office of Moscow opened a criminal investigation in case no. 18/377485-06 under Article 105 § 2 (b) of the Russian Criminal Code (“murder of a person committed in connection with his or her professional or civic duties”). Later, the case was transferred to the department for the investigation of particularly important cases of the Prosecutor General’s Office for investigation. 9. At an early stage of the investigation investigators inspected the crime scene, collected footage from surveillance cameras located in the vicinity, and examined logs of telephone connections made in the area around the time of the killing. 10. On 9 October 2006 forensic experts established that the death had been caused by gunshot wounds to the victim’s head, chest and right leg. On the same date a death certificate was issued. 11. On 12 October 2006 the fourth applicant was granted victim status. Later, the third applicant received such status as well. 12. Seeking to discern the motive for the crime, the investigation studied Anna Politkovskaya’s critical publications to establish against whom they had been targeted. They also questioned Ms Politkovskaya’s colleagues, friends and family as witnesses. In the Government’s submission, as a result of such actions, the investigation established that Anna Politkovskaya had met “a well-known Russian former politician” in London, and that unnamed person had proposed that she publish articles “to discredit the leadership of the Russian State, which she [had] refused to do, to his dislike”. 13. On 27 August 2007 the Prosecutor General of Russia stated at a press conference that there had been serious progress in the investigation of Ms Politkovskaya’s killing, and that ten people had been arrested in connection with the investigation. Another official of the Prosecutor General’s Office stated that a certain P.R. had been arrested. On 28 August 2007 the Tvoy Den’ newspaper (“Твой День”) published a list of people arrested in connection with Ms Politkovskaya’s murder, and commented that there were known hitmen among those detained. On 29 August 2007 a press officer of the Moscow City Court (“the City Court”) disclosed to the public a list of ten people detained in connection with Anna Politkovskaya’s assassination. 14. In the course of August 2007 four people, D.M., I.M., S.Kh. and P.R., were arrested in connection with the assassination. Two brothers, D.M. and I.M., had made phone calls near Ms Politkovskaya’s building; their car had been seen leaving the area on the day of the killing. Later, the investigation established that fibres found in their car were identical to those left on the murder weapon. S.Kh., a police officer, was arrested on the basis of a witness statement by D.P., also a police officer. P.R. was an officer of the FSB (Federal Security Service) who had known S.Kh. for a long time. 15. In June 2008 D.M., I.M. and S.Kh. were formally charged with contract killing in conspiracy with others. S.Kh. was regarded as the leader of the organised criminal group. P.R. was charged in the same set of proceedings with abuse of powers and extortion. 16. At some point R.M., a brother of D.M. and I.M. whom the investigation suspected to be implicated in the assassination, fled Russia on a forged passport. As appears from the applicants’ and the Government’s respective submissions, the forged passport was issued by staff of a department of the interior. 17. At some point R.M.’s name was put on an international wanted list. On 16 June 2008 a criminal case against R.M. was severed from the case against S.Kh., P.R., D.M. and I.M. 18. In June 2008 the investigators prepared a case against S.Kh., P.R., D.M. and I.M. to be transferred to a court. The applicants requested that the case file remain with the investigators. In their view, the investigation was incomplete, and sending the case file to a court would be premature. Nevertheless, the case file was transferred to the Moscow Circuit Military Court (“the Circuit Court”) for a jury trial. 19. In the course of court hearings in the period 2008-09 D.P., a highranking officer of the Moscow City Department of the Interior, was questioned as a witness for the prosecution. He submitted that, acting in his professional capacity, he had organised and conducted surveillance on Anna Politkovskaya shortly prior to her assassination. A certain L.-A.G. was also questioned as a witness. 20. At an unspecified point in time in the period 2008-09, the investigation included a summary of its findings in the case material, which the applicants referred to as a “presentation”. In particular, the summary contained details regarding Anna Politkovskaya, including the fact that she had had American nationality. The “presentation” was never shown to the jury. 21. On 19 February 2009, having heard the prosecution and the defence, the jury delivered a not-guilty verdict in respect of S.Kh., P.R., D.M. and I.M. 22. On 20 February 2009 the Circuit Court acquitted S.Kh., P.R., D.M. and I.M. The prosecution appealed. The third and fourth applicants decided not to appeal against the acquittal. 23. On 25 June 2009, in the appeal proceedings, the Supreme Court of Russia quashed the judgment of 20 February 2009 and remitted the case to the Circuit Court for fresh examination. 24. On 5 August 2009 the third and fourth applicants requested that the Circuit Court remit the case to the prosecutor’s office for further investigation. On 7 August 2009 the Circuit Court dismissed the application. The applicants appealed. 25. On 3 September 2009 the Supreme Court granted the third and fourth applicants’ application, and the case was transferred to the prosecutor’s office for further investigation. 26. On unspecified dates the charges against P.R. were dropped; L.A.G. was indicted. 27. On 31 May 2011 R.M., who had spent some time hiding in Belgium, was arrested in the Chechen Republic. 28. According to the applicants, at an unspecified point in time a certain O.G. informed them that he had information which was crucial for the investigation, and that he was willing to testify as a witness. At the applicants’ request, an investigator questioned him. O.G. stated that D.P. was implicated in the murder. According to the Government, the investigator in charge of the case attempted to find O.G., but could only gather evidence from him after he had been informed of the witness’s whereabouts in Ukraine. 29. On 26 August 2011 the Basmannyy District Court of Moscow (“the District Court”) ordered D.P.’s placement in custody. 30. On 31 August 2011 D.P. entered a guilty plea with the investigating authorities. He claimed that his acquaintances, L.-A.G. and S.Kh., had proposed that he organise unauthorised surveillance of Ms Politkovskaya. L.-A.G. had expressed his intention to kill the journalist and had said that D.P. could take part in the preparation for the assassination for a fee, which D.P. had accepted. Having received a large sum of money and instructions from L.-A.G., he had bought a pistol with a silencer from a stranger and passed it on to R.M. In the Government’s submission, L.-A.G. had not reported the motives for the killing, but had “mentioned that the crime [had been] ordered by a wellknown person living in the United Kingdom”. 31. On 29 August 2012 the criminal case against D.P. was severed and a separate investigation was created; the applicants disagreed with that decision. On 14 December 2012 the Moscow City Court (“the City Court”) sentenced D.P. to eleven years’ imprisonment. The applicants appealed against the judgment, arguing that the sentence was too lenient. On an unspecified date D.P.’s conviction was upheld on appeal. 32. At some point the case file against S.Kh., R.M., D.M., I.M. and L.A.G. was transferred to the City Court for trial. 33. On 20 June 2013 the City Court commenced a jury trial of S.Kh., R.M., D.M., I.M. and L.-A.G. 34. On 14 November 2013 the jury was dismissed for the reason that only eleven jurors out of twelve appeared in the courtroom. 35. On 14 January 2014 hearings before a new composition of the jury commenced. 36. On 29 May 2014 the jury delivered a verdict finding all five coaccused guilty of Anna Politkovskaya’s murder. They also found R.M. guilty of kidnapping a third party in October 1996. 37. On 9 June 2014 the City Court delivered a judgment. It found that L.-A.G. had “accepted an offer from an unidentified person who had been dissatisfied with publications by Anna Politkovskaya in Novaya Gazeta concerning violations of human rights, the embezzlement of State property, and abuse of public office by civil servants” – an offer of a fee of at least 150,000 United States dollars to organise the journalist’s killing. L.A.G. had then involved his nephews, R.M., D.M., and I.M., as well as “a person in respect of whom the criminal case had been severed” and his acquaintance S.Kh. in the preparation for the killing. On the basis of the jury’s guilty verdict, the City Court characterised the murder as one committed by an organised group for a fee in connection with the victim’s performance of her professional and civic duties. It also found that L.A.G., R.M. and D.M. were guilty of illegal arms operations. It refused to terminate the proceedings against R.M. regarding the events of 1996 under the statute of limitations, because the latter had been wanted in connection with those events since 1997, and found him guilty of kidnapping and extortion. The City Court sentenced L.A.G. – regarded as the organiser of the killing – and R.M. – regarded as the hitman – to life imprisonment. D.M. and I.M. were sentenced to fourteen and twelve years’ imprisonment respectively. S.Kh. was sentenced to twenty years’ imprisonment. Civil claims by the third and fourth applicants were resolved as follows. The third and fourth applicants were each awarded 700,000 Russian roubles ((RUB) – approximately 14,790 euros (EUR)) to be paid by L.-A.G. and R.M. respectively, RUB 500,000 (approximately EUR 10,570) to be paid by S.Kh., and RUB 300,000 (approximately EUR 6,340) to be paid by D.M. and I.M. respectively. 38. The defendants appealed against the conviction. 39. On 26 June 2015, in the appeal proceedings, the Supreme Court of Russia found that the guilty verdict was based on a thorough examination of the evidence. Upholding the conviction as a whole, the Supreme Court slightly mitigated the sentence regarding illegal arms operations in respect of L.-A.G., R.M. and D.M. However, pursuant to the rules on combining sentences for multiple offences, this did not affect L.A.G.’s and R.M.’s life sentences. D.M.’s term of imprisonment was reduced to thirteen years and nine months. 40. In the Government’s submission, the investigation into Anna Politkovskaya’s killing has not been terminated. They provided copies of the City Court’s judgment of 9 June 2014 and the Supreme Court’s appeal judgment of 26 June 2015. | 1 |
test | 001-173369 | ENG | ISL | CHAMBER | 2,017 | CASE OF TRAUSTASON AND OTHERS v. ICELAND | 4 | Violation of Article 10 - Freedom of expression-{General} (Article 10-1 - Freedom of expression) | Aleš Pejchal;Ledi Bianku;Linos-Alexandre Sicilianos;Pauliine Koskelo;Robert Spano | 6. The first applicant was born in 1953 and lives in Mosfellsbær, the second applicant was born in 1980 and lives in Reykjavík and the third applicant was born in 1980 and lives in Seltjarnarnes. At the material time the first and second applicants were on the editorial board of the newspaper DV and the third applicant was a journalist for DV. 7. On 30 September 2010, an Icelandic private limited company, (hereafter “the company”), was declared bankrupt. The company was established in 1960 and is one of the leading industrial companies in Iceland in the production of plastic packaging material. 8. In October 2010 the liquidator of the bankruptcy estate hired an accountancy firm to investigate the company’s accounts. 9. On 31 January 2011 the accountancy firm finalised a report indicating a suspicion of criminal misconduct by the board members. The chairman of the board, A, who was also one of the owners of the company, was an assistant professor at the University of Iceland at the time. 10. The liquidator reported the suspected criminal misconduct to the police. A holding company and a bank also reported the company and A to the police. 11. On 14 March 2011 DV published a picture of A on its front page under the headline “Black report on [the company]: Police investigate Assistant Professor”. An article on the matter was printed on pages 2 and 3. The third applicant was identified as its author. The headline of the article read “Assistant professor entangled in police investigation” and another picture of A appeared beside the headline. The article was based on information from the accountancy firm’s report. It is not known how the applicants knew about the report and its contents. The article discussed inter alia A, who was a board member and one of three owners of the company and the former supervisor of the MBA programme and assistant professor of business studies at the University of Iceland. The article described the company´s situation with reference to the accountancy firm´s report. It stated that the report had concluded the company had paid for the A´s expenditures, which were unlikely to be connected to the company´s operations. The report had also indicated that A and one of his co-owners had known about the grave financial situation of the company long before it had been declared bankrupt in 2010. The report had concluded that the company´s assets had been partly expended when it was clear that it was insolvent. These assets had in fact been transferred to another company, owned by the A´s co-owner.When the company was declared bankrupt on 30 September 2010 the company owed approximately 1,100,000,000 ISK (approx. 7,150,000 euros at the time) to a large bank in Iceland. The amount had increased significantly after the financial crisis in 2008. 12. On 16 March 2011 A’s lawyer received an email from a police prosecutor confirming that the liquidator’s complaint had been received and was being “examined” and that two other complaints received by the police were also under consideration. He stated that no formal decision had been taken to instigate a police investigation. A’s lawyer sent this email to the first applicant and requested correction of the impugned statements. The first applicant refused his request. 13. On 28 April 2011 A lodged defamation proceedings against the applicants and DV before the Reykjavík District Court and requested that the statements published by DV, “Police investigate Assistant Professor” and “Assistant Professor entangled in police investigation”, be declared null and void and that the applicants be ordered to pay compensation, including expenses for publishing the final judgment. 14. The applicants and A were heard and the email of 16 March 2011 from the police prosecutor to A’s lawyer was submitted as evidence. 15. By a judgment of 5 March 2012 the District Court found that both disputed statements had been defamatory and ordered the applicants to pay 200,000 Icelandic Krónur (ISK) (approximately 1,600 euros (EUR)) to A in compensation for non-pecuniary damage, plus interest, ISK 200,000 for the cost of publishing the judgment and ISK 500,000 (approximately 4,200 EUR) for A’s legal costs before the District Court. The statements were declared null and void. 16. The judgment contained the following reasons: “... According to Article 73(1) of the Constitution everybody has the right to freedom of opinion and belief. However, Article 73(3) of the Constitution allows certain restrictions on the freedom of expression. It states that freedom of expression may only be restricted by law in the interests of public order or the security of the State, for the protection of health or morals, or for the protection of the rights or reputation of others, if such restrictions are deemed necessary and in agreement with democratic traditions. In Chapter XXV of the Penal Code, freedom of expression is restricted in the interest of the rights and reputation of others. When deciding the limits of freedom of expression, the possibility of a public debate has to be guaranteed. [The applicants] claim that the statements are true and refer to the principle that they cannot be held liable for true statements. It is undisputed that, before the newspaper coverage, [the police] had been informed by the liquidator of a reasonable suspicion of criminal acts by the company’s board members, of which A was one. It is also clear that the information given by the liquidator was based on [the accountancy firm’s] report of 31 January 2011. An email of 16 March 2011 from [the prosecutor] to [A’s] lawyer stated that the liquidator’s report was being “examined” [“til skoðunar”]. Furthermore, it was stated that two other entities [had reported, inter alia, A] to the police and that those reports “were also being considered” [litið til framangreindra kæra]. However, it is stated that no formal decision has been taken about a police investigation nor possible criminal acts defined. [The applicants] base their defence on the fact that nothing in their statements, which [A] wants declared null and void, indicates that a formal decision had been taken to start [a police] investigation and that the wording of the statements should not be interpreted more widely than its general meaning indicates. Here it has to be taken into account that in general the media are required to base coverage on thorough research of the facts. Taking this into account, and having regard to [the absence of a formal decision by the police to investigate] [the company] and its board members, including [A], the court cannot accept [the applicant’s] arguments. No police investigation had been instigated against [A], thus the statements “Police investigate Assistant Professor” and “Assistant professor entangled in police investigation” were factually wrong, but both statements did in fact have the same meaning. It was not unreasonably difficult to verify whether such an investigation had in fact been opened. The wording of the statements was of such a nature as to make the reader believe that [A] was a suspect in a police investigation because of his criminal and punishable acts. This damaged [A’s] reputation. Therefore, the court has to agree with [A] that [the applicants] violated Article 235 of the Penal Code No 19/1940 (Almenn Hegningarlög) by publishing the aforementioned statements. In the light of the aforesaid, and with reference to Article 241(1) of the Penal Code, [A’s] request to declare the statements null and void is granted. However, there is no reason to impose punishment; therefore [A’s] request that [the applicants] be punished is rejected ...” 17. On 8 May 2012 the applicants appealed to the Supreme Court against the District Court’s judgment. 18. By judgment of 6 December 2012 the Supreme Court confirmed the District Court’s judgment and ordered the applicants to pay, in addition, ISK 500,000 for A’s legal costs before the Supreme Court. 19. As to the reasoning, the Supreme Court stated: “... The aforementioned email from [the police prosecutor] can only be understood as meaning that no investigation had been instigated on account of the three reports [to the police] which are referred to in the email. There is nothing to indicate that such an investigation was initiated later and it will not be held against [A] that he did not provide confirmation of that during the proceedings as requested by [the applicants]. With these comments, [and] with reference to the District Court’s reasoning, the Supreme Court confirms the District Court’s decision on declaring the statements null and void and confirms the publication of the judgment in the next issue of DV and the next online edition of DV after the delivery of this judgment. The annulled statements were wrong and defamatory for [A]. When examining the coverage and the publication of pictures of [the company] and its representatives in the printed issue of DV and in the online edition of [DV], [A’s] reputation was attacked, at a time when there were no grounds for it ...” 20. By letter of 31 May 2013 the Special Prosecutor notified another company representative that “the investigation” into the complaints against him and A had been closed and the case had been dismissed. | 1 |
test | 001-161806 | ENG | ALB | COMMITTEE | 2,016 | CASE OF KARAGJOZI AND OTHERS v. ALBANIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions) | Kristina Pardalos;Paul Mahoney;Pauliine Koskelo | 4. On 28 July 2006 the Vlora Commission recognised, amongst others, the applicants’ inherited property rights over a plot of land measuring 640,000 sq. m. Since the plot of land was occupied, the applicants would be compensated in one of the ways provided by law. The Commission stated that the land had changed its destination from agricultural land to construction land. A handwritten note signed by the chairman of the Commission states that the decision became final on 2 October 2006. On 18 February 2013, following the applicants’ request for information about whether their property was still occupied, the Ministry of Defence affirmed that the plot was occupied by the army. 5. To date, no compensation has been paid. | 1 |
test | 001-180481 | ENG | UKR | COMMITTEE | 2,018 | CASE OF RADCHENKO v. UKRAINE | 4 | Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Free legal assistance);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms) | Erik Møse;Síofra O’Leary | 4. The applicant was born in 1976 and is serving a sentence of life imprisonment. 5. In December 2005 violent robberies were committed at two scrap metal collection points in Odesa. One employee was shot dead. In the course of the investigation, the police organised an ambush, which led to the applicant and his acquaintance, Mr D., being arrested. As established by the domestic courts, before his arrest the applicant had pointed a gun at a police officer, who had knocked it out of his hands using a martial arts technique. The gun had been loaded and had had its safety catch released. 6. On an unspecified date the applicant had free legal counsel appointed for him for the pre-trial investigation and the proceedings before the firstinstance court. 7. On 4 September 2006 the Odesa Regional Court of Appeal, sitting as a court of first instance, found the applicant guilty of the illegal handling of arms, robbery with violence, intentional murder for profit and an attempt on the life of a law-enforcement officer. It relied, inter alia, on the statements of several eyewitnesses who had recognised the applicant. Having regard to the fact that the applicant had previously been convicted of the intentional infliction of fatal injuries and that he had committed the crimes at issue while on probation following release in October 2005, the court sentenced him to life imprisonment. 8. The applicant, who was no longer legally represented, appealed in cassation. He complained, in particular, about the absence of free legal assistance at that stage of the proceedings. The applicant contended that the first-instance court had erred in its assessment of the facts of the case and their legal classification. 9. On 30 January 2007, following a hearing with the participation of Mr D. (the other defendant) and his lawyer, as well as the prosecutor, but without the applicant or any representative from his side, the Supreme Court upheld the judgment of 4 September 2006. 10. On 11 June 2007 the applicant, who was not aware of the above ruling, requested that the Supreme Court ensure his presence at its hearing. 11. On 17 August 2007 a copy of the Supreme Court’s ruling of 30 January 2007 was sent to the applicant. | 1 |
test | 001-156007 | ENG | HRV | ADMISSIBILITY | 2,015 | M.B. v. CROATIA | 4 | Inadmissible | Dmitry Dedov;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković | 1. The applicant is a Croatian national, who was born in 1974. The President granted the applicant’s request for his identity not to be disclosed to the public (Rule 47 § 4). He was represented before the Court by Ms M. Sršić, 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. The applicant works as a police inspector in the S. Police Department (Policijska uprava s.) 5. On 15 January 2007, at around 6.00 p.m., the applicant’s wife requested the assistance of the police alleging that she had been beaten by the applicant in their flat in Z. 6. Two police officers from one of the local police stations of the Z. Police Department (Policijska uprava z.) A.H. and M.M., intervened at the scene where they found the applicant and his wife, who had a visible nose injury. She was immediately taken to the hospital where she was diagnosed with a dislocation of septum and superficial nose hematoma. 7. The applicant was requested to undergo an alcohol intoxication test which he refused. The police officers also found in his flat several pieces of hunting firearms which were, together with the applicant’s police handgun, seized from him. The applicant refused to sign the seizure records. 8. At around 6.45 p.m. the applicant was arrested and taken to the police station. 9. According to the applicant, inside the police station he was knocked to the ground and beaten by several police officers for refusing to sign the seizure records. He was in particular ill-treated by the police officers A.H., M.M. and M.D. 10. According to a report of the police officer M.D. of 15 January 2007, at around 7.35 p.m., while he was held in the police station, the applicant started shouting and disobeying the orders to calm down. M.D. therefore approached him and twisted his arm behind his back after which he was handcuffed. 11. On the same day, at around 8.40 p.m., the applicant was examined by a doctor at the police station. The medical examination indicated signs of alcohol intoxication but did not disclose any injuries. 12. On 16 January 2007, at 2.20 p.m., the applicant was again examined by a doctor who found no injuries but indicated that the applicant had low blood sugar. 13. Following the applicant’s release from detention (see paragraph 31 below), on 22 January 2007 he underwent another medical examination in a hospital in S. The examination indicated spinal and abdominal contusions which could, as alleged, relate to a beating dating back one week before. 14. On 15 January 2007 the police officer M.D. reported on the use of force against the applicant to his superiors (see paragraph 10 above). 15. On the same day the Chief of the police station accepted the report finding no irregularities in the use of force. These findings were forwarded to the Chief of the Z. Police Department. 16. On 18 January 2007 the Chief of the Z. Police Department found that the use of force against the applicant had been lawful and justified. 17. This finding was confirmed by the Internal Control Unit of the Ministry of the Interior (Odjel za unutarnju kontrolu Ministarstva unutarnjih poslova) on 8 March 2007. 18. On 18 May 2007 the First-instance Disciplinary Court of the Ministry of the Interior (Odsjek prvostupanjskog disciplinskog suda Z.; hereinafter: the “First-instance Disciplinary Court”) found the applicant guilty on disciplinary charges of inappropriate behaviour and sentenced him to dismissal from service suspended for three months and a twenty percent reduction of salary in the period of two months. This decision was upheld by the Second-instance Disciplinary Court of the Ministry of the Interior (Odsjek drugostupanjskog disciplinskog sudovanja; hereinafter: the “Second-instance Disciplinary Court”) on 13 July 2007. 19. On 18 April 2007 the applicant lodged a criminal complaint with the Z. Municipal State Attorney’s Office (Općinsko državno odvjetništvo u Z.) against the police officers A.H., M.M. and M.D. alleging that they had ill-treated him during his arrest on 15 January 2007. In particular, he submitted that he had been knocked to the ground and then beaten. The applicant also alleged that M.Mi., an on-duty police officer in the police station at the time of the events, had attempted to cover up the ill-treatment by unlawfully instituting minor offences proceedings against him on charges of domestic violence (see paragraph 29 below). 20. On 25 May 2007 the Z. Municipal State Attorney’s Office requested the Z. Police Department to conduct an investigation into the applicant’s allegations. 21. The Z. Police Department submitted a report on 6 July 2007 indicating that they had interviewed the suspects and two witnesses and obtained the relevant documentation concerning the use of force against the applicant. The suspects denied any ill-treatment and one of the witnesses, also a police officer, stated that she had seen the applicant handcuffed and kneeled on the ground. 22. On 12 July 2007 the Z. Municipal State Attorney’s Office rejected the applicant’s criminal complaint on the grounds that there was no evidence that he had been ill-treated as alleged in his criminal complaint. The applicant was instructed that he could take over the criminal prosecution as a subsidiary prosecutor by lodging an indictment before the competent criminal court. 23. Meanwhile, the applicant submitted another criminal complaint before the Z. Municipal State Attorney’s Office against the police officers M.M., A.H., S.G., P.S., M.Mi. and M.P. alleging unlawful search of his flat and their unlawful conduct in the processing of his case related to the alleged domestic violence. 24. On 31 October 2007 the Z. Municipal State Attorney’s Office rejected this criminal complaint as unfounded on the grounds that there was nothing disclosing any unlawfulness in the conduct of the police officers. 25. On 11 December 2007 the applicant lodged an indictment in the Z. Municipal Criminal Court (Općinski kazneni sud u Z.) against the police officers A.H., M.M., M.D. and M.Mi. in connection with his alleged ill-treatment (see paragraph 22 above). 26. On 28 November 2008 the applicant sent a letter to the Z. Municipal State Attorney’s Office expressing his dissatisfaction with the manner in which the circumstances of his criminal complaint had been assessed and with the decision of 12 July 2007 (see paragraph 22 above). 27. The Z. Municipal State Attorney’s Office replied on 5 March 2009 indicating that all the applicant’s objections should be addressed in the criminal proceedings which he had instituted as a subsidiary prosecutor. 28. On 6 April 2010 the Z. Municipal Criminal Court declared the applicant’s indictment inadmissible as he had failed to inform that court of the change of his whereabouts for which reason he could not be summoned to amend the indictment in accordance with the formal requirements of the relevant domestic law. This decision was placed on the Z. Municipal Criminal Court’s public notice board from which it was taken on 26 April 2010. It was thereby considered to be served on the applicant (see paragraph 59 below). 29. On 15 January 2007 the police instituted minor offences proceedings against the applicant in the Z. Minor Offences Court (Prekršajni sud u Z.) on charges of domestic violence, abusive conduct towards the police officers, improper storage of firearms and failure to report the change of his whereabouts. 30. On 16 January 2007 the Z. Minor Offences Court ordered the applicant’s detention. 31. On 22 January 2007 the Z. Minor Offences Court found the applicant guilty on charges of abusive conduct towards the police officers, improper storage of firearms and failure to report the change of his whereabouts. The applicant was fined in total with 5,754 Croatian kunas (HRK) and the seized firearms were confiscated. The proceedings were discontinued in respect of the charges of domestic violence on the grounds of lack of evidence. The applicant was released from detention. 32. On 5 October 2007 the Higher Minor Offences Court (Visoki prekršajni sud Republike Hrvatske), acting as the court of appeal, quashed the part of the first-instance decision by which the proceedings in respect of the charges of domestic violence were discontinued and ordered a retrial, while it upheld the remainder of the first-instance decision. 33. On 16 January 2009 the resumed minor offences proceedings concerning the charges of domestic violence were discontinued on the grounds that they had become time-barred. 34. According to the applicant, on 25 May 2008, at around 2.30 p.m., while celebrating his wedding anniversary with friends, he was attacked and injured by A.H., the same police officer who had been involved in his alleged ill-treatment on 15 January 2007 (see paragraphs 9, 19 and 25 above). He sustained injuries to his head and arms. Thereafter he was arrested and placed in a psychiatric hospital from which he was released on 27 May 2008. 35. According to the documents submitted by the Government, on 25 May 2008, at around 2.30 p.m., the police received an anonymous call informing them that a person was lying on the ground in front of a residential building in Z. The police officers I.Z. and A.H. immediately drove to the address. 36. A report signed by the police officers I.Z. and A.H., dated 25 May 2008, indicates that upon their intervention at the scene they established that the person lying on the ground was the applicant, who was severely intoxicated. He also had visible injuries on his head and arms. Soon afterwards an emergency team joined them and they decided that the applicant should be taken to a hospital for further treatment. During the transfer to the hospital the applicant became aggressive and the police officer A.H. and one of the members of the medical team tried to calm him down. At the hospital, the applicant continued his aggressive behaviour and threatened to kill them all once released. The police officers thus used physical force and the measures of restraint to calm him down. It was decided that he should be taken to another hospital. 37. A medical report of the emergency service of 25 May 2008 indicates contusion of the applicant’s head and superficial injuries on both arms. 38. A medical report prepared on the applicant’s release from the hospital on 27 May 2008 indicates that the applicant sustained his injuries during a fall caused by his intoxication. 39. Following his release the applicant contacted another doctor on 28 May 2008. His report of the same date indicates that the applicant had contusions to the head, and hematomas on the right upper arm and left forearm which could have been caused by blows three days before, as alleged by the applicant. 40. On 25 May 2008 the police officers I.Z. and A.H. reported on the use of force against the applicant to their superiors. They explained that the applicant had been aggressive during his medical treatment in the hospital and that therefore I.Z. grabbed him by the left arm and twisted it behind his back while A.H. did the same thing with his right arm. He was then handcuffed. 41. On the same day the Chief of the police station accepted the report finding no irregularities in the use of force. These findings were forwarded to the Chief of the Z. Police Department. 42. On 28 May 2008 the Chief of the Z. Police Department found that the use of force against the applicant had been lawful and justified. 43. On 25 May 2008 the applicant was indicted in the Z. Minor Offences Court on charges of breach of public peace and order and violent behaviour during his medical examination. 44. The applicant was questioned on the same day and he denied having breached the public peace and order. He stressed that he had only refused to undergo the medical examination to which the police officer A.H. had been forcing him. 45. At a hearing on 7 April 2009 doctor N.L., who received the applicant in the hospital on 25 May 2008 (see paragraph 36 above), stated that the applicant had arrived at the hospital with a head injury and under the influence of alcohol. He also explained that he had not seen any violent behaviour on the part of the applicant. 46. At a hearing on 23 September 2010 the Z. Minor Offences Court questioned the police officer I.Z. who could not remember any details of the event at issue. 47. On the same day the Z. Minor Offences Court acquitted the applicant on the grounds of lack of evidence of his alleged violent behaviour and breach of public peace and order. 48. On 10 June 2008 the S. Police Department instituted disciplinary proceedings against the applicant in the First-instance Disciplinary Court on charges of inappropriate behaviour related to the events of 25 May 2008. 49. At a hearing on 13 November 2008 the applicant submitted that on the critical day he had been with his friends Ž.K., I.B. and M.V., drinking and celebrating his wedding anniversary. When they approached the building where he lived, they came across two police officers one of whom was A.H., who approached him and asked him whether they had settled their dispute. The applicant answered that the competent court would decide about that and at that point A.H. pulled him by the hand as a result of which he fell to the ground and then he lost his conscience. 50. On 22 December 2008 the First-instance Disciplinary Court questioned the applicant’s friends Ž.K., I.B. and M.V. and the police officers I.Z. and A.H. 51. Ž.K. stated that he had seen the applicant in front of the building talking with two police officers and that at one moment one of the police officers, without any particular reason, pulled the applicant by the hand after which he fell to the ground and hurt his head. I.B. and M.V. confirmed this version of the events. 52. In their statements the police officers I.Z. and A.H. denied any ill-treatment reiterating that they had only used force as a result of the applicant’s aggressive behaviour during his medical treatment. 53. On 3 March 2009 the First-instance Disciplinary Court found the applicant guilty on charges of inappropriate behaviour and sentenced him to dismissal from service suspended for twelve months. It considered that the statements of Ž.K., I.B. and M.V. were inconsistent in particular given that an analysis of I.B.’s mobile phone at about the time of the events showed that he had been in another city. It therefore rejected the applicant’s allegations that he had been ill-treated by the police officers I.Z. and A.H. 54. On 23 April 2009 the Second-instance Disciplinary Court upheld the first-instance decision. 55. The applicant then challenged the outcome of the disciplinary proceedings before the Administrative Court (Upravni sud Republike Hrvatske) and on 19 May 2010 the Administrative Court dismissed his complaints as ill-founded endorsing the reasoning of the disciplinary bodies. 56. The applicant further challenged the findings of the disciplinary bodies and the Administrative Court before the Constitutional Court (Ustavni sud Republike Hrvatske). On 13 September 2012 the Constitutional Court upheld the decisions of the lower bodies dismissing the applicant’s complaints as ill-founded. 57. The relevant provisions of the Constitution of the Republic of Croatia (Ustav Republike Hrvatske, Official Gazette nos. 56/1990, 135/1997, 8/1998, 113/2000, 124/2000, 28/2001, 41/2001, 55/2001, 76/2010 and 85/2010) read as follows: Article 23 “No one shall be subjected to any form of ill-treatment ...” 58. 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 and 62/2003) provided: “(1) Criminal proceedings shall only be instituted and conducted upon the order of a qualified prosecutor. ... (2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences that may be prosecuted privately the qualified prosecutor shall be a private prosecutor. (3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person. (4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party may take his place as a subsidiary prosecutor under the conditions prescribed by this Act.” 59. With regard to the service of the court decisions, the relevant part of the Code of Criminal Procedure provided: “... (6) If a party has not reported a change of address to a court or if the party cannot be reached at the address that was previously given to the court or it is evident that he is evading receipt of a decision that is subject to appellate review other than a judgment imposing a sentence of imprisonment, the court shall put the decision on the court’s public notice board. After the lapse of the term of appeal the decision shall become final.” “ ... (2) If ... a decision cannot be served on [a subsidiary prosecutor] to his or her current address, the court shall put ... the decision on the public notice board and, after the laps of eight days from the moment when it was put [on the public notice board] it shall be considered as duly served.” 60. Relevant procedures concerning the submission of and decisions on criminal complaints were provided in Articles 171 to 174, the relevant parts of which read: “(1) All state bodies and legal entities are obliged to report any criminal offence subject to automatic prosecution about which they have been informed or about which they have otherwise learned. ...” “(1) Criminal complaints shall be submitted to the competent State Attorney in writing or orally. ... (3) If a criminal complaint was submitted before a court, the police or a State Attorney who was not competent in the matter, they shall forward the criminal complaint to the competent State Attorney.” “(1) The State Attorney shall reject a criminal complaint by a reasoned decision if the offence in question is not an offence subject to automatic prosecution, if the prosecution is time-barred or an amnesty or pardon have been granted, or other circumstances excluding criminal liability or prosecution exist, or there is no reasonable suspicion that the suspect has committed the offence. The State Attorney shall inform the victim about his decision ... within eight days (Article 55) and if the criminal complaint was submitted by the police, he shall also inform the police. (2) If the State Attorney is not able to ascertain the reliability of the submissions from the criminal complaint, or if he does not have sufficient information to ask for a judicial investigation, or if he has been otherwise informed that an offence has been committed, and particularly if the perpetrator is unknown, the State Attorney shall, if he is not able to do it himself, ask the police to collect all relevant information and to take other measures concerning the offence (Articles 177 and 179).” | 0 |
test | 001-146702 | ENG | RUS | COMMITTEE | 2,014 | CASE OF SMERTIN v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect) | Dmitry Dedov;Julia Laffranque;Khanlar Hajiyev | 4. The applicant was born in 1968 and lived in Balezino in the Republic of Udmurtiya prior to his arrest. 5. On 29 December 2005 the applicant was arrested on drug-related charges and taken to the local anti-narcotics unit. According to the applicant, he was beaten by policemen and then questioned in the absence of a lawyer. 6. On 8 November 2006 the Balezinskiy District Court of the Republic of Udmurtiya found the applicant guilty and sentenced him to two years and ten months’ imprisonment. It appears that the applicant did not appeal against the judgment. 7. During several periods between 29 December 2005 and 9 November 2006 the applicant was held in IVS Balezino, a temporary detention facility located in the Udmurtiya Republic. 8. The applicant submitted that the facility had been overcrowded. There were no windows in the cells where he stayed. The ventilation and water taps did not function. No mattresses or bed linen was available. Moreover, the detainees were not taken outdoor for exercise. 9. The applicant lodged a number of complaints seeking to bring the above issues to the attention of domestic authorities. In his reply of 5 October 2006 the district prosecutor acknowledged that the conditions of detention in the IVS had fallen short of the legal requirements. He further informed the applicant that he had brought an action against the management of the IVS for their failure to improve the conditions. 10. On 1 September 2006 the Balezinskiy District Court of the Republic of Udmurtiya granted the district prosecutor’s lawsuit. It found that the conditions of detention in the IVS Balezino had been characterised, inter alia, by a lack of bed linen and a possibility to take a shower and that the detainees had not been afforded daily outdoor exercise. 11. On 19 October 2006 the regional Ministry of Interior sent a letter to the applicant, acknowledging, in particular, that the detainees kept in the IVS had been deprived of outdor exercise and and lacked bed linen. 12. After some time the applicant brought a civil claim for compensation in connection with inadequate conditions of detention. By final judgment of 6 February 2008, the Supreme Court of Udmurtiya found that the applicant’s allegations had been substantiated and granted the claim, awarding him 3,000 Russian roubles. | 1 |
test | 001-160093 | ENG | HUN | COMMITTEE | 2,016 | CASE OF NAGY v. HUNGARY | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Krzysztof Wojtyczek;Nona Tsotsoria;Gabriele Kucsko-Stadlmayer | 4. The applicant was born in 1949 and lives in Budapest. 5. On 7 December 1995 the applicant was interrogated as suspect of breach of duty and other offences. 6. In the ensuing criminal proceedings, after a remittal, the Budapest Regional Court acquitted the applicant on 5 November 2008. 7. On appeal, the Budapest Regional Court of Appeal upheld the acquittal on 26 November 2009. | 1 |
test | 001-162859 | ENG | RUS | CHAMBER | 2,016 | CASE OF YEGORYCHEV v. RUSSIA | 4 | Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Tribunal established by law) | Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 5. The applicant was born in 1968 and lives in Moscow. 6. On 14 June 2001 charges of fraud were brought against the applicant, and he signed a written undertaking not to leave his place of residence. Some of the applicant’s assets, specifically his flat, parking spaces and three cars, were frozen. 7. On 21 June 2001 the investigation of the criminal case against the applicant was terminated and he began examining the case file. 8. However, on 26 September 2001 the investigation resumed. 9. On 26 September 2001 the Prosecutor General’s Office of Russia decided that in view of the seriousness of the charges faced by the applicant, the risk of his absconding, as well as the necessity to “secure the enforcement of the conviction” the applicant should be placed in pre-trial detention. 10. On 28 September 2001 the applicant was remanded in custody and placed in a specialised detention facility at the Moscow Clinical Hospital no. 20 owing to a provisional diagnosis of acute myocardial infarction, arterial hypertension and an exacerbating duodenal ulcer. He stayed there until 20 November 2001, following which he was transferred to a remand prison. The attending doctor found the applicant fit to participate in the investigative actions. 11. In the meantime, on 8 October 2001 the investigation was completed and the applicant was informed that he could start to examine the case file. 12. On the same date the applicant brought an application for release. He argued that there was no indication that he would abscond or otherwise obstruct the administration of justice: the applicant had no criminal record; he had a family, a permanent job and a permanent place of residence, and he suffered from a number of chronic cardiovascular and surgical diseases; the choice of a custodial measure had thus not been justified. 13. On 24 October 2001 the Moscow Babushkinskiy District Court examined the applicant’s arguments with references to his medical documents, documents attesting to his family situation, his positive references from work, and the arguments by the investigator to the effect that the applicant had ignored the investigator’s summonses to appear on 22 and 25 July, 13 and 14 August and 24 September 2001 without giving reasons, that he had often been several hours late to appear before the investigator, that he could appear for fifteen minutes and then leave saying that nobody could tell him when to come and when to leave, and that throughout the summer, in the eyes of the investigator, the applicant had been out of contact. Having considered the reasons which prompted the choice of preventive measure, in particular, the seriousness of the charges against the applicant and his conduct during the pre-trial investigation, the District Court held that there were no grounds for releasing the applicant. 14. On 20 November 2001 the Moscow City Court upheld the above decision on appeal. 15. On 22 November 2001, 21 January and 9 April 2002 the Deputy Prosecutor General extended the applicant’s detention until 28 January, 28 April and 28 June 2002 respectively. 16. Meanwhile, on 15 January 2002 the forensic medical expert did not confirm the applicant’s medical diagnosis. 17. On 20 June 2002 the criminal case against the applicant was submitted to the Moscow Presnenskiy District Court for trial. 18. The Moscow Presnenskiy District Court repeatedly extended the applicant’s detention pending trial. Such extensions were granted upon the prosecutor’s request on 16 December 2002, 19 March, 23 June, 24 September, 23 December 2003 and 24 March 2004. On each occasion the District Court referred to the seriousness of the charges against the applicant and the risk of his absconding or otherwise obstructing justice, and the absence of grounds for changing the preventive measure imposed. Those decisions were upheld on appeal by the Moscow City Court on 21 January, 27 May, an unknown date and 3 December 2003, 23 March and 29 April 2004 respectively. 19. On 26 May 2004 the Moscow Presnenskiy District Court sitting in a bench composed of Judge F. (presiding judge), Ms Kh. and Ms Shch. (lay judges) convicted the applicant of fraud and sentenced him to seven years and six months’ imprisonment. The court further held that the civil claim against the applicant, as well as the question of lifting the restriction imposed on the applicant’s property, should be referred for consideration within the framework of the civil procedure. 20. The applicant appealed. He complained that, inter alia, the judgment had been given by a court whose composition had not been in accordance with law. In particular, he referred to the fact that the lay judges who participated in the examination of his case had at the same time been examining a criminal case against a certain Mr Tver. He also complained that the trial court had read out the testimonies of the majority of the witnesses for the prosecution, including testimonies by key prosecution witnesses, and had thus deprived him of the possibility of cross-examining them. This was despite the absence of any exceptional circumstances which had prevented the court from securing their attendance at the court hearing. 21. On 17 August 2004 the Moscow City Court reduced the sentence to six years and upheld the rest of the judgment on appeal. In reply to the applicant’s argument regarding the alleged unlawfulness of the composition of the trial court, the City Court held that the composition of the court had remained unchanged throughout the trial in accordance with Article 242 of the Code of Criminal Procedure, and that the participation of lay judges, who had also been involved in the examination of another case, had had no legal consequences and had not amounted to a violation of the law. The City Court further held that the reading out of the testimonies of certain witnesses had been carried out by the trial court on the request of the prosecutor and in compliance with the requirements of Article 281 of the Code of Criminal Procedure. 22. On 30 December 2004 the Presidium of the Moscow City Court, by way of supervisory review, modified the charges the applicant had been convicted on and reduced his sentence to five years six months’ imprisonment. 23. On 9 March 2005 the Sukhinichskiy District Court, Kaluga Region, ordered the applicant’s conditional early release. | 1 |
test | 001-168852 | ENG | ARM | CHAMBER | 2,016 | CASE OF MURADYAN v. ARMENIA | 3 | Remainder inadmissible (Article 35-3 - Manifestly ill-founded);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);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Mirjana Lazarova Trajkovska;Pauliine Koskelo | 5. The applicant was born in 1956 and lives in Baghramyan village. 6. On 26 June 2001 Suren Muradyan was drafted into the Armenian army and assigned to military unit no. 59703 of the Nagorno Karabakh Armed Forces (hereafter, the military unit) situated in the unrecognised Nagorno Karabakh Republic (hereafter, Nagorno Karabakh). During his service he also participated in the activities of the music squad as a trumpet player. 7. From 24 or 25 July 2002 Suren Muradyan started to feel unwell. His temperature occasionally rose to 40oC, he shivered and had headaches, and suffered from nausea and loss of appetite. 8. It appears that on the next day Suren Muradyan, who remained in the barracks throughout this period, was visited by the head of the military unit’s medical service, A.H. (hereafter, military unit doctor A.H.). The outcome of this visit is unclear. It further appears that on 27 July 2002, when Suren Muradyan’s condition worsened, his fellow servicemen once again called A.H., who at the time was at the aid post. He refused to visit, telling them that Suren Muradyan should come to the aid post himself. 9. It further appears that later Suren Muradyan was visited by the head of the military unit’s aid post, S.G. (hereafter, military unit doctor S.G.), who apparently administered anti-fever pills and gave some injections. Suren Muradyan was apparently diagnosed as having “acute respiratory illness”. 10. Throughout this entire period only two entries were made in Suren Muradyan’s personal medical file kept at the military unit’s aid post, on 29 July and 1 August 2002, according to which Suren Muradyan was suffering from general asthenia, loss of appetite, body aches, muscle pain and high fever. Anti-fever medicine was prescribed, such as analgin and paracetamol. 11. On 3 August 2002 at 6.30 p.m. Suren Muradyan, whose condition had deteriorated, was taken to the military hospital of Mekhakavan (Nagorno Karabakh) by military unit doctor S.G. At the time of admission Suren Muradyan complained of general asthenia, nausea, fever and shivering. As a preliminary diagnosis “malaria” was indicated. The acting head of the infection unit of the hospital, I.M. (hereafter, hospital doctor I.M.), was assigned as his doctor in charge. 12. At 6.45 p.m. Suren Muradyan underwent a preliminary examination. His temperature was 38.5oC and his general condition was considered to be of medium gravity. He believed himself to have been ill for the past week with periodic rises of temperature and shivering fits. His lungs were checked and abdomen palpated. Upon palpation, the left side of his abdomen caused him pain, while the right side caused only light pain. In conclusion it was noted that Suren Muradyan was to undergo close observation of his temperature and a parasitological examination, taking into account that he was serving in a malaria hotbed and had preliminary clinical signs of malaria. Anti-fever medicine and vitamins were prescribed and he was put on a drip. 13. On 4 August 2002 at 11 a.m. Suren Muradyan’s general condition was considered relatively satisfactory and his temperature was 37.2oC. He had no shivering fits. 14. At 3.30 p.m. Suren Muradyan started shivering and his temperature rose to 39.8oC. A general blood test and a parasitological examination were assigned, and a blood sample was taken for examination. 15. At 7.40 p.m. Suren Muradyan’s condition worsened. He was conscious and agitated. He vomited, complained of nausea and abdominal pains and was pale and breathing heavily. According to the medical orderly, Suren Muradyan fell down after returning from the lavatory. While being examined, he lost consciousness and his pulse disappeared. A resuscitation specialist was urgently called. 16. At 7.45 p.m. the resuscitation specialist registered Suren Muradyan’s clinical death and started resuscitation therapy. 17. At 9.15 p.m., after the resuscitation therapy proved ineffective, Suren Muradyan’s biological death was registered. According to the results of the parasitological test, which became known on the same day, no trace of malaria was discovered in Suren Muradyan’s blood sample. 18. On 5 August 2002 investigator G. of the Hadrut Garrison Military Prosecutor’s Office of Nagorno Karabakh ordered a post-mortem examination of Suren Muradyan’s body to be conducted by a forensic medical expert in Yerevan, Armenia. The expert was asked to determine the time and cause of death, the existence of any external injuries, their nature, method of infliction and possible link with the death. The abovementioned blood sample was also presented to the expert for a malaria test. 19. On the same day the investigator conducted an external examination of Suren Muradyan’s body. He then took a statement from a senior nurse from the hospital reception who submitted that Suren Muradyan, upon his arrival at the hospital, was feeling so unwell that he could hardly speak and asked to lie down. After he told hospital doctor I.M. that he had been feeling this way for the last eight days, I.M. angrily asked military unit doctor S.G., who had accompanied Suren Muradyan to the hospital, why he had been brought to the hospital so belatedly. The nurse further confirmed that Suren Muradyan had been brought to the hospital with suspected malaria. 20. On 6 August 2002 forensic medical expert M.B. started the postmortem examination, including an autopsy, of Suren Muradyan’s body and on the same day sent a telegram to investigator G., saying that Suren Muradyan had died as a result of acute internal bleeding caused by a ruptured spleen resulting from an internal blunt injury to the left side of the abdomen involving old and new bruises. 21. On the same day the investigator decided, taking into account that Suren Muradyan had been subjected to ill-treatment, to institute criminal proceedings no. 91204602 under Article 105 § 2 of the old Criminal Code of Armenia (intentional infliction of grave bodily harm resulting in the victim’s death). 22. On 7 August 2002 at least six servicemen of the military unit were questioned as witnesses. According to their statements, on 21 July 2002 a group of servicemen of the military unit, including Suren Muradyan, had been taken to the town of Martuni (Nagorno Karabakh) in order to participate in a comedy contest organised between teams from different military units. The group was accompanied by lieutenant V.G. and captain D.H. (hereafter, officers V.G. and D.H.). After the contest, the servicemen had been taken to a post office, outside which an argument had erupted between officers V.G. and D.H. on one side and Suren Muradyan on the other. Officer V.G. claimed that a watch that Suren Muradyan was wearing belonged to him and had been lost some days before, during a table tennis match. Officers V.G. and D.H. had both started swearing at Suren Muradyan. Officer V.G. had then grabbed Suren Muradyan’s hand and removed the watch. Suren Muradyan had explained that he had borrowed the watch from a fellow serviceman, whose name he did not know, to wear at the comedy contest. Officers V.G. and D.H. did not believe him and gave him a deadline to reveal the identity of that person. They further claimed that a second watch had been lost and ordered Suren Muradyan to find and bring it within the same deadline. Officer D.H. had threatened that, if he failed to do so, he would get into trouble. After the incident the group had walked to the bus to return to the military unit. Suren Muradyan and officers V.G. and D.H. had walked apart, calmly discussing something. In reply to the investigator’s question, the servicemen stated that neither V.G. nor D.H. had hit Suren Muradyan during the argument. They further stated that they had heard later from Suren Muradyan that during the following days he had been taken on several occasions by officers V.G. and D.H. to the office of lieutenant colonel K.Z., the acting commander of the military unit, who was also its deputy commander (hereafter, officer K.Z.). There he had been given a deadline to comply with their demands. Officer K.Z. had threatened that, if he failed to do so, he would get into trouble and would be punished. From 24-25 July 2002 Suren Muradyan had started to feel unwell and stayed in bed. A couple of times he had been visited by military unit doctors A.H. and S.G. On 2 August a group of servicemen of the military unit had travelled to the town of Stepanakert (Nagorno Karabakh) to participate in another round of the contest. Suren Muradyan had gone along but could not participate as he felt very unwell. The group had returned to the military unit from Stepanakert late at night and on the following day Suren Muradyan had been taken to hospital. In reply to the investigator’s question, the servicemen stated that they were unaware if Suren Muradyan had been beaten or had been involved in a fight. 23. On the same date two other servicemen of the military unit, K.E. and G.M., were questioned. Serviceman K.E. stated that he had been present during the table tennis match in question, while serviceman G.M. stated that he was the person who had lent the watch to Suren Muradyan. On 23 or 24 July 2002 (according to serviceman G.M.) or 25 July 2002 (according to serviceman K.E.) all three of them had been taken several times by officers V.G. and D.H. to officer K.Z.’s office in the headquarters, where they were asked about the watches. There they had been given a deadline until 6 p.m. to find and bring the second watch. When they had returned at 6 p.m., Suren Muradyan and serviceman K.E. had been ordered to enter first, while serviceman G.M. had entered after they went out. According to serviceman G.M., they had been given two more days, while according to serviceman K.E., they had been given until Saturday (27 July) morning to find the second watch. Serviceman K.E. further stated that on 27 July he had been temporarily transferred to a different location for works and was no longer involved in this story. He added that when he and Suren Muradyan had been together in the office nobody had touched them. 24. On 9 and 10 August 2002 respectively the investigator took statements from officers D.H. and V.G. in their capacity of witnesses, who recounted the events that had taken place on 21 July 2002 in Martuni, including the argument between them and Suren Muradyan near the post office. Officer V.G. stated, inter alia, that Suren Muradyan had voluntarily removed and handed the watch to him. Officer D.H. stated, inter alia, that he had met Suren Muradyan on the next morning in front of the headquarters and had given him a three-day deadline to find and bring the second watch. Both officers further stated that following the expiry of the three-day deadline they had taken Suren Muradyan and serviceman K.E. to the office of officer K.Z. who had had a talk with them in private. No questions were posed by the investigator to officer D.H., while officer V.G. was asked several questions about the argument of 21 July 2002. Officer V.G. admitted swearing at Suren Muradyan, as well as briefly shaking and pulling on his hand, but denied hitting him and could not remember whether he or officer D.H. had slapped him. 25. On 11 August 2002 the investigator questioned officer D.H. as a witness, posing a number of questions about the argument of 21 July 2002. The investigator further asked for information on the follow-up meetings, to which officer D.H. confirmed his earlier statement, adding that he had not heard any noise coming from officer K.Z.’s office while waiting outside. 26. On the same date serviceman K.E. was questioned again. He added to his previous statement that officer K.Z. had sworn at them but had not hit them, when he and Suren Muradyan were in his office. 27. On 12 August 2002 officers D.H. and V.G. were questioned again and asked further questions about the argument of 21 July 2002. Officer D.H. was further asked, inter alia, whether he had had personal motives in summoning Suren Muradyan so often to the headquarters, as well as why no entry had been made in Suren Muradyan’s medical file until 3 August 2002, if he had asked for medical help already on 25 July 2002. 28. On 17 August 2002 the investigator took a statement from officer K.Z. in his capacity as a witness. Officer K.Z. confirmed that he had summoned Suren Muradyan and serviceman K.E. to his office for a talk in connection with the lost watches. During their talk Suren Muradyan had been allowed to go and fetch serviceman G.M. He had then had a talk with all three of them, releasing G.M. first and ordering the other two to find and bring the second watch. Officer K.Z. further stated that on 29 July 2002 he had again summoned Suren Muradyan and serviceman K.E. but the latter had come alone since Suren Muradyan was unwell. He had then ordered serviceman K.E. to fetch Suren Muradyan. When the latter came, he had asked what was wrong with him and why he was staying in the barracks, to which Suren Muradyan had replied that he had a fever and was taking treatment prescribed by the doctor. He had then given them one week to find the second watch. The investigator posed two questions to officer K.Z.: (a) whether he had beaten, slapped or sworn at Suren Muradyan or serviceman K.E. when they were in his office, which officer K.Z. denied, and (b) whether he was alone when he met with them, to which officer K.Z. replied that he had met them only in his office. 29. On 2 September 2002 the applicant was granted victim status. 30. On 11 September 2002 the post-mortem examination was completed and its results were sent to the Hadrut Garrison Military Prosecutor’s Office. The relevant parts of forensic medical expert M.B.’s conclusions read as follows: “External examination of the corpse. ... Injuries: There is an abrasion measuring 0.8 x 0.6 cm on the right side of the forehead, which is located lower than the surrounding skin and has a dark red surface. ... Internal examination of the corpse. ... In the thickness of the muscles in the area of the left side of the abdomen, in the projection of the spleen, bruising measuring 10 x 9 cm was discovered... The blood sample taken from Suren Muradyan at the hospital was sent to the Ministry of Defence of Armenia and the National Security Service of Armenia for a bacteriological examination... The following reply, dated 21 August 2002, was received from military unit no. 74252 of the Ministry of Defence of Armenia on 28 August 2002 ... ‘three-day-old malaria agents ... were found as a result of a bacteriological examination under a microscope slide of Suren Muradyan’s blood smear taken at the hospital’. According to the results of the forensic histological examination ... dated 11 September 2002 ... ‘Forensic histological conclusion: ... old and new bruises to soft tissues in the area of the left side of the abdomen; internal bruising of the spleen’. Forensic medical diagnosis. A closed blunt injury to the abdomen, old and new bruises to soft tissues and muscles in the area of the left side of the abdomen, enlarged spleen..., spleen rupture and bruising, ... Acute internal bleeding. Malaria. An abrasion on the right side of the forehead... Conclusions. ... 2. Suren Muradyan’s death was caused by acute internal bleeding resulting from the rupture of the deformed and enlarged spleen, accompanied by a closed and diffuse abdominal injury and by old and new bruises in the area of the left side of the abdomen. 3. The following injuries were identified as a result of the forensic medical examination of Suren Muradyan’s corpse: old and new bruises to soft tissues and muscles in the area of the left side of the abdomen, spleen rupture and bruising ... [and] an abrasion on the right side of the forehead. ... Of the above-mentioned bodily injuries the old and new bruises to soft tissues and muscles in the area of the left side of the abdomen [and] spleen rupture and bruising ... were inflicted by blunt objects or tools having a limited surface; judging by the nature of the old and new bruises to soft tissues and muscles in the area of the left side of the abdomen it can be said that the old bruises are more than about 8-10 days old, while the new bruising is about 1-2 days old. The closed and diffuse abdominal injury accompanied by spleen rupture and acute internal bleeding is considered a grave bodily injury posing threat to life and has a direct causal link with [Suren Muradyan’s] death. The abrasion on the right side of the forehead was inflicted while alive by a blunt object having a limited surface and is considered a minor bodily injury... 4. As indicated above, the death occurred more than 8-10 days after the infliction of the main injuries (the above-mentioned old bruising in the area of the left side of the abdomen, in all probability accompanied by an initial sub-capsular rupture of the spleen and absorbent haemorrhage). As regards the abrasion on the right side of the forehead and the new bruise, these were inflicted 1-2 days before death. ... 12. It follows from the reply received from Laboratory no. 3 of the Ministry of Defence of Armenia that three-day-old malaria agents were discovered in the blood sample [taken from Suren Muradyan at the military hospital]. 13. ... A. Suren Muradyan’s spleen was enlarged and deformed as a result of malaria. B. C. As indicated above, the initial closed and blunt abdominal injury, accompanied by the old bruising in the area of the left side of the abdomen, in all probability led to the sub-capsular rupture of the spleen with concentration of blood, which is also indirectly evidenced by the absorbent haemorrhage in the spleen disclosed by the forensic histological examination; the spleen capsule erupted as a result of the increase in concentration of blood in the following days, which led to acute bleeding. This process may last days but it is impossible to determine the exact number of days. D. It appears from the medical file that on 4 August 2002 at 7.40 p.m. Suren Muradyan fell down in the hospital’s lavatory; taking into account the abovementioned circumstances concerning the spleen rupture and acute internal bleeding, the spleen rupture could not have been caused by the fall in the hospital’s lavatory.” 31. On 12 September 2002 officers V.G. and D.H. were arrested under Article 251 of the old Criminal Code of Armenia (insult of a subordinate by a violent act by a superior). 32. On 13 September 2002 they were charged under the same Article and were detained. This decision stated that on 21 July 2002 at around 6.30 p.m. near Martuni post office, officers V.G. and D.H., being public officials and suspecting Suren Muradyan of theft, instead of applying disciplinary sanctions, attacked him in front of about fifteen servicemen by swearing at him, thereby humiliating him. It further stated that officer V.G., having pulled at Suren Muradyan, caused him physical pain. 33. On 14 September 2002 officers V.G. and D.H. were questioned as suspects and both confirmed that on 21 July 2002 they had pulled and sworn at Suren Muradyan near the Martuni post office. They were asked questions about the swear words used. 34. On 25 September 2002 investigator G. decided to assign a panel forensic medical examination in order to determine the scope of responsibility of the military unit and the hospital doctors for Suren Muradyan’s death, including the timeliness and accuracy of the diagnosis and the treatment provided, the timeliness of his transfer to hospital and whether they could have detected the injuries revealed by the post-mortem examination. This decision stated, inter alia, that on 21 July 2002 Suren Muradyan had had an argument with two officers of the military unit, V.G. and D.H., after which, starting from 24 July, his health had deteriorated. 35. On 6 October 2002 a serviceman of the military unit’s music squad was questioned. He stated that Suren Muradyan had had no arguments or scuffles with anybody. On the way back from Martuni, Suren Muradyan had told him that he had got into trouble because of this watch and that “now they would frame him”. However, Suren Muradyan had never told him or others that he had been ill-treated, even in reply to a direct question following his visit to officer K.Z.’s office. The serviceman confirmed that Suren Muradyan had started to feel unwell from 24 July 2002. He further stated that he and others had wiped sweat from Suren Muradyan’s forehead, belly, back and legs during his illness but had not noticed any traces of injuries. On the second day of his illness, military unit doctor A.H. had come to visit him and concluded that he had caught cold. Several days later military unit doctor S.G. had come, said that Suren Muradyan had flu and given him some pills. On the last days Suren Muradyan had been very ill: he had lost a lot of weight and staggered when walking, so they had to accompany him to the toilets. 36. On 6 November 2002 the experts conducting the panel forensic medical examination produced their opinion. According to its conclusions, it had been possible for the doctors of the military unit not to discover the injuries which led to Suren Muradyan’s death since there were no visible traces of injuries on the surface of the skin. The enlarged spleen might have been caused by malaria and the injury sustained by Suren Muradyan might have brought about the sub-capsular bleeding which later led to a ruptured spleen and acute internal bleeding. Referring to the fact that no malaria agents were discovered in Suren Muradyan’s blood sample by the parasitological examination of 4 August 2002, the experts attributed this to the fact that agents could be detected at the stage of the disease when the sick person experiences shivering and fever accompanied by high temperature. The opinion lastly stated that, given that no malaria agents had been discovered, not specific but symptomatic treatment had to be prescribed, and in fact had been provided in full. 37. On 7 November 2002 serviceman G.M. was questioned again and stated that both Suren Muradyan and serviceman K.E. had denied having been beaten or sworn at during their first visit to officer K.Z.’s office. When he and Suren Muradyan visited the office the next morning, officer K.Z. had said to him “Why did you enter? You go out, you have received your punishment”. In reply to the investigator’s question, serviceman G.M. stated that he had not noticed any bruises or signs of pain on Suren Muradyan when he came out of the office five minutes later. He could not say what officer K.Z. meant by his statement and whether it meant that now it was Suren Muradyan’s turn to be punished. 38. On 2 December 2002 the applicant lodged a complaint with the Military Prosecutor of Armenia, arguing in detail that his son had died as a result of a beating by officers V.G., D.H., K.Z. and another officer, B., as well as the failure of the doctors of the military unit, S.G. and A.H., to provide medical assistance. He claimed that serviceman G.M. had admitted during questioning, in his presence, that he had been badly ill-treated by officer K.Z. in his office. Suren Muradyan had been next to enter that office, alone, and the following morning he had been so unwell in bed that he was not able to return to officer K.Z.’s office. The applicant alleged that the beating which resulted in Suren Muradyan’s ruptured spleen and subsequent death had taken place at that moment. He further claimed that the doctors had intentionally refused to provide medical assistance and to transfer Suren Muradyan to hospital in order to cover up the abuse. The applicant requested the Military Prosecutor to identify those responsible for his son’s death. 39. On 10 December 2002 investigator G. decided to order an additional forensic medical examination. In addition to the questions asked earlier, the experts were requested to determine whether the military unit and the hospital doctors could have detected the spleen enlargement and what they were supposed to do if it had been detected, as well as whether Suren Muradyan’s spleen could have ruptured earlier and been followed by slow bleeding. 40. On 11 December 2002 the forensic medical experts produced an additional opinion. According to its conclusions, since on 29 July 2002 Suren Muradyan had not complained of abdominal pains, the doctors of the military unit had no reason to suspect malaria and diagnosed his condition as an acute respiratory illness. The opinion further stated that usually a doctor was obliged to deliver a diagnosis after having carefully examined the patient. Suren Muradyan’s medical file contained his complaints but no indication of results of any such examination. If on 29 July 2002 Suren Muradyan’s spleen had already been enlarged, it would have been possible to detect this through palpation and to transfer him to hospital. The same was possible at the hospital. As regards the sub-capsular rupture of the spleen, it was almost impossible to detect. Had the spleen rupture been detected and the spleen removed by surgery, Suren Muradyan’s life could have been saved. Lastly, the injuries discovered by the post-mortem examination were not detected by the doctors since there were no visible traces of injuries on the outer part of the skin. 41. On 15 December 2002 a serviceman, K.B., who had been undergoing treatment at the hospital when Suren Muradyan was admitted, was questioned. He stated that he had become acquainted with Suren Muradyan upon the latter’s admission to hospital. Suren Muradyan had looked very ill and told him that he had spent the last eight days in the barracks. K.B. further stated that he had not noticed any bruises on Suren Muradyan’s forehead or any fights or arguments during his two-day stay in hospital. 42. On 4 February 2003 the criminal case against officers V.G. and D.H. concerning the charges of insult was disjoined from the main criminal proceedings concerning Suren Muradyan’s death since there was no causal link between the two. A new number was assigned to the disjoined case (no. 91200703). 43. During the investigation a number of other unrelated offences committed by officers V.G. and D.H. were revealed. As regards, in particular, officer D.H., the investigation revealed that in April 2002 he had kicked a soldier for sleeping on watch duty and broken the soldier’s arm. Officer D.H. was charged with inflicting bodily injuries. 44. On 28 February 2003 the bill of indictment concerning the disjoined case was submitted to the Syunik Regional Court. 45. By a letter of 19 March 2003 the Minister of Defence of Nagorno Karabakh filed a motion with the Syunik Regional Court requesting that a non-custodial sentence be imposed on officer D.H. and that he stay under the control of the military unit command, taking into account his long and diligent service in the armed forces, the report/request of the command of formation no. 42009 and the fact that he regretted his actions and that his actions posed no danger to society. 46. On 12 April 2003 forensic medical expert M.B. was questioned. He confirmed that Suren Muradyan had already been ill with malaria when he sustained the old bruises in the area of the left side of the abdomen. He stated that the fact that Suren Muradyan was ill might have accelerated the transformation of the sub-capsular rupture into a full rupture and internal bleeding. However, even a healthy spleen could suffer a sub-capsular rupture from a blow, later leading to a full rupture. The transformation of the sub-capsular rupture into full rupture could happen with or without external influence. The expert lastly confirmed that the new bruises found on Suren Muradyan’s body and the abrasion to the left side of his forehead could have been caused by his falling on the hospital floor not long before his death. 47. On 18 April 2003 serviceman G.M. was questioned again and confirmed that no sound of blows or other loud noise could be heard when he had waited for Suren Muradyan outside the office. Later he had heard rumours that Suren Muradyan had been beaten by officers V.G. and D.H. Serviceman G.M. further explained that he had inquired with Suren Muradyan and serviceman K.E. whether they had been beaten, because officer K.Z. had hit him a few times while in the office. He lastly requested that no criminal proceedings be brought against officer K.Z. because he had hit him just two or three times on his buttocks. 48. On 24 April 2003 the applicant contacted the investigating authority, willing to provide additional information. On the next day he was questioned and stated that in October-November 2002 he had heard from a former colleague of his, who in mid-August 2002 had visited a relative serving in the same military unit, that he had heard one of the officers saying that a serviceman matching Suren Muradyan’s description had recently died as a result of a beating by officer V.G. 49. On 26 April 2003 both the former colleague and his relative serving in the military unit were questioned and confirmed this information but could not remember the name of the officer in question. On 4 October 2003 the former colleague’s relative was once again questioned and stated that the officer’s name was V.M. 50. On 27 April 2003 several more persons were questioned, including military unit doctors S.G. and A.H., hospital doctor I.M., and an orderly of the hospital, H.G. 51. Military unit doctor S.G. stated, inter alia, that a few months before, during a conversation with serviceman G.M., he had asked the latter to confirm the rumours that Suren Muradyan had been beaten by officers V.G. and D.H., to which serviceman G.M. replied that he was not aware of that. S.G. was further asked questions regarding the medical assistance provided to Suren Muradyan at the military unit. 52. Military unit doctor A.H. claimed that he had also examined Suren Muradyan once, including palpating his abdomen, but no abnormalities were found or bruises and injuries revealed. He was further asked to explain as to why he had refused to visit Suren Muradyan after being called by the latter’s fellow serviceman. 53. Hospital doctor I.M. stated that it was he who had initially diagnosed Suren Muradyan as having malaria, because of the symptoms and the fact that he was serving in a malaria hotbed. Suren Muradyan had not told him, except on the day he died, that he had been beaten or that he had fallen, and since there were no symptoms he did not put such questions to the patient. However, on the last day, when he rushed to provide medical aid to Suren Muradyan, the latter, when asked what had happened, told him “I have pain in my belly, I feel very ill, I fell not long ago in the ward”. 54. Hospital orderly H.G. stated that on 4 August 2002 at 7 p.m. Suren Muradyan had told him that shortly before he had felt giddy and fallen down. About half an hour later he had called a doctor because Suren Muradyan’s condition had worsened and then, after Suren Muradyan lost consciousness, he summoned the resuscitation specialist, who came and started resuscitation procedures. 55. On an unspecified date the court proceedings into the disjoined criminal case against officers V.G. and D.H. on account of insult commenced at the Syunik Regional Court of Armenia, sitting in Stepanakert (Nagorno Karabakh). It appears that officer V.G. pleaded guilty and admitted that he had sworn at and pushed Suren Muradyan and pulled the watch off his wrist, but said that he had not hit him. 56. On 5 May 2003 the Syunik Regional Court found officers V.G. and D.H. guilty as charged and sentenced them to one year’s imprisonment. 57. On 2 June 2003 officer V.G. was released on parole. 58. On 10 July 2003 the investigation into Suren Muradyan’s death (criminal case no. 91204602) was taken over by the Military Prosecutor’s Office of Armenia and assigned to investigator H. 59. On 12 September 2003 the applicant lodged a complaint with the Military Prosecutor’s Office of Armenia, claiming that the investigation was flawed and had failed to reveal those responsible for his son’s death, despite the fact that there was sufficient evidence that he had died as a result of illtreatment by the three officers, V.G., D.H. and K.Z. 60. On 1 October 2003 military unit doctor A.H. was questioned again and confirmed his earlier statement (see paragraph 52 above). 61. On 6 October 2003 serviceman G.M. was questioned again and added to his previous statements that on the day of their first visit to officer K.Z.’s office, K.Z. had hit him two or three times with a wooden pole on his buttocks when he was alone in his office. 62. On 11 November 2003 a confrontation was held between serviceman K.E. and another serviceman, during which K.E. stated that on the day of their first visit to officer K.Z.’s office they had also gone to officer D.H.’s office where the latter had started screaming at them because of the stolen watch. Officer K.Z. also threatened to undress them in front of the entire battalion if they failed to find the second watch. 63. On 5 December 2003 serviceman G.M. was questioned again and described in greater detail how officer K.Z. had taken a wooden pole from behind a safe, told him to lean against the wall and hit him three times on his buttocks. 64. On 14 April 2004 officer V.G. was questioned and stated that he had not provided the full story in his previous testimony and that during the argument between him and Suren Muradyan on 21 July 2002 he had grabbed the latter’s left wrist with his right hand and started shaking it briskly, during which Suren Muradyan’s fist had touched the left side of his abdomen in the area of the spleen. Being very angry, he had not noticed whether Suren Muradyan’s facial expression had changed as a result of the blow, but he had not displayed any unusual movements or convulsions. Officer V.G. further denied hitting Suren Muradyan. 65. On 19 April 2004 the investigator questioned two of the servicemen, A.P. and D.M., who had previously testified on 7 August 2002 and asked them to describe how officer V.G. had pulled on Suren Muradyan’s hand on 21 July 2002. According to A.P., officer V.G. had grabbed Suren Muradyan’s left forearm, while according to D.M. – the left wrist, and had pulled forcefully. Suren Muradyan had tried unsuccessfully to free his arm. When he was pulling back his arm, officer V.G.’s hand was also being pulled back with it. Officer V.G. had then removed the watch with his other hand, while still holding on to Suren Muradyan with his right hand. 66. On 2 August 2004 the applicant was questioned and stated that some days earlier he had bumped into a number of servicemen who had told him about the circumstances of Suren Muradyan’s murder and the identities of those who had ill-treated him. According to them, Suren Muradyan had told them that he had been summoned to the headquarters where he had been badly beaten by officers V.G., D.H. and K.Z., as a result of which he had lost consciousness and been taken back to the barracks by couriers. The applicant requested that these allegations be investigated. 67. On 9 August 2004 the Military Prosecutor of Armenia addressed a letter to the Head of the National Security Service of Nagorno Karabakh, informing him of the applicant’s allegations and requesting that those circumstances be clarified. 68. On 17 and 19 August 2004 the investigator questioned officers D.H. and V.G. respectively. Both denied the above allegations. Officer V.G. added that the only time that there had been any use of force in respect of Suren Muradyan was during the incident of 21 July 2002, when he had shaken Suren Muradyan’s hand briskly, during which his hand had touched Suren Muradyan’s abdomen. In reply to the investigator’s question as to why he had earlier stated that it had been Suren Muradyan’s hand that touched the abdomen while now he was stating that it had been his hand, officer V.G. stated that, since he was holding Suren Muradyan’s hand in his hand, both his and Suren Muradyan’s hands had touched the abdomen. 69. On 2 September 2004 the investigator decided to assign an additional panel forensic medical examination and pose further questions to the medical experts, taking into account that it had been established that during the argument of 21 July 2002 officer V.G. had accidentally hit Suren Muradyan in the left side of the abdomen. It had been further established that on 4 August 2002 Suren Muradyan had fallen at the hospital, with his left hand under his belly. 70. On 16 September 2004 forensic medical expert M.B. was questioned again. He stated that the sub-capsular rupture and the bruising to the soft tissues had been caused by direct contact with a blunt object. If, during that blow, officer V.G. had held in his hand the deceased’s forearm or part of his wrist, those parts must have touched the front wall of the deceased’s abdomen during the blow, while the injuries, namely the rupture and the bruising to the soft tissues of the abdominal area, were caused by direct contact with officer V.G.’s fist; contact between the deceased’s wrist or forearm with that area could not have caused the sub-capsular rupture. If the deceased’s wrist or forearm or fist touched the abdomen, then officer V.G.’s fist must have undoubtedly touched the front wall of the abdomen. 71. On 12 October 2004 the panel of experts produced their opinion in reply to the questions posed by the investigator’s decision of 2 September 2004. As regards the responsibility of the military unit and the hospital doctors, the experts found that they had failed to reach a timely and accurate diagnosis and to provide adequate medical treatment. The opinion further included, inter alia, the following questions and answers: (1) Question: what impact could the blow sustained by Suren Muradyan during the argument of 21 July 2002 have had on his health? Could it have caused spleen rupture, internal bruising and subsequently death? Answer: as a result of the blow sustained during the argument of 21 July 2002, Suren Muradyan sustained bruises to muscles and a sub-capsular rupture of his spleen which later led to his death. (2) Question: was he ill with malaria on 21 July 2002 and why were no malaria agents found in his blood sample at the military hospital, if threeday-old malaria agents were found in the same sample following a later test? Answer: on 21 July 2002 Suren Muradyan was suffering from malaria. (3) Question: what impact would the above-mentioned blow have had on his health if he had not been ill with malaria? Answer: depending on the strength, location and nature of the blow, it was possible not to sustain a sub-capsular rupture, but even a light blow could cause spleen rupture to an unhealthy and deformed spleen. (4) Question: could he have sustained bruises to soft tissues in the area of the left side of his abdomen by falling at the hospital on 4 August 2002? Answer: the new bruising to soft tissues in the area of the left side of Suren Muradyan’s abdomen could have been caused by his fall at the hospital. (5) Question: exactly when did his spleen rupture occur, and would his life have been unequivocally saved, if diagnosis had been made in a timely manner? Answer: the sub-capsular rupture of Suren Muradyan’s spleen occurred on 21 July 2002, while the second rupture occurred on 4 August 2002 at 7.10 p.m., as a result of which he most likely lost consciousness and fell down. Had the internal bleeding been diagnosed in a timely manner, it might have been possible to save Suren Muradyan’s life. 72. On 21 October 2004 forensic medical expert K.H., who had contributed to the opinions of 6 November and 11 December 2002 and 12 October 2004, was questioned. Asked about the discrepancies between the findings in those opinions, expert K.H. stated that it must have been an automatic mistake and admitted that she had not read one of the opinions before signing it. She further stated that the reason why no trace of malaria had been discovered at the Mekhakavan hospital could have been due to lack of proper equipment. She lastly stated that an enlarged spleen in a person suffering from malaria would become hard and filled with blood, the capsule would be strained and become more sensitive. Even a light blow might cause a sub-capsular rupture. 73. On 4 November 2004 hospital doctor I.M. was questioned and added to his previous statement that the pain upon palpation of Suren Muradyan’s abdomen made him suspect that it was connected with malaria. In reply to the investigator’s question as to why he had not administered anti-malaria treatment if he had been convinced of that diagnosis, I.M. replied that he had had to wait for the result of the parasitological test. Furthermore, often an initial negative result of such test did not mean that a patient had no malaria and this could be confirmed only after a third negative result. 74. On 5 November 2004 the forensic medical expert who had presided over the panel which had produced the opinion of 12 October 2004 was questioned and confirmed the responsibility of both the military unit and the hospital doctors. 75. On the same date the Head of the National Security Service of Nagorno Karabakh sent a letter, marked “secret”, to the Military Prosecutor of Armenia. The relevant parts of the letter read as follows: 76. On 15 November 2004 the Minister of Defence of Nagorno Karabakh filed a motion with the Military Prosecutor of Armenia, asking for officer K.Z. not to be prosecuted, taking into account his positive characteristics, his impeccable service in the armed forces and his active participation in the struggle for the existence of Nagorno Karabakh, as well as the report/request of the command of formation no. 42009. 77. On 17 November 2004 charges were brought against hospital doctor I.M. under Article 375 § 2 of the new Criminal Code of Armenia (abuse of authority or public position, accidentally resulting in grave consequences) on the ground that he had failed to provide adequate treatment to Suren Muradyan. 78. On 19 November 2004 the Military Prosecutor of Armenia lodged an application with the Court of Cassation seeking to re-open the proceedings concerning the criminal case against officer V.G. on the basis of a newly established circumstance. The Military Prosecutor submitted that all possible hypotheses had been verified and it had been established that, apart from the incident of 21 July 2002, Suren Muradyan had no other conflicts and had good relations with fellow servicemen and officers. It followed from the statements made by officer V.G. on 14 April and 19 August 2004, in which he admitted that during the incident of 21 July 2002 both his and Suren Muradyan’s hands had touched the left side of the victim’s body, that the sub-capsular rupture of Suren Muradyan’s spleen was a result of that incident. 79. On the same date the applicant lodged a challenge with the General Prosecutor’s Office against the Military Prosecutor and other employees of the Military Prosecutor’s Office, arguing in detail that they had failed to conduct an adequate investigation into his son’s death. 80. On 18 and 29 November 2004 charges were brought against military unit doctors A.H. and S.G. under Article 375 § 2 of the new Criminal Code of Armenia. 81. On 24 November 2004 the Senior Assistant to the General Prosecutor decided to dismiss the applicant’s challenge of 19 November 2004. This decision stated, inter alia: “On 10 July 2003 the criminal case [concerning Suren Muradyan’s death] was transferred from the Hadrut Garrison Military Prosecutor’s Office to the investigative division of the Military Prosecutor’s Office of Armenia, where following an investigation it was disclosed that from 22 to 25 July 2002 [officers D.H. and V.G.] had on several occasions summoned [Suren Muradyan] to the headquarters of the military unit, demanded the lost watch and, having received no positive reply, had taken him to [the acting commander of the military unit, K.Z.], who in his office had hit [Suren Muradyan], as well as serviceman [K.E.], who had been called to the office in connection with the same matter, with a wooden pole. According to the materials of the case, a number of witnesses testified that during the argument of 21 July 2002 nobody had hit [Suren Muradyan]. In the course of additional questioning [officer V.G.] alleged that during the argument of 21 July 2002 he, infuriated by [Suren Muradyan’s] behaviour, had grabbed his hand and shaken it briskly, during which his hand had touched [Suren Muradyan] in the area of the spleen.” The decision further referred to the expert opinion of 12 October 2004 and specifically its finding that Suren Muradyan had sustained bruises to muscles and a sub-capsular rupture of his spleen as a result of the blow sustained during the argument of 21 July 2002. The Senior Assistant to the General Prosecutor concluded that the arguments raised by the applicant had been examined in the course of a thorough and objective investigation by the Military Prosecutor’s Office and his challenge was therefore unfounded. 82. On 10 December 2004 the Court of Cassation quashed the judgment of the Syunik Regional Court of 5 May 2003 in its part concerning officer V.G. (see paragraph 56 above) and remitted the case for further investigation. 83. On 14 December 2004 the investigator, finding that there were discrepancies between previous expert opinions, and also upon the request of one of the accused, namely military hospital doctor I.M., decided to assign a new panel forensic medical examination. 84. On 24 December 2004 the criminal case against officer V.G. on charges of insult was re-joined to the main criminal proceedings concerning Suren Muradyan’s death. 85. On 28 December 2004 new charges were brought against officer V.G. under Article 375 § 2 (abuse of authority or public position, accidentally resulting in grave consequences). It appears that he was detained on the same day. 86. On 25 January 2005 the panel of experts produced their opinion in reply to the questions posed by the investigator’s decision of 14 December 2004, confirming their earlier findings regarding the responsibility of the military unit and the hospital doctors. The opinion also included, inter alia, the following question and answer: Question: what was the intensity of the blow sustained by Suren Muradyan, considering that it caused bruising of deep muscles? Answer: it was impossible to determine the exact intensity of the blow in the absence of relevant medical criteria, although it could be asserted that the blow had been of certain intensity. 87. On 18 February 2005 the applicant lodged a complaint with the General Prosecutor’s Office similar to that of 12 September 2003. He also offered to bring witnesses who, according to him, could tell the truth, namely that on 24 July 2002 his son had been beaten by officers V.G., D.H. and K.Z., as a result of which he had suffered the fatal injury. The witnesses could further confirm that his son had lost consciousness and that military unit doctor A.H. had provided first aid and was therefore aware of the illtreatment. 88. On 21 and 22 February and 5 and 10 March 2005 the investigator posed a number of questions, suggested by the applicant, to the four forensic medical experts who had produced the opinion of 25 January 2005. Three of the experts were unable to answer the applicant’s question about whether it was possible for his son, who on 21 July 2002 had allegedly been ill with malaria and had an enlarged spleen, not to complain, have fever or shiver and to feel well. The fourth expert stated that his son might have experienced dull pain. In reply to the applicant’s question about whether it was possible for his son, whose spleen was enlarged and already ruptured, not to complain for three days of any pain, to feel healthy, participate in exercises and to play the trumpet, two of the experts were unable to provide an answer, the third expert stated that it was only a sub-capsular rupture and not a full one, and the fourth expert stated that it was possible for him not to complain if the sub-capsular rupture had been small, and possible to complain if had been big. In reply to the applicant’s question about how his son would have reacted (screaming, losing consciousness, and so on) when he sustained the injury resulting in extensive bruising and a sub-capsular spleen rupture, three of the experts stated that different people felt and expressed pain differently. The fourth expert stated that it was equally possible for him to feel or not to feel pain. One of the experts also added that it was only a subcapsular rupture and the spleen was not a painful organ. In reply to the applicant’s question about whether the bruising would have been visible from the outside, one expert referred to the findings in the opinion, two experts said “not necessarily”, while the fourth expert stated that it would have been visible, although external bruises healed faster than internal ones. In reply to the applicant’s question concerning the responsibility of the military hospital doctor, all experts stated that the doctor had no reason to suspect internal bleeding because the patient had failed to inform him about the injury, there were no visible external traces and the clinical signs were similar to those of malaria. The hospital doctor had carried out all the examinations and tests which he was obliged to in such circumstances. The applicant alleged that each time the investigator had posed this question to an expert, he would first invite him to leave the room. The answers given to this question by all four experts in his absence were almost identical. 89. On 25 March 2005 the investigator decided to discontinue criminal proceedings against military hospital doctor I.M. for lack of corpus delicti, finding that I.M. had carried out all possible examinations which he was able and obliged to perform in the circumstances. This conclusion was reached on the basis of the above statements of the four forensic medical experts. 90. On 29 March 2005 the Military Prosecutor of Armenia decided not to prosecute officer K.Z. for beating serviceman G.M. This decision stated that officer K.Z., suspecting Suren Muradyan and serviceman K.E. of lying about the lost watch, had started swearing at them and demanding that they find it. Thereafter he had ordered them to leave his office and called serviceman G.M. When the latter had told the same story as the two other servicemen, officer K.Z. had become furious, started swearing and ordered serviceman G.M. to turn towards the wall, whereupon he had taken a 120 cm long pole and twice hit serviceman G.M. on his buttocks. Serviceman G.M. had started crying and after leaving the office he had asked Suren Muradyan and serviceman K.E. whether they had also been beaten, to which both of them replied “no”. The decision concluded that it was not necessary to prosecute officer K.Z. because he had no criminal record, was known to be of good character and regretted his actions. The motion of the Ministry of Defence of Nagorno Karabakh asking not to prosecute him was also taken into account. 91. On an unspecified date the applicant submitted to the investigating authority a photograph of his son allegedly performing on stage at the comedy contest in Stepanakert on 2 August 2002, arguing that this proved that his son was not yet that ill on that day. The version that his son felt ill and could not perform had been made up on purpose in order to justify the deterioration of his condition and his transfer to hospital. In reality, upon arriving at the military unit from Stepanakert, he had once again been beaten by the officers on the night from 2 to 3 August 2002, which had caused the spleen rupture. This was also confirmed by the new bruising to soft tissues in the area of the left side of the abdomen revealed during the autopsy. 92. On 15 April 2005 the bill of indictment was finalised and on 16 April 2005 approved by the Military Prosecutor of Armenia. Its relevant parts stated as follows: “A number of hypotheses have been checked in the course of the investigation, which have been investigated in an objective manner. Thus, because of a watch found on [Suren Muradyan’s] wrist [officers D.H. and V.G.] invited him to the headquarters on several occasions and presented him to the acting commander of the military unit, [K.Z.], who in an attempt to clarify the above-mentioned question, subjected to beating [serviceman G.M. He] did not, however, beat or hit [Suren Muradyan]. ... It has been confirmed by the investigation that on 21 July 2002, as [officer V.G.] noticed on Suren Muradyan’s wrist his younger brother’s stolen watch, he argued with him, grabbed his hand, started swearing and shook it briskly, during which he hit Suren Muradyan’s abdomen resulting in a sub-capsular rupture of his spleen. Thereafter from 24 July 2002 Suren Muradyan’s health started to deteriorate while in the military unit. On 25 July 2002 Suren Muradyan was visited by [military unit doctor A.H.,] who failed to diagnose Suren Muradyan’s real illness and to make any entries [in the registers] and, having given several paracetamol pills, left. When on 27 July 2002 [A.H.] was called to provide medical assistance to Suren Muradyan, he refused to come and provide assistance and said that the patient should be brought to the aid post. Thereafter Suren Muradyan’s fellow servicemen called [military unit doctor S.G.]. The latter came, also failed to diagnose Suren Muradyan’s real illness and, having given some anti-fever injections and several paracetamol pills, left. Hence, Suren Muradyan remained ill in the military unit until 3 August 2002, which was also in violation of Order no. 586 of the Minister of Defence of 29 May 2000, namely Suren Muradyan was transferred to hospital later than the prescribed 7 days, as a result of which it was impossible to save [his] life. During the investigation at his additional questioning as a witness on 14 April and 19 August 2004 [officer V.G.] regretted his actions and stated that he had not provided the full story in his previous statements and added that during the incident of 21 July 2002 both his and Suren Muradyan’s hands had hit the left side of the latter’s abdomen. ... The investigation carried out has confirmed that the sub-capsular rupture of Suren Muradyan’s spleen resulted from [officer V.G.’s] actions during the incident of 21 July 2002.” 93. All three defendants, namely military officer V.G. and military unit doctors A.H. and S.G., were accused under Article 375 § 2 of the CC in connection with the above acts. 94. On 21 December 2005 the Syunik Regional Court, sitting in the town of Goris (Armenia), found officer V.G. guilty as charged and sentenced him to five years’ imprisonment, minus the one year and twentyfour days already spent in detention, finding it to be confirmed that on 21 July 2002 officer V.G., during an argument with Suren Muradyan about a stolen watch, shook briskly Suren Muradyan’s hand, and in doing so his hand touched the left side of Suren Muradyan’s abdomen causing a subcapsular rupture of the spleen. As regards military unit doctors A.H. and S.G., the Regional Court re-qualified the charges from Article 375 § 2 to Article 376 § 2 of the CC (official negligence resulting in grave consequences) and, applying Article 64 of the CC, sentenced each of them to a fine of 200,000 Armenian drams (AMD). The Regional Court also granted the civil claim lodged by the applicant and ordered officer V.G. to pay 1,000 United States dollars (USD) and military unit doctors A.H. and S.G. to pay AMD 200,000 each as reimbursement of funeral costs and legal costs incurred by the applicant. 95. On 4 January 2006 the applicant lodged an appeal. He argued in detail that there was sufficient evidence suggesting that his son had been harassed by a number of high-ranking officers, including V.G., D.H. and K.Z., in the period between 21 and 24 July 2002 and that the fatal injury had been inflicted by them on 24 July. The applicant referred, in particular, to a witness statement by his son’s fellow serviceman, according to which his son had woken up in the night of 24 July and complained that he was feeling ill. The same followed from the findings of the post-mortem examination, according to which the initial bruising had been inflicted 8-10 days before death. Furthermore, 24 July was the last day of the deadline fixed by the officers. The investigating authority was deliberately ignoring this evidence and had failed to clarify what had happened on that day, while the proceedings had been perfunctory and not objective and aimed to lead the case into an impasse and not to punish the murderers. The applicant further referred to the fact that serviceman G.M. had admitted that he had been ill-treated by officer K.Z. in his office. It followed from the decision of the General Prosecutor’s Office of 24 November 2004 that the same had happened to his son. The accused, officer V.G., had also admitted in court that he had been outside officer K.Z.’s office when the latter ill-treated Suren Muradyan and that he had heard him scream. Furthermore, no explanation had been given for the second bruising and abrasion on the forehead sustained by his son 1-2 days before his death. The applicant further complained that the Regional Court had failed to clarify what was meant by the “well-known beating of Suren Muradyan” referred to in the letter of the Head of the National Security Service of Nagorno Karabakh, as well as the circumstances and perpetrators of this beating. Lastly, as regards the military unit doctors, the applicant complained that the requalification of the charge had been inaccurate and the sentence imposed too lenient. 96. Appeals against the judgment of 21 December 2005 were lodged also by officer V.G. and the Prosecutor, who sought harsher penalties. 97. On 20 March 2006 the Criminal Court of Appeal commenced the appeal proceedings. Officer V.G. admitted before the Court of Appeal that either his or Suren Muradyan’s hand had possibly touched the latter’s abdomen during the argument of 21 July 2002, but argued that Suren Muradyan’s spleen could not have ruptured as a result of that contact. 98. In the course of the proceedings, upon the applicant’s request, two witnesses, serviceman K.B. (see paragraph 41 above) and hospital orderly H.G. (see paragraph 54 above), were summoned and examined in court. K.B. stated that Suren Muradyan had told him at the hospital that he had been called to the headquarters by officer D.H. on the day when the latter was on duty and beaten by him, officers V.G. and K.Z. and another officer, N., because of the watch. The officers had pushed him to the ground and started kicking him, while officer K.Z. hit him with a wooden pole. They had demanded that he bring the watch or its value in cash. The most active beaters were officers V.G. and K.Z. He had been beaten so badly that the headquarters couriers had had to carry him back to the barracks. On the next day he was called again by officer K.Z. He had been unable to go but K.Z. had insisted. Thereafter he had remained in the barracks for eight days. H.G. stated that upon admission to hospital Suren Muradyan was very agitated and kept uttering swear words directed at officers V.G., D.H. and K.Z. He then said that he had been beaten by officers V.G. and K.Z. Both K.B. and H.G. stated that they had been afraid to tell the truth at their questioning during the investigation as they had been military servicemen at that time. They had been demobilised now, had nothing to be afraid of and were telling the truth. K.B. added that Suren Muradyan had asked him not to tell this to anyone in order not to get into trouble. 99. Officer K.Z. was also summoned and examined in court. He denied having ill-treated Suren Muradyan, but admitted that he had hit serviceman G.M. for having stolen the first watch. 100. The Court of Appeal sent an inquiry to the National Security Service of Nagorno Karabakh asking for clarification of the content of the letter of 5 November 2004. 101. By a letter of 27 April 2006 the Head of the National Security Service of Nagorno Karabakh informed the court that the expression “wellknown beating” had been used merely as a brief description of the incident and had no other meaning. 102. The applicant submitted once again before the Court of Appeal that his son had died as a result of ill-treatment by officers V.G., D.H. and K.Z., while the military unit doctors had failed to provide adequate medical assistance. 103. On 20 June 2006 the Criminal Court of Appeal delivered its judgment, upholding that of the Regional Court in its part concerning the guilt of officer V.G. and military unit doctors A.H. and S.G. However, it decided to modify the penalty in respect of A.H. and S.G., imposing a suspended sentence of three and a half and three years’ imprisonment respectively, with two years’ and one and a half years’ probation period respectively. The Court of Appeal decided also to modify the judgment in its part concerning the applicant’s civil claim, by annulling the award of AMD 200,000 to be paid by both A.H. and S.G., on the ground that they had already paid those amounts to the applicant voluntarily. 104. As regards the statements of former servicemen K.B. and H.G., as well as the applicant’s arguments, the Court of Appeal found that these were not sufficient grounds for bringing harsher charges against officer V.G. or for remitting the case for further investigation with the aim of bringing criminal proceedings against officers D.H. and K.Z. Firstly, the court was required by law to examine the case only in respect of the accused and within the scope of the charge against him. Secondly, the law prescribed only two grounds for remitting a case for further investigation, namely (1) if the investigating authority had committed a substantial violation of procedural law or (2) upon the Prosecutor’s request, if there were grounds for harsher prosecution or prosecution on a different factual basis. No such request had been filed by the Prosecutor, while the investigating authority had carried out a thorough, full and objective investigation by examining a number of hypotheses, none of which confirmed that Suren Muradyan had been ill-treated. The Court of Appeal further noted that both K.B. and H.G. had been questioned on numerous occasions during the investigation but had never made such statements in the past. Moreover, they cited as their source of information the late Suren Muradyan. The Court of Appeal lastly referred to the letter of the Head of the National Security Service of Nagorno Karabakh of 27 April 2006. 105. On 29 June 2006 the applicant lodged an appeal on points of law, raising similar arguments. 106. The Prosecutor also lodged an appeal on points of law, seeking that the case be remitted for fresh examination in its part concerning the military unit doctors on the ground that the sentence imposed was too lenient. 107. On 4 August 2006 the Court of Cassation decided to dismiss the applicant’s appeal and to grant that of the Prosecutor, finding that the sentence imposed on military unit doctors A.H. and S.G. had not been proportionate to the gravity of the offence and remitting that part of the case for fresh examination. 108. On 15 September 2006 the applicant received a copy of this decision. 109. On 26 September 2006 the Criminal Court of Appeal examined the case anew in its part concerning military unit doctors A.H. and S.G. and decided to sentence them to four years and three and a half years’ imprisonment respectively. At the same time the Court of Appeal decided to grant amnesty and to release them from serving their sentence. | 1 |
test | 001-158490 | ENG | AZE | CHAMBER | 2,015 | CASE OF SAKIT ZAHIDOV v. AZERBAIJAN | 3 | Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska | 5. The applicant was born in 1959 and lives in Belgium. 6. He was an independent journalist, satirist and poet who at the relevant time was working for the Azadliq newspaper. 7. At around 5 p.m. on 23 June 2006 the applicant met a friend at the Gozel Mekan café in Baku where they had a meal. At 7 p.m. they left and the applicant took a taxi home. 8. Shortly after the taxi moved off, it was stopped by four plain-clothes agents of the NDMIA. Without showing themselves, they dragged the applicant into a Jeep. He was not informed of the reasons for his arrest. After his arrest they restrained his hands and only after some time, when the vehicle was moving, did they inform him that they were police officers. 9. According to the applicant, as he was in shock during his arrest, he did not immediately notice that the officers had planted some drugs on him. However, he later realised that one of the officers, A.A., had slipped narcotic substances into his pocket, taking advantage of the fact that the other officers had restrained his hands. 10. The applicant was taken to the NDMIA, where a search was conducted. According to record no. 94 on carrying out operational measures and the seizure of physical evidence (əməliyyat tədbirinin keçirilməsi və maddi sübutun götürülməsi barədə protokol), it was carried out at 7.20 p.m. on 23 June 2006 in the presence of the applicant, some police officers and two attesting witnesses. It appears from the record that the applicant was not represented by a lawyer. During the search, 9.264 grams of a substance similar to heroin was found in his left trouser pocket. He signed the record to say that he drank alcohol, but did not use or sell drugs. He further indicated that the drugs found did not belong to him, but that he could not explain where they had come from. Moreover, it appears from record no. 95 in the case file that the search was filmed. Despite the Court’s explicit request to the Government to submit a copy of the video-recording, they did not do so. 11. Following the search, at around 7.45 p.m., the applicant was taken to the Republic Narcotics Clinic, where he underwent a urine test to determine his state of intoxication. According to him, the urine test was also a drugs test and after examination the doctor, R.M., stated that he was in a state of intoxication but was not a drug user. Record no. 1/4104 was compiled the same day containing details of the urine test. Despite the Court’s explicit request to the Government to submit copies of all documents relating to the proceedings in question, the Government failed to provide the Court with a copy of the record in question. 12. The Government did not submit any comments in respect of the applicant’s version of events. 13. It appears, however, from police report no. 922 dated 23 June 2006 submitted by the Government that on that date an operation was planned for the applicant’s arrest on the basis of operational information (əməliyyat məlumatları) suggesting that an individual named Sakit was a drug dealer and had been involved in drug dealing near the Gozel Mekan café. It was also noted in the report that he had obtained drugs from A., who lived in Veravul, a village in the Lankaran region. 14. It further transpires from the documents submitted by the Government that at 10.55 p.m. on 23 June 2006 a police investigator drew up an official record of the applicant’s arrest (cinayət törətməkdə şübhəli şəxsin tutulması haqqında protokol). The relevant part of the record reads as follows: “Reason for arrest: In accordance with Article 148 of the Code of Criminal Procedure of the Republic of Azerbaijan. 9.264 grams of heroin, which constitutes a large quantity of narcotic substances and shows the commission of the criminal offence provided for by law, were found on Zahidov Sakit Salim oglu’s person and clothes.” The record was drawn up without a lawyer present and was signed by the applicant and the investigator. 15. On 23 June 2006 a police investigator instituted criminal proceedings against the applicant under Article 234.4.3 (illegal preparation, production, possession, storage, transportation and sale of a large quantity of narcotic substances) of the Criminal Code. The decision relied on the fact that following a search that day 9.264 grams of heroin had been found on him. 16. At 11 p.m. on 23 June 2006 the investigator questioned the applicant as a suspect in the presence of his lawyer. It appears from the record of the questioning that in reply to the question regarding where, when and why he had obtained the heroin found on him, the applicant answered that he did not know when or where the drugs in question had been planted in his pocket. In reply to another question regarding whether he sold drugs, the applicant stated that it could be seen from his examination by the doctor that he did not use or sell drugs. 17. On 23 June 2006 the investigator separately questioned two attesting witnesses who had participated in the search. Their statements were identical in their wording. They stated that they had seen the drugs found in the left trouser pocket of the applicant, who had stated after the search that the drugs did not belong to him. 18. On the same day the investigator separately questioned four police officers who had participated in the arrest and search. Their statements were identical in their wording. They stated that they had received operational information that some drug dealers had been operating near the Gozel Mekan café, so they had gone to the area to determine who they were. Once they arrived, they stopped a taxi because an individual, who appeared to be in a state of intoxication and had caught their attention by his suspicious behaviour, had just taken the taxi in question. This individual, whose identity was later established, was then taken to the NDMIA where the drugs were found on him. 19. On 24 June 2006 the applicant was charged with illegal possession of a large quantity of narcotic substances with intent to sell under Article 234.4.3 of the Criminal Code. On the same day a judge of the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor’s request to apply the preventive measure of remand in custody, ordered his detention for a period of three months. 20. On 30 June 2006 the Court of Appeal upheld the detention order of 24 June 2006. 21. On an unspecified date in June 2006 (the date of the record of the questioning is illegible) the applicant was questioned by the investigator as an accused in the presence of his lawyer. He maintained his initial statement, pointing out that the drugs did not belong to him and had been planted. 22. On 1 July 2006 the investigator ordered a forensic medical examination to establish whether the applicant was a drug addict. On the same day the investigator also ordered a forensic chemical examination of the drugs found on him. 23. On 5 July 2006 experts issued an opinion (no. 1026) concerning the forensic medical examination. The part concerning drug use by the applicant reads as follows: “[The applicant] denies that he uses narcotic substances. He denies that the...heroin found in his trouser pocket and seized belongs to him. He does not give complete information about his history of drug use. He tries to hide his abuse of narcotic substances. During the examination no signs of obvious abstinence were revealed. He has developed an initial pathological tendency (ilkin patoloji meyl) towards narcotic substances. A psychological dependence on the use of narcotic substances is observed. A physical dependence on the use of narcotic substances is not currently observed. He denies taking narcotic substances by injection.” The conclusion of the opinion reads as follows: “During the examination it was established that Zahidov Sakit Salim oglu suffers from drug addiction at the initial stage (başlanğıc mərhələli narkomaniya xəstəliyi). This is confirmed by there being an initial pathological tendency towards narcotic substances, the results of the objective examination and the material of the criminal case. Taking into consideration that there are currently no signs of abstinence or drug intoxication and the fact that he has criticised himself for his situation, there is no need for his compulsory drug intoxication. It is advisable to register him at the local narcotics clinic.” The opinion was established on the basis of the applicant’s “general features”, without a blood or urine sample being taken. 24. On 5 July 2006 the chemical expert issued opinion no. 6930 finding that 9.228 grams of yellow sandy matter submitted for examination was home-made heroin. 25. On 22 July 2006 the applicant and his lawyer were provided with a copy of the forensic medical opinion of 5 July 2006. The applicant immediately complained to the investigator in charge of the case, contesting its conclusions. He asked the investigator to order a “commission forensic examination”, indicating that he was not suffering from drug addiction. He further complained that the drugs found on him had been planted during his arrest by officer A.A., who had taken advantage of the fact that the other police officers had restrained his hands. 26. On 24 July 2006 the investigator dismissed his complaint, indicating that there were no grounds to doubt the conclusions of the forensic medical opinion. As to the allegation that the drugs had been planted by the police, the investigator found it unsubstantiated, indicating that the applicant had not made any such statement when questioned after his arrest. 27. On 29 July 2006 the investigator issued a bill of indictment under Article 234.4.3 of the Criminal Code and filed it with the Assize Court. 28. In the course of the proceedings before the Assize Court the applicant claimed that he was innocent, insisting that the criminal case against him had been fabricated because of his journalistic and political activity, and that the drugs had been planted on him by the police officers. In this connection, he firstly submitted that the search of his person had not been carried out immediately after his arrest in the presence of the taxi driver or other individuals present at the place of his arrest, but at the NDMIA. He further submitted that the police had failed to search the taxi in which he had been arrested. However, if he had really had the drugs in his pocket, he would have thrown them into the taxi before his arrest. The police had not carried out a “real” search and had only found the drugs they had planted on him, otherwise they would have also searched the taxi. Moreover, they had failed to take its number plate and identify the driver. The applicant also pointed out that the identity of A., from whom he had allegedly obtained the drugs, had never been established by the investigation. Lastly, he submitted that in any event the drugs found on him could not be used in the proceedings because they had been obtained in breach of the relevant procedural requirements. In particular, he pointed out that Articles 207.4 and 217.1 of the Code of Criminal Procedure did not allow investigating authorities to carry out any investigative measures except an examination of the scene of the incident before the institution of criminal proceedings. However, in the present case a search of the applicant was carried out before the adoption of the investigator’s decision in that regard. 29. At the hearing, the Assize Court heard the police officers who had carried out the arrest and search of the applicant. They confirmed their statements made during the investigation. Moreover, officer A.A. stated that he had not planted anything on the applicant, and that the applicant had lied about this. 30. On 4 October 2006 the Assize Court, having reclassified the criminal charges, found the applicant guilty under Article 234.1 of the Criminal Code (illegal possession of a quantity of narcotic substances exceeding that necessary for personal use without intent to sell), and sentenced him to three years’ imprisonment. The part of the judgment concerning his conviction reads as follows: “It appears from opinion no. 1026 dated 05.07.2006 of the forensic narcotics examination that it was established during the examination that Zahidov Sakit Salim oglu suffers from drug addiction at the initial stage. This is confirmed by there being an initial pathological tendency towards narcotic substances, the results of the objective examination and the material of the criminal case. Taking into consideration that there are currently no signs of abstinence or drug intoxication and the fact that he has criticised himself for his situation, there is no need for his compulsory drug intoxication. It is advisable to register him at the local narcotics clinic. The above-mentioned opinion was confirmed at the court hearing by addiction specialist I.F. from the Republic Narcotics Clinic, who was heard as an additional witness. It appears from forensic opinion no. 6930 dated 05.07.2006 ... that 9.228 grams of yellow sandy matter rolled in cigarette paper submitted for examination in an envelope was home-made...heroin. The accused S. Zahidov’s commission of the above-mentioned criminal offence was therefore fully proved in court. [His] statement that the narcotic substances found on him had been planted in his pocket by the police is defensive in nature and was not confirmed during the court examination. The court notes that the investigating authority accused S. Zahidov under Article 234.4.3 of the Criminal Code, indicating in the bill of indictment that [he had] obtained the 9.264 grams of heroin found on him, which constituted a large quantity of narcotic substances with intent to sell. The investigating authority’s conclusion was not proved at the court hearing. In fact, when charging S. Zahidov with this criminal offence, [it] relied on the fact that the 9.264 grams of heroin found on him constituted a large quantity of narcotic substances and considered this as illegal possession with intent to sell, but failed to collect any evidence proving the intent to sell or to refer to such evidence in the bill of indictment. However, it does not transpire from the material of the case file or the statements of the persons heard in court that S. Zahidov obtained these narcotic substances with intent to sell. The individual to whom S. Zahidov would sell the narcotic substances was not identified during the investigation or court examination. The statements of the police officers involved in the operation made during the investigation and before the court – that they had information that S. Zahidov had obtained the narcotic substances with intent to sell – are not supported by any plausible evidence. Moreover, the fact that the narcotic substance was in the same fold and undivided also confirms that it had not been prepared for sale. The accusation that S. Zahidov had been in possession of the drug with intent to sell was formed by the investigating authority on the basis of speculation and could not constitute the basis of the judgment.” The judgment made no mention of the applicant’s specific complaints concerning the conditions in which the search had been carried out or the lawfulness of the use of evidence obtained in those circumstances against him. 31. On an unspecified date the applicant appealed, claiming that he was innocent. He alleged, in particular, that the criminal case against him had been fabricated, and that the drugs had been planted on him by the police. In this connection, he reiterated that the agents of the NDMIA had failed to conduct a body search immediately after his arrest, and that the search had been carried out in breach of the relevant procedural requirements. Moreover, they had failed to search the taxi in which he had been arrested. He further complained that the forensic medical examination of 5 July 2006, which had been based on his “general features” and carried out without taking a blood sample from him, could not be considered an expert opinion. In this connection, he also submitted that it had been established in the urine test carried out immediately after his arrest that he was not a drug user. He further asked the court to examine the video-recording of his body search. 32. On 15 December 2006 the Court of Appeal upheld the first-instance court’s judgment. The relevant part of the appellate court’s judgment reads as follows: “The panel of the court considers that the actions of Zahidov Sakit Salim were correctly classified by the court under Article 234.1 of the Criminal Code of the Republic of Azerbaijan, and that he was sentenced to a punishment within the authorised limits of the Article [of the Criminal Code]of which he was accused. As the arguments raised in the appeal were examined in the descriptive part of the judgment and were not confirmed, the panel of the court does not see any reason to grant the appeal.” The Court of Appeal was silent as to the applicant’s specific complaints concerning the narcotic substances being planted on him by the police, the conditions in which the search had been carried out, the lawfulness of the use of evidence obtained in those circumstances against him, the examination of the video-recording of the search, and the reliability of the forensic medical opinion of 5 July 2006. 33. On 24 April 2007 the Supreme Court upheld the Court of Appeal’s judgment of 15 December 2006. 34. On 9 April 2009 the applicant was released from prison under an amnesty law adopted by the Milli Mejlis (Parliament) on 17 March 2009. 35. The applicant’s arrest and the institution of criminal proceedings against him attracted significant public and media interest both nationally and internationally. 36. The relevant part of Resolution 1614 (2008) “The Functioning of Democratic Institutions in Azerbaijan”, adopted on 24 June 2008 by the Parliamentary Assembly of the Council of Europe, reads: “16. In view of the above, the Assembly recalls its Resolution 1545 (2007) and urges the Azerbaijani authorities to implement a number of measures without further delay... 22. As regards the follow-up to the issue of alleged political prisoners, the Assembly: ... 22.3 condemns the lack of transparency and fairness in the relevant investigations and court proceedings and demands the immediate release of imprisoned opposition journalists ... Sakit Zahidov ...” | 1 |
test | 001-152647 | ENG | DEU | CHAMBER | 2,015 | CASE OF BOHLEN v. GERMANY | 3 | Remainder inadmissible;No violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life) | Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger | 6. The applicant was born in 1954 and lives in Rosengarten. He is a musician and an artistic producer. 7. In autumn 2003 the applicant published a book entitled “Backstage” (Hinter den Kulissen). A number of passages in the book had to be redacted because of a series of urgent judicial proceedings which had been brought against him. 8. On 27 October 2003 a tobacco company, British American Tobacco (Germany) GmbH (“the company”), launched an advertisement showing two packets of Lucky Strike cigarettes in the foreground. There was a lit cigarette on top of one of the packets, with a thick black marker pen leaning against the other packet. The following text appeared at the top of the advertisement in large lettering: “Look, dear Dieter, how easy it is to write super books.” (“Schau mal, lieber Dieter, so einfach schreibt man super Bücher.”) The words “dear” (“lieber”), “easy” (“einfach”) and “super” (“super”) were blacked out but were still legible. At the bottom of the advertisement was the phrase “Lucky Strike. Nothing else.” (“Lucky Strike. Sonst nichts.”) 9. The full-page advertisement was published in the 17 October 2003 issues of the weekly magazine Der Spiegel and the popular national daily newspaper Bild, with a circulation of 1.42 million and 4.67 million respectively. It was part of an advertising campaign run by the company for the Lucky Strike brand; the campaign, launched in 1989, ran until September 2004 with more than 500 variants, showing one or more packets of cigarettes with a humorous slogan which often referred to a current event and the individual involved in that event. 10. At the applicant’s request the company gave a written undertaking to refrain from further publication of the advertisement in question with its heading referring to him, but refused to pay him the sum of 70,000 euros (EUR) which he had demanded for a “notional licence” (fiktive Lizenz). 11. The applicant applied to the Hamburg Regional Court for an order requiring the company to pay him EUR 100,000 for a notional licence. 12. On 3 September 2004 the Regional Court allowed the applicant’s application. It first of all noted that the use of the forename Dieter in the impugned advertisement was clearly a reference to the applicant’s name. It further noted that although the forename Dieter was very common and several well-known public figures shared it, the advertisement was obviously referring to the applicant in view of its other component elements. The Regional Court observed that the company’s advertising campaign regularly alluded to current events and the persons involved in them. It noted that there was no indication that at the time the advertisement had been published, another individual also called Dieter, like the applicant, had published a book that had had certain passages censored following court injunctions, or that any other book had prompted as much public debate upon publication as the applicant’s book had. 13. The Regional Court added that the company was entitled to rely on the right to freedom of expression as safeguarded by Article 5 § 1 of the Basic Law (see “Relevant domestic law and practice” below), a right that also extended to commercial advertising provided that its content contributed to shaping public opinion. In the court’s view, that applied to the impugned advertisement, which had commented humorously on the publication of the applicant’s book and had apparently advised him on how to write “super books” by striking through certain passages before publication. Given that the company had in this way called for the contents of a book to be properly checked prior to publication, the advertisement had, in the Regional Court’s view, raised a matter of public interest. 14. The Regional Court then pointed out that both the right to freedom of expression and the right to protection of personality rights were protected under the Basic Law and that, in principle, they deserved equal respect. Where a person was used for advertising purposes without his or her consent, the right to protection of personality rights prevailed as a general rule. As everyone had the right to decide whether or not to allow his or her name to be used for advertising purposes, personality rights protected individuals against the unlawful use by third parties of their names in the context of advertising. Inasmuch as the company had argued that the applicant had himself caused the event to which the advertisement referred, that fact was not capable of depriving the applicant of protection, but it could result in a lesser degree of interference and a higher level of protection of freedom of expression. 15. The Regional Court held that when balancing the competing interests in the case, more weight was to be attached to the protection of the applicant’s personality rights than to the company’s right to freedom of expression. It noted in particular that the advertisement had primarily pursued commercial aims, that is to say increasing the sales of a cigarette brand, and that it had above all been intended to entertain the public, without providing any real contribution to shaping public opinion. Lastly, it noted that neither the content of the advertisement (Aussagegehalt) nor the applicant himself had any direct link with the product advertised. It concluded that the applicant was entitled to claim compensation for exploitation of his fame for commercial purposes, having regard, inter alia, to the judicial decisions given in cases concerning a tennis player (Boris Becker) and a politician (Oskar Lafontaine). 16. The Regional Court further held that the damage suffered by the applicant corresponded to what the company and the applicant would reasonably have agreed on as the cost of the licence if a contract had been signed. The purpose of a notional licence was to ensure that anyone using someone else’s personality without permission would not be in a more advantageous position than if he or she had obtained the person’s consent. The Regional Court explained that the cost of such a licence should be freely determined on the basis of all the relevant circumstances, including the following criteria: the person’s fame and brand image (Imagewert), the attention attracted by the advertisement, the extent of its distribution and the role assigned to the person in the advertisement. Applying those criteria and taking account of the amounts awarded in similar cases concerning persons as well known as the applicant had been at the time of publication of the advertisement relating to them (see paragraph 14 above), the Regional Court considered it appropriate to award the applicant EUR 100,000. To that end it took into consideration the fact that the advertisement mocking the applicant had taken up a full page in publications such as Der Spiegel magazine, and had been seen by more than six million readers. However, it also had regard to the fact that the advertisement had included neither a picture of the applicant nor his surname, so that a number of people would have been unable to make a connection between the advertisement and the applicant. 17. On 29 November 2005 the Hamburg Court of Appeal upheld the findings of the Regional Court as to the existence of unlawful interference and the outcome of the balancing exercise between the competing rights, while pointing out that the fact that the company had used the applicant’s forename for commercial purposes, in order to increase sales of its cigarettes, meant that the protection of the applicant’s personality rights prevailed from the outset. However, it reduced the fee to be paid for the notional licence in accordance with the principle of unjust enrichment to EUR 35,000. The advertisement had not been designed to debase the applicant and, on account of its humorous approach had not had any negative impact on him. Moreover, in publishing his book the applicant had deliberately sought the limelight. The Court of Appeal concluded that there had been an unlawful interference with the applicant’s right to protection of his personality rights, adding that no other conclusion could be reached from the standpoint of the right to freedom of expression in artistic matters, on which the company had relied. 18. As regards pecuniary damage, the Court of Appeal noted that the peculiar aspect of the case was that the impugned advertisement had, in a humorous manner, used only part of the applicant’s name without his consent, and that it had only been published once in two periodicals. Endorsing the findings of the expert whom it had commissioned to assess the damage suffered by the applicant, it deemed it appropriate to set the amount of damages at EUR 35,000. 19. The Court of Appeal did not grant leave to appeal on points of law, holding that the case was not of fundamental importance, given that a decision was not required from the Federal Court of Justice in the interests of either the development of the law or consistency in its application. 20. The company applied for leave to appeal on points of law. On 26 October 2006 the Federal Court of Justice granted the application. 21. In a judgment of 5 June 2008 (no. I ZR 223/05) the Federal Court of Justice quashed the Court of Appeal’s judgment. It held that the applicant’s claim was ill-founded because the company had not unlawfully interfered with his right to protection of personality rights or his right to his name, given that the use of his name in the impugned advertisement was covered by freedom of expression as guaranteed by Article 5 § 1 of the Basic Law. While upholding the findings of the Court of Appeal as regards the existence of an interference and the possibility of granting a notional licence in accordance with the principle of unjust enrichment, the Federal Court of Justice held that the Court of Appeal had not had sufficient regard to the fact that the pecuniary components of the right to protection of personality rights and the right to one’s name were only protected by ordinary law, whereas freedom of expression enjoyed protection under constitutional law. 22. The Federal Court of Justice explained at the outset that the case before it related solely to interference with the pecuniary components of the rights relied upon, since no infringement of the non-pecuniary components of those rights had been alleged. It pointed out that the rights to protection of personality rights were among the fundamental rights safeguarded by the Basic Law to the extent that they protected non-pecuniary interests, but that the pecuniary components were only protected by civil law and therefore did not prevail over freedom of expression. The Federal Court also observed that the protection conferred by Article 5 § 1 of the Basic Law also covered advertising whose content contributed to shaping public opinion, while specifying that that was not only the case where the advertisement referred to a political or historical event, but also where it dealt with questions of general interest. Furthermore, reports with an entertainment purpose could also play a role in shaping public opinion, or indeed, in certain circumstances, could stimulate or influence the shaping of public opinion more effectively than strictly factual information. 23. The Federal Court of Justice noted that the impugned advertisement referred humorously to the fact that the applicant had published a book. It considered that even though the company had merely referred to that event as part of an advertising campaign, it could still rely upon the specific protection of freedom of expression. It held that the fact that the advertisement – by using the applicant’s forename and alluding to the book which he had published – had been mainly intended to increase sales of a cigarette brand by capturing the attention of the general public did not mean, as the Court of Appeal had maintained, that the right to protection of personality rights prevailed in general. 24. The Federal Court of Justice continued as follows: “In weighing up the competing interests the Court of Appeal failed to take adequate account of the fact that the only issue at stake in this case was the protection of the pecuniary components of the right to protection of personality rights, such protection being based solely on civil law and not constitutional law. In the case of interference with the pecuniary components of the right to protection of personality rights because a well-known person’s name has been used in an advertisement without his consent, it cannot simply (ohne weiteres) be maintained that the person’s right to protection of his personality rights will always prevail over the advertiser’s right to freedom of expression. On the contrary, it might be appropriate to tolerate an interference with protection of personality rights resulting from reference to a person’s name if, on the one hand, the advertisement alludes in a derisive, satirical manner to an event involving the person and forming the subject of public debate and if, on the other hand, it does not exploit the person’s brand image (Imagewert) or advertising value (Werbewert) by using his name, and if it does not give the impression that the person identifies with the product advertised or advocates its use (reference to the Federal Court of Justice judgment of 26 October 2006, no. I ZR 182/04).” 25. The Federal Court of Justice held that the impugned advertisement had not given such an impression. It had concerned a subject of public interest in so far as it referred in a humorous fashion to the events surrounding the publication of the applicant’s book, shortly after that event and in the context of the ensuing debate in the media. The advertisement had therefore been part of the ongoing public debate on the circumstances surrounding the applicant’s publication of his book. The Federal Court of Justice emphasised that above and beyond the derisive, satirical allusion to that event, which was already known to the public, the advertisement had been devoid of any degrading or negative content in relation to the applicant. Furthermore, given the absence of any suggestion that the applicant identified in any way with the product advertised, there were no grounds for considering that the advertisement was disparaging towards the applicant simply because it was promoting a brand of cigarettes. 26. The Federal Court of Justice agreed, moreover, with the Court of Appeal that the applicant had sought public attention for his own publicity needs. It found that the applicant’s interest in not being mentioned in the advertisement without his consent carried less weight than the tobacco company’s freedom of expression. There were therefore no grounds for examining whether the company could also have relied on the right to freedom of expression in the artistic field. 27. The Federal Court of Justice concluded that in the absence of a violation of the pecuniary components of his right to protection of his personality rights, the applicant could not claim an entitlement to a notional licence. 28. On 7 April 2009 the Federal Constitutional Court declined to accept for adjudication a constitutional appeal by the applicant (no. 1 BvR 3143/08), adding that no reasons would be given for its decision. The applicant received the decision on 24 April 2009. ... | 0 |
test | 001-168857 | ENG | RUS | COMMITTEE | 2,016 | CASE OF KOLEVATOV AND OTHERS v. RUSSIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 3. The list of applicants and the relevant details of the applications are set out in the appended table. 4. The applicants complained of the inadequate conditions of their detention. Some applicants also raised other complaints under the provisions of the Convention. | 1 |
test | 001-179865 | ENG | UKR | COMMITTEE | 2,018 | CASE OF SERGIYENKO AND SACHENKO v. UKRAINE | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Article 6-1 - Reasonable time);Violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom of movement) | 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 criminal proceedings and of the lack of any effective remedy in domestic law. In application no. 78377/13 the applicant also raised another complaint under the provisions of the Convention. | 1 |
test | 001-167095 | ENG | RUS | COMMITTEE | 2,016 | CASE OF GUSAKOVA v. RUSSIA | 4 | 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) | Branko Lubarda;Dmitry Dedov;Helena Jäderblom | 5. The applicant was born in 1957 and lives in Shuya, in the Ivanovo Region. 6. The applicant sued her former employer (the Ministry of Internal Affairs of the Republic of Kalmykiya, hereafter “the Ministry”). 7. On 27 October 1999 the Elista Town Court of the Republic of Kalmykiya (“the Town Court”) awarded the applicant monthly payments as compensation for damage to her health, with subsequent index-linked adjustment in accordance with changes in the statutory minimum monthly salary. The judgment came into force on 9 November 1999. 8. On 26 November 2002 Federal Law No. 152-FZ was adopted, which, inter alia, amended the procedure for index-linking compensation awards for damage to health. According to the new law, such payments were to be adjusted in accordance with changes in the level of inflation. The minimum monthly salary no longer served as the basis for index-linking. 9. In November 2006 the Ministry applied the new method of indexlinking, and recalculated the monthly payments to be paid to the applicant. This resulted in a decrease in the actual monthly amount she received from 10,370.51 Russian roubles (RUB) to RUB 7,396.59, as established in March 2007. 10. The applicant initiated three sets of proceedings, claiming delay interest in respect of three distinct periods. On 22 February and 3 April 2007 (upheld on 20 July 2007) the Justice of the Peace of Elistinskiy Court Circuit no. 5 of the Republic of Kalmykiya (“the Justice of the Peace”) ordered the Ministry to pay the applicant the interest in respect of certain delays in the monthly payments, in accordance with the judgment of 27 October 1999. On 22 February 2007 the judge agreed with the applicant’s calculation of the delay interest (based on the index-linking of the monthly payments in accordance with the changes in the statutory minimum monthly salary). On 3 April 2007 the court calculated the delay interest based on the amount of the monthly payments, as index-linked in line with the rate of inflation. 11. On 7 May 2007 the Justice of the Peace refused the applicant’s claim for the delay interest. On 8 August 2007 the Town Court quashed the above decision and ordered the Ministry to pay the delay interest as calculated by the applicant. The court held that, in the absence of a relevant judicial decision, the Ministry had unlawfully changed the mode of index-linking ordered by the judgment of 27 October 1999. 12. In the meantime, on 7 May 2007 the Ministry requested clarification of the judgment of 27 October 1999 as regards the method of index-linking. On 25 June 2007 the Town Court held that, as a result of changes in the relevant legislation, as of 1 January 2003 the index-linking of the amounts in question was to be based on changes in the level of inflation. On 11 October 2007 the Supreme Court of the Republic of Kalmykiya upheld the decision of the Town Court. 13. In a letter received on 1 October 2009 the applicant informed the Court that in August 2009 the Ministry had stopped paying the monthly payments, owing to a lack of funds in the relevant budget. 14. According to the Government, the amount due to the applicant from August 2009 onwards was paid to her in full on 8 October 2009. On 11 November 2009 the Town Court awarded her delay interest for late payment in respect of the delays in payment between September and October 2009. The judgment came into force on 23 November 2009, and was executed on 9 December 2009. | 0 |
test | 001-181394 | ENG | DEU | CHAMBER | 2,018 | CASE OF PATALAKH v. GERMANY | 4 | Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention) | André Potocki;Angelika Nußberger;Carlo Ranzoni;Mārtiņš Mits;Yonko Grozev | 6. The applicant was born in 1961 and lives in Frankfurt am Main. 7. On 30 October 2013 the Frankfurt am Main District Court issued an arrest warrant against the applicant as there was a strong suspicion that he had aided the commission of crimes, worth several million euros, of aggravated fraudulent conversion, corruption, corruption in commercial practice and aggravated tax evasion through an elaborate system of bribes and fictitious invoices in connection with international business undertakings by a company. The arrest warrant was based on the risk of his absconding owing to the possible heavy sentence for the offences in question. He was also married to the co-accused, who, like him, was a national of the Russian Federation, and he did not have a legal residence or other significant ties to Germany. There was also a risk of collusion. On the same day, he was arrested and the District Court ordered his detention on remand. On 11 September 2014 the District Court included additional charges in the arrest warrant. 8. On 19 December 2014 the Frankfurt am Main prosecution authorities brought criminal proceedings against the applicant, charging him with eight counts of aiding aggravated fraudulent conversion, one count of aiding aggravated corruption and fourteen counts of aiding aggravated tax evasion. On 26 January 2015 the Darmstadt Regional Court sent the translation of the 280-page indictment to the applicant. On 6 March 2015 he responded to the indictment and asked the court not to open the main proceedings. On 18 March 2015 the prosecution authorities asked the Regional Court to amend the proceedings against the applicant, based on the results of the investigation obtained after the criminal proceedings had been brought. 9. On 6 May 2015 the Regional Court decided to open the main proceedings, which commenced on 8 June 2015. On 14 July 2016 the Regional Court convicted the applicant on five counts each of aiding fraudulent conversion and tax evasion and sentenced him to four years and six months’ imprisonment. The conviction has not yet become final, with appeals lodged by both the applicant and the prosecution authorities still pending at the time the Court examined the application. 10. On 26 October 2016 the Frankfurt am Main District Court decided to set aside the arrest warrant of 30 October 2013, which since the outset had been the basis for the applicant’s continuous detention on remand. 11. From 15 January 2014 onwards the applicant challenged the lawfulness of his remand detention before the Frankfurt am Main District Court and the Frankfurt am Main Regional Court without success. Following a request by the prosecution authorities, the Frankfurt am Main Court of Appeal on 28 July 2014 ordered the prolongation of the applicant’s remand detention. It also ordered that the case file be re-submitted to it by 28 October 2014 at the latest for the next periodic review. Until that time, it transferred the competency for further reviews to the court having jurisdiction according to the general provisions (see paragraphs 21 and 22 below). It considered that there was a risk that the applicant might abscond and that continued detention on remand was not disproportionate in light of the sentence which he risked incurring if found guilty. On 5 September 2014 the applicant lodged a constitutional complaint with the Federal Constitutional Court against that decision. The court refused to accept it for adjudication, without providing reasons (no. 2 BvR 2050/14), a decision which was served on the applicant on 6 October 2014. 12. Subsequently, the applicant initiated another set of review proceedings before the District Court and lodged a complaint of bias against the competent judge. The complaint was eventually rejected in accordance with the proceedings prescribed by law, as were the remedies pursued by the applicant. On 8 December 2014 the Frankfurt am Main District Court dismissed an application from the applicant to set aside the detention order as it had become devoid of purpose (prozessual überholt) because the Frankfurt am Main Court of Appeal had been seized with a review of the applicant’s detention under Articles 121 et seq. of the Code of Criminal Procedure. 13. On 24 October 2014 the prosecution authorities submitted a statement and the case file to the Frankfurt am Main Court of Appeal, requesting the extension of the applicant’s detention on remand in accordance with Articles 121 et seq. of the Code of Criminal Procedure. 14. On 7 November 2014 the applicant requested that the detention order be set aside. He also requested that the Court of Appeal decide on his objection and an appeal to be heard, lodged on 25 August 2014 against the Court of Appeal’s decision of 28 July 2014, prior to the expiry of the timelimit given to him to respond to the prosecution authorities’ submission. On 10 November 2014 the Court of Appeal dismissed the objection and the appeal to be heard. 15. On 19 November 2014 the names of the judges called to decide on the continuation of the applicant’s detention were disclosed to the applicant, following his request of the same day. On 25 November 2014 the applicant lodged a complaint of bias against two of the three judges concerned, arguing that they had repeatedly contacted the wrong authorities – either the Frankfurt am Main District Court or Regional Court, rather than the prosecution authorities – to request the case file and had taken two and half months to decide on his objection and appeal to be heard. That had amounted to an arbitrary handling of his case and the judges involved could not decide on the continuation of his detention with the necessary impartiality. The judges gave their statements on 27 November 2014 and 1 December 2014. The applicant then requested additional statements from them, which was not deemed to be necessary by the Court of Appeal on 11 December 2014. Four days later the applicant lodged another complaint about bias, arguing that their statements in response to his first such complaint could not restore his confidence in their impartiality. The judges concerned again gave statements and the applicant’s counsel was given the opportunity to respond. On 30 December 2014 the Court of Appeal rejected the applicant’s first complaint of bias as ill-founded, finding that there were no indications that the judges concerned were partial, even assuming that they had made a procedural mistake in connection with requesting the case file, leading to a delay in deciding on his objection and appeal to be heard. On 8 January 2015 the applicant lodged an objection against that decision. On 22 January 2015 the Court of Appeal rejected the applicant’s second complaint of bias as ill-founded, also addressing his objection in its decision. 16. On 26 January 2015 the Court of Appeal asked the Frankfurt am Main Regional Court about the current state of the criminal proceedings and what developments there had been. The Court of Appeal was informed by the prosecution authorities that the criminal proceedings had been brought before the Darmstadt Regional Court, rather than the Frankfurt am Main Regional Court, so the Court of Appeal made a similar enquiry to the court in question on 3 February 2015. 17. On 10 March 2015 the applicant’s lawyer sent to the Court of Appeal two comprehensive submissions which he had made in the main proceedings before the Regional Court and asked the appeal court to take them into account when deciding on the continuation of the applicant’s remand detention. 18. On 27 March 2015 and on 10 April 2015 the applicant lodged two applications with the Court of Appeal, asking it to take a decision in the pending review proceedings without delay. 19. On 21 April 2015 the applicant lodged another constitutional complaint with the Federal Constitutional Court, alleging that the absence of a decision by the Court of Appeal in the pending detention review proceedings had violated his right to liberty and security. On 27 April 2015 the Federal Constitutional Court refused to accept the complaint for adjudication without providing reasons (no. 2 BvR 726/15). 20. On 15 May 2015 the applicant was served with a decision by the Frankfurt am Main Court of Appeal, taken on 15 April 2015 and issued on 13 May 2015, ordering the continuation of his detention on remand. It found that the risk of his absconding continued to exist. It further considered that in the light of, inter alia, the amount of evidence to be examined, the requests for legal assistance sent to several countries, and the scope and complexity of the case, there was no indication of undue delay in the conduct of the criminal proceedings, with the trial being scheduled to commence in June 2015. The applicant’s continued detention on remand was, therefore, proportionate. The court did not address the duration of the review proceedings nor provide any reasons for it. | 1 |
test | 001-153134 | ENG | TUR | CHAMBER | 2,015 | CASE OF Y.Y. v. TURKEY | 1 | Remainder inadmissible;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) | Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano | 5. The applicant was born in 1981. 6. The applicant is a transgender person whose gender is recorded in the civil-status register as female. He stated that he had become aware, even as a child, of feeling that he was male, a feeling that was at variance with his anatomical sex. 7. On 30 September 2005 the applicant applied to the Mersin District Court (“the District Court”) under Article 40 of the Civil Code seeking authorisation to undergo gender reassignment surgery. In the application instituting the proceedings the applicant’s lawyer gave the following reasons for his client’s request. His client had, since he was a child, regarded himself as male rather than female and for that reason had been receiving psychological counselling since childhood; at the age of nineteen or twenty he had contemplated suicide; his current biological identity was at odds with the gender to which he felt he belonged; and gender reassignment was necessary in order for him to achieve harmony between his private perception of himself and his physical make-up. The lawyer stated that several doctors whom his client had consulted since childhood had recommended gender reassignment. The applicant, who was twenty-four years old, was living as a man, had been in a relationship with a woman for four years and was accepted as a man by his family and friends. The lawyer added that his client had been receiving treatment for the past year in the psychiatric department of İnönü University Hospital with a view to undergoing the gender reassignment surgery that he sought. Lastly, the lawyer requested that the proceedings remain confidential in view of his client’s psychological state. 8. On 16 December 2005 the District Court granted the request concerning the confidentiality of the proceedings. 9. On 6 February 2006 the court heard evidence from the applicant’s family. The applicant’s mother stated that as a child her daughter had played mainly with boys and as an adolescent had told her mother that she felt more like a boy and wanted to be one. The applicant’s mother had therefore consulted psychologists, who had expressed the view that her daughter would be happier if she could live as a man, a view which the applicant’s mother shared. The applicant’s older brother also said that his sister had played with boys when she was a child, had started to behave like a boy during adolescence and had had girlfriends, and that she had been determined to undergo gender reassignment by means of surgery. She had made several suicide attempts and was still in therapy. As far as the applicant’s brother was aware, the doctors had decided to go ahead with the operation. On conclusion of the hearing the District Court sent a request for information to the medical director of the hospital where the applicant was being treated, seeking to ascertain whether the applicant was transgender, whether gender reassignment was necessary to ensure his mental health and whether he was permanently unable to procreate. 10. On 23 February 2006 a medical committee of İnönü University Medical Centre drew up a psychiatric report which found that the applicant was transgender. The report further found that, from a psychological viewpoint, the applicant should henceforth live with a male identity. 11. On 28 February 2006 a medical committee of the gynaecology and obstetrics unit of the same medical centre drew up a report which found that Y.Y. had a female phenotype and was transgender. 12. On 7 April 2006 the District Court examined the two medical reports from İnönü University’s medical faculty. The court observed that the authors of the report of 23 February 2006 had diagnosed the applicant as transgender and had found that, from a psychological viewpoint, he should live henceforth with a male identity, but that the authors of the report of 28 February 2006 had found Y.Y.’s phenotype to be female. However, the court considered that these reports had not answered the questions it had asked, namely whether gender reassignment was necessary in order to ensure the claimant’s mental health and whether the claimant was permanently unable to procreate. The court therefore reiterated its request for information. 13. On 20 April 2006 the head of the gynaecology and obstetrics unit attached to the surgical department of İnönü University’s medical faculty wrote to the head doctor of the medical centre informing him that the applicant had been examined following a request for a consultation with a plastic surgeon with a view to gender reassignment. She said that an examination had established that Y.Y. had female external and internal genitalia and was not permanently unable to procreate. 14. On 21 April 2006 a medical committee of the psychiatric department of İnönü University’s medical faculty wrote to the head doctor of the medical centre informing him that the applicant had been examined on 20 April 2006. Following that examination the medical team had concluded that, in the interests of his mental health, the applicant should be allowed to live henceforth with a male identity. 15. At the District Court hearing of 5 May 2006 the applicant’s lawyer challenged the report of 20 April 2006 on the grounds that it had not been adopted by a collegiate body. The District Court accordingly requested a fresh expert report on the applicant’s ability to procreate. The task of preparing the report was entrusted to a medical committee of Çukurova University’s faculty of medicine. 16. On 11 May 2006 two doctors from the gynaecology and obstetrics department of Çukurova University’s faculty of medicine carried out an expert assessment and concluded, after examining the applicant, that he was capable of procreating. 17. On 27 June 2006 the District Court, basing its decision on the findings of the various expert reports, refused the applicant authorisation to undergo gender reassignment, on the ground that he was not permanently unable to procreate and therefore did not satisfy one of the conditions of eligibility for gender reassignment under Article 40 of the Civil Code. 18. On 18 July 2006 the applicant appealed on points of law against that judgment. In his pleadings the applicant’s lawyer stressed that his client had considered himself since childhood as male rather than female and that this belief was not a mere whim. The applicant had undergone a lengthy course of psychotherapy following which the doctors had concluded that he was transgender and that, from a psychological perspective, it was advisable for him to live as a man. The lawyer further submitted that his client’s ability to procreate did not in any way prevent him from perceiving himself as a man; it was a biological fact over which he had no control. In Turkey as elsewhere in the world, persons who, like the applicant, were unable to reconcile their biological and psychological state were not necessarily single and unable to procreate. There were numerous examples of people who had a predisposition towards transgenderism and who had married and had children before having gender reassignment surgery. It was unfair to make authorisation for a change of biological gender contingent on the ability of the transgender individuals concerned to procreate, whether they considered themselves as men or as women. Accordingly, in refusing to allow the applicant to undergo gender reassignment surgery under Article 40 of the Civil Code – which, in the lawyer’s submission, did not reflect social reality – the courts had restricted his client’s rights and freedoms. The lawyer further alleged that the refusal of the applicant’s request on account of his ability to procreate had been unlawful. In his view, the expression “permanently unable to procreate” should be deleted from the provision in question. 19. On 17 May 2007 the Court of Cassation upheld the District Court judgment, taking the view that the first-instance court had not erred in its assessment of the evidence. 20. On 18 June 2007 the applicant’s lawyer lodged an application for rectification of that decision. In his pleadings he submitted that none of the grounds of appeal advanced by the applicant had been taken into account, and that no comment had been made on the official documents and reports included in the file. The lawyer also contested the use of the report of 11 May 2006 prepared by the gynaecology and obstetrics department of Çukurova University’s medical faculty as the basis for rejecting the applicant’s claims. He argued in that regard that the report in question did not have the status of an expert report and had been drawn up following a purely superficial examination of his client’s genital organs that was insufficient to establish his ability to procreate. Even assuming that the various medical reports had sufficed to establish that his client was capable of procreating, the only gender with which his client could identify from a physical and psychological perspective was male. Moreover, that fact had been established on 2 March 2005 in the report of the medical committee of İnönü University, where his client had also been following a long-term course of psychotherapy. The lawyer criticised the failure to take the latter fact into account. Lastly, he submitted that the courts had infringed the applicant’s rights by refusing his request for authorisation to undergo surgery aimed at assigning to him the gender with which he naturally identified. 21. On 18 October 2007 the Court of Cassation rejected the application for rectification lodged by the applicant, observing that none of the grounds for setting aside enumerated in Article 440 of the Code of Civil Procedure applied in the case at hand. 22. On 5 March 2013 the applicant lodged a fresh application with the Mersin District Court on the basis of Article 40 of the Civil Code, seeking authorisation to undergo gender reassignment surgery. In his application instituting the proceedings, the applicant’s lawyer gave the following reasons for the request. His client had regarded himself from a young age as male rather than female and for that reason had received psychological counselling since childhood; medical reports had established that, from a psychological viewpoint, it was advisable for him to live henceforth with a male identity; the applicant’s biological identity was at odds with the gender to which he felt he belonged; gender reassignment was necessary to ensure his psychological and mental well-being; on 27 March 2012 he had undergone a double mastectomy and was taking various hormones to increase his testosterone levels; he was working for his brother as a painter and decorator; he went regularly to the gym and had the physical appearance of a man; he was now thirty-two years old and had always regarded himself as a man; the friends he had met after a certain age knew him only as a man; and he did not use the first name indicated on his identity papers. The lawyer added that, in order to bring his physical appearance into line with his perception of himself, his client had resorted to all kinds of methods with damaging side-effects. In his daily life, and especially when he had to produce his identity papers for the authorities, the applicant was subjected to denigrating and humiliating treatment and encountered numerous difficulties because of the discrepancy between his outward appearance and the identity indicated on his papers. The lawyer summed up by requesting the court to allow his client to begin the requisite formalities in order to change his identity in the civil-status register, to grant his client’s request to undergo gender reassignment, to authorise him to undergo gender reassignment surgery and to declare the District Court proceedings confidential. 23. On 11 April 2013, following a full medical history and examination of the applicant, a committee made up of psychiatrists from İnönü University Medical Centre issued a medical report which found that the applicant was transgender and that gender reassignment was necessary in order to ensure his mental health. The report also stated that an expert assessment should be carried out to establish whether the applicant was permanently unable to procreate. 24. On 6 May 2013 a forensic medical report was drawn up by a committee from the forensic medicine department of İnönü University Medical Centre. According to the report, during the examination carried out on 11 April 2013 in the forensic medical department, the applicant had stated that he wished to undergo gender reassignment surgery and had already taken steps to that end in the past but had had his claims rejected by the courts. He had then applied to the European Court of Human Rights and had since brought a fresh action. The medical examination had shown that the applicant had a male phenotype (all his external characteristics). He had a beard and a moustache, his breast tissue had been surgically removed and he was receiving treatment following that operation. He had male hair growth on his arms and legs, was undergoing hormone treatment and was embarrassed by the colour of his identity card and had therefore covered it before putting it in his wallet. Lastly, the applicant had stated that reassignment was a necessity for him. According to the report, blood tests had revealed that the applicant had a total testosterone count of more than 16,000 ng/dl, presumably linked to the hormone treatment he was taking. However, this did not mean that he was permanently unable to procreate. The report concluded as follows: “1. [The applicant] is transgender; 2. gender reassignment is necessary for his mental health; 3. [he] is not permanently unable to procreate (as a woman) ...” 25. On 21 May 2013 the Mersin District Court granted the applicant’s request and authorised the gender reassignment surgery which he sought. In its reasoning, the District Court found it established that the applicant was transgender, that gender reassignment was needed to ensure his mental health, and that it was clear from the evidence of the witnesses called by the applicant that he lived as a man in every respect and suffered as a result of his situation. Accordingly, in view of the evidence and of the reports produced, the conditions set forth in Article 40 § 2 of the Civil Code were satisfied and the request should be granted. The judgment specified that it was final. ... | 1 |
test | 001-181211 | ENG | LTU | COMMITTEE | 2,018 | CASE OF PETKEVIČIŪTĖ v. LITHUANIA | 4 | No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);No violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression) | Carlo Ranzoni | 4. The applicant was born in 1956 and lives in Vilnius. 5. The applicant’s father, V.P., was a well-known writer in Lithuania. In September 2003 he published a book entitled “The Ship of Idiots” (Durnių laivas – hereinafter “the book”) in which he presented his memoirs of various events in the history of Lithuania, often using a satirical and mocking tone. Several passages in the book discussed the personality and activities of V.L.-Ž. (deceased at the time of publication). V.L.-Ž. had been a minister in the Provisional Government of Lithuania, which operated from June to August 1941, and his son V.L. had been a prominent Lithuanian politician since the 1980s. The book contained the following statements (hereinafter “the disputed statements”), in which V.L.-Ž. was referred to as “[L.] senior” or “the patriarch”: “[V.L.] had to somehow cover for his father, who had for many years collaborated with the KGB ... Having worked as a spy, he was returned home by Moscow ...” ([L.] reikėjo kaip nors pridengti tėvą, ilgus metus bendradarbiavusį su KGB ... Jį kaip atidirbusį žvalgą namo sugrąžino Maskva ...) “Some were already [trying to get familiar with] the new ‘patriarch’, Hitler’s ... friend, ... spy, ... copier of strategic maps, [L.] senior ...” (Kai kas jau vedžiojo už parankių naujai iškeptą „patriarchą“, Hitlerio ... draugą, ... žvalgą, ... strateginių žemėlapių kopijuotoją senąjį [L.] ...) “[L.] senior ... told how in 1918 ... [they] had raised the flag in the castle tower ... [H]ow afterwards they had had to flee to Kaunas in order to escape from the Bolsheviks, how on the way they had been arrested [and] interrogated... (and, as far as I know, recruited).” (Senasis [L.] ... pasakojo, kaip 1918 metais ... pilies bokšte kėlė vėliavą, ... kaip jiems po to teko nuo bolševikų bėgti į Kauną, kaip pakeliui juos areštavo, tardė... (o kiek man žinoma, ir užverbavo).) “The pharmacy was ejected onto the streets. Moreover, the pharmacists were sued because ‘the patriarch’ did not find on the veranda the six-metre oak bench which he had left there before the war.” (Vaistinę išmetė į gatvę. Dar daugiau, vaistininkai buvo paduoti į teismą todėl, kad patriarchas verandoje nerado šešių metrų ąžuolinio suolo, kurį buvo palikęs prieš karą.) 6. On the fourth page of the book it was stated that the author assumed full responsibility for the truthfulness of the facts presented in the book (autorius prisiima visą atsakomybę už knygoje išdėstytų faktų tikrumą). 7. After the book’s publication, V.L. lodged a complaint with the Prosecutor General’s Office (hereinafter “the prosecutor”), seeking the opening of a pre-trial investigation against V.P. for defamation of his late father. On 21 October 2003 the prosecutor opened the investigation. 8. During the investigation, the prosecutor asked various bodies about the activities of V.L.-Ž. described in the disputed statements. He received replies from the Central State Archives, the Genocide and Resistance Research Centre of Lithuania, the National Library of Lithuania, the Archives of Literature and Art, and the State Security Department. They all stated that they did not have any information indicating that V.L.-Ž. had collaborated with the Nazi or Soviet regimes or any information confirming any of the other parts of the disputed statements. The prosecutor also interviewed several individuals who had been quoted as sources in V.P.’s book but they all stated that they were unable to confirm the truthfulness of the events described in the disputed statements. 9. On 10 October 2005 the Vilnius City First District Court acquitted V.P. of defamation on the grounds that the offence could be committed only against a living person, whereas V.L.-Ž. was already dead when V.P.’s book had been published. The court noted that V.P.’s actions could have constituted the crime of contempt for the memory of a deceased person, but that charge had not been included in the indictment. 10. V.L., V.P. and the prosecutor all submitted appeals against that decision, and on 17 January 2006 the Vilnius Regional Court quashed it. The court found that the indictment had not complied with the relevant procedural requirements, and returned the case to the prosecutor. 11. On 9 August 2006 the prosecutor discontinued the pre-trial investigation. He considered that there was sufficient evidence to charge V.P. with contempt for the memory of a deceased person, but criminal prosecution for that offence had become time-barred. 12. In June 2007 V.L. lodged a civil claim against V.P. He asked the court to order V.P. to publicly retract the disputed statements and to award him 100,100 Lithuanian litai (LTL – approximately 29,000 euros (EUR)) in respect of non-pecuniary damage. V.L. submitted that the disputed statements had been erroneous and insulting to the honour and dignity of his late father, as well as to his own honour and dignity. 13. V.P. disputed the claim, submitting that he had not intended to defame or insult anyone and that the disputed statements had been taken out of context. He contended that the book had been a product of literary creativity made up on the basis of his subjective memories, and that it had been written in figurative and exaggerated language which could be interpreted in many different ways. V.P. thus argued that the disputed statements should be regarded as value judgments and not as factual statements. He further submitted that, in any event, when writing the book he had relied on various historical sources and witness testimonies, as well as on his own personal experience – he provided a list of books and other publications which he had consulted, and described the circumstances in which he had found out about the events discussed in the disputed statements. Therefore, he argued that the disputed statements had been sufficiently accurate. Lastly, V.P. contended that both V.L.-Ž. and V.L. had been prominent politicians and public figures and therefore had to tolerate higher levels of criticism. 14. On 10 December 2008 V.P. died. The court adjourned the examination of the case until V.P.’s legal successors were identified. On 7 May 2009 the applicant and her two brothers, who had accepted their father’s inheritance, were issued with certificates of inheritance, stating that they had inherited their father’s estate in equal parts. On 23 July 2009 the court decided to continue with the examination of the case, replacing the defendant V.P. with the applicant and her brothers. 15. V.L. subsequently amended his claim and asked the court to declare that the disputed statements had been erroneous and insulting to the honour and dignity of himself and his late father (see paragraph 36 below), and to award him a symbolic sum of LTL 1 (approximately EUR 0.29) in respect of non-pecuniary damage. 16. At the court hearing on 9 December 2009, V.L. argued that the disputed statements amounted to statements of fact and not value judgments. He submitted that, in line with the domestic courts’ case-law, the burden was on the author to prove that those statements were factually accurate, but the evidence collected in both the civil and the criminal proceedings demonstrated that they did not have any factual basis. 17. The applicant and her brothers were represented by the same lawyer who had represented V.P. in the civil proceedings up until his death. They submitted essentially the same arguments that V.P. had submitted before (see paragraph 13 above). They also argued that an obligation to pay compensation for damage allegedly caused by a literary work was a personal obligation of the author and could not be transferred to his heirs. They furthermore submitted that the disputed statements had been based on their late father’s memories and subjective opinions, and so they should not be required to prove the truthfulness of those statements. 18. On 23 December 2009 the Vilnius Regional Court found in V.L.’s favour. It stated that, in line with the domestic law, in order to uphold the claim, four circumstances had to be established: firstly, that certain statements had been disseminated; secondly, that those statements had concerned the claimant (V.L.) and his late father (V.L.-Ž.); thirdly, that the statements had been insulting to the honour and dignity of V.L.-Ž. and V.L.; and fourthly, that the statements had been erroneous. The claimant (V.L.) had to prove that the first three circumstances had existed, whereas the defendants (the applicant and her brothers) had to prove that the fourth circumstance had not (see paragraph 34 below). 19. The Vilnius Regional Court observed that there was no dispute that statements had been disseminated and that they had referred to V.L.-Ž. and V.L. (see paragraph 5 above). However, the parties disagreed as to whether they had amounted to statements of fact or to value judgments. The court found that the disputed statements had been presented as factual statements about V.L.-Ž.: they had implied that certain events had actually occurred, for example, that V.L.-Ž. had been recruited by the Soviet forces and had collaborated with them, or that he had expressed support for Hitler’s ideology (see paragraph 5 above). Accordingly, the court held that those statements should have had a sufficient factual basis. 20. Seeking to determine whether the disputed statements had been factually accurate, the Vilnius Regional Court examined the evidence which had been collected in the criminal proceedings (see paragraph 8 above), as well as the sources indicated by V.P. himself in his written submissions to the court during the civil proceedings (see paragraph 13 above). The court found that none of those sources had been able to confirm any parts of the disputed statements to the standard of proof required in civil cases. 21. The Vilnius Regional Court next examined whether the disputed statements had been insulting to the honour and dignity of V.L.-Ž. and V.L. As for the first three statements (see paragraph 5 above), it considered that, in the historical context of Lithuania, the allegations of collaboration with the Soviet security services or of support for Nazi ideology had clearly been insulting not only to V.L.-Ž. but also to his family, including V.L., who had been a prominent politician himself. As for the fourth statement (see paragraph 5 above), it considered that allegations of ejecting the pharmacy owners onto the streets and suing them for a wooden bench – an item of movable property of low value – had created the impression of V.L.-Ž. as someone with low moral standards and a lack of respect for others, and that that statement had therefore been insulting as well, not only to V.L.-Ž. himself, but also to his family. 22. The court dismissed the defendants’ objection that the case concerned the personal obligations of their father. It held that the domestic law provided several different remedies for victims of defamation in publications (see paragraph 36 below). On the one hand, the victim could ask the court to order the author of the work to retract the disputed statements, which would be a personal obligation on the part of the author which could not be transferred to his or her heirs. On the other hand, the victim could ask the court to declare that the disputed statements were erroneous and defamatory (insulting to the victim’s honour and dignity), in other words to request an objective assessment of those statements. Such an assessment could be made without the involvement of the author and would thus not constitute a personal obligation on the part of the author. Accordingly, the court held that, since V.L. had made the latter request (see paragraph 15 above), domestic law permitted the transfer of civil liability to the author’s heirs. 23. As a result, the Vilnius Regional Court upheld one part of V.L.’s claim and declared that the disputed statements had been erroneous and insulting to his and his late father’s honour and dignity. It dismissed V.L.’s claim for compensation in respect of non-pecuniary damage as timebarred. 24. The applicant and her brothers lodged an appeal against the decision of the Vilnius Regional Court, presenting essentially the same arguments as before (see paragraphs 13 and 17 above). 25. On 13 August 2010 the Court of Appeal upheld that decision in its entirety. It firstly stated that the key difference between statements of fact and value judgments was that the truthfulness of the former could be verified and proved, whereas the latter expressed a subjective view to which the criteria of truthfulness or accuracy did not apply. The court held that, notwithstanding the fact that the book had been based on the author’s memories, the disputed statements had not been limited to expressing a subjective view on any persons or events, but alleged that certain actions had been taken and certain events had occurred. In the court’s view, the average reader, even when reading the disputed statements as part of the entire book and not “out of context” (see paragraph 13 above), would perceive them as statements of fact and not as value judgments. 26. The Court of Appeal agreed with the defendants that V.L.-Ž. and V.L. had been public figures and therefore had to tolerate greater levels of criticism. It observed that, in line with the case-law of the domestic courts, dissemination of factually inaccurate statements about a public figure did not attract civil liability when such statements concerned that person’s public activities and when their author had acted in good faith, seeking to inform society about such activities (see paragraph 35 below). Nonetheless, the Court of Appeal stated that this could not justify dissemination of falsehoods which were insulting to a person’s honour and dignity, even when they concerned a public figure. It held that, in the case at hand, the first-instance court had thoroughly examined the evidence collected during the criminal proceedings and the sources indicated by the author himself (see paragraph 20 above), and had reached the conclusion that, on the balance of probabilities, the events described in the disputed statements “were more likely not to have happened than to have happened”. The Court of Appeal also examined additional sources referred to in the defendants’ appeal, but found that they did not contain any information which would enable it to reach a different conclusion than that reached by the firstinstance court. It therefore held that the factual accuracy of the disputed statements had not been proved. The Court of Appeal also upheld the firstinstance court’s conclusion that those statements had been insulting to the honour and dignity of V.L.-Ž. and V.L. (see paragraph 21 above). 27. Lastly the Court of Appeal dismissed the defendants’ argument that they had been obliged to prove the truthfulness of their father’s memories and subjective opinions. It observed that the disputed statements had been found to constitute statements of fact and not value judgments and it had therefore been necessary to prove their factual accuracy and not the reasons why the author might have held certain opinions. The court stated that the factual accuracy of the disputed statements could be proved by anyone and not only by their author, and that the applicant and her brothers had been able to rely on the material collected during the criminal proceedings and on the submissions made by their father in the civil proceedings, as well as to submit new evidence themselves. The Court of Appeal also observed that the applicant and her brothers had accepted their father’s inheritance (see paragraph 14 above), which included the rights to reprint the book and to receive royalties from it. The court considered that if the author’s heirs had been exempted from the liabilities arising from the book, then the claimant, V.L., would have been denied any possibility to defend his rights against the erroneous and insulting statements published therein. 28. Consequently, the Court of Appeal upheld the firstinstance decision declaring the disputed statements erroneous and insulting to the honour and dignity of V.L.-Ž. and V.L. 29. The applicant and her brothers submitted an appeal on points of law, presenting essentially the same arguments as before (see paragraphs 13 and 17 above). 30. On 14 March 2011 the Supreme Court dismissed that appeal. It underlined the importance of striking a fair balance between the right to freedom of expression and the right to respect for honour and dignity, but stated that the right to freedom of expression did not extend to the deliberate dissemination of falsehoods with the aim of humiliating, insulting or otherwise causing harm to others, even if directed at public figures. The Supreme Court observed that the lower courts had established that the disputed statements had been erroneous and insulting to the honour and dignity of V.L.-Ž. and V.L. (see paragraphs 21 and 26 above); it therefore ruled that the dissemination of those statements could not be justified by the exercise of the right to freedom of expression. 31. The Supreme Court also reiterated that the claim submitted by V.L. did not constitute a personal obligation of the author of the book and could therefore be transferred to his heirs. It stated that the applicant and her brothers had accepted their father’s inheritance, which included certain rights to the book (see paragraph 14 above). Accordingly, once the court had declared that the disputed statements in the book had been erroneous and insulting to the honour and dignity of others, the author’s legal successors had the obligation to ensure that those statements would no longer be disseminated. | 0 |
test | 001-161002 | ENG | POL | CHAMBER | 2,016 | CASE OF K.J. v. POLAND | 3 | Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for family life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Nona Tsotsoria;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer | 5. The applicant was born in 1978. He is Polish and lives in Kent, the United Kingdom. He is married to M.J., who is also Polish. In 2005 the couple moved to the United Kingdom. Their daughter was born there in January 2010. Parental responsibility was exercised jointly by both parents. 6. On 17 July 2012 M.J. and the child went to Poland on holiday, with the applicant’s consent. On 9 September 2012 M.J. informed the applicant that she was not coming back to the United Kingdom with the child. 7. On 21 September 2012 the applicant applied to the United Kingdom Central Authority for a return order for the child under the Hague Convention. 8. It appears that in mid-October 2012 the application was registered with the Grudziądz District Court. Judge D.K. was assigned to preside over the case. 9. In response to the applicant’s request, M.J. submitted that in 2011 she and her husband had become distant from each other; the applicant had lost interest in his family and had been spending his spare time playing computer games. For those reasons, and also out of fear that the child would never again be allowed to leave the United Kingdom, M.J. did not agree to her daughter’s returning to the United Kingdom alone and informed the domestic court that she did not wish to go back there with the child. 10. The first hearing was held on 19 December 2012 before the Grudziądz District Court, with Judge D.K. presiding. The applicant and his lawyer attended the hearing. 11. The second hearing was held on 4 February 2013 before the same judge. The applicant and his lawyer attended the hearing. The domestic court heard two witnesses and ordered a report of experts in psychology from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno Konsultacyjny “RODK”). 12. On 22 March 2013 the experts examined the applicant, M.J. and the child, who was three years old at the time. The report was issued on 17 April 2013. 13. The third hearing was held on 8 May 2013 before Judge D.K. At this hearing, the Grudziądz District Court decided to dismiss the applicant’s request for the child’s return (III Nsm 999/12). 14. The first-instance court ruled on the basis of the following evidence: testimony of the applicant, M.J. and the members of both families and the RODK experts’ report. 15. The RODK experts were ordered to make the following assessment: “whether moving [the child] into her father’s care, linked with her separation from the mother, would disturb [the child’s] sense of security and would affect her emotional state in a negative way; or is it recommended, [with a view to] the adequate psycho-physical development of the child, to [put the child under the father’s care] linked with [giving] an order to surrender the child by the mother.” 16. The experts concluded that “the child’s return to the United Kingdom and her separation from the mother”, her primary caregiver, “would cause more emotional harm to the child than the lack of daily contact with her father.” In particular, the child’s sense of security and stability could be disturbed. To this effect the report read as follows: “Considering the [young] age and the sex of the child, it must be stated that the mother is currently best suited to satisfy her daughter’s needs.” The experts also noted that the child was emotionally attached to both parents; she was developing well; perceived Poland and the United Kingdom on an equal footing; spoke Polish and had adapted well to her new life in Poland. It was recommended that the child should stay with her mother in Poland and have regular contact with her father. 17. The first-instance court considered that the RODK’s report was thorough, clear and of a high evidentiary value. 18. On the merits, the Grudziądz District Court considered that it was called to examine “the relationship between the child and [each of] the parents, her physical and psychological development and also, any [possible] physical or psychological harm [which could occur] in the event of the child’s return to her father without the mother.” 19. The domestic court attached importance to the young age of the child (who was three years and four months old at the time of the ruling) and the fact that the mother had always been the child’s primary caregiver. The reasons for the mother’s refusal to return to the United Kingdom together with the child were not discussed by the domestic court. The district court held, relying on the experts’ report, that there was a grave risk of psychological harm if she were to return to the United Kingdom without her mother. It was noted that Article 13 (b) of the Hague Convention protected abducted children to such a great extent that it did not allow for their return if that was going to place them in a “disadvantageous situation” (w niekorzystnej sytuacji). 20. The applicant appealed, arguing among others the following points of fact and law: the first-instance court ruled in breach of Article 13 (b) of the Hague Convention, firstly in that they concluded that in re was a grave risk that the child’s return to the United Kingdom would expose her to intolerable psychological harm and would place her in a disadvantageous situation, and secondly in that they wrongly assumed that the child would have to be separated from the mother even though the latter had not cited any objective obstacles to her returning to the United Kingdom; the first-instance court ruled in breach of Article 3 of the Convention on the Rights of the Child and its general directive that the best interest of the child be protected; the facts as established by the domestic court contradicted the evidence produced in the course of the proceedings; the court’s conclusion that the child’s return would expose her to intolerable psychological harm contradicted the findings of the expert report; and the court should not have refused to adjourn the hearing at which the applicant was not represented by a lawyer. 21. At the appellate hearing, the applicant also argued (6) that the experts in psychology who had drafted the RODK’s report for the firstinstance court were incompetent. 22. On 14 October 2013 the Toruń Regional Court dismissed the appeal (IV Ca 1865/12). 23. The appellate court fully relied on the findings of fact made by the first-instance court, and held that the child’s return to the United Kingdom with or without the mother would place her in an intolerable situation (“w sytuacji nie do zniesienia”). Firstly, in view of the child’s very young age and the fact that since the retention the child had been under her mother’s care practically round the clock and that her contact with the applicant had been rare, the child’s separation from her mother would cause negative and irreversible consequences. Secondly, the child’s return with her mother would not have a positive impact on the child’s development either. To this effect, it was noted that M.J. had never adapted to her life in the United Kingdom; she was in conflict with the applicant and her departure from Poland would be against her will and forced by the circumstances. 24. As to the remaining grounds of the applicant’s appeal, the regional court ruled in the following manner: contrary to the applicant’s impression, the RODK’s report was clear and adamant in its conclusion that the child’s best interest would be better served if she were allowed to stay in Poland with her mother; in view of the fact that the applicant’s lawyer had gone on holiday and the applicant had not agreed to be represented by a substitute lawyer, granting his motion for adjournment was not justified; and the argument about the incompetence of the RODK’s experts was, firstly, belated (the applicant had not raised that issue before the first-instance court or in his appeal) and, secondly, inconsistent with the applicant’s reliance on the impugned report in support of his remaining arguments. 25. At the first hearing, held on 19 December 2012 by the Grudziądz District Court, the applicant’s lawyer applied, expressly citing Article 21 of the Hague Convention, for arrangements for organising and securing the effective exercise of the applicant’s right of contact during the Hague Convention proceedings. 26. The domestic court did not rule on that application. 27. On 28 December 2012 the applicant applied to the Grudziądz District Court for a contact order in respect of the child. He did not rely on Article 21 of the Hague Convention. He asked, inter alia, for an interim order to be issued obliging M.J. for the duration of the Hague Convention proceedings to allow him to take the child to his house every second and fourth weekend of the month from 3 p.m. on Friday until 8 p.m. on Sunday, and to talk to the child by telephone or Skype every Monday, Wednesday and Friday between 4 p.m. and 7 p.m. 28. On 28 February 2013 the Grudziądz District Court, with D.K. as the presiding judge, decided under Article 445 1 § 1 and 2 of the Code of Civil Procedure to stay the proceedings concerning the applicant’s contact with the child until the end of the couple’s divorce proceedings, which had been instituted before the Toruń Regional Court on 14 January 2013 (III. R. Nsm 35/13). 29. On 25 March 2013 the divorce application lodged by M.J. (IC 117/13) was rejected by the Toruń Regional Court, with S.M. as the presiding judge accompanied by two lay judges. The regional court favoured the jurisdiction of the English courts because the last common place of residence of the couple was in Maidstone, the United Kingdom. On 24 June 2013 the Gdańsk Court of Appeal, with D.K. as the presiding judge, dismissed M.J.’s interlocutory appeal against that decision. 30. The applicant submitted that when the Hague Convention proceedings had been pending in Poland, he had seen his daughter on several occasions, in the mother’s house and in her presence. 31. On 28 November 2014 the Grudziadz District Court issued a decision on the applicant’s contact with his daughter. A copy of this decision has not been submitted to the Court. It appears that the applicant was authorised to see his daughter the second and the fourth weekend of every month; during one week of winter holidays; during two weeks of summer holidays and on selected days of Christmas and Easter holidays. It appears that the applicant did not appeal against this decision. On 31 August 2015 the Grudziądz District Court, with D.K. as presiding judge, confirmed that the above-mentioned decision was binding and enforceable as of 8 July 2015. 32. Divorce proceedings are currently pending in the United Kingdom. | 1 |
test | 001-170365 | ENG | UKR | COMMITTEE | 2,017 | CASE OF GORODOVYCH v. UKRAINE | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect) | André Potocki;Ganna Yudkivska;Síofra O’Leary | 4. The applicant was born in 1967 and lives in Lviv. 5. Between March 1995 and July 1996 the applicant underwent outpatient treatment for overactive thyroid at the State Oncology Centre in Lviv. She was treated by Dr S. 6. In July 1996 the applicant’s health deteriorated; she was examined at the State Endocrinology Centre in Lviv and was diagnosed with hypothyroidism. From 13 November to 10 December 1996 the applicant underwent inpatient treatment for hypothyroidism at the Endocrinology Centre. The applicant told the doctors that her hypothyroidism resulted from the treatment with a radiopharmaceutical, J-131 (radioactive iodine), which Dr S. had administered to her between March 1995 and July 1996. The doctors from the Endocrinology Centre recorded in the applicant’s medical file that the applicant suffered from hypothyroidism resulting from the treatment with radiopharmaceuticals. Eventually, the applicant lost her thyroid and was recognized as suffering from the second highest official degree of disability. 7. On 10 October 1997, at the applicant’s request, Dr S. issued her a certificate stating that throughout 1996 the applicant’s treatment included injections of a radiopharmaceutical, namely radioactive iodine J-131. Dr S. did not specify the dosage or dates on which the applicant had received the injections. 8. In May and June 1998 the applicant complained to the Lviv Department of the Ministry of Health (“the Department”) that the radiopharmaceuticals administered to her by Dr S. had seriously damaged her health. 9. The Department invited the applicant to undergo a medical examination at one of the hospitals in Lviv, however she refused. The Department checked the records of the Oncology Centre and found that they contained no data as regards the applicant’s alleged treatment with radiopharmaceuticals. It was further noted that, according to the applicant’s medical records, between 1995 and 1996 her diagnosis had been unclear. That being the case, the treatment mentioned in the certificate of 10 October 1997 had been inadequate. The Department recommended the Oncology Centre to dismiss Dr S. for that reason. Shortly afterwards Dr S. retired from the Oncology Centre of her own motion. 10. In July 1998 the applicant complained to the Lviv prosecutor’s office that Dr S. had treated her with J-131, that the treatment had been inadequate and that it had destroyed her thyroid. To support her complaint, the applicant submitted the certificate of 10 October 1997. 11. In January 1999 an official investigation was launched into the applicant’s complaint which was carried out initially by the prosecutors and later by the police. In the course of the investigation the applicant, Dr S. and a number of other persons were questioned. Also, several forensic examinations were performed. A number of decisions were taken rejecting the applicant’s complaint principally for the reason that, according to the forensic reports, it was impossible to establish the cause of the destruction of the applicant’s thyroid. Those decisions were eventually quashed for incomplete investigation. The most recent decision in that regard was taken by the Frankivskyy District Court in Lviv on 18 January 2016, by which it instructed the police to carry out further investigation in the applicant’s case, finding inter alia that the police had failed to examine all pertinent evidence and that an additional forensic examination was necessary. The investigation has not been completed to date. | 1 |
test | 001-157535 | ENG | AZE | CHAMBER | 2,015 | CASE OF GAHRAMANLI AND OTHERS v. AZERBAIJAN | 3 | Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Stand for election);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction) | András Sajó;Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque | 5. The applicants were born in 1975, 1957 and 1955 respectively and live in Baku. 6. The applicants stood as candidates for the opposition parties in the parliamentary elections of 7 November 2010 in the single-mandate Khatai First Electoral Constituency No. 33. Mr Fuad Gahramanli was nominated by the coalition of the Popular Front and Musavat parties, Mr Zalimkhan Mammadli by the Classic Popular Front Party and Mr Namizad Safarov by the Karabakh electoral bloc. 7. The constituency was divided into thirty-five electoral precincts, with one polling station in each precinct. It is apparent that there were a total of eight candidates running for election in the constituency. 8. According to the official election results, Mr H.M., the candidate nominated by the ruling Yeni Azerbaijan Party, won the election with 9,805 votes. Mr Zalimkhan Mammadli finished second with 1,893 votes, Mr Fuad Gahramanli third with 1,571 votes and Mr Namizad Safarov last with 157 votes. 9. On 10 November 2010 the applicants, together with one other candidate, jointly lodged nearly identical complaints with the Constituency Electoral Commission (the “ConEC”) and the Central Electoral Commission (the “CEC”). They complained that the election results had not reflected the true opinion of the voters because there had been numerous instances of electoral fraud and irregularities on election day, and they requested the annulment of the election results in their constituency. They alleged that: (a) In all the constituency polling stations, employees of the Khatai District Executive Authority and people affiliated with Mr H.M. had, in an organised manner, brought a number of persons not registered as voters into constituency polling stations to cast voting ballots; (b) There had been instances of ballot-stuffing in numerous polling stations; (c) The number of ballots cast in all the polling stations had been more than three times higher than the number of voters who had come to cast votes in all the polling stations; (d) In one polling station, observers and consultative members of precinct electoral commissions (“PECs”) (commission members with no voting rights) had been prevented from participating in the vote-counting process. 10. The applicants also requested that their presence be ensured at the commission hearings concerning their complaints. 11. In support of their allegations, the applicants submitted to the electoral commissions more than a hundred statements (akt) made by election observers documenting specific instances of the irregularities complained of. 12. The applicants submitted copies of approximately fifty of the abovementioned statements to the Court concerning alleged irregularities in Polling Stations nos. 4, 5, 6, 9, 10, 11, 13, 14, 16, 18, 19, 20, 21, 23, 24, 25, 28, 29, 30, 33, 34 and 35. Some examples of those statements are summarised below. 13. Two observers in Polling Station no. 34 claimed to have witnessed an incident of ballot-box stuffing by two PEC members. They noted that, although fewer than 240 voters had been counted throughout the day, a total of 534 ballots had been found in the ballot box and officially counted. 14. Three observers in Polling Station no. 9 witnessed an incident where the PEC chairman had given a stack of several pre-marked ballots to a voter, who then accidentally dropped them on the floor near the ballot box. Despite this, the ballots were gathered up and put into the ballot box in plain view of all those present. In a separate statement, the same three observers noted two other incidents of similar ballot-box stuffing allegedly initiated by the PEC chairman. 15. Three observers in Polling Station no. 19 noted that, although a total of only 259 voters had been counted throughout the day, the number of ballots found inside the ballot box at the end of the day had exceeded 400. 16. One consultative member of the PEC and two observers in Polling Station no. 18 noted that they had been prevented from standing at a place where they could observe, in an unobstructed manner, the checking of voters’ forefingers for election ink. This had presumably been done by persons in charge in the precinct, 17. Three observers in Polling Station no. 25 noted that, although a total of only 235 voters had been counted throughout the day, 496 ballots had been found in the ballot box. The ballot box contained clumps of ballots, suggesting that ballot-box stuffing had taken place. 18. Observers in a number of other polling stations had also noted similarly significant differences between the numbers of ballots in the ballot boxes and the numbers of voters who had been observed casting votes throughout the day. 19. According to the applicants, they did not receive any reply from the ConEC and their complaint had been examined by the CEC only. 20. On 13 November 2010 the CEC extended the statutory three-day period for examining the complaint for an indefinite period of time, noting that “additional enquiries” were required. 21. On 21 November 2010, R.I., the member of the CEC’s expert group who had been charged with dealing with the complaint delivered his opinion, stating that the complaint should be dismissed as unsubstantiated. 22. By a decision of 21 November 2010, the text of which was essentially a repetition of the opinion delivered by the expert R.I., the CEC dismissed the applicants’ complaint as unsubstantiated. It appears that the applicants were not present at the CEC hearing. 23. In its decision, the CEC noted that the applicants should first have taken their complaints to the relevant PECs. They could then have appealed against the decisions of the various PECs to the ConEC, and only then should they have complained to the CEC, whereas ‒ in breach of the above procedure ‒ they had applied directly to the CEC. The CEC nevertheless decided to examine the complaint on the merits. 24. As to the merits of the complaint, the CEC found, in particular, that “the majority of the observers’ statements [as submitted by the applicants] were of a general character and did not reflect the principle that an observation must be based on fact”. It furthermore found that a number of the statements contained an assessment of the alleged irregularity based solely on observers’ “subjective opinions”. As an example of this, the CEC mentioned the statement of three observers from Polling Station no. 25 (see paragraph 17 above). 25. Furthermore, the CEC noted that the information in the observers’ statements which the applicants submitted ‒ of which there were more than hundred ‒ was refuted by the statements of over one hundred other observers from “all thirty-five polling stations” who had not registered any breaches of electoral law that could affect the election results. According to the CEC, some of those observers represented the opposition. In particular, the CEC mentioned the names of a number of observers from Polling Stations nos. 3, 4, 6, 8, 9 and 15 who, according to the CEC, “had confirmed that no breaches of the electoral legislation had been observed”. Moreover, the CEC noted that PEC members in all the polling stations had stated that, on election day, they had not received any statements or complaints by any observer or candidate concerning any election irregularities and that the election process in their respective polling stations had been lawful and conducted under adequate conditions. 26. In conclusion, the CEC found that the examination of the written evidence refuted the allegations made by the applicants and that no grounds for invalidating the election results could be established. 27. On 25 November 2010 the applicants, together with one other candidate, lodged an appeal against the CEC decision with the Baku Court of Appeal. In the appeal, they reiterated the complaints made to the CEC about the alleged irregularities on election day. They also complained that ‒ contrary to the requirements of Article 112-1.7 of the Electoral Code ‒ their presence at the CEC hearing had not been ensured and that the CEC had deliberately not investigated the serious allegations of electoral fraud and irregularities. 28. By a judgment of 26 November 2010 the Baku Court of Appeal dismissed the applicants’ appeal, mostly reiterating the CEC’s reasoning. In particular, it noted that the applicants and their observers had not immediately complained of the alleged irregularities directly to the relevant PECs on election day. It furthermore found that the CEC had properly investigated the allegations and had found that they had been refuted by a number of other observers representing various political parties, including opposition parties, who had stated that no serious irregularities had taken place in any polling station. 29. A copy of the Baku Court of Appeal’s judgment was made available to the applicants on 30 November 2010. 30. In the meantime, on 22 November 2010 the CEC had sent its final election results record and other relevant documents for review and final approval by the Constitutional Court. On 29 November 2010 the Constitutional Court confirmed the country-wide election results, including the election results in the applicants’ constituency, as final. 31. On 1 December 2010 the applicants lodged an appeal with the Supreme Court against the Baku Court of Appeal’s judgment. They reiterated the complaints and arguments raised before the CEC and the Baku Court of Appeal. They also complained of the following: (a) as to the CEC’s and the appellate court’s remark that the irregularities allegedly observed on election day had not been communicated to the PECs immediately on that same day, the applicants noted that it had been precisely the conduct of the PECs ‒ which had created a hostile environment for opposition observers and had themselves been largely responsible for those irregularities ‒ that had made it impossible or difficult for the applicants and their observers to attempt to deal with the irregularities at the PEC level; (b) both the CEC and the Baku Court of Appeal had given more weight to the statements of pro-Government observers, which had assessed the election process positively, than to those of the applicants’ observers. The CEC and the Baku Court of Appeal did not explain the reasons for doing so. Moreover, while the CEC noted that positive statements about the conduct of the election had been made even by some observers from opposition parties, the applicants claimed the CEC had simply fabricated the existence of such statements by purported pro-opposition observers. 32. On 6 December 2010 the Supreme Court dismissed the applicant’s appeal, agreeing with the lower court’s reasoning. It also added that the applicants’ appeal and the Baku Court of Appeal’s judgment had to be assessed in the light of Article 63.4 of the Law on the Constitutional Court, which stated that the Constitutional Court’s decisions were final and could not be subject to quashing, amendment or official interpretation by any authority or person. In this regard, the Supreme Court reasoned as follows: “The results of the [parliamentary] elections of 7 November 2010 were recognised as valid by [the CEC’s] election results record of 22 November 2010 and the candidates elected as members of parliament from all 125 electoral constituencies were determined. The aforementioned results record was approved by the CEC decision of 22 November 2010, and [on the same date] the final election results record, together with the [ConEC] results records and additional documents, were submitted to the Constitutional Court for verification and approval of the election results. By a decision of the Plenum of the Constitutional Court on the results of the [parliamentary] elections of 7 November 2010 ..., dated 29 November 2010, the CEC’s final results record of 22 November 2010 was deemed compliant with the requirements of Articles 100.2, 100.12, 108.2 and 171.2 of the Electoral Code of the Republic of Azerbaijan, and the election results concerning 125 electoral constituencies, including Khatai First Electoral Constituency no. 33, were approved, that decision becoming final at the moment of its delivery. It follows from that decision that the Constitutional Court did not establish any circumstances that may have taken place during the voting or the determination of the election results that could have prevented the establishing of the will of the voters in Khatai First Electoral Constituency no. 33. Taking into account the fact that the aforementioned decision [of the Constitutional Court] is final and not subject to quashing, amendment or official interpretation by any authority or person, the court considers that the judgment of the appellate court [dismissing the applicants’ complaints] must be upheld.” | 1 |
test | 001-164474 | ENG | UKR | ADMISSIBILITY | 2,016 | YARUSHKEVYCH v. UKRAINE | 4 | Inadmissible | Angelika Nußberger;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Sergiy Goncharenko;Yonko Grozev | 1. The applicant, Mr Vasyl Vasylyovych Yarushkevych, is a Ukrainian national, who was born in 1959 and lives in Yuzhynets, the Chernivtsi region. He was represented before the Court by Ms N.P. Svyrgun, a lawyer practising in Kyiv. 2. The Ukrainian Government (“the Government”) were represented by their then Agent, Ms Valeria Lutkovska. 3. Ms Ganna Yudkivska, the judge elected in respect of Ukraine, was unable to sit in the case (Rule 28 of the Rules of Court). Accordingly, the President of the Fifth Section decided to appoint Mr Sergiy Goncharenko to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29 § 1). 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. On 7 September 2000 the Chernivtsi Regional Court found the applicant, a State bailiff at the material time, guilty of fraud in conjunction with abuse of position, as well acceptance of a bribe, also with abuse of position. It sentenced him to a three-and-a-half-year prison term and decided on an injunction against occupying official posts for the same period and confiscation of his personal property. 6. The applicant challenged the judgment on appeal. 7. In its 22-28 September 2000 issue, the Molodyy Bukovynets, a triweekly regional newspaper with circulation of about 35,000 copies (according to the information provided by the applicant), published an article on the court proceedings in question. The article, entitled “A bailiff has been convicted” («Засудили судовиконавця»), commenced by the following introductory paragraph: “On 7 September the criminal panel of the regional court sent Vasyl Yarushkevych, who had served as a bailiff in Kitsman, down for three and a half years behind bars. According to the court’s judgment, he is “deprived of the right to occupy official posts for three and a half years and is to serve a sentence in a high-security colony”. Also all Yarushkevych’s property is to be confiscated.” 8. Following this introductory paragraph, the article went into detail on the applicant’s conduct which had led to his conviction, including the victims’ last names and details of their statements, an interview with the presiding judge, who explained that the applicant’s personal circumstances, including his status as a Chernobyl victim with no prior criminal record, were taken into consideration in choosing a mild sanction, and the journalist’s allegation that if the applicant were unable to pay his civil debt under the judgment, his car or his apartment might have to be sold. The article finished with the following phrase: “Easy gain turned into heavy consequences”. 9. On 24 October 2000 the Supreme Court of Ukraine quashed in part the judgment of the first-instance court in so far as it concerned the bribe-taking charge and remitted this part of the case to the prosecution authorities for additional investigation. The Supreme Court also reduced the applicant’s prison sentence and the injunction on the occupancy of official posts to three years. Subsequently (on 9 March 2004) the Kitsman District Court discontinued the criminal proceedings on the bribe-taking charge against the applicant as time-barred. 10. On 15 October 2003, having returned to his village after serving his sentence, the applicant brought defamation proceedings before the Pershotravnevyy District Court of Chernivtsi (“the Pershotravnevyy Court”) against the Molodyy Bukovynets newspaper and the journalist who had authored the article in question. He alleged that the article contained an untrue statement about his conviction in respect of the acceptance of a bribe. The applicant noted in this connection that the respective part of the judgment had eventually been quashed and that the case had been remitted for additional investigation. The applicant further submitted that the publication had caused him non-pecuniary damage, as it had resulted in his stigmatisation by the villagers as corrupt, that it had brought about complications in his family relationships and had made it more difficult for him to find employment and reintegrate into society. Accordingly, the applicant sought a declaration of the impugned statement as untrue and thus defamatory, publication of its refutation by the defendants, and compensation in respect of non-pecuniary damage. 11. Although the applicant missed the one-year limitation period established for this kind of claims, the court considered that he had had valid reasons for that and accepted his claim for consideration. 12. On 15 December 2004 the Pershotravnevyy Court found against the applicant. It noted that the information contained in the disputed article had been accurate at the time of its publication and could therefore not be considered defamatory or subject to refutation. 13. The applicant appealed. He insisted that neither at the time of the publication nor later had his guilt in respect of acceptance of a bribe been established by a final judicial decision. He further alleged that publishing a full and detailed account of his conviction before it became final was in violation of the constitutional principle of the presumption of innocence. 14. On 6 April 2005 the Chernivtsi Regional Court of Appeal upheld the first-instance court’s judgment and its major point of reasoning that, when the article at issue had been published, the information about the conviction was accurate. The court further stated: “As regards the appellant’s arguments that by their publication the defendants violated the principle of presumption of innocence... they are ill-founded. It has been established that the author of the article did not accuse [the applicant] of crimes before the pronouncement of the judgment in his case, but that he [the journalist] merely reported on the contents of the judgment, which had been publicly pronounced. Current legislation of Ukraine, including the Law of Ukraine “On Printed Media”,... does not prohibit journalists from providing their readers with information concerning convictions by first-instance courts which have not yet become final. Furthermore, it is well-known that first-instance court judgments are subject to appeal... and the author of the publication did not state that the conviction was final. The first-instance court’s judgment is also in compliance with the requirements of Articles 6 and 10 of the [Convention] concerning public hearings of criminal cases and freedom of expression. The case-file materials indicate that the judgment was pronounced in respect of [the applicant] not as a private person, but as an official having a wider range of obligations to the society and the State. Consequently... the journalist had the right to analyse this thoroughly and report the proceedings to the public...” 15. The applicant appealed on points of law, alleging in particular that the publication went beyond mere reporting on the outcome of the proceedings in the first-instance court. He submitted that it was couched in such terms as to leave no room for doubt in the reader’s mind that the court’s findings were correct. It featured details, unnecessary for reporting on a non-final conviction, such as the court’s reasoning with respect to particular witness statements, a reference to the applicant as an apartment owner and other information not warranted by the context. 16. On 11 June 2007 the Ternopil Regional Court of Appeal, acting as the cassation instance, rejected the applicant’s request for leave to appeal in cassation. 17. Relevant domestic law can be found in the judgment in the case of Ukrainian Media Group v. Ukraine (no. 72713/01, §§ 22-24 and 26, 29 March 2005). | 0 |
test | 001-164465 | ENG | MDA | COMMITTEE | 2,016 | CASE OF BAŞTOVOI v. THE REPUBLIC OF MOLDOVA | 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 - Degrading treatment;Prohibition of torture) | Stéphanie Mourou-Vikström;Georges Ravarani | 4. The applicant was born in 1959 and is currently detained in Chișinău. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. On 23 December 2013 the applicant was arrested and charged with embezzlement and organising the attempted murder of two businessmen. Since that date he has been detained in Prison no. 13. 7. According to the applicant, he has been detained in a cell measuring 6 square metres with five other inmates, which left very little space for each detainee. Due to overcrowding, detainees had to share beds. He was not provided with bedding or a pillow. There was no sink or running water in the cell. The food was of poor quality and inedible. The squat toilet was not separated from the rest of the cell and gave off a foul odour. There was also a lack of daylight and poor ventilation. 8. The applicant asserted that he had been detained with inmates diagnosed with tuberculosis, HIV/AIDS and other infectious diseases. As a result of being held in inhuman conditions of detention, he had been ill with mycosis, gastritis and a respiratory infection. He was not provided with any medical assistance and was forbidden from receiving herbal medicine from his wife. 9. The applicant complained of inhuman conditions of detention to the Chișinău prosecutor’s office and Court of Appeal. On 14 April 2014 the Prisons Department replied that after examining his allegations, it had not found any violation of domestic law. 10. The Government submitted that the applicant’s cell (no. 130) measured 10 square metres and was designed to accommodate four people. All detainees had their own beds. The cell was equipped with a sink and running water. The applicant was provided with bedding, hygiene products tailored to his needs and hot food three times a day, in accordance with Government Decision no. 609 concerning the minimum daily food requirements for detainees. The Government contended that the cell in question had not accommodated people with infectious diseases. They added that the applicant had been provided with medical assistance and submitted evidence of various medical check-ups. | 1 |
test | 001-149208 | ENG | POL | COMMITTEE | 2,015 | CASE OF BRAJER v. POLAND | 4 | Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time) | Krzysztof Wojtyczek;Päivi Hirvelä;Zdravka Kalaydjieva | 5. The applicant was born in 1976 and is currently detained in Łódź Remand Centre. 6. On 25 September 2006 the Łódź District Court (Sąd Rejonowy) gave a decision, ordering the applicant’s detention on remand for a period of three months. He was charged with a number of offences committed in an armed organised criminal group. At that time the applicant was serving a prison sentence imposed in another criminal proceedings against him. The end of that prison sentence fell on 18 November 2007. In its decision, the District Court relied on a reasonable suspicion that the applicant had committed the offences in question. The court further emphasised the gravity of the offences and the likelihood of a heavy prison sentence being imposed on the applicant after conviction. According to the domestic court, the fact that the applicant was at the relevant time serving a prison sentence did not minimise the risk of him obstructing the proceedings. Additionally, the ongoing questioning of other members of the criminal group as well as the necessity to obtain other evidence justified remanding the applicant in custody. 7. On 19 December 2006 and 26 June 2007 the Łódź Regional Court (Sąd Okręgowy) extended the applicant’s pre-trial detention. Subsequently, the Łódź Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention on 19 September 2007, 19 December 2007, 28 March 2008, 18 June 2008, 22 October 2008 and on 23 December 2008. In their detention decisions the courts repeatedly relied on a strong suspicion that the applicant had committed the offences in question and on the likelihood of a heavy prison sentence being imposed on him. The courts considered that keeping the applicant in detention on remand was necessary to secure the proper conduct of the proceedings. They emphasised the complex character of the case and the considerable number of co-accused involved who, if released, would had obstructed the proceedings. The courts noted that due to the nature of the organised criminal group, its methods of influencing and bringing pressure to bear on the other members of the group as well as witnesses, the authorities had had difficulties in collecting evidence and taking statements. 8. On 18 March 2009 the State Prosecutor (Prokurator Krajowy) lodged a bill of indictment against the applicant with the Łódź Regional Court. The applicant was charged with several counts of extortion and drug-trafficking committed in an organised and armed criminal group. The bill of indictment comprised 94 charges brought against 28 defendants. The prosecution authorities requested that 318 witnesses be heard before the court. 9. On 30 March 2009 the Łódź Court of Appeal extended the applicant’s detention on remand until 31 December 2009. Subsequently, the same court ordered prolongation of his detention on 21 December 2009 (detention extended until 30 September 2010), on 22 September 2010 (detention extended until 31 March 2011) and on 23 March 2011 (detention extended until 30 September 2011). The applicant lodged a number of motions to be released as well as appeals against the decisions extending his pre-trial detention, all in vain. In their decisions the courts repeated the grounds previously given for the applicant’s detention. 10. Meanwhile, the court scheduled fifteen hearings for November and December 2009. Due to sick-leaves of the presiding judge and of some of the accused those hearings did not take place. 11. The trial was eventually opened on 18 January 2010. Subsequent scheduled hearings were adjourned due to absences of some of the coaccused and problems with sound system in the court room. 12. In May 2010 the Regional Court gave a severance order and decided to determine charges against two coaccused separately. 13. The bill of indictment was only finally read out to the defendants at the hearing held on 27 May 2010. 14. At the hearing of 28 May 2010 the Regional Court started taking evidence from the accused. It subsequently held fourteen hearings until the end of 2010, during which some of the accused gave evidence. Five of the scheduled hearings were adjourned due to sick-leaves of the accused. One hearing was adjourned because of the motion for disqualification of the presiding judge lodged by one of the co-accused. 15. In 2011 the Regional Court continued taking evidence from the defendants. Of the twenty nine hearings scheduled for this year, eleven took place. The trial court adjourned fifteen hearings due to justified absences of the parties, three hearings were cancelled due to sick-leaves of the presiding judge and the lay judges. 16. Meanwhile, on 17 August 2011 the Łódź Regional Court ordered that the applicant’s detention on remand be lifted on condition that he paid the bail in the sum of 20,000 Polish zlotys (PLN) within the period of two weeks from the date of the decision. On the same date the applicant was released on bail and police supervision. He was also prohibited from leaving the country. 17. The Regional Court scheduled twenty hearings for 2012, of which six hearings were eventually held. At the hearing of 16 April 2012 the trial court started taking evidence from witnesses. Of the fourteen hearings cancelled this year, two were adjourned because of a sick-leave of a judge, three because of absences of witnesses, and the remaining nine hearings – because of absences of the parties. 18. Until 30 July 2013 the Regional Court scheduled nine hearings for 2013, of which seven were adjourned due to justified absences of the defendants. 19. The criminal proceedings against the applicant are still pending at first instance. 20. On 27 April 2011 the applicant lodged a complaint with the Łódź Court of Appeal under 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 przygotowawczym prowadzonym lub nadzorowanym przez prokuratora i postępowaniu sądowym bez nieuzasadnionej zwłoki – “the 2004 Act”). He sought a finding that the length of the criminal proceedings against him had been excessive and PLN 20,000 in compensation. 21. On 27 July 2011 the Łódź Court of Appeal dismissed the applicant’s complaint. The court found that, considering the complexity of the case and the number of co-accused who had actively tried to obstruct the proceedings, the Łódź Regional Court had conducted the proceedings in a correct and timely manner. Consequently, the appellate court refused to award the applicant compensation. | 1 |
test | 001-147030 | ENG | RUS | COMMITTEE | 2,014 | CASE OF MYSIN v. RUSSIA | 4 | No 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) | Dmitry Dedov;Erik Møse;Khanlar Hajiyev | 4. On 25 June 2004 the applicant was arrested on suspicion of theft of documents and death threat and later charged with several counts of murder and robbery. While in police custody, he was allegedly subjected to beatings. 5. On 9 July 2004 the applicant was placed in remand prison IZ-27/1 in Khabarovsk. 6. After an initial period of detention in ordinary cells of the prison, on 18 July 2005 the applicant was transferred to a special section designed for detention of persons sentenced to life imprisonment. The applicant stayed in several cells of that section until his departure to a correctional colony on 19 December 2007. 7. The parties disagreed on many aspects of the material conditions of the applicant’s detention during that period. 8. In the Government’s submission, the applicant was accommodated in four cells: cell 182, from 18 July 2005 to 21 September 2006; cell 176, from 21 September 2006 to 10 August 2007; cell 178, from 10 to 22 August 2007; cell 181, from 22 August to 19 December 2007. 9. All cells measured 8.1 sq. m and had 2 sleeping places. The applicant stayed in them either alone or with another detainee, but the design capacity was never exceeded. 10. Each cell had a window covered by metal bars which allowed sufficient access to natural light and fresh air. Two light bulbs, one for daytime and another for night-time lighting were installed in the cells. Running water was available at all times. Toilet pans were located at between 1 and 1.3 m from beds and dining tables and separated from the rest of the cells by a 1.5 meter-high brick partition. The applicant was allowed daily hour-long outdoor exercise. He could take a shower and wash his clothing once a week. 11. In support of their position, the Government produced a number of certificates and statements issued by the director of remand prison IZ-27/1 on 7 July 2010 showing the numbers of the cells where the applicant stayed, the frequency of outdoor exercise and visits to the shower, as well as descriptions of the cells, their equipment and sanitary installations. The certificates were accompanied by copies of the applicant’s cell record, the prison population register and the schedules of outdoor exercise and sanitary measures covering the entire period of the applicant’s detention. 12. Further to the Court’s request, the Government submitted a floor plan of the facility, containing indications of the cell surface. 13. The applicant disputed the Government’s submissions concerning the cells. He provided the following information in that regard: cell 182, held from 18 to 30 July 2005; cell 183, held from 30 July 2005 to 3 October 2006; cell 173, held from 3 October 2006 to 12 July 2007; cell 176, held from 12 to 30 July 2007; cell 178, held from 30 July to 28 August 2007; cell 181, held from 28 August to 8 September 2007. 14. According to the applicant, the cells presented the following characteristics: cell 182 measured 4.5 sq. m. The applicant stayed there alone; cell 183 measured 5 sq. m and housed up to 3 inmates; cell 173 measured 3 sq. m and accommodated 2 persons; cell 176 measured 3 sq. m. The applicant stayed there alone; cell 178 measured 3 sq. m and accommodated 2 inmates; cell 181 measured 4 sq. m and hosted 2 detainees. The applicant did not provide any information about the number of sleeping places in the cells. 15. All cells were located in the semi-basement of the remand prison. They were poorly lit and ventilated. Metal shutters on the windows blocked access to natural light and fresh air. Heating did not function. Drinking water was available only on request from the prison guards. The toilet pan was not separated from the living area. The courtyard for outdoor exercise was very small. 16. To corroborate his claims, the applicant submitted statements by two detainees from the adjacent cells who also stated that the applicant had been ill-treated by prison guards. 17. On 25 July 2006 the Supreme Court of Russia found the applicant guilty as charged and sentenced him to life imprisonment. 18. On 30 May 2006 the applicant’s mother complained to the regional prison authority about the conditions of his detention. In response to the complaint, on 27 June 2006 the authority admitted that the cell where the applicant was held had to be repaired and directed the management of the prison to transfer the applicant to another cell. 19. On 2 August 2006 the applicant complained to the regional prosecutor about the conditions of his detention. He claimed, in particular, that there were metal shutters on windows, that the toilet pan was not separated from the rest of the cell and that the heating was too weak. Following an inquiry into the applicant’s allegations, on 19 August 2006 the district prosecutor concluded that “the [remand prison] cells [were being] renovated and properly maintained” and refused to open a criminal investigation into the matter. The applicant complained to a court. 20. On 18 September 2006 the Kirovskiy District Court of Khabarovsk dismissed the applicant’s complaint against the prosecutor’s decision of 19 August 2006. The applicant appealed against the decision of 18 September 2006, but provided no further information about the outcome of these proceedings. 21. On 9 October 2006 the applicant’s mother lodged another complaint with the regional prison authority, claiming, in particular, that the conditions of his detention had not improved. On 13 November 2006 the authority replied that the applicant’s cell had been recently renovated and satisfied the legal standards and that the applicant had no complaints in that regard. | 1 |
test | 001-158751 | ENG | POL | ADMISSIBILITY | 2,015 | COSTE v. POLAND | 4 | Inadmissible | Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney | 1. The applicant, Mr Gaël Coste, is a French national who was born in 1973 and lives in Marseille, France. He is represented before the Court by Ms A. Lończyk-Colin, a lawyer practising in Ruda Śląska. 3. In October 2009 the applicant’s daughter, A.S.C., was born out of his informal relationship with A.S., a Polish national. The family lived together in Paris. 4. In 2011 the couple split up and A.S. and A.S.C. moved to Poland with the applicant’s consent. 5. Since then, the applicant has maintained his contact with his daughter through frequent phone calls, regular meetings in Poland and several meetings in France. During these visits, the child was always accompanied by her mother, who would not allow the child to make unaccompanied visits to Poland or to travel to France without her. 6. The child does not speak French. Her mother occasionally teaches her French and reads to her in this language. The applicant communicates with his child in basic Polish or through the child’s mother. He pays child support and tuition for the child’s private school. 7. On 13 March 2013 the applicant applied for contact with his daughter. He did not ask for an interim order to be issued to secure his contact rights during the proceedings. He wished to take his daughter to France every year in the month of July, for the All Saints’ holiday, and for the Christmas or Easter holidays in alternate years. 8. On 11 June 2013 the Płock District Court ordered a report from the Family Consultation Centre (Rodzinny Ośrodek Diagnostyczno-Konsultacyjny, “the RODK”) to establish what kind of bond existed between the applicant and his child, the quality of the direct communication between the applicant and the child, and whether the child’s travel to France without the mother and contact between the applicant and the child without the presence of the mother or an interpreter would be contrary to the child’s best interests. 9. On 31 July 2013 ‒ following interviews with both parents and the child, which took place in the presence of a French interpreter ‒ the RODK produced an expert report. It was found that the child had a strong bond with both parents and that both of them were considerate, emotionally balanced and loving. It was also concluded that the quality of the linguistic communication between the applicant and his daughter was good and sufficient for the applicant to understand the needs of his child and for their mutual communication and that it was in the child’s best interests that contact arrangements be made. It was also recommended that before the applicant travelled with his daughter to France, they should have several unaccompanied meetings in Poland and that the child’s mother should accompany the child on a trip abroad. 10. On 26 March 2014 the Płock District Court (Sąd Rejonowy) dismissed the applicant’s application. The domestic court heard both parents and a witness. The domestic court also relied on the RODK report which was considered to be full and thorough, although it led the domestic court to draw partly different conclusions. In particular, it was held that the quality of the independent communication between the applicant and his child was not sufficient for carrying out long-term unaccompanied visits to France. Even though the lack of adequate linguistic exchange might not have significantly impeded the applicant’s play-time with his child as tested by the RODK, the lack of a common language between a father and a fouryear-old constitutes a serious obstacle to their contact in the longer term. In particular, the child would not be able to inform the applicant about her feelings or possible health disorders, and she would therefore not feel secure in the new environment. In this respect, the domestic court considered the RODK report to be inconsistent because, on the one hand, the experts had found that the quality of the communication between the father and the daughter was sufficient whilst, on the other, they recommended a transitional period during which the child would be accompanied by her mother on trips to France and the father could meet her without any linguistic assistance in Poland. In view of these considerations and the child’s young age, the domestic court held that ensuring her feeling of security ‒ which would in turn guarantee her adequate development and the proper course of the meetings ‒ was more important than her independent contact with her father. The domestic court had no doubt that the applicant had a right to unaccompanied contact with his daughter and that he had adequate parenting skills for such contact. But the language barrier between him and his child was an obstacle. The district court upheld the recommendation of the RODK experts that the child should be prepared for future independent contact by means of unaccompanied meetings in Poland and visits to France in her mother’s company. Eliminating such a transitional period would deprive the child of the possibility of a gradual adaptation to such a new and important event as unaccompanied travel with her father to France. The domestic court decided not to rule on any contact arrangements during the transitional period because the applicant had not requested it in his application. 11. The applicant appealed on the merits, including the grounds that a family court was duty-bound to rule on contact arrangements when the parties were in disagreement. The applicant also applied for an interim order for the duration of the appellate proceedings by virtue of which he would be authorised to have his daughter’s passport and to spend the month of August 2014 and the first weekend of every month with the child without the mother’s presence. 12. On 17 July 2014 the Płock Regional Court (Sąd Okręgowy) issued an interim order authorising the applicant to visit his daughter between 1 and 7 August and 23 and 30 August 2014 in her home in Poland from 10 a.m. to 6 p.m. without the presence of any third parties, and to take his daughter out for no longer than three hours (with the mother having a right to one phone call during this time). A copy of this decision has not been submitted. It appears that the applicant did not lodge an interlocutory appeal. 13. The applicant met his daughter in compliance with the above interim decision. He spoke with her mainly in French. 14. The applicant later modified his application for contact, wishing to spend his time with the child in Poland, the first weekend of every month ‒ from 5 p.m. on Friday until 7 p.m on Sunday ‒ in the period up until June 2015, and from 10 p.m. on 23 December until 7 p.m on 2 January, with the right to take her to his home. In the later phase, he wished to have extended contact rights as set out in his 2013 application. 15. On 24 September 2014 the Płock Regional Court amended the first-instance decision by authorising the applicant to visit his child the first weekend of every month, on Friday between 5 p.m. and 7 p.m., on Saturday from 10 a.m. to 7 p.m. and on Sunday from 10 a.m. to 6 p.m., and every day from 9 a.m. to 7 p.m in the period from 1 to 21 July. The meetings were to take place at the child’s home without the presence of the mother or any third parties. The applicant was also authorised to take the child out for a maximum of four hours, with the mother being entitled to one phone call. Additionally in July, the applicant was authorised to take the child out for a maximum of six hours and, every third day, to take the child to his place of residence in Poland and to travel alone with the child within a radius of 50 km for a maximum of eight hours, with the mother being entitled to two phone calls. In the domestic court’s view, such a schedule would deepen the bond between the father and the child and would help them improve their communication without the risk of the child feeling insecure. It was observed that the schedule was a temporary solution of indeterminate duration until the child reached a certain level of maturity and learned to speak French, which would be necessary in order for her to make unaccompanied visits to France. 16. The applicant regularly travels to Poland to exercise his contact right in line with the above schedule. 17. He has recently submitted to the Court, however, that since 3 October 2014 A.S. had been interfering with the course of his visits by remaining present in the room designated for the applicant’s visits and not letting him take the child out. Out of sixteen recent visits, the applicant had been allowed to take his daughter out only eight times, including twice after police intervention. The time out had often been shorter than four hours and A.S. had telephoned her daughter more frequently than was authorised by the family court. 18. On 16 June 2015 the applicant applied for A.S.’s custody to be restricted on the grounds that she had been hindering his contact with the child. 19. In the course of these proceedings, A.S. made the following submissions to the family court. The applicant is not being impeded from having contact with his daughter in line with the court’s decision of 24 September 2014. In particular, a room with toys is at his disposal in A.S.’s house and his visits are undisturbed by the child’s mother. The applicant is in principle allowed to take his child out for four hours, with the mother telephoning only once. Out of twenty-seven recent meetings between the applicant and his daughter, the child did not go out with the applicant on only ten occasions. On these occasions, either the child was ill or the weather was bad or the child did not want to go out. To substantiate this, A.S. presented a medical certificate confirming that the child had bronchitis in April 2015. She also submitted that on 6 June 2015 she had called the police after the applicant had used physical force to carry his crying and struggling daughter outside. That day the police had told the applicant to leave. A.S. also informed the family court that the applicant provoked disputes and threatened her with child abduction. Moreover, the applicant filmed A.S. during each visit, following her inside the house. The applicant’s visits were becoming more and more unpleasant for the child because he never brought books or toys to play with and was unable to entertain the child due to the language barrier. He sometimes gets angry with his daughter and makes her cry. He has also used firm grips to stop her from leaving the room. On one occasion he had left bruises on the girl’s arms. If the child does not want to go out with the applicant, the latter calls the police. On one occasion, he did so when the child was in bed with fever. The child associates his visits with violence and police intervention. 20. On 13 July 2015 the Płock District Court issued an interim decision ordering the visits to the child to be supervised by a court bailiff who was to report to the family court once a month. The aim behind this decision was to verify A.S.’s parenting attitude and to enable the applicant to exercise his contact right. It was emphasised that the decision had a temporary character and was susceptible to change in the event of new circumstances and if the best interests of the child so required. | 0 |
test | 001-140231 | ENG | POL | COMMITTEE | 2,014 | CASE OF KRUSZYŃSKI v. POLAND | 4 | Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property) | Krzysztof Wojtyczek;Ledi Bianku;Paul Mahoney | 5. The applicant was born in 1952 and lives in Mielec. 6. The applicant is married with two children. Prior to his early retirement he had been employed for seven years and had paid his social security contributions to the State. 7. On 9 January 2001 the applicant filed an application with the Rzeszów Social Security Board (Zakład Ubezpieczeń Społecznych) to be granted the right to an early-retirement pension for persons raising children who, due to the seriousness of their health condition, required constant care, the so-called “EWK” pension. 8. Along with his application for a pension, the applicant submitted, among other documents concerning his son’s health condition, a medical certificate issued by a specialist doctor. The certificate stated that the child (born in 1990) suffered from chronic inflammation of upper respiratory tract and that he was in need of his parent’s constant care. 9. On 19 January 2001 the Rzeszów Social Security Board issued a decision granting the applicant the right to an earlyretirement pension. The pension amounted to PLN 1,155.05 brut which at that time constituted about 54% of the average brut salary in Poland. 10. The Social Security Board initially suspended the payment of the pension until 26 January 2001 due to the fact that the applicant was still working on the date of the decision. The applicant’s employment relationship was terminated with effect from 26 January 2001 and the pension was paid as of that date. 11. The applicant was issued with a pensioner’s identity card marked “valid indefinitely” and he continued to receive his pension without interruption until the date of the revocation of the right. 12. On an unspecified date the Rzeszów Social Security Board asked the Main Social Security Board’s doctor (Główny Lekarz Orzecznik) to inform it whether the applicant’s son required the permanent care of a parent. On 6 June 2002 the doctor stated that, on the basis of the medical documents, the child could not be considered as ever having required such care. 13. On 10 and 11 June 2002 the Rzeszów Social Security Board issued two decisions in respect of the applicant. 14. By virtue of one decision, the payment of the applicant’s pension was discontinued with immediate effect. By virtue of the other decision, the Social Security Board revoked the initial decision granting a pension and eventually refused to grant the applicant the right to an earlyretirement pension under the scheme provided for by the 1989 Ordinance. 15. On 24 June 2002 the applicant appealed against the respective decisions divesting him of the right to an early-retirement pension. He submitted that he should receive the benefit because his child required constant care, as confirmed by the medical certificate attached to the original application for a pension. Moreover, the applicant alleged that the revocation of his retirement pension was contrary to the principle of vested rights. 16. On 4 December 2003 the Tarnobrzeg Regional Court (Sąd Okręgowy) amended the challenged decisions and granted the applicant the right to the EWK payment with effect from 1 June 2002. 17. The Social Security Board appealed against the firstinstance judgment. 18. On 22 April 2004 the Rzeszów Court of Appeal allowed the Board’s appeal, amended the challenged judgment and dismissed the applicant’s appeals lodged against the Social Security Board’s decisions. The domestic court held that the applicant had been rightfully divested of his right to a pension under the scheme provided by the 1989 Ordinance as he had not satisfied the requirement of necessary permanent care. 19. On 14 December 2004 the Supreme Court refused to examine the cassation appeal. 20. Following the social security proceedings the applicant was not ordered to return his early-retirement benefits paid by the Social Security Board, despite the revocation of his right to an early-retirement pension. 21. Throughout the whole period of receiving the EWK pension the applicant did not work. 22. On 1 August 2002 the applicant started to work in a publishing house where he continued work until 4 February 2004. The applicant subsequently worked between 23 February and 22 September 2004, 2 and 17 October 2004, 1 February and 30 April 2006, 4 August 2006 and 18 July 2008. Between 18 October 2004 and 31 January 2006 the applicant worked on the basis of a civil law contract. Between 23 May and 3 August 2006 he remained unemployed. 23. On 8 July 2008 the applicant was granted a disability pension until 31 August 2011. The pension amounted to approx. 40% of the average net salary. 24. The Government submitted that the applicant’s gross annual income was PLN 3,690 (approx. EUR 971) in 2002, PLN 10,168 (approx. EUR 2,365) in 2003, PLN 8,801 (approx. EUR 1,956) in 2004, PLN 10,404 (approx. EUR 2,600) in 2005, PLN 11,349 (approx. EUR 2,910) in 2006, PLN 19,494 (approx. EUR 5,118) in 2007, PLN 14,137 (approx. EUR 4,040) in 2008, PLN 33,306 (approx. EUR 7,570) in 2009 and PLN 9,399 (approx. EUR 2,350) in 2010. 25. The Government further submitted that the applicant’s wife had a gainful employment. In the years 1999-2007 she earned around 100% of the average gross salary in Poland. As of 2007 she acquired the right to an oldage pension but she continued to work, so her income after 2007 rose to 110-120% of the average gross salary. 26. The applicant has a daughter who also worked since 2004. She earned between 40 and 60% of the average gross salary in Poland in the years 2004-2009. | 1 |
test | 001-147621 | ENG | ROU | CHAMBER | 2,014 | CASE OF TIREAN v. ROMANIA | 4 | Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect) | Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall | 5. The applicant was born in 1957. He is currently detained in Timişoara Prison. 6. On 28 December 2009 the Cluj Directorate for Investigating and Combating Organised Crime and Terrorism (“DIICOT”) charged the applicant with aggravated fraud and organising a criminal group, and placed him in police custody for twenty-four hours. 7. By an interlocutory judgment of 29 December 2009 the Cluj County Court allowed a request by DIICOT to detain the applicant pending trial for thirty days. On the same date he was detained in the Cluj Police Department. His pre-trial detention was subsequently extended to cover the entire duration of his trial. 8. By a judgment of 5 December 2011 the Cluj County Court convicted the applicant of aggravated fraud and organising a criminal group, and sentenced him to four years’ imprisonment. The judgment remained final, after the Cluj Court of Appeal dismissed an appeal by the applicant on 29 May 2012 and the Court of Cassation dismissed an appeal by him on points of law (recurs) on 24 September 2012. 9. In his initial letters to the Court, the applicant contended, without providing details, that during the criminal investigation opened against him in 2009 he had been beaten up by police officers. 10. On 17 June 2010 he brought civil proceedings against the Romanian Ministries of Finance and Justice seeking financial compensation for inadequate medical treatment during his pre-trial detention. In his written submissions he also stated that he had been subjected to violence after his arrest. 11. By a final judgment of 7 January 2011 the Cluj County Court dismissed the proceedings as inadmissible on the grounds that it was not competent ratione loci to examine his claim. It referred the case to the Bihor County Court. 12. By a judgment of 31 October 2011 the Bihor County Court dismissed the proceedings on the grounds that the statute of limitations for his claim had taken effect. In addition, the Romanian Ministries of Finance and Justice lacked the locus standi to be sued. There is no evidence in the file that the applicant appealed against the judgment. 13. In his letters to the Court, the applicant contended that in Aiud, Gherla, Rahova, Jilava, Slobozia, Dej and Miercurea-Ciuc Prisons he had been forced to share cells with between thirty and forty-five smokers, even though he was a non-smoker. They had been noisy and violent. Also, he would constantly be transferred from one prison to another, sometimes for distances of up to 400 kilometres in a vehicle with between thirty and forty detainees, who would smoke, eat and be noisy. Moreover, he had not been provided with adequate medical care during his pre-trial detention. 14. Between 8 January and 3 March 2010 the applicant was detained on several occasions in Dej Prison Hospital for a total of thirty-nine days, in non-smoking cells. He was afforded between 4 and 5.62 sq. m of living space, and was provided with adequate medical treatment for his condition. 15. Between 3 February 2010 and 18 January 2011 he was detained in Gherla Prison on several occasions for a total of two hundred and seventyfour days, in non-smoking cells. For sixty-three days of his detention he was afforded 5.31 sq. m of living space. For the remaining period he was afforded between 2.06 and 3.43 sq. m of living space. 16. Between 10 and 15 February 2010 the applicant was detained on two occasions in Jilava Prison for a total of four days, in non-smoking cells. For most of his stay he was afforded between 1.78 and 3.69 sq. m of living space; however, for a few hours he was afforded 6.38 sq. m or more of living space. 17. Between 9 and 11 February 2010 the applicant was detained in Slobozia Prison for three days, in a non-smoking cell. He was afforded 4.66 sq. m of living space. 18. Between 11 May and 8 November 2010 the applicant was detained repeatedly in Jilava Prison Hospital for a total of forty-five days, in nonsmoking cells. He was afforded between 4.68 and 5.43 sq. m of living space, and was provided with adequate medical treatment for his condition. 19. On 4 October 2010 the applicant was detained in Rahova Prison for three days, in a non-smoking cell. He was afforded 2.10 sq. m of living space. 20. On 23 December 2010 the applicant was detained in Miercurea-Ciuc Prison for twelve days. He was afforded 1.80 sq. m of living space. 21. The applicant was detained in Aiud Prison repeatedly, but only while in transit to another facility. He would only remain there for a few hours, in a non-smoking cell, and would be afforded between 1.45 and 2.05 sq. m of living space. 22. The applicant was transferred between detention facilities in twentytwo special vehicles fitted with windows, lights, heating and sunroofs. The vehicles had between sixteen and thirty-eight seats. The number of detainees transported would never exceed the number of available seats. Detainees were provided with food and water during transfers, and were allowed bathroom breaks and access to running water and smoking areas every time the vehicle stopped at a prison. Smoking was strictly prohibited during transfers. 23. During his detention, the applicant had refused to provide information on his pre-existing medical condition and had repeatedly refused treatment for his chronic and psychiatric problems. 24. On 18 January 2011 the applicant was released from pre-trial detention under the condition not lo leave the country pending the outcome of the criminal proceedings opened against him. 25. On 10 June 2013 the applicant was detained again following his conviction of 24 September 2012 (see paragraph 8 above) and was incarcerated in Timişoara Prison. | 1 |
test | 001-157325 | ENG | SWE | CHAMBER | 2,015 | CASE OF R.H. v. SWEDEN | 3 | Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Somalia) | Aleš Pejchal;André Potocki;Ganna Yudkivska;Helena Jäderblom;Johan Hirschfeldt;Mark Villiger;Vincent A. De Gaetano | 7. The applicant was born in 1988. 8. On 27 December 2011 the applicant applied for asylum and a residence permit in Sweden and claimed that she had arrived in Sweden on 11 December the same year. In an interview with the Migration Board (Migrationsverket), at which she was informed that a search in the European asylum fingerprint database EURODAC had revealed that she had applied for asylum in the Netherlands in December 2006, the applicant stated that she had arrived in Sweden in 2007 from the Netherlands and had remained illegally in Sweden since then. She had been afraid to contact the Swedish authorities since she did not want to be returned to the Netherlands as she would be sent onwards to Italy where she had no housing or opportunity to support herself. She wanted to remain in Sweden where cousins of hers were living. 9. As the applicant had applied for asylum in the Netherlands – under a different name and birth date – the Migration Board requested that that country take her back in accordance with the Dublin Regulation. The Dutch authorities refused, however, as she had previously applied for asylum in Italy, under a slightly different name than that given to the Board. The Italian authorities were then requested to take back the applicant. The Italian authorities did not reply to the request within the prescribed time-limit and were consequently, under Article 20(1)(c) of the Regulation, considered to have agreed to receive her. Accordingly, on 24 April 2012, the Migration Board dismissed the asylum application and decided to transfer the applicant to Italy. 10. However, the decision became time-barred before the transfer could be realised. On 30 November 2012 the applicant therefore applied for asylum and a residence permit in Sweden again. At an asylum interview in January 2013, which lasted for two and a half hours, she submitted essentially the following. In November 2004 her family had forced her to marry an older man against her will. At the time she had for about a year had a secret relationship with a boy from school. This relationship was revealed a few days after the forced marriage when the applicant and her boyfriend had tried to escape from Mogadishu together. They had been detected by her uncles when they had been sitting on the loading platform of a truck. Both she and her boyfriend had been beaten and thrown off the truck. She had sustained injuries to her hips and had been hospitalised for a few months. Thereafter she had lived at home until August 2005 when her father had considered that her health condition permitted her to move in with her husband. She had then contacted her boyfriend and they had fled together, first to Ethiopia and then to Sudan and eventually to Libya in order to take a boat to Italy. However, the boat had sunk and the boyfriend had died. Later, while in Sweden, she had learned that her father had died in 2010 and her mother in 2011. If returned to Somalia, the applicant claimed that she would have to return to the man whom she had been forced to marry, unless she were sentenced to death for fleeing the marriage and the country. These threats would be carried out by her uncles. The applicant further asserted that she lacked a male support network in Somalia and therefore risked being sexually assaulted. As a single woman, she would further not be able to rent accommodation or otherwise organise her life and would risk becoming a social outcast. She also invoked the generally dire humanitarian situation in Somalia and, in particular, claimed that she was unlikely to find the help still needed for her injured hips. 11. On 8 March 2013 the Migration Board rejected the applicant’s application for asylum and ordered her deportation to Somalia. At the outset, the Board found that she had failed to substantiate her identity, noting in particular that she had not submitted any identification papers and had previously applied for asylum in the Netherlands and Italy under different identities. However, it found it plausible that the applicant originated from Mogadishu. Noting that she had arrived in Sweden in 2007 but had not applied for asylum until the end of 2011 – and had thus not reported a need for protection during a period of more than four years – the Board called into question whether she had felt a real need for protection. Turning to the substantive allegations presented by the applicant in support of her application, the Board considered that they were marred with credibility issues. For example, in her initial asylum application in 2011, she had stated that she was unmarried. Only during the asylum investigation following her renewed application in November 2012 had she claimed that she had married in Somalia in November 2004. The Board found that the applicant had failed to provide a sufficient explanation for this, particularly given that this was a crucial part of her story. Furthermore, in 2011 she had only invoked the armed conflict in the country as grounds for asylum and had stated that she could not remember how she had sustained the hip injury since she had been very young at the time. She had then also said that she had stayed with a female friend in Mogadishu before leaving the country whereas she later claimed that she had lived with her parents and siblings. The Board concluded that the applicant had failed to make plausible that she had been subjected to any ill-treatment by her relatives in Somalia and consequently had failed to show that she would lack a male support network there. It noted that, according to the applicant, her brother and uncles still lived in Mogadishu. Moreover, the Board examined the general situation in Mogadishu and the particular situation of women, based on information gathered at a fact-finding mission to the city in June 2012 and further information obtained thereafter, and considered that the circumstances were not of such severity that the applicant would be unable to return there, taking into account the finding that she had a male network to protect her. In this connection, the Board also noted that the applicant had not lived in a refugee camp before leaving the country and had not claimed that she would risk doing so upon return. 12. The applicant appealed to the Migration Court (Migrations-domstolen), maintaining her claims and adding, inter alia, the following. The security situation in Mogadishu was still very unstable and the particular situation of women in Somalia was extremely severe. She further asserted that, as her situation in Italy had been difficult, it was understandable that she had decided to apply for asylum under another identity in the Netherlands, in order to avoid being sent back. This had also been the reason why she had decided to stay illegally in Sweden. Moreover, she stated that the Migration Board had misunderstood her; she had stayed with a female friend in Sweden, not in Somalia where she had lived with her family. Furthermore, in her view, she was not married since she had not consented to the marriage or been present at the marriage ceremony. She submitted an x-ray image of her hip prostheses to show that she had been assaulted and injured. 13. On 4 June 2013 the Migration Court rejected the appeal, agreeing with the Migration Board’s reasoning and findings. The court subscribed to all the misgivings concerning credibility expressed by the Board. It added that, whereas the applicant initially had claimed to have been forcibly married in 2004, in a later submission to the Board she had stated that this had been decided by her father and her uncles in 2010. Since the applicant was in general not credible, the court did not believe her statement that she lacked a male support network in Somalia. Moreover, it considered that the submitted x-ray image did not show that the applicant had been subjected to ill-treatment in her home country. 14. By a decision of 15 July 2013 the Migration Court of Appeal (Migrationsöverdomstolen) refused leave to appeal. 15. Subsequently, the applicant requested that the Migration Board re-examine her case, claiming that there were impediments to the enforcement of the deportation order. She stated that she had recently found out that her uncle, who had previously physically assaulted her, had now joined al-Shabaab, and that he had killed her sister and forced her brother to join al-Shabaab. Thus, if returned to Somalia, she would risk being stoned to death by her uncle. 16. On 7 September 2013 the Migration Board rejected the petition, finding that no new circumstances justifying a reconsideration had been presented. It held that the alleged threats stemming from the applicant’s uncles had already been examined by the Board and the Migration Court and that, given her lack of credibility, a mere statement from her about her uncle’s actions was not sufficient to assume that she would risk being stoned upon return. The applicant did not appeal against the Board’s decision. | 0 |
test | 001-159805 | ENG | NLD | CHAMBER | 2,016 | CASE OF A.W.Q. AND D.H. v. THE NETHERLANDS | 4 | No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Afghanistan) | Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova | 6. The applicants are a married couple and were born in 1956 and 1966 respectively. They have been in the Netherlands since 1999. 7. The applicants and their three children (two daughters, A and B, born in, respectively, 1992 and 1993, and a son C, born in 1997) entered the Netherlands on 17 December 1999 and, on 26 December 1999, applied for asylum, fearing persecution within the meaning of the 1951 Geneva Convention Relating to the Status of Refugees (“the 1951 Convention”) and/or treatment in breach of Article 3 of the Convention from the mujahideen and/or the Taliban in Afghanistan on account of the first applicant’s professional activities during the former communist regime. 8. The first applicant submitted that he had become a member of the communist People’s Democratic Party of Afghanistan (“PDPA”) in 1978 and that, as a conscript, he had served in a battalion in Kabul from 1978 to January 1981. Feeling a moral obligation to serve his country, he had subsequently decided to join the army for a professional military career. 9. From March to December 1981 he had taken a preparatory course for university studies in the Soviet Union, which had mainly consisted of Russian language lessons. He had subsequently been sent by the Director of Political Affairs of the General Staff of the Ministry of Defence to the Minsk Higher Combined Arms Military Political School in Belarus, where he had studied between 1982 and 1986. On 5 July 1986 he had graduated with a Master’s degree in pedagogic and social sciences. 10. Holding the rank of captain, the applicant had been assigned to Division 5, which was responsible for controlling the border between Afghanistan and Iran. From September 1986 to December 1989 the first applicant had worked in that area in the political affairs division of the border security unit. He had been responsible for cultural matters, including propaganda, combating illiteracy amongst soldiers, and the creation of patriotic awareness amongst them. He had further been given the task of persuading deserters who had been caught to do their military service in the Afghan army. The first applicant stated that he had apprehended about 300 such deserters between 1986 and 1989, and that he had only failed in respect of fifteen of them to persuade them to do their military service. These fifteen individuals had been handed over to the Military Public Prosecutor. In 1988 he had been promoted to the rank of senior captain. 11. In 1990 he had been appointed first secretary or deputy scientific officer of the Army Museum in Kabul, which fell under the responsibility of the propaganda division of the Ministry of Defence. He had been responsible for collecting weapons for the museum. He had later been promoted to deputy director of the museum and, holding the rank of major, had worked in that function until 1992. 12. The first applicant’s problems had started after the mujahideen had taken power in 1992. Mujahideen had come to the army museum to take exhibits which they thought were valuable as weaponry or otherwise. When they recognised the first applicant as an army officer who had worked for the former regime, the mujahideen had incarcerated him – together with three other officers and a soldier – in the basement of the museum. He had been released after a week. The mujahideen had wanted him to cooperate with them by helping them to take arms and ammunition out of the museum. He had refused all such requests, which had led to aggressive behaviour towards him on the part of the mujahideen. The first applicant had repeatedly reported this attitude to these mujahideen’s superiors in the Ministry of Defence, namely two generals with whom the first applicant had collaborated during the former communist regime. These two generals had both remained in their position at the Ministry of Defence and were working with the Hezb-e-Harakat-e-Islami of Ahmad Shah Massoud. After the museum had been placed under the control of a mujahideen commander, the first applicant had resigned in March 1994 and taken the keys of the museum to the Ministry of Defence, to be given to one of the two generals. 13. The second applicant – who had also applied for asylum on behalf of the applicants’ children – had worked as a guide in the same army museum in Kabul when the city was captured in 1992 by the mujahideen. Under pressure from the mujahideen and in the footsteps of her husband, she had also resigned from her job in 1994. 14. Shortly after the first applicant had resigned from his post in the museum, the applicants received a written death threat in the courtyard of their house: the house was destroyed a few days later. After a brief stay with the second applicant’s father in another neighbourhood of Kabul, the applicants moved in March 1994 to Kunduz, which was under the control of followers of Ahmad Shah Massoud, who – like the applicants – was of Tajik origin. In Kunduz, the applicants lived off the income generated by land owned by the first applicant’s family, and the first applicant, admittedly not out of any financial necessity, opened a small shop in order to have something to do. 15. In April or May 1998 – after the Taliban had seized power in Kunduz on 26 June 1997 – two of the first applicant’s cousins appeared at the applicants’ house together with eight to ten Taliban. According to the first applicant, he had been betrayed by these two relatives. They had informed the Taliban of his position under the former communist regime and his whereabouts. The Taliban conducted a search for weapons in the applicants’ house. Although they found none, the Taliban arrested the first applicant and his brother. They were separated shortly after their arrest. 16. During his detention by the Taliban, for the first two weeks in a basement on a military base in Kunduz and subsequently in the Kunduz prison, the first applicant had been interrogated, ill-treated and forced to perform hard labour. As it happened sometimes that in the evening hours two or three detainees were taken away from the cell they shared with the applicant and others and were never seen again, the first applicant feared for his life during his detention. 17. On a date he could not remember, the first applicant was taken before a tribunal composed of four mullahs, who interrogated him whilst he was being ill-treated. He was subsequently forced to place his fingerprint on documents, most of which were written in Arabic. 18. During his subsequent transport in a convoy consisting of five cars from Kunduz to a prison in Kabul, the first applicant had managed to escape when the convoy had come under armed attack, he believed by followers of Ahmad Shah Massoud. The first applicant had then fled to Mazar-i-Sharif, where he had been joined by his family on 7 November 1999. On 12 November 1999 the applicants and their children had left Afghanistan. 19. The first applicant was interviewed by Dutch immigration officials about his flight and the motives for it on three occasions; the second applicant on two occasions. On 8 January 2004 they were informed of the intention (voornemen) of the Minister for Immigration and Integration (Minister voor Vreemdelingzaken en Integratie) to refuse them asylum. Having noted the first applicant’s asylum account, an official general report (ambtsbericht), drawn up on 29 February 2000 by the Netherlands Ministry of Foreign Affairs on “Security Services in Communist Afghanistan (1978-1992). AGSA, KAM, KhAD and WAD” (“Veiligheidsdiensten in communistisch Afghanistan (1978-1992), AGSA, KAM, KhAD en WAD”), and two different person-specific official reports (individuele ambts-berichten), DPC/AM 635082 and DPC/AM 696035, both drawn up by the Ministry of Foreign Affairs on 15 December 2000, the Minister decided to refuse the first applicant asylum and to hold Article 1F of the 1951 Geneva Convention relating to the Status of Refugees (“the 1951 Refugee Convention”) against him. On 4 February 2004, a lawyer acting on behalf of the applicants submitted written comments (zienswijze) on this intention. 20. After interviewing both applicants once more, the Minister rejected their asylum applications, in separate decisions taken on 17 February 2004. The elaborately argued notices of intention of 8 January 2004 were added to the decisions and formed part of them. 21. The Minister found, inter alia, that the first applicant constituted a danger to public order (openbare orde), as serious reasons had been found for believing that he had committed crimes referred to in Article 1F of the 1951 Refugee Convention, thus excluding him from international protection under the 1951 Convention . Although the Minister attached credence to the first applicant’s statements in terms of his positions and career within the Afghan army, the applicant’s description of his tasks was deemed to be inaccurate. His statements relating to certain of the tasks he said he had performed (namely his stated activities relating to what was called the PDPA’s national reconciliation policy, amnesty, reconstruction and demilitarisation) were found to be highly implausible. 22. On the basis of the two person-specific official reports of 15 December 2000, the Minister found that, at the relevant time, the political affairs divisions of the Afghan army consisted solely of highly loyal and skilled professional soldiers, that people working for these divisions regularly provided the security service KhAD/WAD with person-specific and general information (“Khadimat-e Atal’at-e Dowlati / Wezarat-e Amniyat-e Dowlati”; the KhAD was set up in 1980 and transformed in 1986 into a ministry called “WAD”, which remained in existence until the communist regime fell in 1992. Although the WAD was the successor of the KhAD, the security service continued to be commonly referred to as KhAD); those working for the political affairs divisions had relatively easy access to the PDPA leadership, and one of their tasks had been to remove anti-government soldiers from the army, if need be with the help of the KhAD. They were thus inextricably connected to the frequent arrests, torture, disappearances and/or executions of disloyal members of the army by the KhAD. 23. The Minister emphasised the widely known cruel character of the KhAD, its lawless methods, the grave crimes it had committed such as torture and other human rights violations, and the “climate of terror” which it had spread throughout the whole of Afghan society, including the army. The Minister underlined the vague definition of “enemy of the communist regime” used by the KhAD, how it found those enemies through an extensive network of spies, and how all of this led to widespread and often random arrests of suspects. The Minister relied in this regard on the general official report of 29 February 2000. 24. Having established, on the basis of elaborate argumentation based on various international documents, that those involved in KhAD and the political affairs divisions of the Afghan army were likely to fall within the scope of Article 1F of the Refugee Convention, the Minister proceeded to an analysis of the first applicant’s individual responsibility under that Convention on the basis of the prescribed test known as the “personal and knowing participation test”. 25. On this point, the Minister found that, in view of the contents of the aforementioned official reports of the Ministry of Foreign Affairs, the first applicant had known or should have known about the criminal character of the KhAD, given his position in one of the political affairs divisions of the army and the contacts he had maintained professionally. The Minister further found that the first applicant had directly facilitated the crimes committed by KhAD by performing his tasks in the Afghan army, inter alia the attributed task of arresting and persuading deserters trying to flee across the border to continue military service, failure of which led to the handing over of these deserters to the office of the Military Public Prosecutor. 26. As regards Article 3 of the Convention, the Minister noted that, during an additional interview on his asylum motives held on 1 July 2003, the first applicant had been explicitly invited to submit specific evidence that he would be exposed to a risk of treatment contrary to Article 3 in Afghanistan. The Minister found that the first applicant had not furnished sufficient specific grounds to establish that he would run a real risk of treatment contrary to this provision if returned to Afghanistan. Thus, he had failed to indicate which specific persons or groups would be looking for him, and had only stated in generally phrased terms that he feared persecution by the mujahideen. In respect of the first applicant’s alleged fear of returning to Afghanistan as a (former) member of the PDPA, the Minister held that the first applicant was in a position not dissimilar to that of many other Afghan nationals. Furthermore, the Minister, with reference to the most recent general official report on Afghanistan issued by the Ministry of Foreign Affairs on 12 November 2003, held that the sole fact that an asylum seeker had been a member of the PDPA did not in itself suffice to render Article 3 applicable in the eventuality of an expulsion. 27. Separate appeals by the applicants were rejected in two distinct judgments handed down on 4 August 2005 by the Regional Court (rechtbank) of The Hague, sitting in Assen. 28. As regards the first applicant, the Regional Court accepted the Minister’s decision to hold Article 1F of the 1951 Refugee Convention against the first applicant. It also rejected the first applicant’s arguments based on Article 3 of the Convention. It agreed with the Minister that the first applicant’s fear that he would be subjected to treatment in breach of this provision was based on assumptions, and that he had not submitted any specific evidence of the identity of the person(s) or group(s), or for what reasons, he expected to encounter problems if he were returned to Afghanistan, whereas – according to an official country assessment report on Afghanistan issued by the Ministry of Foreign Affairs on 12 November 2003 – mere membership of the PDPA and active participation in its regime was in itself not enough to raise an issue under Article 3 of the Convention in the event of expulsion of the alien in question. It further rejected, for lack of substantiation, the first applicant’s claim that the International Security Assistance Force (ISAF) in Afghanistan would be unable to provide him with sustained protection. 29. Further separate appeals by the applicants were rejected on summary reasoning on 19 December 2005, in two distinct rulings given by the Administrative Jurisdiction Division (Afdeling Bestuursrechtspraak) of the Council of State (Raad van State). It found that the further appeals did not provide grounds for quashing the impugned rulings (kan niet tot vernietiging van de aangevallen uitspraak leiden). Having regard to section 91 § 2 of the Aliens Act 2000 (Vreemdelingenwet 2000), no further reasoning was called for, as the arguments submitted did not raise any questions requiring a determination in the interest of legal unity, legal development or legal protection in the general sense. No further appeal lay against these rulings. 30. On 2 February 2006, the applicants’ fourth child, a daughter named Mina, was born in the Netherlands. 31. On 29 August 2006, the applicants applied for a regular, non-asylum-related, residence permit. This request was rejected on 6 January 2007. The applicant’s objection (bezwaar) was dismissed on 4 December 2007 by the Deputy Minister of Justice (Staatssecretaris van Justitie). The applicants initially lodged an appeal with the Regional Court of The Hague, but withdrew this appeal on 15 July 2008. 32. In the meantime, on 19 February 2008, the second applicant had submitted a fresh asylum claim for herself and on behalf of the three youngest children. The applicants’ eldest daughter had made her own asylum claim. Pursuant to section 4:6 of the General Administrative Law Act (Algemene wet bestuursrecht), a repeat claim – like the one submitted by the second applicant – must be based on newly emerged facts and/or altered circumstances (“nova”) warranting a reconsideration of the initial refusal. The asylum claim submitted by the second applicant and her eldest daughter was based on the claim that they had become westernised. The oldest daughter further claimed that she feared being forced into marriage. 33. On 17 September 2010, after an initial negative decision had been quashed on appeal, the Minister of Justice allowed the asylum claim submitted by the second applicant and the three youngest children. The eldest daughter was also granted asylum. 34. More than a year earlier, namely on 12 February 2009 and at the applicants’ request, the President of the Chamber had decided to indicate to the Government of the Netherlands that it was desirable in the interests of the parties and the proper conduct of the proceedings before the Court not to remove the applicants to Afghanistan for the duration of the proceedings before the Court (Rule 39 of the Rules of Court). At the same time, the President had decided under Rule 54 § 2 (b) that the Government should be invited to submit written observations on the admissibility and merits of the case. 35. Also, on 27 February 2009 the first applicant had submitted a fresh asylum claim, based on the alleged deterioration in the general security situation in Afghanistan and an increased individual risk of treatment prohibited by Article 3, namely the fact that he was an ex-communist, that he was an atheist and thus belonged to a religious minority, and the fact that he had lived abroad for a long period. He also claimed that, due to his work, he was well known in Afghanistan and was prominent in Afghan circles in the Netherlands. On 19 February 2010, the first applicant was informed of the intention of the Deputy Minister of Justice to reject this request. The first applicant submitted written comments (zienswijze) on this intention on 6 April 2010. 36. This request was rejected on 22 October 2010 by the Minister for Immigration, Integration and Asylum Policy (Minister voor Immigratie, Integratie en Asiel). An appeal by the first applicant against this decision was rejected on 31 October 2011 by the Regional Court of The Hague sitting in ‘s-Hertogenbosch. It found that the first applicant had not shown evidence that the general security situation in Afghanistan had deteriorated since the determination of his first asylum request, or that the further elements relied on by him did not constitute “nova” warranting a reconsideration of the decision taken on his initial asylum request. In so far as the first applicant relied on Article 8 of the Convention, the Regional Court held that asylum proceedings offered no scope for such arguments, which should be raised in proceedings on a request for a non-asylum-based residence permit, and that it was open for the first applicant to apply for a residence permit based on his family life within the meaning of Article 8. A further appeal by the applicant was dismissed by the Administrative Jurisdiction Division on 31 October 2012. No further appeal lay against this ruling. | 0 |
test | 001-177222 | ENG | RUS | COMMITTEE | 2,017 | CASE OF VOROBYEVA AND OTHERS v. RUSSIA | 4 | Violation of Article 6 - Right to a fair trial (Article 6-1 - Access to court) | Dmitry Dedov;Luis López Guerra | 5. The applicants lived in a dormitory in Lipetsk, Russia. The dormitory was mainly inhabited by the students and the staff of the Lipetsk Metallurgy College (“the College”). 6. In 2000 the joint-stock company “NLMK” (“the Company”) registered its title over that dormitory as a result of privatisation. 7. The applicants brought a case against the Company seeking to obtain a title to the rooms they lived in. They argued in particular that the privatisation of the dormitory had taken place in violation of the legislation and that the Company could not be declared as a sole owner of the property. The Lipetsk Metallurgy College was also involved into the case as a third party. 8. On 19 April 2010 the Oktyabrskiy District Court of Lipetsk found for the applicants and granted their claims. The District Court found that the dormitory was transferred to the Company in breach of domestic law. 9. On 2 June 2010 the appeal court upheld the judgment and it became final. 10. In August 2010 the applicants registered their title to the dormitory rooms and subsequently sold them to third parties. 11. On 12 April 2011 the Company lodged a request with the Oktyabrskiy District Court of Lipetsk seeking to reopen the proceedings on the grounds of newly discovered circumstances. It relied on the order of the College’s director and a lease agreement concluded in 2008 between the Company and the College in respect of the dormitory. The Company further argued that it had not been aware of those documents since they were possessed by the College. 12. On 12 May 2011 the Oktyabrskiy District Court of Lipetsk quashed the judgment of 19 April 2010. The court found in particular that the documents presented by the Company might have had significant impact on the outcome of the case and thus they constituted “newly discovered circumstances”. 13. On 31 August 2011 as a result of the fresh consideration of the case the Oktyabrskiy District Court of Lipetsk rejected the applicants’ claims and ordered reversal of execution of the judgment of 19 April 2010. This judgment was upheld on 26 October 2011 by the Lipetsk Regional Court. | 1 |
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